Cross references.

- Securing of attendance of prisoners at trials, § 24-13-60 et seq.

Criminal Justice Coordinating Council, T. 35, C. 6A.

Power of municipal corporations to confine persons convicted of violating municipal ordinances, § 36-30-8.

Law reviews.

- For note, "Translating the Eighth Amendment Standard: The First Circuit's Denial of a Transgender Prisoner's Constitutional Right to Medical Treatment," see 51 Ga. L. Rev. 585 (2017).

CHAPTER 1 GENERAL PROVISIONS

Article 1 Inmate Policies.
Article 2 Sexual Offender Registration Review Board.

ARTICLE 1 INMATE POLICIES

Editor's notes.

- Ga. L. 2006, p. 379, § 24/HB 1059, designated Code Sections 42-1-1 through 42-1-11 as Article 1 of this chapter.

Law reviews.

- For article on 2006 amendment of this article, see 23 Ga. St. U.L. Rev. 11 (2006). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017).

42-1-1. Definitions.

Except as specifically provided otherwise, as used in this title, the term:

  1. "Board" means the Board of Corrections.
  2. "Case plan" means an individualized accountability and behavior change strategy for a probationer, as applicable.
  3. "Commissioner" means the commissioner of corrections.
  4. "Criminal risk factors" means characteristics and behaviors that affect a person's risk for committing future crimes and include, but are not limited to, antisocial behavior, antisocial personality, criminal thinking, criminal associates, having a dysfunctional family, having low levels of employment or education, poor use of leisure and recreation time, and substance abuse.
  5. "Department" means the Department of Corrections.
  6. "Graduated sanctions" means:
    1. Verbal and written warnings;
    2. Increased restrictions and reporting requirements;
    3. Community service or work crews;
    4. Referral to substance abuse or mental health treatment or counseling programs in the community;
    5. Increased substance abuse screening and monitoring;
    6. Electronic monitoring, as such term is defined in Code Section 42-3-111; and
    7. An intensive supervision program.
  7. "Risk and needs assessment" means an actuarial tool, approved by the board and validated on a targeted population, scientifically proven to determine a person's risk to recidivate and to identify criminal risk factors that, when properly addressed, can reduce that person's likelihood of committing future criminal behavior.

(Ga. L. 1921, p. 243, §§ 3, 5; Code 1933, §§ 27-504, 27-9903; Ga. L. 2012, p. 899, § 7-1/HB 1176; Ga. L. 2013, p. 222, § 17/HB 349; Ga. L. 2015, p. 422, § 5-62/HB 310.)

The 2012 amendment, effective July 1, 2012, substituted the present provisions of this Code section for the former provisions, which read: "(a) No employee of a penal institution may give advice to an inmate regarding the name or the employment of an attorney at law in any case where the inmate is confined in a penal institution or receive any sum of money paid as fees or otherwise to attorneys at law in a criminal case or cases against any inmate with which they may be connected in any capacity.

"(b) Any person who violates this Code section shall be guilty of a misdemeanor." See Editor's notes for applicability.

The 2013 amendment, effective July 1, 2013, deleted former paragraph (1), which read: " 'Active supervision' means the period of a probated sentence in which a probationer actively reports to his or her probation supervisor or is otherwise under the direct supervision of a probation supervisor."; deleted former paragraph (2), which read: "'Administrative supervision' means the period of probation supervision that has reduced supervision and reporting requirements commensurate with and that follows active supervision but that is prior to the termination of a sentence."; and redesignated former paragraphs (3) through (9) as present paragraphs (1) through (7), respectively. See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, substituted "42-3-111" for "42-8-151" in subparagraph (6)(F). See Editor's notes for applicability.

Cross references.

- Solicitation on behalf of attorneys generally, § 15-19-55.

Editor's notes.

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 290 (2012). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U. L. Rev. 17 (2013). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

RESEARCH REFERENCES

C.J.S.

- 7A C.J.S., Attorney and Client, §§ 167, 170, 171. 8 C.J.S., Bail, §§ 2, 3, 4.

ALR.

- Propriety of telephone testimony or hearings in prison proceedings, 9 A.L.R.5th 451.

42-1-2. Reward for information leading to capture of escaped inmate of penal institution under jurisdiction of Board of Corrections.

  1. Any person, other than a law enforcement officer, who furnishes information leading to the capture of an escaped inmate from a penal institution under the jurisdiction of the Board of Corrections may receive a reward of up to $200.00 which shall be payable at the time the escaped inmate is returned to the custody of the Board of Corrections. The commissioner of corrections, at his discretion, may pay the reward to any person from funds appropriated or otherwise available to the Department of Corrections.
  2. When more than one person furnishes information which would entitle them to receive the rewards pursuant to subsection (a) of this Code section, the reward shall be paid to the first person furnishing the information; and, if more than one person furnishes the information at the same time, the reward shall be prorated among all persons furnishing such information.

(Code 1933, § 27-101.3, enacted by Ga. L. 1972, p. 574, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.)

Cross references.

- Criminal penalties relating to escape of persons from lawful custody, §§ 16-10-52 and16-10-53.

Reward for detection or apprehension of person committing felony, for information leading to identification of person who murders law enforcement officer, §§ 45-12-35 through45-12-37.

RESEARCH REFERENCES

Am. Jur. 2d.

- 67 Am. Jur. 2d, Rewards, §§ 9-13, 26, 30-32.

21B Am. Jur. Pleading and Practice Forms, Rewards, § 2.

ALR.

- Construction of statute authorizing public authorities to offer rewards for arrest and conviction of persons guilty of crime, 86 A.L.R. 579.

Right to reward of furnisher of information leading to arrest and conviction of offenders, 100 A.L.R.2d 573.

Validity, construction, and application of statutes regulating bail bond business, 13 A.L.R.3d 618.

Knowledge of reward as condition of right thereto, 86 A.L.R.3d 1142.

Validity, construction, and application of state statutory requirement that person convicted of sexual offense in other jurisdiction register or be classified as sexual offender in forum state, 34 A.L.R.6th 171.

42-1-3. Defendant sentenced to death or life imprisonment not to be made trusty during time case on appeal; manner of confinement of defendant.

Any defendant who has been convicted of a felony and sentenced to death or life imprisonment shall not be made a trusty at any penal institution or facility in this state during the time that his case is on appeal. The defendant shall be confined in the same manner as other prisoners.

(Ga. L. 1981, p. 1429, § 2.)

Cross references.

- Death penalty generally, § 17-10-30 et seq.

42-1-4. Work-release programs for county prisoners.

  1. Any person sentenced to confinement as a county prisoner under paragraph (1) of subsection (a) of Code Section 17-10-3 or otherwise sentenced to confinement as a county prisoner may, if there is reasonable cause to believe that he will honor his trust, be allowed to participate in a work-release program as authorized by this Code section. Participation in a work-release program shall be voluntary on the part of the inmate.
  2. When an inmate receives permission to participate in a work-release program, the limits of the place of the confinement of the inmate shall be expanded by allowing the inmate under prescribed conditions to work at paid employment or participate in a training program in the community while continuing as an inmate of the institution to which he is committed. The willful failure of an inmate to remain within the extended limits of his confinement or to return within the prescribed time to the institution shall constitute an escape from the institution and shall be punished as provided in Code Section 16-10-52.
  3. If there is reasonable cause to believe that an inmate will honor his trust, the inmate may be authorized to participate in a work-release program by:
    1. The sentencing judge at the time of sentencing; or
    2. The sheriff, warden, or other official in charge of the institution to which the inmate is committed if written approval is obtained from the sentencing judge.
  4. An inmate authorized to participate in a work-release program under this Code section shall comply with all rules and regulations promulgated by the institution in which he is confined relative to the handling, disbursement, and holding in trust of all funds earned by the inmate while under the jurisdiction of the institution. An amount determined to be the cost of the inmate's keep and confinement shall be deducted from the earnings of each inmate, and such amount shall be deposited in the treasury of the county. After deduction for keep and confinement the official in charge of the institution shall:
    1. Allow the inmate to draw from the balance a reasonable sum to cover his incidental expenses;
    2. Retain to the inmate's credit an amount as deemed necessary to accumulate a reasonable sum to be paid to him on his release from the institution; and
    3. Cause to be paid any additional balance as is needed for the support of the inmate's dependents.
  5. No inmate participating in a work-release program under this Code section shall be deemed to be an agent, employee, or involuntary servant of the county while working or participating in training or going to and from his place of employment or training.

(Code 1981, §42-1-4, enacted by Ga. L. 1985, p. 1259, § 1.)

Cross references.

- Work-release, educational, and habilitative programs for county prisoners, § 42-1-9.

Editor's notes.

- Both Ga. L. 1985, p. 1259, § 1 and Ga. L. 1985, p. 1483, § 1 enacted a Code Section 42-1-4. The former has been set out as Code Section 42-1-4 and the latter as Code Section 42-1-5.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 139.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 29, 59.

42-1-5. Use of inmate for private gain.

  1. As used in this Code section, the term:
    1. "Custodian" means a warden, sheriff, jailer, deputy sheriff, police officer, or any other law enforcement officer having actual custody of an inmate.
    2. "Inmate" means any person who is lawfully incarcerated in a penal institution.
    3. "Penal institution" means any place of confinement for persons accused of or convicted of violating a law of this state or an ordinance of a political subdivision of this state.
  2. It shall be unlawful for a custodian of an inmate of a penal institution to use such inmate or allow such inmate to be used for any purpose resulting in private gain to any individual.
  3. Any person who violates subsection (b) of this Code section shall be guilty of a misdemeanor.
  4. This Code section shall not apply to:
    1. Work on private property because of natural disasters;

      (1.1) Work on private property as a form of victim compensation in accordance with Chapter 15A of Title 17;

    2. Work or other programs or releases which have the prior approval of the board or commissioner of corrections;
    3. Community service work programs;
    4. Work-release programs; or
    5. Work programs authorized by Article 6 of Chapter 5 of this title.

(Code 1981, §42-1-4, enacted by Ga. L. 1985, p. 1483, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 2003, p. 252, § 2; Ga. L. 2005, p. 1222, § 3/HB 58.)

Code Commission notes.

- Both Ga. L. 1985, p. 1259 and Ga. L. 1985, p. 1483 enacted a Code Section 42-1-4. Additionally, Ga. L. 1985, p. 1483 contained "board or commissioner of offender rehabilitation" in paragraph (2) of subsection (d). Pursuant to Code Section 28-9-5, this Code section has been renumbered Code Section 42-1-5 and "offender rehabilitation" changed to "corrections."

Editor's notes.

- Ga. L. 2005, p. 1222, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Working Against Recidivism Act.'"

Ga. L. 2005, p. 1222, § 2, not codified by the General Assembly, provides that: "The General Assembly finds and declares that:

"(1) Many persons sentenced to confinement for criminal offenses commit additional criminal offenses after release from confinement, and such recidivism is a serious danger to public safety and a major source of expense to the state;

"(2) Under the appropriate conditions and limitations, work programs of voluntary labor by inmates of state and county correctional institutions for privately owned profit-making employers to produce goods, services, or goods and services for sale to public or private purchasers provide substantial public benefits by:

"(A) Providing job experience and skills to participating inmates;

"(B) Allowing participating inmates to accumulate savings available for their use when released from the correctional institution;

"(C) Lowering recidivism rates;

"(D) Generating taxes from inmate income;

"(E) Reducing the cost of incarceration by enabling participating inmates to pay room and board; and

"(F) Providing participating inmates income to pay fines, restitution, and family support;

"(3) Appropriate conditions and limitations for voluntary labor by inmates for such work programs include but are not limited to:

"(A) Assurance that inmates' work is voluntary;

"(B) Payment of inmates at wages at a rate not less than that paid for work of a similar nature in the locality in which the work is to be performed;

"(C) Provision of federal and state governmental benefits to participating inmates comparable to governmental benefits provided for similarly situated private sector workers;

"(D) Selection of participating inmates with careful attention to security issues;

"(E) Appropriate supervision of inmates during travel or employment outside the correctional institution;

"(F) Assurance that inmate labor will not result in the displacement of employed workers; be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality; or impair existing contracts for services;

"(G) Consultations with local private employers that may be economically impacted; and

"(H) Consultations with local labor union organizations and other local employee groups, especially those who have an interest in the trade or skill to be performed by the inmates; and

"(4) Requirements for the federal Prison Industry Enhancement Certification Program authorized by 18 U.S.C. Section 1761 and federal regulations are sufficient to ensure appropriate conditions and limitations in many areas of concern for programs of voluntary labor by inmates for privately owned profit-making employers to produce goods, services, or goods and services for sale to public and private purchasers."

JUDICIAL DECISIONS

Penal institution.

- Evidence was sufficient for a reasonable fact-finder to find beyond a reasonable doubt that the defendant committed the offense of riot in a penal institution because the state introduced evidence of the defendant's legal confinement, and the state's evidence regarding the prisoners housed at the county jail would have been sufficient for the jury to conclude that the jail constituted a penal institution within the meaning of O.C.G.A. § 16-10-56, and as defined in the jury charge, had the trial court not ruled on that issue as a matter of law. Paul v. State, 308 Ga. App. 275, 707 S.E.2d 171 (2011).

Cited in Smith v. Deering, 880 F. Supp. 816 (S.D. Ga. 1994).

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 141 et seq.

42-1-6. Injury or contact by inmate presenting possible threat of transmission of communicable disease.

If any inmate of any state or county correctional institution, county or municipal jail, or other similar facility, while such inmate is in custody or in the process of being taken into custody, injures or has injured or contacts or has contacted a law enforcement officer, correctional officer, firefighter, emergency medical technician, or other person in such a manner as to present a possible threat of transmission of a communicable disease to the person so injured or contacted, then the warden, jailer, or other official having charge of such inmate may take all reasonable steps to determine whether the inmate has a communicable disease capable of being transmitted by the injury or contact involved. Such steps may include, but shall not be limited to, any appropriate medical examination of or collection of medical specimens from the inmate. In the event an inmate refuses to cooperate in any such procedures, the warden, jailer, or other official may apply to the superior court of the county for an order authorizing the use of any degree of force reasonably necessary to complete such procedures. Upon a showing of probable cause that the injury presents the threat of transmission of a communicable disease, the court shall issue an order authorizing the petitioner to use reasonable measures to perform any medical procedures reasonably necessary to ascertain whether a communicable disease has been transmitted. In addition to any other grounds sufficient to show probable cause for the issuance of such an order, such probable cause may be conclusively established by evidence of the injury or contact in question and a statement by a licensed physician that the nature of the injury or contact is such as to present a threat of transmission of a communicable disease if the inmate has such a disease. The cost of any procedures carried out under this Code section shall be borne by the jurisdiction having custody of the inmate.

(Code 1981, §42-1-6, enacted by Ga. L. 1987, p. 1446, § 1; Ga. L. 2002, p. 660, § 4; Ga. L. 2002, p. 1259, § 11.)

42-1-7. Notification to transporting law enforcement agency of inmate's or patient's infectious or communicable disease.

  1. For the purposes of this Code section, the term "infectious or communicable disease" shall include infectious hepatitis, tuberculosis, influenza, measles, chicken pox, meningitis, HIV as defined in Code Section 31-22-9.1, or any venereal disease enumerated in Code Section 31-17-1.
  2. Notwithstanding any other provision of law, any state or county correctional institution, municipal or county detention facility, or any facility as defined in Code Section 37-3-1 shall notify any state or local law enforcement agency required to transport an inmate or patient if such inmate or patient has been diagnosed as having an infectious or communicable disease. Notification shall be limited to the fact that such inmate or patient has an infectious or communicable disease and whether such disease is airborne or transmissible by blood or other body fluids; provided, however, that the specific disease shall not be disclosed. The Department of Public Health shall provide a guide for appropriate precautions to be taken by any person or persons transporting such inmate or patient and shall develop a form to be used for the purpose of ensuring that such precautions are taken.
  3. Information released or obtained pursuant to this Code section shall be privileged and confidential and shall only be released or obtained by the institutions, facilities, or agencies who are parties to the transportation of the patient or inmate.Any person making an unauthorized disclosure of such information shall be guilty of a misdemeanor.

(Code 1981, §42-1-7, enacted by Ga. L. 1991, p. 1319, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Code Commission notes.

- Ga. L. 1991, p. 1319, § 1, Ga. L. 1991, p. 1348, § 1, and Ga. L. 1991, p. 1352, § 1, all purport to enact Code Section 42-1-7. Pursuant to Code Section 28-9-5, Ga. L. 1991, p. 1348, § 1, has been renumbered as Code Section 42-1-8 and Ga. L. 1991, p. 1352, § 1, has been renumbered as Code Section 42-1-9.

Law reviews.

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

42-1-8. Home arrest program.

  1. As used in this Code section, the term:
    1. "Educational program" means a program of learning recognized by the State Board of Education.
    2. "Habilitative program" means and includes an alcohol or drug treatment program, mental health program, family counseling, community service, or any other community program ordered or approved by the court having jurisdiction over the offender or by the sheriff.
    3. "Home arrest" means an electronic monitoring of an offender at a residence approved and accepted by the court, the sheriff, or the director or administrator of the home arrest program.
  2. Notwithstanding the provisions of Code Section 42-1-4, any person who is confined in a county jail (1) after conviction and sentencing, (2) pending completion of a presentencing report, or (3) after return for a violation of the terms of probation may, in the discretion of the sheriff and subject to the eligibility requirements set forth in subsection (d) of this Code section, be assigned to a home arrest program under supervision of the sheriff.If it appears to the court that an offender subject to its jurisdiction is a suitable candidate for a home arrest program, the court may, subject to the eligibility requirements of subsection (d) of this Code section, order the offender to a home arrest program. Further, the sheriff or the court may authorize the offender to participate in educational or other habilitative programs designed to supplement home arrest.
  3. Whenever the sheriff assigns an offender to home arrest, the court which sentenced such offender or before which such offender's case is pending shall be notified in writing by the sheriff or the director or administrator of the home arrest program to which the offender is assigned of the offender's place of employment and the location of any educational or habilitative program in which the offender participates.The court, in its discretion, may revoke the authority for any offender to participate in home arrest, whether such offender was assigned to home arrest by the court or the sheriff.The sheriff or home arrest director or administrator may enter into an agreement to accept into the local home arrest program offenders who are sentenced to home arrest or who have met all home arrest standards.
  4. In order to qualify for assignment to a home arrest program, an offender:
    1. May not be subject to any outstanding warrants or orders from any other court or law enforcement agency;
    2. Shall not have any criminal record or any history within the preceding five years of any assaultive offenses of an aggravated nature, including, but not limited to, aggravated assault; aggravated battery; rape; child molestation; robbery; trafficking or distribution of a controlled substance or marijuana; homicide by vehicle; felony bail-jumping; or escape; or
    3. May not have any life-threatening illnesses or disabilities that would interfere with the ability to work on a regular schedule.
  5. An offender's employment under this Code section shall be with a legitimate, recognized, and established employer.An offender assigned to a home arrest program who, without proper authority, leaves his home or the work area to which he is assigned, who leaves or fails to attend an assigned educational or other rehabilitative program, or who leaves the vehicle or route of travel in going to or returning from his assigned place of work shall be guilty of a misdemeanor. If the offender leaves the county or the area of restriction, he may be found guilty of escape under Code Section 16-10-52. An offender who is found guilty of a misdemeanor under this subsection or of escape shall be ineligible for further participation in a home arrest program during his current term of confinement.
  6. Any wages earned by an offender in home arrest under this Code section may, upon order of the court or the sheriff, be paid to the director or administrator of the home arrest program after standard payroll deductions required by federal or state law have been withheld.Distribution of such wages shall be made for the following purposes:
    1. To defray the cost of home arrest electronic monitoring equipment and supervision provided by the local jail or detention center, or to pay for any damage to the monitoring equipment in the offender's possession or the failure to return the equipment to the program;
    2. To pay travel and other such expenses of the offender necessitated by his home arrest employment or participation in an educational or rehabilitative program;
    3. To provide support and maintenance for the offender's dependents or to make payments to the local department of family and children services or probation, as appropriate, on behalf of any offender's dependents receiving public assistance;
    4. To pay any fines, restitution, or other costs ordered by the court; and
    5. Any balance remaining after payment of costs and expenses listed in paragraphs (1) through (4) of this subsection shall be retained to the credit of the offender and shall be paid to him upon release from confinement.
  7. No offender participating in home arrest pursuant to this Code section shall be deemed to be an agent, employee, or involuntary servant of the county while working or participating in educational or other habilitative programs or while traveling to or from the place of employment.
  8. Local jails shall qualify for compensation for costs of incarceration of all persons pursuant to this Code section, less any payments from the offender pursuant to subsection (f) of this Code section.

(Code 1981, §42-1-8, enacted by Ga. L. 1991, p. 1348, § 1.)

Code Commission notes.

- Ga. L. 1991, p. 1319, § 1, Ga. L. 1991, p. 1348, § 1, and Ga. L. 1991, p. 1352, § 1, all purport to enact Code Section 42-1-7. Pursuant to Code Section 28-9-5, Ga. L. 1991, p. 1348, § 1, has been renumbered as Code Section 42-1-8 and Ga. L. 1991, p. 1352, § 1, has been renumbered as Code Section 42-1-9.

Law reviews.

- For note on 1991 enactment of this Code section, see 8 Ga. St. U.L. Rev. 155 (1992).

42-1-9. Work-release, educational, and habilitative programs for county prisoners.

  1. As used in this Code section, the term:
    1. "Educational program" means a program of learning recognized by the State Board of Education.
    2. "Habilitative program" means and includes an alcohol or drug treatment program, mental health program, family counseling, community service, or any other community program ordered or approved by the court having jurisdiction over the offender or by the sheriff.
    3. "Work release" means full-time employment or participation in an acceptable and suitable vocational training program.
  2. Notwithstanding the provisions of Code Section 42-1-4, any person who is confined in a county jail (1) after conviction and sentencing, (2) pending completion of a presentencing report, or (3) after return for a violation of the terms of probation may, in the discretion of the sheriff and subject to the eligibility requirements set forth in subsection (d) of this Code section, be assigned to a work-release program under supervision of the sheriff.If it appears to the court that an offender subject to its jurisdiction is a suitable candidate for a work-release program, the court may, subject to the eligibility requirements of subsection (d) of this Code section, order the offender to a work-release program. Further, the sheriff or the court may authorize the offender inmate to participate in educational or other habilitative programs designed to supplement work release.
  3. Whenever the sheriff assigns an inmate to work release, the court which sentenced such offender or before which such offender's case is pending shall be notified in writing by the sheriff or the director or administrator of the work-release program to which the offender is assigned of the offender's place of employment and the location of any educational or habilitative program in which the offender participates.The court, in its discretion, may revoke the authority for any inmate to participate in work release, whether such inmate was assigned to work release by the court or the sheriff.The sheriff or work-release director or administrator may enter into an agreement to accept into the local work-release program inmates who are sentenced to work release or who have met all work-release standards.
  4. In order to qualify for assignment to a work-release program, an offender:
    1. May not be subject to any outstanding warrants or orders from any other court or law enforcement agency;
    2. Shall not have any criminal record or any history within the preceding five years of any assaultive offenses of an aggravated nature, including, but not limited to, aggravated assault; aggravated battery; rape; child molestation; robbery; trafficking or distribution of a controlled substance or marijuana; homicide by vehicle; felony bail-jumping; or escape; or
    3. May not have any life-threatening illnesses or disabilities that would interfere with the ability to work on a regular schedule.
  5. An inmate's employment under this Code section shall be with a legitimate, recognized, and established employer.An inmate assigned to a work-release program who, without proper authority, leaves the work area or site to which he is assigned, who leaves or fails to attend an assigned educational or other rehabilitative program, or who leaves the vehicle or route of travel in going to or returning from his assigned place of work shall be guilty of a misdemeanor.An offender who is found guilty of misdemeanor escape in accordance with this subsection shall be ineligible for further participation during his current term of confinement.
  6. Any wages earned by an inmate in work release under this Code section may, upon order of the court or the sheriff, be paid to the director or administrator of the work-release program after standard payroll deductions required by federal or state law have been withheld.Distribution of such wages shall be made for the following purposes:
    1. To defray the cost of the inmate's keep, confinement, and supervision, which sums shall be paid into the general treasury;
    2. To pay travel and other such expenses of the inmate necessitated by his work-release employment or participation in an educational or rehabilitative program;
    3. To provide support and maintenance for the inmate's dependents or to make payments to the local department of family and children services or probation, as appropriate, on behalf of any inmate's dependents receiving public assistance;
    4. To pay any fines, restitution, or other costs ordered by the court; and
    5. Any balance remaining after payment of costs and expenses listed in paragraphs (1) through (4) of this subsection shall be retained to the credit of the inmate and shall be paid to him upon release from confinement.
  7. No inmate participating in work release pursuant to this Code section shall be deemed to be an agent, employee, or involuntary servant of the county while working or participating in educational or other habilitative programs or while traveling to or from the place of employment.
  8. Local jails shall qualify for compensation for costs of incarceration of all persons pursuant to this Code section, less any payments from the inmate pursuant to subsection (f) of this Code section.

(Code 1981, §42-1-9, enacted by Ga. L. 1991, p. 1352, § 1.)

Cross references.

- Work-release programs for county prisoners, § 42-1-4.

Code Commission notes.

- Ga. L. 1991, p. 1319, § 1, Ga. L. 1991, p. 1348, § 1, and Ga. L. 1991, p. 1352, § 1, all purport to enact Code Section 42-1-7. Pursuant to Code Section 28-9-5, Ga. L. 1991, p. 1348, § 1, has been renumbered as Code Section 42-1-8 and Ga. L. 1991, p. 1352, § 1, has been renumbered as Code Section 42-1-9.

Pursuant to Code Section 28-9-5, in 1991, "work-release program" was substituted for "work release program" in three places in subsection (b), twice in subsection (c), in subsections (d) and (e), in the introductory language of subsection (f), and in paragraph (f)(2); and "work-release" was substituted for "work release" preceding "director" and "standards" in subsection (c).

Administrative Rules and Regulations.

- Work Standards, Official Compilation of the Rules and Regulations of the State of Georgia, Boards of Corrections, Institutional and Center Operations, Chapter 125-3-5.

Law reviews.

- For note on 1991 enactment of this Code section, see 8 Ga. St. U.L. Rev. 155 (1992).

JUDICIAL DECISIONS

Cited in Legere v. State, 299 Ga. App. 640, 683 S.E.2d 155 (2009).

42-1-10. Preliminary urine screen drug tests.

  1. Any community supervision officer of the Department of Community Supervision or official or employee of the Department of Corrections who supervises any person covered under the provisions of paragraphs (1) through (7) of this subsection shall be exempt from the provisions of Chapter 22 of Title 31 for the limited purposes of administering a preliminary urine screen drug test to any person who is:
    1. Incarcerated;
    2. Released as a condition of probation for a felony or misdemeanor;
    3. Released as a condition of conditional release;
    4. Released as a condition of parole;
    5. Released as a condition of provisional release;
    6. Released as a condition of pretrial release; or
    7. Released as a condition of control release.
  2. The Department of Corrections, Department of Community Supervision, and the State Board of Pardons and Paroles shall develop a procedure for the performance of preliminary urine screen drug tests in accordance with the manufacturer's standards for certification. Community supervision officers of the Department of Community Supervision or officials or employees of the Department of Corrections who are supervisors of any person covered under paragraphs (1) through (7) of subsection (a) of this Code section shall be authorized to perform preliminary urine screen drug tests in accordance with such procedure. Such procedure shall include instructions as to a confirmatory test by a licensed clinical laboratory where necessary.

(Code 1981, §42-1-10, enacted by Ga. L. 1992, p. 3234, § 1; Ga. L. 2015, p. 422, § 5-63/HB 310.)

The 2015 amendment, effective July 1, 2015, substituted "community supervision officer of the Department of Community Supervision or" for "probation officer, parole officer, or other" near the beginning of the introductory paragraph of subsection (a); in subsection (b), inserted ", Department of Community Supervision," near the beginning of the first sentence, and substituted "Community supervision officers of the Department of Community Supervision or" for "Probation officers, parole officers, or other" at the beginning of the second sentence. See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

42-1-11. Notification of crime victim of impending release of offender from imprisonment.

  1. As used in this Code section, the term:
    1. "Crime" means an act committed in this state which constitutes any violation of Chapter 5 of Title 16, relating to crimes against persons; Chapter 6 of Title 16, relating to sexual offenses; Article 1, Article 1A, or Article 3 of Chapter 7 of Title 16, relating to burglary, home invasion, and arson; or Article 1 or Article 2 of Chapter 8 of Title 16, relating to offenses involving theft and armed robbery.
    2. "Crime against the person or sexual offense" means any crime provided for in Chapter 5 or 6 of Title 16.
    3. "Custodial authority" means the commissioner of corrections if the offender is in the physical custody of the state, or the sheriff if the offender is incarcerated in a county jail, or the warden if the offender is incarcerated in a county correctional institution.
    4. "Offender" means a person sentenced to a term of incarceration in a state or county correctional institution.
  2. If the identity of a victim of a crime has been verified by the prosecuting attorney, who has, at the request of such victim, mailed a letter to the custodial authority requesting that the victim be notified of a change in the custodial status of an offender, then the custodial authority shall make a good faith effort to notify the victim that the offender is to be released from imprisonment, including release on extended furlough; transferred to work release; released by mandatory release upon expiration of sentence; or has escaped from confinement; or if the offender has died. The good faith effort to notify the victim must occur prior to the release or transfer noted in this subsection. For a victim of a felony crime against the person or sexual offense for which the offender was sentenced to a term of imprisonment of more than 18 months, the good faith effort to notify the victim must occur no later than ten days before the offender's release from imprisonment, transfer to or release from work release, or as soon thereafter as is practical in situations involving emergencies.
  3. The notice given to a victim of a crime against a person or sexual offense shall include the conditions governing the offender's release or transfer and either the identity of the corrections agent or the community supervision officer who will be supervising the offender's release or a means to identify the agency that will be supervising the offender's release. The custodial authority complies with this Code section upon mailing the notice of impending release to the victim at the address which the victim has most recently provided to the custodial authority in writing.
  4. If an offender escapes from imprisonment or incarceration, including from release on extended furlough or work release, the custodial authority shall make all reasonable efforts to notify a victim who has requested notice of the offender's release under subsection (b) of this Code section within six hours after discovering the escape, or as soon thereafter as is practical, and shall also make reasonable efforts to notify the victim within 24 hours after the offender is apprehended or as soon thereafter as is practical. In emergencies, telephone notification for the victim will be attempted and the results documented in the offender's central file.
  5. All identifying information regarding the victim, including the victim's request and the notice provided by the custodial authority, shall be confidential and accessible only to the victim. It is the responsibility of the victim to provide the custodial authority with a current address.
  6. A designated official in the Department of Corrections, the county correctional facility, and the sheriff's office shall coordinate the receipt of all victim correspondence and shall monitor staff responses to requests for such notification from victims of crime.
  7. The custodial authority shall not be liable for a failure to notify the victim.

(Code 1981, §42-1-11, enacted by Ga. L. 1993, p. 1278, § 1; Ga. L. 1995, p. 385, § 3; Ga. L. 2014, p. 426, § 11/HB 770; Ga. L. 2015, p. 422, § 5-64/HB 310.)

The 2014 amendment, effective July 1, 2014, in the middle of paragraph (a)(1), inserted ", Article 1A," and inserted ", home invasion,".

The 2015 amendment, effective July 1, 2015, in subsection (c), in the first sentence, substituted "shall include" for "must include" near the middle, and substituted "community supervision officer" for "county officer" in the middle. See Editor's notes for applicability.

Editor's notes.

- Ga. L. 1993, p. 1278, § 2, not codified by the General Assembly, provided that this Code section shall become effective six months after the effective date of an appropriations Act containing a specific appropriation to fund the provisions of this Act. Partial funding was provided by the General Assembly at the 1995 session. Additional funding was approved by the General Assembly at the 1997 session. Additional funding was appropriated by the General Assembly at the 1997 session.

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For note on 1993 enactment of this Code section, see 10 Ga. St. U.L. Rev. 176 (1993). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 158 (1995).

42-1-11.1. Alien prisoners eligible for deportation; cooperation with federal deportation program; waiver of extradition rights; transportation.

  1. As used in this Code section, the term:
    1. "Alien prisoner" means a person who is not a citizen or national of the United States who is serving a sentence under the supervision of the department.
    2. "Board" means the State Board of Pardons and Paroles.
    3. "Department" means the Department of Corrections.
    4. "Release on a reprieve" means being released on a reprieve with a detainer to United States Immigration and Customs Enforcement.
  2. The department and board shall establish a process and agreements among multiple state, local, and federal agencies for the implementation of the United States Immigration and Customs Enforcement Rapid Removal of Eligible Parolees Accepted for Transfer (REPAT) Program or similar federal program, by whatever name, for the purpose of deporting alien prisoners in the state prison system who are eligible for deportation.
  3. The department shall include as a part of the intake process a procedure to identify alien prisoners eligible for deportation. The department shall coordinate with the federal authorities to determine an alien prisoner's immigration status and eligibility for removal. The identity and information regarding alien prisoners eligible for deportation shall be provided expeditiously to the board, and the board shall then consider such alien prisoner for a release on a reprieve. Alien prisoners who would otherwise be ineligible for parole shall not become eligible by reason of eligibility for a release on a reprieve.
  4. Upon an alien prisoner's acceptance into the federal deportation program, the board may establish a tentative release month for the alien prisoner to be transferred into federal custody.
  5. No tentative parole release month based on a release on a reprieve shall be set until the alien prisoner is otherwise eligible for parole. No tentative parole release month shall be set for any date prior to the effective date of a final deportation removal order.
  6. The board shall provide notice and obtain acknowledgment in writing that notice was given to each alien prisoner who is eligible for a release on a reprieve that illegal reentry into the United States shall subject such alien prisoner to being returned to the custody of the department to complete the remainder of his or her court-imposed sentence. Prior to granting a release on a reprieve, the alien prisoner shall make a knowing, voluntary, and intelligent waiver in writing of all rights of extradition which would challenge the alien prisoner's parole revocation and return the alien prisoner to the department to complete the remainder of his or her sentence in the event such alien prisoner violates a condition of the release on a reprieve.
  7. An alien prisoner shall not be eligible for a release on a reprieve if the federal authorities determine that the alien prisoner's removal is not reasonably foreseeable.
  8. The department shall maintain exclusive control and responsibility for the custody and transportation of alien prisoners to and from federal facilities.

(Code 1981, §42-1-11.1, enacted by Ga. L. 2010, p. 263, § 2/SB 136.)

Editor's notes.

- Ga. L. 2010, p. 263, § 1, not codified by the General Assembly, provides: "It is the intent of the General Assembly to ensure that alien prisoners subject to deportation are not released from prison into the Georgia community. It is further the intent of this legislative body to reduce the costs and expenses of operating state prisons by reducing the number of alien prisoners incarcerated in the Georgia penal system and to expedite the deportation process of such prisoners. Moreover, Georgia should support the rearrest and revocation of parole of any alien prisoner who reenters the United States in violation of a release on a reprieve with a detainer to United States Immigration and Customs Enforcement. The General Assembly intends to require state agencies to take part in the Immigration and Customs Enforcement Rapid Removal of Eligible Parolees Accepted for Transfer (REPAT) Program funded and operated by the United States government and take all measures to fully cooperate and communicate with state, local, and federal agencies for the implementation of such program."

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required.

- Misdemeanor offenses arising under O.C.G.A. § 4-8-27 are offenses for which those charged are to be fingerprinted. 2012 Op. Att'y Gen. No. 12-6.

42-1-11.2. Advice on employment of attorney prohibited; penalty.

  1. No employee of a penal institution shall give advice to an inmate regarding the name or the employment of an attorney at law in any case where the inmate is confined in a penal institution or receive any sum of money paid as fees or otherwise to attorneys at law in a criminal case or cases against any inmate with which they may be connected in any capacity.
  2. Any person who violates this Code section shall be guilty of a misdemeanor.

(Code 1981, §42-1-11.2, enacted by Ga. L. 2012, p. 899, § 7-2/HB 1176.)

Effective date.

- This Code section became effective July 1, 2012. See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Law reviews.

- For article on the 2012 enactment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012).

42-1-11.3. Treatment of pregnant and postpartum female inmates.

  1. As used in this Code section, the term:
    1. "Custodian" means warden, sheriff, jailer, deputy sheriff, police officer, or any other law enforcement officer.
    2. "Immediate postpartum period" means the six-week period following childbirth unless extended by a physician due to complications.
    3. "Officer in charge" means the individual who is responsible for the supervision of a penal institution.
    4. "Penal institution" means any place of confinement for juvenile or adult individuals accused of, convicted of, or adjudicated for violating a law of this state or an ordinance of a political subdivision of this state.
    5. "Pregnant woman" means a woman whose pregnancy has been verified by a pregnancy test or through a medical examination conducted by a physician.
    6. "Woman" means a juvenile or adult female who is confined in a penal institution.
  2. A pregnant woman shall not be required to squat or cough during a strip search conducted by a custodian during the second or third trimester of pregnancy.
  3. A pregnant woman shall not be required to undergo any vaginal examination unless prescribed and performed by a licensed health care professional.
    1. Except as otherwise provided in this subsection and notwithstanding Code Section 42-5-58, a custodian shall not use handcuffs, waist shackles, leg irons, or restraints of any kind on a pregnant woman who is in the second or third trimester of pregnancy, in labor, or in delivery, or on a woman in the immediate postpartum period.
    2. A woman who is in the immediate postpartum period may only be restrained using wrist handcuffs with her wrists held in front of her body and only if there are compelling grounds to believe that such woman presents:
      1. An immediate and serious threat of harm to herself, staff, or others; or
      2. A substantial flight risk and cannot be reasonably contained by other means.
    3. If a custodian uses wrist handcuffs on a woman who is in the immediate postpartum period under an exception provided in paragraph (2) of this subsection, the circumstances for and details of such exception shall be documented within two days of the incident. Such information shall include the nature of the circumstances and the length of time of such use of restraints. The documentation shall be reviewed by the officer in charge and retained by the penal institution for reporting purposes.
    4. Nothing in this subsection shall prohibit the use of medical restraints by a licensed health care professional to ensure the medical safety of a pregnant woman.
  4. A pregnant woman or woman who is in the immediate postpartum period shall not be placed in solitary confinement, in administrative segregation, or for medical observation in a solitary confinement setting; provided, however, that this shall not prevent the placement of such woman in a cell or hospital room by herself.
  5. It is the intent of the General Assembly that a pregnant woman who is temporarily held in a county jail pending transfer to a state penal institution be transferred as expeditiously as possible. The Department of Corrections and a sheriff overseeing a county jail in which a pregnant woman is incarcerated shall make all reasonable efforts to facilitate such transfer. This subsection shall not apply to a pregnant woman who has been sentenced to a county jail by a judge.

(Code 1981, §42-1-11.3, enacted by Ga. L. 2019, p. 761, § 1/HB 345.)

Effective date.

- This Code section became effective October 1, 2019.

ARTICLE 2 SEXUAL OFFENDER REGISTRATION REVIEW BOARD

Editor's notes.

- Ga. L. 2006, p. 379, § 24/HB 1059, designated existing Code Sections 42-1-12 and 42-1-13 and new Code Sections 42-1-14 and 42-1-15 as Article 2 of this chapter.

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Law reviews.

- For annual survey on criminal law, see 61 Mercer L. Rev. 79 (2009).

42-1-12. State Sexual Offender Registry.

  1. As used in this article, the term:
    1. "Address" means the street or route address of the sexual offender's residence. For purposes of this Code section, the term shall not mean a post office box.
    2. "Appropriate official" means:
      1. With respect to a sexual offender who is sentenced to probation without any sentence of incarceration in the state prison system or who is sentenced pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, the Department of Community Supervision;
      2. With respect to a sexual offender who is sentenced to a period of incarceration in a prison under the jurisdiction of the Department of Corrections and who is subsequently released from prison or placed on probation, the commissioner of corrections or his or her designee;
      3. With respect to a sexual offender who is placed on parole, the chairperson of the State Board of Pardons and Paroles or his or her designee; and
      4. With respect to a sexual offender who is placed on probation through a private probation agency, the director of the private probation agency or his or her designee.
    3. "Area where minors congregate" shall include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries, and public and community swimming pools.
    4. "Assessment criteria" means the tests that the board members use to determine the likelihood that a sexual offender will commit another criminal offense against a victim who is a minor or commit a dangerous sexual offense.
    5. "Board" means the Sexual Offender Registration Review Board.
    6. "Child care facility" means all public and private pre-kindergarten facilities, child care learning centers, preschool facilities, and long-term care facilities for children.

      (6.1) "Child care learning center" shall have the same meaning as set forth in paragraph (2) of Code Section 20-1A-2.

    7. "Church" means a place of public religious worship.
    8. "Conviction" includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime, a plea of guilty, or a plea of nolo contendere. A defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall be subject to the registration requirements of this Code section for the period of time prior to the defendant's discharge after completion of his or her sentence or upon the defendant being adjudicated guilty. Unless otherwise required by federal law, a defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall not be subject to the registration requirements of this Code section upon the defendant's discharge.
      1. "Criminal offense against a victim who is a minor" with respect to convictions occurring on or before June 30, 2001, means any criminal offense under Title 16 or any offense under federal law or the laws of another state or territory of the United States which consists of:
        1. Kidnapping of a minor, except by a parent;
        2. False imprisonment of a minor, except by a parent;
        3. Criminal sexual conduct toward a minor;
        4. Solicitation of a minor to engage in sexual conduct;
        5. Use of a minor in a sexual performance;
        6. Solicitation of a minor to practice prostitution; or
        7. Any conviction resulting from an underlying sexual offense against a victim who is a minor.
      2. "Criminal offense against a victim who is a minor" with respect to convictions occurring after June 30, 2001, means any criminal offense under Title 16 or any offense under federal law or the laws of another state or territory of the United States which consists of:
        1. Kidnapping of a minor, except by a parent;
        2. False imprisonment of a minor, except by a parent;
        3. Criminal sexual conduct toward a minor;
        4. Solicitation of a minor to engage in sexual conduct;
        5. Use of a minor in a sexual performance;
        6. Solicitation of a minor to practice prostitution;
        7. Use of a minor to engage in any sexually explicit conduct to produce any visual medium depicting such conduct;
        8. Creating, publishing, selling, distributing, or possessing any material depicting a minor or a portion of a minor's body engaged in sexually explicit conduct;
        9. Transmitting, making, selling, buying, or disseminating by means of a computer any descriptive or identifying information regarding a child for the purpose of offering or soliciting sexual conduct of or with a child or the visual depicting of such conduct;
        10. Conspiracy to transport, ship, receive, or distribute visual depictions of minors engaged in sexually explicit conduct; or
        11. Any conduct which, by its nature, is a sexual offense against a victim who is a minor.
      3. For purposes of this paragraph, a conviction for a misdemeanor shall not be considered a criminal offense against a victim who is a minor, and conduct which is adjudicated in juvenile court shall not be considered a criminal offense against a victim who is a minor.
      1. "Dangerous sexual offense" with respect to convictions occurring on or before June 30, 2006, means any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this paragraph or any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of the following offenses:
        1. Aggravated assault with the intent to rape in violation of Code Section 16-5-21;
        2. Rape in violation of Code Section 16-6-1;
        3. Aggravated sodomy in violation of Code Section 16-6-2;
        4. Aggravated child molestation in violation of Code Section 16-6-4; or
        5. Aggravated sexual battery in violation of Code Section 16-6-22.2.
      2. "Dangerous sexual offense" with respect to convictions occurring between July 1, 2006, and June 30, 2015, means any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this paragraph or any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of the following offenses:
        1. Aggravated assault with the intent to rape in violation of Code Section 16-5-21;
        2. Kidnapping in violation of Code Section 16-5-40 which involves a victim who is less than 14 years of age, except by a parent;
        3. False imprisonment in violation of Code Section 16-5-41 which involves a victim who is less than 14 years of age, except by a parent;
        4. Rape in violation of Code Section 16-6-1;
        5. Sodomy in violation of Code Section 16-6-2;
        6. Aggravated sodomy in violation of Code Section 16-6-2;
        7. Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the offense is 21 years of age or older;
        8. Child molestation in violation of Code Section 16-6-4;
        9. Aggravated child molestation in violation of Code Section 16-6-4, unless the person was convicted of a misdemeanor offense;
        10. Enticing a child for indecent purposes in violation of Code Section 16-6-5;
        11. Sexual assault against persons in custody in violation of Code Section 16-6-5.1;
        12. Incest in violation of Code Section 16-6-22;
        13. A second conviction for sexual battery in violation of Code Section 16-6-22.1;
        14. Aggravated sexual battery in violation of Code Section 16-6-22.2;
        15. Sexual exploitation of children in violation of Code Section 16-12-100;
        16. Electronically furnishing obscene material to minors in violation of Code Section 16-12-100.1;
        17. Computer pornography and child exploitation in violation of Code Section 16-12-100.2;
        18. Obscene telephone contact in violation of Code Section 16-12-100.3; or
        19. Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.

        (B.1) "Dangerous sexual offense" with respect to convictions occurring between July 1, 2015, and June 30, 2017, means any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this subparagraph or any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of the following offenses:

        1. Aggravated assault with the intent to rape in violation of Code Section 16-5-21;
        2. Kidnapping in violation of Code Section 16-5-40 which involves a victim who is less than 14 years of age, except by a parent;
        3. Trafficking a person for sexual servitude in violation of Code Section 16-5-46;
        4. Rape in violation of Code Section 16-6-1;
        5. Sodomy in violation of Code Section 16-6-2;
        6. Aggravated sodomy in violation of Code Section 16-6-2;
        7. Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the offense is 21 years of age or older;
        8. Child molestation in violation of Code Section 16-6-4;
        9. Aggravated child molestation in violation of Code Section 16-6-4, unless the person was convicted of a misdemeanor offense;
        10. Enticing a child for indecent purposes in violation of Code Section 16-6-5;
        11. Sexual assault against persons in custody in violation of Code Section 16-6-5.1;
        12. Incest in violation of Code Section 16-6-22;
        13. A second conviction for sexual battery in violation of Code Section 16-6-22.1;
        14. Aggravated sexual battery in violation of Code Section 16-6-22.2;
        15. Sexual exploitation of children in violation of Code Section 16-12-100;
        16. Electronically furnishing obscene material to minors in violation of Code Section 16-12-100.1;
        17. Computer pornography and child exploitation in violation of Code Section 16-12-100.2;
        18. Obscene telephone contact in violation of Code Section 16-12-100.3; or
        19. Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.

        (B.2) "Dangerous sexual offense" with respect to convictions occurring between July 1, 2017, and June 30, 2019, means any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this subparagraph or any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of the following offenses:

        1. Aggravated assault with the intent to rape in violation of Code Section 16-5-21;
        2. Kidnapping in violation of Code Section 16-5-40 which involves a victim who is less than 14 years of age, except by a parent;
        3. Trafficking an individual for sexual servitude in violation of Code Section 16-5-46;
        4. Rape in violation of Code Section 16-6-1;
        5. Sodomy in violation of Code Section 16-6-2;
        6. Aggravated sodomy in violation of Code Section 16-6-2;
        7. Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the offense is 21 years of age or older;
        8. Child molestation in violation of Code Section 16-6-4;
        9. Aggravated child molestation in violation of Code Section 16-6-4, unless the person was convicted of a misdemeanor offense;
        10. Enticing a child for indecent purposes in violation of Code Section 16-6-5;
        11. Sexual assault against persons in custody in violation of Code Section 16-6-5.1;
        12. Incest in violation of Code Section 16-6-22;
        13. A second conviction for sexual battery in violation of Code Section 16-6-22.1;
        14. Aggravated sexual battery in violation of Code Section 16-6-22.2;
        15. Sexual exploitation of children in violation of Code Section 16-12-100;
        16. Electronically furnishing obscene material to minors in violation of Code Section 16-12-100.1;
        17. Computer pornography and child exploitation in violation of Code Section 16-12-100.2;
        18. Obscene telephone contact in violation of Code Section 16-12-100.3; or
        19. Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.

        (B.3) "Dangerous sexual offense" with respect to convictions occurring after June 30, 2019, means any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this subparagraph or any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of the following offenses:

        1. Aggravated assault with the intent to rape in violation of Code Section 16-5-21;
        2. Kidnapping in violation of Code Section 16-5-40 which involves a victim who is less than 14 years of age, except by a parent;
        3. Trafficking an individual for sexual servitude in violation of Code Section 16-5-46;
        4. Rape in violation of Code Section 16-6-1;
        5. Sodomy in violation of Code Section 16-6-2;
        6. Aggravated sodomy in violation of Code Section 16-6-2;
        7. Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the offense is 21 years of age or older;
        8. Child molestation in violation of Code Section 16-6-4;
        9. Aggravated child molestation in violation of Code Section 16-6-4, unless the person was convicted of a misdemeanor offense;
        10. Enticing a child for indecent purposes in violation of Code Section 16-6-5;
        11. Improper sexual contact by employee or agent in the first or second degree in violation of Code Section 16-6-5.1, unless the punishment imposed was not subject to Code Section 17-10-6.2;
        12. Incest in violation of Code Section 16-6-22;
        13. A second or subsequent conviction for sexual battery in violation of Code Section 16-6-22.1;
        14. Aggravated sexual battery in violation of Code Section 16-6-22.2;
        15. Sexual exploitation of children in violation of Code Section 16-12-100;
        16. Electronically furnishing obscene material to minors in violation of Code Section 16-12-100.1;
        17. Computer pornography and child exploitation in violation of Code Section 16-12-100.2;
        18. A second or subsequent conviction for obscene telephone contact in violation of Code Section 16-12-100.3; or
        19. Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.
      3. For purposes of this paragraph, a conviction for a misdemeanor shall not be considered a dangerous sexual offense, and conduct which is adjudicated in juvenile court shall not be considered a dangerous sexual offense.
    9. "Institution of higher education" means a private or public community college, state university, state college, or independent postsecondary institution.
    10. "Level I risk assessment classification" means the sexual offender is a low sex offense risk and low recidivism risk for future sexual offenses.
    11. "Level II risk assessment classification" means the sexual offender is an intermediate sex offense risk and intermediate recidivism risk for future sexual offenses and includes all sexual offenders who do not meet the criteria for classification either as a sexually dangerous predator or for Level I risk assessment.
    12. "Minor" means any individual under the age of 18 years and any individual that the sexual offender believed at the time of the offense was under the age of 18 years if such individual was the victim of an offense.
    13. "Public and community swimming pools" includes municipal, school, hotel, motel, or any pool to which access is granted in exchange for payment of a daily fee. The term includes apartment complex pools, country club pools, or subdivision pools which are open only to residents of the subdivision and their guests. This term does not include a private pool or hot tub serving a single-family dwelling and used only by the residents of the dwelling and their guests.
    14. "Required registration information" means:
      1. Name; social security number; age; race; sex; date of birth; height; weight; hair color; eye color; fingerprints; and photograph;
      2. Address, within this state or out of state, and, if applicable in addition to the address, a rural route address and a post office box;
      3. If the place of residence is a motor vehicle or trailer, the vehicle identification number, the license tag number, and a description, including color scheme, of the motor vehicle or trailer;
      4. If the place of residence is a mobile home, the mobile home location permit number; the name and address of the owner of the home; a description, including the color scheme of the mobile home; and, if applicable, a description of where the mobile home is located on the property;
      5. If the place of residence is a manufactured home, the name and address of the owner of the home; a description, including the color scheme of the manufactured home; and, if applicable, a description of where the manufactured home is located on the property;
      6. If the place of residence is a vessel, live-aboard vessel, or houseboat, the hull identification number; the manufacturer's serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat;

        (F.1) If the place of residence is the status of homelessness, information as provided under paragraph (2.1) of subsection (f) of this Code section;

      7. Date of employment, place of any employment, and address of employer;
      8. Place of vocation and address of the place of vocation;
      9. Vehicle make, model, color, and license tag number;
      10. If enrolled, employed, or carrying on a vocation at an institution of higher education in this state, the name, address, and county of each institution, including each campus attended, and enrollment or employment status; and
      11. The name of the crime or crimes for which the sexual offender is registering and the date released from prison or placed on probation, parole, or supervised release.
    15. "Risk assessment classification" means the notification level into which a sexual offender is placed based on the board's assessment.
    16. "School" means all public and private kindergarten, elementary, and secondary schools.
    17. "School bus stop" means a school bus stop as designated by local school boards of education or by a private school.
    18. "Sexual offender" means any individual:
      1. Who has been convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense;
      2. Who has been convicted under the laws of another state or territory, under the laws of the United States, under the Uniform Code of Military Justice, or in a tribal court of a criminal offense against a victim who is a minor or a dangerous sexual offense; or
      3. Who is required to register pursuant to subsection (e) of this Code section.
    19. "Sexually dangerous predator" means a sexual offender:
      1. Who was designated as a sexually violent predator between July 1, 1996, and June 30, 2006; or
      2. Who is determined by the Sexual Offender Registration Review Board to be at risk of perpetrating any future dangerous sexual offense.
    20. "Vocation" means any full-time, part-time, or volunteer employment with or without compensation exceeding 14 consecutive days or for an aggregate period of time exceeding 30 days during any calendar year.
  2. Before a sexual offender who is required to register under this Code section is released from prison or placed on parole, supervised release, or probation, the appropriate official shall:
    1. Inform the sexual offender of the obligation to register, the amount of the registration fee, and how to maintain registration;
    2. Obtain the information necessary for the required registration information;
    3. Inform the sexual offender that, if the sexual offender changes any of the required registration information, other than residence address, the sexual offender shall give the new information to the sheriff of the county with whom the sexual offender is registered within 72 hours of the change of information; if the information is the sexual offender's new residence address, the sexual offender shall give the information to the sheriff of the county with whom the sexual offender last registered within 72 hours prior to moving and to the sheriff of the county to which the sexual offender is moving within 72 hours prior to moving;
    4. Inform the sexual offender that he or she shall also register in any state where he or she is employed, carries on a vocation, or is a student;
    5. Inform the sexual offender that, if he or she changes residence to another state, the sexual offender shall register the new address with the sheriff of the county with whom the sexual offender last registered and that the sexual offender shall also register with a designated law enforcement agency in the new state within 72 hours after establishing residence in the new state;
    6. Obtain fingerprints and a current photograph of the sexual offender;
    7. Require the sexual offender to read and sign a form stating that the obligations of the sexual offender have been explained;
    8. Obtain and forward any information obtained from the clerk of court pursuant to Code Section 42-5-50 to the sheriff's office of the county in which the sexual offender will reside; and
    9. If required by Code Section 42-1-14, place any required electronic monitoring system on the sexually dangerous predator and explain its operation and cost.
  3. The Department of Corrections shall:
    1. Forward to the Georgia Bureau of Investigation a copy of the form stating that the obligations of the sexual offender have been explained;
    2. Forward any required registration information to the Georgia Bureau of Investigation;
    3. Forward the sexual offender's fingerprints and photograph to the sheriff's office of the county where the sexual offender is going to reside;
    4. Inform the board and the prosecuting attorney for the jurisdiction in which a sexual offender was convicted of the impending release of a sexual offender at least eight months prior to such release so as to facilitate compliance with Code Section 42-1-14; and
    5. Keep all records of sexual offenders in a secure facility in accordance with Code Sections 15-1-10, 15-6-62, and 15-6-62.1 until official proof of death of a registered sexual offender; thereafter, the records shall be destroyed.
  4. No sexual offender shall be released from prison or placed on parole, supervised release, or probation until:
    1. The appropriate official has provided the Georgia Bureau of Investigation and the sheriff's office in the county where the sexual offender will be residing with the sexual offender's required registration information and risk assessment classification level; and
    2. The sexual offender's name has been added to the list of sexual offenders maintained by the Georgia Bureau of Investigation and the sheriff's office as required by this Code section.
  5. Registration pursuant to this Code section shall be required by any individual who:
    1. Is convicted on or after July 1, 1996, of a criminal offense against a victim who is a minor;
    2. Is convicted on or after July 1, 1996, of a dangerous sexual offense;
    3. Has previously been convicted of a criminal offense against a victim who is a minor and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996;
    4. Has previously been convicted of a sexually violent offense or dangerous sexual offense and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996;
    5. Is a resident of Georgia who intends to reside in this state and who is convicted under the laws of another state or the United States, under the Uniform Code of Military Justice, or in a tribal court of a sexually violent offense, a criminal offense against a victim who is a minor on or after July 1, 1999, or a dangerous sexual offense on or after July 1, 1996;
    6. Is a nonresident who changes residence from another state or territory of the United States or any other place to Georgia who is required to register as a sexual offender under federal law, military law, tribal law, or the laws of another state or territory or who has been convicted in this state of a criminal offense against a victim who is a minor or any dangerous sexual offense;
    7. Is a nonresident sexual offender who enters this state for the purpose of employment or any other reason for a period exceeding 14 consecutive days or for an aggregate period of time exceeding 30 days during any calendar year regardless of whether such sexual offender is required to register under federal law, military law, tribal law, or the laws of another state or territory; or
    8. Is a nonresident sexual offender who enters this state for the purpose of attending school as a full-time or part-time student regardless of whether such sexual offender is required to register under federal law, military law, tribal law, or the laws of another state or territory.
  6. Any sexual offender required to register under this Code section shall:
    1. Provide the required registration information to the appropriate official before being released from prison or placed on parole, supervised release, or probation;
    2. Register in person with the sheriff of the county in which the sexual offender resides within 72 hours after the sexual offender's release from prison or placement on parole, supervised release, probation, or entry into this state;

      (2.1) In the case of a sexual offender whose place of residence is the status of homelessness, in lieu of the requirements of paragraph (2) of this subsection, register in person with the sheriff of the county in which the sexual offender sleeps within 72 hours after the sexual offender's release from prison or placement on parole, supervised release, probation, or entry into this state and provide the location where he or she sleeps;

    3. Maintain the required registration information with the sheriff of each county in which the sexual offender resides or sleeps;
    4. Renew the required registration information with the sheriff of the county in which the sexual offender resides or sleeps by reporting in person to the sheriff within 72 hours prior to such offender's birthday each year to be photographed and fingerprinted;
    5. Update the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information, other than where he or she resides or sleeps if such person is homeless. If the information is the sexual offender's new address, the sexual offender shall give the information regarding the sexual offender's new address to the sheriff of the county in which the sexual offender last registered within 72 hours prior to any change of address and to the sheriff of the county to which the sexual offender is moving within 72 hours prior to establishing such new address. If the sexual offender is homeless and the information is the sexual offender's new sleeping location, within 72 hours of changing sleeping locations, the sexual offender shall give the information regarding the sexual offender's new sleeping location to the sheriff of the county in which the sexual offender last registered, and if the county has changed, to the sheriff of the county to which the sexual offender has moved; and
    6. Continue to comply with the registration requirements of this Code section for the entire life of the sexual offender, excluding ensuing periods of incarceration.
  7. A sexual offender required to register under this Code section may petition to be released from the registration requirements and from the residency or employment restrictions of this Code section in accordance with the provisions of Code Section 42-1-19.
    1. The appropriate official or sheriff shall, within 72 hours after receipt of the required registration information, forward such information to the Georgia Bureau of Investigation. Once the data is entered into the Criminal Justice Information System by the appropriate official or sheriff, the Georgia Crime Information Center shall notify the sheriff of the sexual offender's county of residence, either permanent or temporary, the sheriff of the county of employment, and the sheriff of the county where the sexual offender attends an institution of higher education within 24 hours of entering the data or any change to the data.
    2. The Georgia Bureau of Investigation shall:
      1. Transmit all information, including the conviction data and fingerprints, to the Federal Bureau of Investigation within 24 hours of entering the data;
      2. Establish operating policies and procedures concerning record ownership, quality, verification, modification, and cancellation; and
      3. Perform mail out and verification duties as follows:
  8. Send each month Criminal Justice Information System network messages to sheriffs listing sexual offenders due for verification;
    1. Prepare and maintain a list of all sexual offenders and sexually dangerous predators residing in each county. Such list shall include the sexual offender's name; age; physical description; address; crime of conviction, including conviction date and the jurisdiction of the conviction; photograph; and the risk assessment classification level provided by the board, and an explanation of how the board classifies sexual offenders and sexually dangerous predators;
    2. Electronically submit and update all information provided by the sexual offender within two business days to the Georgia Bureau of Investigation in a manner prescribed by the Georgia Bureau of Investigation;
    3. Maintain and provide a list, manually or electronically, of every sexual offender residing in each county so that it may be available for inspection:
      1. In the sheriff's office;
      2. In any county administrative building;
      3. In the main administrative building for any municipal corporation;
      4. In the office of the clerk of the superior court so that such list is available to the public; and
      5. On a website maintained by the sheriff of the county for the posting of general information;
    4. Update the public notices required by paragraph (3) of this subsection within two business days of the receipt of such information;
    5. Inform the public of the presence of sexual offenders in each community;
    6. Update the list of sexual offenders residing in the county upon receipt of new information affecting the residence address of a sexual offender or upon the registration of a sexual offender moving into the county by virtue of release from prison, relocation from another county, conviction in another state, federal court, military tribunal, or tribal court. Such list, and any additions to such list, shall be delivered, within 72 hours of updating the list of sexual offenders residing in the county, to all schools or institutions of higher education located in the county;
    7. Within 72 hours of the receipt of changed required registration information, notify the Georgia Bureau of Investigation through the Criminal Justice Information System of each change of information;
    8. Retain the verification form stating that the sexual offender still resides at the address last reported;
    9. Enforce the criminal provisions of this Code section. The sheriff may request the assistance of the Georgia Bureau of Investigation to enforce the provisions of this Code section;
    10. Cooperate and communicate with other sheriffs' offices in this state and in the United States to maintain current data on the location of sexual offenders;
    11. Determine the appropriate time of day for reporting by sexual offenders, which shall be consistent with the reporting requirements of this Code section;
    12. If required by Code Section 42-1-14, place any electronic monitoring system on the sexually dangerous predator and explain its operation and cost;
    13. Provide current information on names and addresses of all registered sexual offenders to campus police with jurisdiction for the campus of an institution of higher education if the campus is within the sheriff's jurisdiction; and
    14. Collect the annual $250.00 registration fee from the sexual offender and transmit such fees to the state for deposit into the general fund.
    1. The sheriff of the county where the sexual offender resides or last registered shall be the primary law enforcement official charged with communicating the whereabouts of the sexual offender and any changes in required registration information to the sheriff's office of the county or counties where the sexual offender is employed, volunteers, attends an institution of higher education, or moves.
    2. The sheriff's office may post the list of sexual offenders in any public building in addition to those locations enumerated in subsection (h) of this Code section.
  9. The Georgia Crime Information Center shall create the Criminal Justice Information System network transaction screens by which appropriate officials shall enter original data required by this Code section. Screens shall also be created for sheriffs' offices for the entry of record confirmation data; employment; changes of residence, institutions of higher education, or employment; or other pertinent data to assist in sexual offender identification.
    1. On at least an annual basis, the Department of Education shall obtain from the Georgia Bureau of Investigation a complete list of the names and addresses of all registered sexual offenders and shall provide access to such information, accompanied by a hold harmless provision, to each school in this state. In addition, the Department of Education shall provide information to each school in this state on accessing and retrieving from the Georgia Bureau of Investigation's website a list of the names and addresses of all registered sexual offenders.
    2. On at least an annual basis, the Department of Early Care and Learning shall provide current information to all child care programs regulated pursuant to Code Section 20-1A-10 and to all child care learning centers, day-care, group day-care, and family day-care programs regulated pursuant to Code Section 49-5-12 on accessing and retrieving from the Georgia Bureau of Investigation's website a list of the names and addresses of all registered sexual offenders and shall include, on a continuing basis, such information with each application for licensure, commissioning, or registration for early care and education programs.
    3. On at least an annual basis, the Department of Human Services shall provide current information to all long-term care facilities for children on accessing and retrieving from the Georgia Bureau of Investigation's website a list of the names and addresses of all registered sexual offenders.
  10. Within ten days of the filing of a defendant's discharge and exoneration of guilt pursuant to Article 3 of Chapter 8 of this title, the clerk of court shall transmit the order of discharge and exoneration to the Georgia Bureau of Investigation and any sheriff maintaining records required under this Code section.
  11. Any individual who:
    1. Is required to register under this Code section and who fails to comply with the requirements of this Code section;
    2. Provides false information; or
    3. Fails to respond directly to the sheriff of the county where he or she resides or sleeps within 72 hours prior to such individual's birthday

      shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than 30 years; provided, however, that upon the conviction of the second offense under this subsection, the defendant shall be punished by imprisonment for not less than five nor more than 30 years.

  12. The information collected pursuant to this Code section shall be treated as private data except that:
    1. Such information may be disclosed to law enforcement agencies for law enforcement purposes;
    2. Such information may be disclosed to government agencies conducting confidential background checks; and
    3. The Georgia Bureau of Investigation or any sheriff maintaining records required under this Code section shall, in addition to the requirements of this Code section to inform the public of the presence of sexual offenders in each community, release such other relevant information collected under this Code section that is necessary to protect the public concerning sexual offenders required to register under this Code section, except that the identity of a victim of an offense that requires registration under this Code section shall not be released.
  13. The Board of Public Safety is authorized to promulgate rules and regulations necessary for the Georgia Bureau of Investigation and the Georgia Crime Information Center to implement and carry out the provisions of this Code section.
  14. Law enforcement agencies, employees of law enforcement agencies, and state officials shall be immune from liability for good faith conduct under this article.
  15. Any violation of this Code section is declared to be a continuous offense, and venue for such offense shall be considered to have been committed in any county where:
    1. A sexual offender is required to register;
    2. An accused fails to comply with the requirements of this Code section; or
    3. An accused provides false information.

(c.1)The Department of Community Supervision shall keep all records of sexual offenders in a secure facility in accordance with Code Sections 15-1-10, 15-6-62, and 15-6-62.1 until official proof of death of a registered sexual offender; thereafter, the records shall be destroyed.

Create a photo image file from original entries and provide such entries to sheriffs to assist in sexual offender identification and verification;

Mail a nonforwardable verification form to the last reported address of the sexual offender within ten days prior to the sexual offender's birthday;

If the sexual offender changes residence to another state, notify the law enforcement agency with which the sexual offender shall register in the new state; and

Maintain records required under this Code section.

The sheriff's office in each county shall:

(Code 1981, §42-1-12, enacted by Ga. L. 1996, p. 1520, § 1; Ga. L. 1997, p. 143, § 42; Ga. L. 1997, p. 380, § 1; Ga. L. 1998, p. 831, § 1; Ga. L. 1999, p. 81, § 42; Ga. L. 1999, p. 837, § 1; Ga. L. 2001, p. 1004, § 1; Ga. L. 2002, p. 571, § 1; Ga. L. 2002, p. 1400, §§ 1, 2; Ga. L. 2003, p. 140, § 42; Ga. L. 2003, p. 281, § 1; Ga. L. 2004, p. 645, § 5; Ga. L. 2004, p. 1064, §§ 1, 2; Ga. L. 2005, p. 453, § 1/HB 106; Ga. L. 2006, p. 72, § 42/SB 465; Ga. L. 2006, p. 379, § 24/HB 1059; Ga. L. 2008, p. 680, §§ 2, 3/SB 1; Ga. L. 2008, p. 810, §§ 3, 4/SB 474; Ga. L. 2009, p. 8, § 42/SB 46; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2010, p. 167, § 1/HB 651; Ga. L. 2010, p. 168, §§ 5, 6, 7, 8, 9, 10, 11/HB 571; Ga. L. 2011, p. 752, § 42/HB 142; Ga. L. 2012, p. 173, § 2-9/HB 665; Ga. L. 2013, p. 135, § 10/HB 354; Ga. L. 2015, p. 422, § 5-65/HB 310; Ga. L. 2015, p. 675, § 4-2/SB 8; Ga. L. 2017, p. 489, § 6/HB 341; Ga. L. 2019, p. 912, § 5/SB 9.)

The 2012 amendment, effective July 1, 2012, in paragraph (c)(5), inserted "in accordance with Code Sections 15-1-10, 15-6-62, and 15-6-62.1" and deleted "in accordance with Code Sections 15-1-10, 15-6-62, and 15-6-62.1" following "destroyed" at the end.

The 2013 amendment, effective July 1, 2013, deleted "day-care centers," following "pre-kindergarten facilities," in paragraph (a)(6); redesignated former paragraph (a)(10.1) as present paragraph (a)(6.1); and, in paragraph (a)(6.1), substituted "Child care learning center" for "Day-care center" at the beginning, and substituted "paragraph (2)" for "paragraph (4)" near the end.

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, substituted "Department of Community Supervision" for "Division of Probation of the Department of Corrections" in subparagraph (a)(2)(A); and added subsection (c.1). See Editor's notes for applicability. The second 2015 amendment, effective July 1, 2015, substituted "occurring between July 1, 2006, and June 30, 2015," for "occurring after June 30, 2006," in the introductory paragraph of subparagraph (a)(10)(B); deleted "prevention" following "child exploitation" in division (a)(10)(B)(xvii); and added subparagraph (a)(10)(B.1) and subsection (r).

The 2017 amendment, effective July 1, 2017, in subparagraph (a)(10)(B.1), substituted "between July 1, 2015, and June 30, 2017" for "after June 30, 2015" near the beginning, and substituted "subparagraph" for "paragraph" near the middle; and added subparagraph (a)(10)(B.2).

The 2019 amendment, effective July 1, 2019, substituted "between July 1, 2017, and June 30, 2019" for "after June 30, 2017" near the beginning of subparagraph (a)(10)(B.2); and added subparagraph (a)(10)(B.3).

Cross references.

- Development of model program for educating students regarding online safety, § 20-2-149.

Residing near and photographing minors by registered sexual offenders, § 42-1-15.

Code Commission notes.

- The amendment of this Code section by Ga. L. 2002, p. 571, § 1, irreconcilably conflicted with and was treated as superceded by Ga. L. 2002, p. 1400, § 2. See County of Butts v. Strahan, 151 Ga. 417 (1921).

The amendment of this Code section by Ga. L. 2006, p. 72, § 42/SB 465, irreconcilably conflicted with and was treated as superseded by Ga. L. 2006, p. 379, § 24/HB 1059. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Editor's notes.

- Ga. L. 2004, p. 1064, § 2, not codified by the General Assembly, provides that the amendment by that act shall apply to sentences imposed on or after July 1, 2004.

Ga. L. 2006, p. 379, § 24/HB 1059, effective July 1, 2006, repealed the former Code section and enacted the current Code section covering substantially the same subject matter. The former Code section was based on Code 1981, § 42-1-12, enacted by Ga. L. 1996, p. 1520, § 1; Ga. L. 1997, p. 143, § 42; Ga. L. 1997, p. 380, § 1; Ga. L. 1998, p. 831, § 1; Ga. L. 1999, p. 81, § 42; Ga. L. 1999, p. 837, § 1; Ga. L. 2001, p. 1004, § 1; Ga. L. 2002, p. 571, § 1; Ga. L. 2002, p. 1400, §§ 1, 2; Ga. L. 2003, p. 140, § 42; Ga. L. 2003, p. 281, § 1; Ga. L. 2004, p. 645, § 5; Ga. L. 2004, p. 1064, §§ 1, 2; Ga. L. 2005, p. 453, § 1/HB 106.

Ga. L. 2006, p. 379, § 30/HB 1059, not codified by the General Assembly, provides, in part, that: "(b) Any person required to register pursuant to the provisions of Code Section 42-1-12, relating to the state sexual offender registry, and any person required not to reside within areas where minors congregate, as prohibited by Code Section 42-1-13, shall not be relieved of the obligation to comply with the provisions of said Code sections by the repeal and reenactment of said Code sections.

"(c) The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Ga. L. 2015, p. 675, § 1-1/SB 8, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Safe Harbor/Rachel's Law Act.'"

Ga. L. 2015, p. 675, § 1-2/SB 8, not codified by the General Assembly, provides that: "(a) The General Assembly finds that arresting, prosecuting, and incarcerating victimized children serves to retraumatize children and increases their feelings of low self esteem, making the process of recovery more difficult. The General Assembly acknowledges that both federal and state laws recognize that sexually exploited children are the victims of crime and should be treated as victims. The General Assembly finds that sexually exploited children deserve the protection of child welfare services, including family support, crisis intervention, counseling, and emergency housing services. The General Assembly finds that it is necessary and appropriate to adopt uniform and reasonable assessments and regulations to help address the deleterious secondary effects, including but not limited to, prostitution and sexual exploitation of children, associated with adult entertainment establishments that allow the sale, possession, or consumption of alcohol on premises and that provide to their patrons performances and interaction involving various forms of nudity. The General Assembly finds that a correlation exists between adult live entertainment establishments and the sexual exploitation of children. The General Assembly finds that adult live entertainment establishments present a point of access for children to come into contact with individuals seeking to sexually exploit children. The General Assembly further finds that individuals seeking to exploit children utilize adult live entertainment establishments as a means of locating children for the purpose of sexual exploitation. The General Assembly acknowledges that many local governments in this state and in other states found deleterious secondary effects of adult entertainment establishments are exacerbated by the sale, possession, or consumption of alcohol in such establishments.

"(b) The purpose of this Act is to protect a child from further victimization after he or she is discovered to be a sexually exploited child by ensuring that a child protective response is in place in this state. The purpose and intended effect of this Act in imposing assessments and regulations on adult entertainment establishments is not to impose a restriction on the content or reasonable access to any materials or performances protected by the First Amendment of the United States Constitution or Article I, Section I, Paragraph V of the Constitution of this state."

Administrative Rules and Regulations.

- The Georgia Sexually Violent Offender Registry, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Crime Information Center Council, Practice and Procedure, Chapter 140-2.

Law reviews.

- For annual survey article discussing developments in criminal law, see 52 Mercer L. Rev. 167 (2000). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). For article, "'Sexting' to Minors in a Rapidly Evolving Digital Age: Frix v. State Establishes the Applicability of Georgia's Obscenity Statutes to Text Messages," see 61 Mercer L. Rev. 1283 (2010). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 43 (2015). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article, "Disrupting Victim Exploitation," see 69 Mercer L. Rev. 805 (2018). For review of 1996 department of corrections legislation, see 13 Ga. U. L. Rev. 257 (1996). For note, "A Mandate Without a Duty: The Apparent Scope of Georgia's Megan's Law," see 15 Ga. St. U.L. Rev. 1131 (1999). For note on the 2001 amendment to this Code section, see 18 Ga. St. U.L. Rev. 227 (2001). For note on the 2003 amendment to this section, see 20 Ga. St. U.L. Rev. 217 (2003).

JUDICIAL DECISIONS

General Consideration

Constitutionality.

- Defendant who entered an Alford plea in 2000 to sex offenses as a first offender was properly required to register as a sex offender pursuant to the 2005 amendment to O.C.G.A. § 42-1-12; the statute applies to first offenders convicted before July 1, 2004, and it is not an ex post facto law because if a defendant fails to register, the defendant will be guilty of a felony distinct from those crimes of which the defendant has been previously convicted. Watson v. State, 283 Ga. App. 635, 642 S.E.2d 328 (2007).

Defendant's conviction for violating O.C.G.A. § 42-1-12(e)(3) as a result of failing to renew the defendant's registration as a sex offender was upheld on appeal as the requirement to register as a sexual offender under § 42-1-12(e)(3) resulted in a new crime under § 42-1-12(n) and was not an ex post facto law. Frazier v. State, 284 Ga. 638, 668 S.E.2d 646 (2008).

Trial court did not err in revoking a convicted sexual offender's probation for failing to register an address change when the offender moved into a motel because O.C.G.A. § 42-1-12 was not unconstitutionally vague in failing to define the term "temporary residence"; nor does the statute's use of the term "temporary residence" in any way authorize or encourage arbitrary and discriminatory enforcement, but rather, § 42-1-12(a)(16) sets forth in considerable detail the information that must be reported by a sexual offender. Dunn v. State, 286 Ga. 238, 686 S.E.2d 772 (2009).

Trial court did not err in revoking a convicted sexual offender's probation for failing to register an address change after the offender moved into a motel because the offender failed to establish that the offender was treated differently from a similarly situated nonresident sexual offender entering the state; if O.C.G.A. § 42-1-12(e)(7) applies to a hypothetical nonresident sexual offender, that person must update his or her information within 72 hours of a change of address as required in § 42-1-12(f)(5), and any nonresident sexual offender who is required to register by virtue of the specification of § 42-1-12(e)(7) is equally subject to the requirement that he or she register a new address within 72 hours of changing that address and equally subject to being charged with a violation. Dunn v. State, 286 Ga. 238, 686 S.E.2d 772 (2009).

Because sexual offender registry requirements are regulatory, and not punitive the registry requirement is not a cruel and unusual punishment in violation of the Eighth Amendment; moreover, it is of no consequence whether a defendant has committed an offense that is "sexual" in nature before being required to register since the nature of the offense requiring the registration would not somehow change the registration requirements into a form of "punishment." Rainer v. State, 286 Ga. 675, 690 S.E.2d 827 (2010).

O.C.G.A. § 42-1-12 does not violate substantive due process because § 42-1-12 advances the state's legitimate goal of informing the public for purposes of protecting children from those who would harm the children, and it is not arbitrary to believe that a child may be more at risk of harm from someone who would falsely imprison the child and who is not the child's parent; the fact that a defendant's offense did not involve sexual activity is of no consequence because under the statute, one only needs to have committed a criminal offense against a victim who is a minor in order to meet the statutory definition of "sexual offender" for purposes of registration. Rainer v. State, 286 Ga. 675, 690 S.E.2d 827 (2010).

It is commonly understood by persons of common intelligence that criminal conduct which is a sexual offense is, at a minimum, criminal conduct which involves genitalia. Inasmuch as the offense of cruelty to children is found in Title 16 of the Official Code of Georgia Annotated and a defendant's conduct that led to the defendant's conviction is a sexual offense, O.C.G.A. § 42-1-12 is not unconstitutionally vague. Wiggins v. State, 288 Ga. 169, 702 S.E.2d 865 (2010), cert. denied, 131 S. Ct. 2906, 179 L. Ed. 2d 1251, 2011 U.S. LEXIS 4005 (U.S. 2011).

Registration requirements for homeless sex offenders unconstitutionally vague.

- Defendant was entitled to quash an indictment charging the defendant with failure to register a new residence address under O.C.G.A. § 42-1-12 as the defendant, who was homeless and not living in a shelter, was not given an objective standard or guidelines as to how to register if the defendant did not have a street or route address; thus, § 42-1-12 was unconstitutionally vague as applied to homeless sex offenders without a street or route address. Santos v. State, 284 Ga. 514, 668 S.E.2d 676 (2008).

Failure of homeless to register.

- Defendant's conviction under O.C.G.A. § 42-1-12 for failing to register as a sex offender was reversed because the record showed that the state has never contested the evidence showing the defendant's homeless status nor had the state ever alleged, either in the indictment or at trial, that, despite the defendant's homelessness, the defendant had a street or route address which the defendant failed to register with the sheriff's office. Chestnut v. State, 331 Ga. App. 69, 769 S.E.2d 779 (2015).

Classification implicated liberty interest.

- Defendant's classification as a sexually dangerous predator implicated a liberty interest as it required electronic monitoring and tracking, additional registration requirements, additional employment restrictions, and reputational harm associated with such a classification. Gregory v. Sexual Offender Registration Review Bd., 298 Ga. 675, 784 S.E.2d 392 (2016).

Reliance on registration database.

- Defendant sergeant reasonably relied on the Georgia Bureau of Investigation's information that charges for failing to register as a sex offender were outstanding and that the plaintiff was last known to be in the sergeant's county; thus, verifying that the offender had not given the offender's address to the sheriff provided sufficient probable cause to seek an arrest warrant and a Fourth Amendment challenge properly failed; O.C.G.A. § 42-1-12(c) statutorily charged the Georgia Bureau of Investigation (GBI) with providing conviction data (including names and fingerprints) of persons required to register as sex offenders to local sheriffs, who in turn were charged with maintaining a list of their names and addresses, and the sergeant was in no position to challenge the information on the GBI database. Smith v. Greenlee, 289 Fed. Appx. 373 (11th Cir. 2008)(Unpublished).

As for defendant's argument that registering as a sex offender would have exposed the defendant to prosecution for reentry of a previously removed alien under 8 U.S.C. § 1326, the court found no Fifth Amendment violation because the defendant could not show that anything the defendant would have been required to provide under Georgia's sex offender statute would have confronted the defendant with a substantial hazard of self-incrimination (there were no nationality, visa, or other immigration details required to be submitted); the cases defendant cited in support of the defendant's Fifth Amendment argument were distinguishable because those cases imposed a disclosure requirement largely designed to discover involvement in criminal activities, and the Sex Offender Registration Notification Act, 18 U.S.C. § 2250(a), was not designed to uncover criminal behavior, but was instead intended to protect the public from sex offenders by tracking the offenders' interstate movement. United States v. Simon-Marcos, F.3d (11th Cir. Feb. 2, 2010)(Unpublished).

Construction.

- Nothing in O.C.G.A. § 42-1-12 makes the registration requirements conditional upon a sexual offender having been told of the need to register upon release. Instead, § 42-1-12 directs the official to give the registration information to a person who is required to register, which indicates that the sexual offender has an obligation to register which is independent of the notice given by the official. Petway v. State, 291 Ga. App. 301, 661 S.E.2d 667 (2008).

O.C.G.A. § 42-1-12(e)(7) clearly provides that convictions for rape and crimes relating to rape require registration as a sex offender, and the statute is not unconstitutionally vague. Jenkins v. State, 284 Ga. 642, 670 S.E.2d 425 (2008).

O.C.G.A. § 42-1-12(e)(7) does not give a nonresident sexual offender who falls under its definition license to remain in the state for fourteen consecutive days without providing notification to the appropriate sheriff because the statute brings such a person within the ambit of § 42-1-12; the obligations of those who are required to register are unaffected by the specifications in § 42-1-12(e)(7) because § 42-1-12(e) declares who shall register, and § 42-1-12(f) prescribes the obligations of those persons. Dunn v. State, 286 Ga. 238, 686 S.E.2d 772 (2009).

Trial court properly convicted the defendant of failing to register as a sexual offender under O.C.G.A. § 42-1-12(e)(4) because the statute was not unconstitutionally vague absent the definition of the term sexually violent offense as the statute included offenses in violation of O.C.G.A. § 16-6-22.2 and the defendant admitted the defendant knew the defendant was required to register. Youmans v. State, 291 Ga. 754, 732 S.E.2d 441 (2012).

Motion to enforce terms inadequate to address regulatory mechanism.

- Defendant's motion to enforce the terms and conditions of the defendant's sentence was ineffectual to address the regulatory mechanism requiring the defendant to register as a sex offender. Smith v. State, 328 Ga. App. 885, 763 S.E.2d 269 (2014).

Counseling requirement as precondition to parole.

- Prisoner who has not been convicted of a sex offense is entitled to due process before the state declares the prisoner to be a sex offender. While classification or designation as a sex offender under Georgia law is controlled by Georgia's Sex Offender Registration law, O.C.G.A § 42-1-12, the Parole Board's counseling precondition was insufficiently stigmatizing to constitute a deprivation of a constitutionally protected liberty interest and to support a due process entitlement. Kramer v. Donald, 286 Fed. Appx. 674 (11th Cir. 2008)(Unpublished).

When pardoned.

- Inclusion on the sex offender registry pursuant to O.C.G.A. § 42-1-12 was a legal consequence of the underlying criminal offense and a disability imposed by law and the defendant's pardon by its express terms removed all disabilities under Georgia law resulting from the defendant's conviction and relieved all the legal consequences thereof, and restored all of the defendant's civil and political rights, excepting only the defendant's firearm rights. State v. Davis, 303 Ga. 684, 814 S.E.2d 701 (2018).

Cruel and unusual punishment.

- Habeas court properly ruled that an inmate's sentence of 10 years in prison for having consensual oral sex with a 15-year-old when the inmate was only 17 years old constituted cruel and unusual punishment in light of the 2006 amendments to O.C.G.A. §§ 16-6-4 and42-1-12. As a result, the inmate's conviction was reversed and the inmate was not required to register as a sex offender. Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007).

Trial court did not err in denying the defendant's motion to strike an illegal sentence because the requirement that the defendant register as a sex offender did not violate the Eighth Amendment's proscription against the imposition of cruel and unusual punishment. Wiggins v. State, 288 Ga. 169, 702 S.E.2d 865 (2010), cert. denied, 131 S. Ct. 2906, 179 L. Ed. 2d 1251, 2011 U.S. LEXIS 4005 (U.S. 2011).

Evidence insufficient to prove failure to register.

- Defendant's conviction for failure to register as a sex offender had to be reversed because a rational trier of fact could not have found beyond a reasonable doubt from the evidence presented that the defendant violated the sex offender registration requirements of O.C.G.A. § 42-1-12 as the state's sole witness did not testify that the witness was working when the defendant was required to register or that the defendant could not have registered with someone else. Davis v. State, 330 Ga. App. 118, 766 S.E.2d 566 (2014).

Because the defendant was required to renew sex offender registration information in the county in which the defendant resided, and the evidence showed that the defendant did not renew registration in the county where the defendant had lived but had registered in the county where the defendant had moved to, the evidence was insufficient to support a conviction for violating the State Sexual Offender Registry statute, O.C.G.A. § 42-1-12. Jones v. State, 340 Ga. App. 398, 797 S.E.2d 653 (2017).

Failure to register results in new crime.

- Defendant's failure to abide by the requirement to register as a sexual offender, pursuant to O.C.G.A. § 42-1-12, would result in a new crime, thus, § 42-1-12 is not an ex post facto law. Miller v. State, 291 Ga. App. 478, 662 S.E.2d 261 (2008).

Registration requirement not sentence or punishment.

- Requiring a defendant who had been convicted of aggravated child molestation to submit to lifetime registration as a sex offender under O.C.G.A. § 42-1-12 did not exceed the maximum sentence allowed under O.C.G.A. § 16-6-4 as such registration was not a sentence or a punishment. Hollie v. State, 298 Ga. App. 1, 679 S.E.2d 47 (2009), aff'd, 287 Ga. 389, 696 S.E.2d 642 (2010).

Registration is not a sentence or punishment.

- That the sentencing judge did not impose sexual offender registration as a condition of probation did not excuse the defendant from registering as registration was not a sentence or a punishment. Rogers v. State, 297 Ga. App. 655, 678 S.E.2d 125 (2009).

Requiring registration as special condition of probation proper.

- Trial court did not err in denying the defendant's motion to strike an illegal sentence because the special condition of probation the trial court imposed, requiring the defendant to register as a sex offender, was required by the sex-offender registration statute, O.C.G.A. § 42-1-12. Moreover, the facts supporting the requirement that the defendant register as a sex offender, that the defendant committed conduct that was a sexual offense against a minor, were found by the jury. The sex-offender registry requirement is regulatory and not punitive in nature. Wiggins v. State, 288 Ga. 169, 702 S.E.2d 865 (2010), cert. denied, 131 S. Ct. 2906, 179 L. Ed. 2d 1251, 2011 U.S. LEXIS 4005 (U.S. 2011).

Sentence of 30 years, 15 to serve, proper.

- Defendant, who was indicted for violating O.C.G.A. § 42-1-12 "on or about April 4, 2007, the exact date being unknown", was properly sentenced to 30 years, to serve 15 imprisoned, because an amendment to § 42-1-12 that was effective July 1, 2006, increased the sentencing range from one-to-three years to ten-to-thirty years. Relaford v. State, 306 Ga. App. 549, 702 S.E.2d 776 (2010), cert. denied, No. S11C0429, 2011 Ga. LEXIS 576.

Life sentence for failing to register unconstitutional.

- Imposition of a mandatory sentence of life imprisonment imposed against a defendant, who was a second time offender, for failing to register as a sexual offender was held unconstitutional as grossly disproportionate to the crime of failing to register. Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008).

Denial of request for removal from registration requirement.

- While the petitioner did present substantial evidence, the trial court's determination of risk depended, inter alia, on the court's assessment of the credibility of the petitioner and of the expert who testified very favorably on the petitioner's behalf regarding a risk assessment examination and analysis by the expert, and the petitioner failed to show a manifest abuse of discretion in the denial of the petition. Royster v. State of Ga., 346 Ga. App. 333, 814 S.E.2d 455 (2018).

Cited in Turner v. State, 231 Ga. App. 747, 500 S.E.2d 628 (1998); Staley v. State, 233 Ga. App. 597, 505 S.E.2d 491 (1998); State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009); Bell v. State, 323 Ga. App. 751, 748 S.E.2d 114 (2013).

Evidence and Procedural Issues

No written findings of fact or conclusions of law required.

- By the statute's plain terms, O.C.G.A. § 42-1-12 specifies the criterion the trial court must consider in determining whether to grant a petition for relief from the statute's registration requirements for sexual offenders, namely, the risk that the petitioner will reoffend, but the statute does not state that the trial court's order granting or denying a petition must include written findings of fact or conclusions of law. In re Baucom, 297 Ga. App. 661, 678 S.E.2d 118 (2009).

Motion to quash indictment untimely.

- Defendant's motion to quash an indictment and a subsequent motion to quash a failure to register as a sex offender count under O.C.G.A. § 42-1-12 were properly denied; the defendant waived the right to challenge the form of the failure to register count of the indictment because the defendant's motion was not made before entry of a not guilty plea and even if § 17-7-110 applied to the filing of the defendant's motion, it was untimely under that statute as well. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).

Void indictment for failure to specify violation.

- An indictment that failed to inform the defendant of what alleged action or inaction constituted a violation of O.C.G.A. § 42-1-12(f)(5) was deficient and void. Only if additional factual allegations had been asserted in the indictment would it be clear what acts or omissions the grand jury had found probable cause to believe the defendant had committed, and what acts or omissions the trial jury would be required to find, beyond a reasonable doubt, that the defendant had committed in order to find the defendant guilty as charged. Jackson v. State, 301 Ga. 137, 800 S.E.2d 356 (2017).

Motion to sever properly denied.

- Defendant's motion to sever the failure to register as a sex offender counts under O.C.G.A. § 42-1-12 from the remaining aggravated sodomy and child molestation counts was properly denied as: (1) the charges involved a series of acts which were connected together; (2) the case was not so complex as to impair the jury's ability to distinguish the evidence and to apply the law intelligently to the counts as joined; and (3) the failure to report charges were legally material to the crimes against two children because the failure constituted evasive conduct that was circumstantial evidence of guilt; moreover, evidence of the conduct underlying the defendant's conviction of a sex offense in North Carolina was admissible as a similar transaction. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).

Retroactive registration of sex offenders is nonpunitive.

- Trial court properly denied a defendant's motion to remove the defendant from the sex offender registry, or in the alternative to be resentenced as a first offender, as the United States Supreme Court had already determined that retroactive registration of sex offenders was nonpunitive and did not constitute an ex post facto law, and to resentence the defendant as a first offender would be in direct contravention of the plain language of O.C.G.A. §§ 17-10-6.1 and42-1-12 since the defendant pled guilty but mentally ill to kidnaping a child under the age of 14, which was a serious violent felony. Finnicum v. State, 296 Ga. App. 86, 673 S.E.2d 604 (2009).

Registration for first offender.

- Georgia superior court properly required a first offender to register as a sex offender pursuant to O.C.G.A. § 42-1-12 as both the 2005 and 2006 amendments to the statute dictated registration, and despite the fact that registration was not part of the first offender's plea agreement, as neither the court nor the prosecutor had the power to exempt the first offender from the adoption of new rules regarding registration entered after the plea. Peters v. Donald, 282 Ga. App. 714, 639 S.E.2d 345 (2006).

Residence, not domicile.

- Trial court properly denied a defendant's motion for a directed verdict on a count alleging that the defendant failed to register as a sex offender under O.C.G.A. § 42-1-12 as that section did not speak to the concept of "domicile," but to residence address and moving and residence included an intent to live in a place for the time being; although the state did not show exactly where the defendant resided after leaving the county, it showed that the defendant left the county and lived outside the state for more than a year without informing the county sheriff of a change in residence address, as required by law. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).

In a declaratory action suit brought by a registered sex offender, former O.C.G.A. § 42-1-15(a) was held unconstitutional as to the sex offender's residence, which was acquired prior to a child care facility locating itself within 1,000 feet of the property, as forcing the sex offender from the home was a regulatory taking of the property without just and adequate compensation. However, no regulatory taking occurred with regard to prohibiting the sex offender from physically working at a business, pursuant to former § 42-1-15(b)(1), in which the sex offender held an ownership interest in as there existed no prohibition on owning a business within 1,000 feet of any child care facility, church, school, or other area where minors congregated and the sex offender failed to show that physically working at the premises was necessary. Mann v. Ga. Dep't of Corr., 282 Ga. 754, 653 S.E.2d 740 (2007).

Change of residence.

- Trial court's conclusion that the state failed to present any competent evidence showing that the defendant had changed residences was erroneous because in the court's assessment of the evidence, the trial court erroneously determined that an investigator's testimony amounted to inadmissible hearsay; the investigator's testimony as to the declaration of the defendant's father that the defendant no longer lived at that residence was admissible as a prior inconsistent statement and was admissible as substantive evidence of the defendant's guilt. Moreover, the circumstances presented by the evidence would authorize a rational trier of fact to find that the defendant had intended to change residences without notifying the local authorities as required; the evidence showed that the defendant had been living at the defendant's mother's residence for over two weeks, had not returned to the defendant's father's residence by the time the defendant was arrested, had failed to report for a scheduled meeting with a probation officer, and had not contacted the probation officer to explain the defendant's failure to report for the meeting or to provide any information as to the defendant's current residential status. State v. Canup, 300 Ga. App. 678, 686 S.E.2d 275 (2009).

Indictment was insufficient to withstand a general demurrer because the indictment did not allege that the defendant was a convicted sexual offender, that the defendant was required as a sexual offender to register the defendant's address with the sheriff of the county in which the defendant resided, the defendant previously resided in a county and had registered the defendant's address, or that the defendant changed the defendant's address to one in another county, and the indictment did not inform the defendant of what alleged action or inaction constituted a registration statute. Jackson v. State, 301 Ga. 137, 800 S.E.2d 356 (2017).

Sufficient evidence to support conviction of failure to notify of change of residence.

- Since the defendant's release to probation occurred after the effective date of the registration statute and the evidence proved that the defendant was required to register under O.C.G.A. § 42-1-12(e)(4), the evidence was sufficient to support the conviction for failure of a registered sex offender to report a change in residence prior to moving. Pardon v. State, 322 Ga. App. 393, 745 S.E.2d 658 (2013).

Evidence of convictions admissible in trial for failure to notify of address change.

- In a defendant's trial for failure to notify the sheriff of changes in the defendant's address as required by O.C.G.A. § 42-1-12 based on the defendant's past rape conviction, the defendant's counsel was not ineffective in failing to object to admission of the defendant's past convictions for burglarizing and robbing the defendant's parents. Such evidence was admissible to impeach the defendant's testimony that the defendant had lived with the defendant's parents at their home without interruption. Relaford v. State, 306 Ga. App. 549, 702 S.E.2d 776 (2010), cert. denied, No. S11C0429, 2011 Ga. LEXIS 576.

Registration requirement for first offender under former law.

- Trial court's denial of a defendant's motion for an out-of-time appeal was proper with respect to the defendant's claim that counsel was ineffective for failing to object to testimony by a probation officer as the officer's statement that under former O.C.G.A. § 42-1-2(a)(3), the defendant did not have to register as a sex offender if the defendant was afforded treatment as a first offender was a correct statement of law at the time; accordingly, counsel's failure to object thereto was not ineffectiveness as any such objection would have lacked merit. Ethridge v. State, 283 Ga. App. 289, 641 S.E.2d 282 (2007), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).

Denial of petition for release from requirement to register.

- Trial court did not abuse the court's discretion by denying the defendant's petition for release from the requirement to register as a sexual offender for life as the defendant failed to make a prima facie showing that the defendant was no longer a substantial risk of reoffending since an agency abuse case was pending against the defendant, which required a child of the defendant to not bring any children around the defendant, and defendant characterized the conduct involving the child molestation of the defendant's three children as a mistake which everyone makes. Miller v. State, 291 Ga. App. 478, 662 S.E.2d 261 (2008).

Trial court erred by denying a defendant's petition for release from the requirement that the defendant register as a sexual offender, pursuant to O.C.G.A. § 42-1-12, since the defendant's Texas conviction involving the use of the defendant's position as a clergyman to sexually assault two victims was not similar enough to any Georgia criminal statute that would have found the defendant to have been convicted of committing a dangerous sexual offense as that term was defined in § 42-1-12(1)(10)(A). Sharma v. State, 294 Ga. App. 783, 670 S.E.2d 494 (2008).

Trial court did not abuse the court's discretion by denying a defendant's petition seeking relief from the sexual offender registration requirements, pursuant to O.C.G.A. § 42-1-12, because the defendant failed to provide a report from a licensed psychiatrist that allegedly set forth an opinion that the defendant posed no threat whatsoever of reoffending. Further, the defendant failed to provide any additional information regarding the underlying conduct for the out-of-state conviction that required the registration. In re Baucom, 297 Ga. App. 661, 678 S.E.2d 118 (2009).

Confinement in probation detention center impacting registration period.

- Defendant's confinement in a probation detention center was not equivalent to confinement in prison for purposes of O.C.G.A. § 42-1-12(g) because under O.C.G.A. § 42-8-34.1(c), such centers were alternatives to confinement in prison, and therefore the 10-year waiting period for release from sex offender registration requirements did not begin running upon the defendant's release from the center, but from the date the defendant was released from probation. In re White, 306 Ga. App. 365, 702 S.E.2d 694 (2010).

Probation condition overbroad and vague.

- Upon convicting the defendant of sexual battery under O.C.G.A. § 16-6-22.1, special probation conditions 4, 5, and 6 were erroneously imposed as those conditions lacked reasonable specificity and encompassed groups and locations not rationally related to the sentencing objectives and failed to give the defendant notice of either the conduct or the groups to avoid. Grovenstein v. State, 282 Ga. App. 109, 637 S.E.2d 821 (2006).

No contest plea properly admitted.

- Trial court did not err in admitting into evidence a no contest plea and in "making reference" to the plea with regard to the similar transaction evidence as the defendant's failure to object to the introduction of the evidence precluded review of the issue on appeal; further, the plea was admissible to show a conviction for purposes of the defendant's alleged failure to register as a sex offender under former O.C.G.A. § 42-1-12 and the jury was permitted to consider the plea as similar transaction evidence. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).

Lack of knowledge of registration requirements not a defense.

- Defendant's conviction for filing false information with the Georgia Sex Offender Registry, in violation of O.C.G.A. § 42-1-12(n), was upheld. The defendant's claimed lack of knowledge of the registration requirements was no excuse and was refuted by the fact that the defendant had filed registration notification forms. Scott v. State, 303 Ga. App. 672, 695 S.E.2d 71 (2010).

Failure to advise defendant of requirement to register as sex offender.

- Trial court erred in denying the defendant's motion to withdraw the defendant's guilty plea to two counts of child molestation because defendant's trial counsel failed to advise the defendant that entering a plea of guilty to child molestation would necessitate that the defendant comply with the requirements of the state's sex offender registry statute, O.C.G.A. § 42-1-12; the defendant was subject to the sex offender registration requirements at the time that the defendant entered into defendant's plea, the terms of the sex offender registry statute were succinct, clear, and explicit in setting forth the consequences of defendant's guilty plea, and the defendant's trial counsel could have readily determined that the defendant was required to register and conveyed that information to the defendant. Taylor v. State, 304 Ga. App. 878, 698 S.E.2d 384 (2010).

Trial counsel's failure to advise a client that pleading guilty will require the defendant to register as a sex offender is constitutionally deficient performance. Taylor v. State, 304 Ga. App. 878, 698 S.E.2d 384 (2010).

Ineffective assistance of counsel found.

- In a 28 U.S.C. § 2254 case in which a defendant was challenging the conviction under O.C.G.A. § 42-1-12, the determination of the Georgia Court of Appeals that trial counsel's failure to challenge the use of the defendant's conviction under an unconstitutional anti-sodomy statute, O.C.G.A. § 16-6-2(a)(1), to convict the defendant for failure to register as a sex offender was not ineffective assistance resulted in a decision that was an unreasonable application of federal law. Green v. Georgia, F. Supp. 2d (N.D. Ga. Dec. 9, 2013).

Evidence sufficient to support conviction.

- Evidence that the defendant moved without registering the new address within 72 hours was sufficient to support the defendant's conviction for failing to register as a sex offender. Jackson v. State, 335 Ga. App. 597, 782 S.E.2d 499 (2016).

Release from registration after 10 years if victim not physically harmed.

- Phrase "intentional physical harm," as it was used in O.C.G.A. § 17-10-6.2(c)(1)(D), providing conditions for release from the sex offender registry, meant intentional physical contact that caused actual physical damage, injury, or hurt to the victim; a sex offender registrant was entitled to release from registration because the registrant's unwanted touching of a ten-year-old boy's penis did not constitute such physical damage, injury, or hurt. State v. Randle, 298 Ga. 375, 781 S.E.2d 781 (2016).

Registration Required

Attempt crimes required registration.

- Defendant was properly ordered to register as a sex offender because the convictions constituted criminal offenses against a victim who was a minor, pursuant to O.C.G.A. § 42-1-12, because the attempt convictions pursuant to O.C.G.A. § 16-4-1 were covered within the registration requirement; the defendant was convicted of criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes, in violation of O.C.G.A. §§ 16-6-4(a) and16-6-5(a), respectively, as the defendant communicated over the Internet with a police officer who was disguised as a 14-year-old girl, and arranged to meet the alleged girl, and the fact that an actual child was not involved did not negate the offense or the need for the registration as there was no impossibility defense. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346 (2005).

Because the crime of attempt to commit rape was related to a sexually violent offense, the defendant was properly required to comply with the registration requirements of O.C.G.A. § 42-1-12, and the trial court did not err in convicting the defendant for violating the registry statute. Jenkins v. State, 284 Ga. 642, 670 S.E.2d 425 (2008).

Registration for public indecency proper.

- Offense of public indecency, O.C.G.A. § 16-6-8, was not a victimless crime and, therefore, a perpetrator thereof may have been required to register under O.C.G.A. § 42-1-12; the trial court did not err in requiring the defendant to register as a condition of the defendant's sentence for public indecency. Brown v. State, 270 Ga. App. 176, 605 S.E.2d 885 (2004).

Because the defendant's sex offender registration as part of probation was limited to the maximum sentence allowed by law as punishment for that crime, the trial court did not improperly give the defendant an indeterminate sentence by requiring the defendant to register as a sexual offender following the defendant's conviction for felony public indecency. Loya v. State, 321 Ga. App. 430, 740 S.E.2d 382 (2013).

Registration required when convicted as child sex offender.

- Defendant was properly ordered to register as a sex offender after a conviction for cruelty to a child since the cruelty as stated in the indictment was rape of a minor, a threat to arrest and jail the victim, and force used to make the victim touch the defendant's penis. Wiggins v. State, 272 Ga. App. 414, 612 S.E.2d 598 (2005), aff'd in part and rev'd in part, 280 Ga. 268, 626 S.E.2d 118 (2006).

As the indictments made it clear that the underlying conduct for the two aggravated assaults to which the defendant entered Alford pleas was the oral sodomy of one minor and the rape of another, and the defendant was held to have notice of all lesser crimes shown by the facts alleged in the indictment, the defendant was required to register as a sex offender under O.C.G.A. § 42-1-12. Rogers v. State, 297 Ga. App. 655, 678 S.E.2d 125 (2009).

Evidence was sufficient to support the defendant's conviction of failure to register as a sex offender, as required by O.C.G.A. § 42-1-12, because when the defendant was charged with failure to register the defendant was required to register as a sex offender since the defendant had been convicted of criminal sexual conduct toward a minor in violation of O.C.G.A. § 16-6-2, and the supreme court's ruling that § 16-6-2 infringed upon the right of privacy had to be applied retroactively on collateral review, but the court of appeals could not apply it in the defendant's case since it was not on collateral review; the appeal was from a conviction for failure to register as a sex offender, which was a proceeding separate from defendant's original offense, and at the time of the defendant's sodomy conviction, the conduct in which the defendant engaged was against the law in Georgia. Green v. State, 303 Ga. App. 210, 692 S.E.2d 784 (2010).

Because the addendum to the defendant's sentence purported to impose restrictions upon the defendant's future parole, if granted, the sentence was a nullity; however, in light of the testimony and the nature of the offense of which the defendant was convicted, incest, the conditions of probation imposed were reasonable and were not vague or overly broad because several of the conditions imposed were specifically mandated by O.C.G.A. § 42-1-12, and even if the trial court had not specifically imposed sex offender registration as a condition of probation, the defendant was nonetheless required by statute to register. Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010).

Perpetrator 18 and victim 13 required registration.

- Trial court properly held that the defendant, who was convicted of a statutory rape that occurred when the defendant was 18 and the victim was 13, had to register as a sex offender. Because the victim was under 14, the case did not fall within the exception of O.C.G.A. § 42-1-12(a)(9)(C) for misdemeanor statutory rape under O.C.G.A. § 16-6-3(c); moreover, the defendant was prosecuted in superior court, not juvenile court. Planas v. State, 296 Ga. App. 51, 673 S.E.2d 566 (2009).

Registration required when crime against minor.

- Based on the allegations in the defendant's second indictment that the defendant sucked on the breasts of a minor under the age of 16, the trial court was authorized to conclude that the defendant committed a criminal offense against a victim who was a minor and was thus subject to the registration requirements and conditions in O.C.G.A. § 42-1-12. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).

Defendant's convictions for child molestation supported the trial court's requirement that the defendant register as a sex offender because the defendant's conviction constituted a conviction for criminal sexual conduct toward a minor and a dangerous sexual offense. Kruel v. State, 344 Ga. App. 256, 809 S.E.2d 491 (2018).

Electronically furnishing obscene materials required registration.

- Detective erroneously promised during an interview that a defendant would not be charged with an offense that required sex offender registration because a conviction for electronically furnishing obscene material to a minor under O.C.G.A. § 16-12-100.1 would require registration as a sex offender under O.C.G.A. § 42-1-12(e)(2); prior to the erroneous promise, the defendant's confession was voluntarily made under former O.C.G.A. § 24-3-50 (see now O.C.G.A. § 24-8-824) as the confession was made without the slightest hope of benefit. State v. Lee, 295 Ga. App. 49, 670 S.E.2d 879 (2008).

Internet sex crimes required registration.

- Defendant's convictions under the computer pornography and child exploitation act, O.C.G.A. § 16-12-100.2, required registration as a sex offender pursuant to O.C.G.A. § 42-1-12, as the conviction for pornography and child exploitation under § 16-12-100.2(d) for the use of an on-line Internet service in the attempt to commit child molestation, was within the definition of a "criminal offense against a victim who was a minor," pursuant to § 42-1-12; the defendant had communicated with a police officer who posed as a 14-year-old girl, sent her sexually explicit messages, and arranged a meeting with her. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346 (2005).

Registration for "criminal offense against a minor" based on communication over the Internet.

- Trial court properly ordered the defendant to register as a sex offender, pursuant to O.C.G.A. § 42-1-12, although the defendant's convictions did not fit within the category of "sexually violent offenses," pursuant to § 42-1-12, as the offenses were all within the "criminal offense against a victim who was a minor" category, pursuant to § 42-1-12, based on a strict construction of the registration statute, pursuant to the statutory interpretation rules under O.C.G.A. § 1-3-1(a); the defendant's convictions arose for communications over the Internet with a police officer who posed as a young girl, and the defendant sent her sexually explicit messages and arranged a meeting with her, at which time the defendant was arrested. Spivey v. State, 274 Ga. App. 834, 619 S.E.2d 346 (2005).

Conduct alleged in indictment satisfied definition of sexual offense and required registration.

- As a defendant entered an Alford plea to two counts of cruelty to children by committing the acts alleged in the indictment, the defendant acknowledged touching the breast and buttocks of the 14-year-old victim and although the defendant did not plead guilty to a sexual offense, the defendant pled guilty to conduct which, by the conduct's nature, was a sexual offense against a minor. Therefore, the defendant was required to register as a sexual offender under O.C.G.A. § 42-1-12(e)(1). Morrell v. State, 297 Ga. App. 592, 677 S.E.2d 771 (2009).

Registration Not Required

Registration not required for sentence imposed before effective date of act.

- O.C.G.A. § 42-1-12(a)(3) applied to sentences imposed on or after July 1, 2004, and thus, when the defendant was sentenced in December 2001, the new statutory language did not apply and the defendant did not need to register as a sex offender. State v. Plunkett, 277 Ga. App. 605, 627 S.E.2d 182 (2006).

Misdemeanor conviction for interference with child custody did not require registration.

- Trial court properly permanently enjoined the Georgia Department of Corrections from requiring the defendant to register as a sex offender because the defendant's State of Alabama conviction for interference with custody of a child was a misdemeanor conviction that did not trigger the sex offender registration requirement under Georgia law. Owens v. Urbina, 296 Ga. 256, 765 S.E.2d 909 (2014).

Sex offender registration not required after successful completion of first offender sentence.

- Defendant was not required to register as a sexual offender because the defendant successfully completed a first-offender sentence for statutory rape and burglary charges, and a "conviction" under O.C.G.A. § 42-1-12(a)(8) did not include a discharge without an adjudication of guilt following the successful completion of a first offender sentence; the plain language of O.C.G.A. § 42-8-62(a) provided that, with certain exceptions, once a first offender was discharged without an adjudication of guilt, he or she stood completely exonerated and was not considered as having been convicted of a crime. Jackson v. State, 299 Ga. App. 356, 683 S.E.2d 60 (2009).

Release from registration proper when offense did not rise to intentional physical harm.

- Trial court did not abuse the court's discretion in releasing the defendant from the sex offender registration requirements because under O.C.G.A. § 17-10-6.2(c)(1)(D), there was evidence that the underlying child molestation offense consisted of the defendant touching the genitals of the child victim with the defendant's hands; thus, the sexual offense did not rise to the level of intentional physical harm so as to preclude release from the registration requirements. State v. Randle, 331 Ga. App. 1, 769 S.E.2d 724 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Release of information by sheriff.

- Sheriff must release relevant information relating to sexually violent predators; however, the sheriff is given the authority to determine what information and in what manner such information will be released. 1997 Op. Att'y Gen. No. U97-23.

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state statute including "sexually motivated offenses" within definition of sex offense for purposes of sentencing or classification of defendant as sex offender, 30 A.L.R.6th 373.

Validity, construction, and application of state statutes imposing criminal penalties for failure to register as required under sex offender or other criminal registration statutes, 33 A.L.R.6th 91.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - Constitutional issues, 37 A.L.R.6th 55.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - duty to register, requirements for registration, and procedural matters, 38 A.L.R.6th 1.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities as applied to juvenile offenders - expungement, stay or deferral, exceptions, exemptions, and waiver, 39 A.L.R.6th 577.

Court's duty to advise sex offender as to sex offender registration consequences or other restrictions arising from plea of guilty, or to determine that offender is advised thereof, 41 A.L.R.6th 141.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 6 A.L.R. Fed. 2d 619 (2004), to Sex Offender Registration Statutes, 51 A.L.R.6th 139.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - Initial classification determination, 65 A.L.R.6th 1.

Validity, construction, and application of federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.A. § 16901 et seq., its enforcement provision, 18 U.S.C.A § 2250, and associated regulations, 30 A.L.R. Fed. 2d 213.

Validity and applicability of state requirement that person convicted or indicted of sex offenses be subject to electronic location monitoring, including use of satellite or global positioning system, 57 A.L.R. 6th 1.

Validity of state sex offender registration laws under ex post facto prohibitions, 63 A.L.R. 6th 351.

Validity, construction and application of state sex offender registration statutes concerning level of classification - general principles, evidentiary matters, and assistance of counsel, 64 A.L.R. 6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - initial classification determination, 65 A.L.R.6th 1.

Removal of adults from state sex offender registries, 77 A.L.R.6th 197.

Discharge from commitment and supervised release of civilly committed sex offender under state law, 78 A.L.R.6th 417.

Validity, construction, and application of state sex offender statutes prohibiting use of computers and internet as conditions of probation or sentence, 89 A.L.R.6th 261.

Validity of state sex offender registration laws under equal protection guarantees, 93 A.L.R.6th 1.

42-1-13. Sexual Offender Registration Review Board; composition; appointment; administration and duties; immunity from liability.

  1. The Sexual Offender Registration Review Board shall be composed of three professionals licensed under Title 43 and knowledgeable in the field of the behavior and treatment of sexual offenders; at least one representative from a victims' rights advocacy group or agency; and at least two representatives from law enforcement, each of whom is either employed by a law enforcement agency as a certified peace officer under Title 35 or retired from such employment. The members of the board shall be appointed by the commissioner of behavioral health and developmental disabilities for terms of four years. On and after July 1, 2006, successors to the members of the board shall be appointed by the Governor. Members of the board shall take office on the first day of September immediately following the expired term of that office and shall serve for a term of four years and until the appointment of their respective successors. No member shall serve on the board more than two consecutive terms. Vacancies occurring on the board, other than those caused by expiration of a term of office, shall be filled in the same manner as the original appointment to the position vacated for the remainder of the unexpired term and until a successor is appointed. Members shall be entitled to an expense allowance and travel cost reimbursement the same as members of certain other boards and commissions as provided in Code Section 45-7-21.
  2. The board shall be attached to the Department of Behavioral Health and Developmental Disabilities for administrative purposes and, provided there is adequate funding, shall:
    1. Exercise its quasi-judicial, rule-making, or policy-making functions independently of the department and without approval or control of the department;
    2. Prepare its budget, if any, and submit its budgetary requests, if any, through the department; and
    3. Hire its own personnel, including but not limited to administrative personnel and clinical evaluators.
  3. Any investigator who, as of June 30, 2012, was employed by the board shall be transferred to the Georgia Bureau of Investigation on July 1, 2012, and shall no longer be under the administration or supervision of the board, except as required to provide the board with information as set forth in paragraph (15) of subsection (a) of Code Section 35-3-4. The executive director of the board shall arrange administratively for the transfer of any equipment relating to the transfer of such personnel.
  4. Members of the board shall be immune from liability for good faith conduct under this article.

(Code 1981, §42-1-13, enacted by Ga. L. 2006, p. 379, § 24/HB 1059; Ga. L. 2009, p. 453, §§ 3-2, 3-3/HB 228; Ga. L. 2012, p. 985, § 2/HB 895.)

The 2012 amendment, effective July 1, 2012, substituted ", including but not limited to administrative personnel and clinical evaluators" for "if authorized by the Constitution of this state or by statute or if the General Assembly provides or authorizes the expenditure of funds therefor" in paragraph (b)(3); added subsection (c); and redesignated former subsection (c) as present subsection (d).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2012, "paragraph (15) of subsection (a) of Code Section 35-3-4" was substituted for "paragraph (14) of subsection (a) of Code Section 35-3-4" in the first sentence of subsection (c).

Editor's notes.

- Ga. L. 2006, p. 379, § 24/HB 1059, July 1, 2006, repealed the former Code section and enacted the current Code section. The former Code section, pertaining to registered sex offenders residing within areas in which minors congregate, was based on Code 1981, § 42-1-13, enacted by Ga. L. 2003, p. 878, § 1. For present similar provisions, see Code Section42-1-15.

Ga. L. 2006, p. 379, § 30/HB 1059, not codified by the General Assembly, provides, in part, that: "(b) Any person required to register pursuant to the provisions of Code Section 42-1-12, relating to the state sexual offender registry, and any person required not to reside within areas where minors congregate, as prohibited by Code Section 42-1-13, shall not be relieved of the obligation to comply with the provisions of said Code sections by the repeal and reenactment of said Code sections.

"(c) The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Administrative Rules and Regulations.

- The Georgia Sexually Violent Offender Registry, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Crime Information Center Council, Practice and Procedure, Chapter 140-2.

Law reviews.

- For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012). For note, "Banishing Acts: How Far May States Go to Keep Convicted Sex Offenders Away from Children?," see 40 Ga. L. Rev. 961 (2006).

JUDICIAL DECISIONS

Registration for first offender.

- Georgia superior court properly required a first offender to register as a sex offender pursuant to O.C.G.A. § 42-1-12 as both the 2005 and 2006 amendments to the statute dictated registration, and despite the fact that registration was not part of the first offender's plea agreement, as neither the court nor the prosecutor had the power to exempt the first offender from the adoption of new rules regarding registration entered after the plea. Peters v. Donald, 282 Ga. App. 714, 639 S.E.2d 345 (2006).

Cited in Watson v. State, 283 Ga. App. 635, 642 S.E.2d 328 (2007); State v. Davis, 303 Ga. 684, 814 S.E.2d 701 (2018).

RESEARCH REFERENCES

ALR.

- Validity of statutes imposing residency restrictions on registered sex offenders, 25 A.L.R.6th 227.

Validity, construction, and application of federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.A. § 16901 et seq., its enforcement provision, 18 U.S.C.A § 2250, and associated regulations, 30 A.L.R. Fed. 2d 213.

Validity of state sex offender registration laws under ex post facto prohibitions, 63 A.L.R. 6th 351.

42-1-14. Risk assessment classification; classification as "sexually dangerous predator"; electronic monitoring.

    1. The board shall determine the likelihood that a sexual offender will engage in another crime against a victim who is a minor or a dangerous sexual offense. The board shall make such determination for any sexual offender convicted on or after July 1, 2006, of a criminal offense against a victim who is a minor or a dangerous sexual offense and for any sexual offender incarcerated on July 1, 2006, but convicted prior to July 1, 2006, of a criminal offense against a victim who is a minor. Any sexual offender who changes residence from another state or territory of the United States or any other place to this state and who is not already designated under Georgia law as a sexually dangerous predator, sexual predator, or sexually violent predator shall have his or her required registration information forwarded by the sheriff of his or her county of registration to the board for the purpose of risk assessment classification. The board shall also make such determination upon the request of a superior court judge for purposes of considering a petition to be released from registration restrictions or residency or employment restrictions as provided for in Code Section 42-1-19.
    2. A sexual offender shall be placed into Level I risk assessment classification, Level II risk assessment classification, or sexually dangerous predator classification based upon the board's assessment criteria and information obtained and reviewed by the board. The sexual offender may provide the board with information, including, but not limited to, psychological evaluations, sexual history polygraph information, treatment history, and personal, social, educational, and work history, and may agree to submit to a psychosexual evaluation or sexual history polygraph conducted by the board. If the sexual offender has undergone treatment or supervision through the Department of Corrections or the Department of Community Supervision, such treatment records shall also be submitted to the board for evaluation. The prosecuting attorney shall provide the board with any information available to assist the board in rendering an opinion, including, but not limited to, criminal history and records related to previous criminal history. The board shall utilize the Georgia Bureau of Investigation to assist it in obtaining information relative to its evaluation of sexual offenders and the Georgia Bureau of Investigation shall provide the board with information as requested by the board. The board shall be authorized to obtain information from supervision records of the State Board of Pardons and Paroles regarding such sexual offender, but such records shall remain confidential state secrets in accordance with Code Section 42-9-53 and shall not be made available to any other person or entity or be subject to subpoena unless declassified by the State Board of Pardons and Paroles. The clerk of court shall send a copy of the sexual offender's conviction to the board and notify the board that a sexual offender's evaluation will need to be performed. The board shall render its recommendation for risk assessment classification within:
      1. Sixty days of receipt of a request for an evaluation if the sexual offender is being sentenced pursuant to subsection (c) of Code Section 17-10-6.2;
      2. Six months prior to the sexual offender's proposed release from confinement if the offender is incarcerated;
      3. Sixty days of receipt of the required registration information from the sheriff when the sexual offender changes residence from another state or territory of the United States or any other place to this state and is not already classified;
      4. Sixty days if the sexual offender is sentenced to a probated or suspended sentence; and
      5. Ninety days if such classification is requested by the court pursuant to a petition filed under Code Section 42-1-19.
    3. The board shall notify the sexual offender by first-class mail of its determination of risk assessment classification and shall send a copy of such classification to the Georgia Bureau of Investigation, the Department of Corrections, the Department of Community Supervision, the sheriff of the county where the sexual offender is registered, and the sentencing court, if applicable.
  1. If the board determines that a sexual offender should be classified as a Level II risk assessment classification or as a sexually dangerous predator, the sexual offender may petition the board to reevaluate his or her classification. To file a petition for reevaluation, the sexual offender shall be required to submit his or her written petition for reevaluation to the board within 30 days from the date of the letter notifying the sexual offender of his or her classification. The sexual offender shall have 60 days from the date of the notification letter to submit information as provided in subsection (a) of this Code section in support of the sexual offender's petition for reevaluation. If the sexual offender fails to submit the petition or supporting documents within the time limits provided, the classification shall be final. The board shall notify the sexual offender by first-class mail of its decision on the petition for reevaluation of risk assessment classification and shall send a copy of such notification to the Georgia Bureau of Investigation, the Department of Corrections, the Department of Community Supervision, the sheriff of the county where the sexual offender is registered, and the sentencing court, if applicable.
  2. A sexual offender who is classified by the board as a Level II risk assessment classification or as a sexually dangerous predator may file a petition for judicial review of his or her classification within 30 days of the date of the notification letter or, if the sexual offender has requested reevaluation pursuant to subsection (b) of this Code section, within 30 days of the date of the letter denying the petition for reevaluation. The petition for judicial review shall name the board as defendant, and the petition shall be filed in the superior court of the county where the offices of the board are located. Within 30 days after service of the appeal on the board, the board shall submit a summary of its findings to the court and mail a copy, by first-class mail, to the sexual offender. The findings of the board shall be considered prima-facie evidence of the classification. The court shall also consider any relevant evidence submitted, and such evidence and documentation shall be mailed to the parties as well as submitted to the court. The court may hold a hearing to determine the issue of classification. The court may uphold the classification of the board, or, if the court finds by a preponderance of the evidence that the sexual offender is not placed in the appropriate classification level, the court shall place the sexual offender in the appropriate risk assessment classification. The court's determination shall be forwarded by the clerk of the court to the board, the sexual offender, the Georgia Bureau of Investigation, and the sheriff of the county where the sexual offender is registered.
  3. Any individual who was classified as a sexually violent predator prior to July 1, 2006, shall be classified as a sexually dangerous predator on and after July 1, 2006.
  4. Any sexually dangerous predator shall be required to wear an electronic monitoring system that shall have, at a minimum:
    1. The capacity to locate and record the location of a sexually dangerous predator by a link to a global positioning satellite system;
    2. The capacity to timely report or record a sexually dangerous predator's presence near or within a crime scene or in a prohibited area or the sexually dangerous predator's departure from specific geographic locations; and
    3. An alarm that is automatically activated and broadcasts the sexually dangerous predator's location if the global positioning satellite monitor is removed or tampered with by anyone other than a law enforcement official designated to maintain and remove or replace the equipment.

      Such electronic monitoring system shall be worn by a sexually dangerous predator for the remainder of his or her natural life. The sexually dangerous predator shall pay the cost of such system to the Department of Community Supervision if the sexually dangerous predator is under probation or parole supervision and to the sheriff after the sexually dangerous predator completes his or her term of probation and parole or if the sexually dangerous predator has moved to this state from another state, territory, or country. The electronic monitoring system shall be placed upon the sexually dangerous predator prior to his or her release from confinement. If the sexual offender is not in custody, within 72 hours of the decision classifying the sexual offender as a sexually dangerous predator in accordance with subsection (b) of this Code section, the sexually dangerous predator shall report to the sheriff of the county of his or her residence for purposes of having the electronic monitoring system placed on the sexually dangerous predator.

  5. In addition to the requirements of registration for all sexual offenders, a sexually dangerous predator shall report to the sheriff of the county where such predator resides six months following his or her birth month and update or verify his or her required registration information.

(Code 1981, §42-1-14, enacted by Ga. L. 2006, p. 379, § 24/HB 1059; Ga. L. 2010, p. 168, § 12/HB 571; Ga. L. 2010, p. 878, § 42/HB 1387; Ga. L. 2011, p. 752, § 42/HB 142; Ga. L. 2012, p. 985, § 3/HB 895; Ga. L. 2013, p. 1056, § 1/HB 122; Ga. L. 2015, p. 422, § 5-66/HB 310; Ga. L. 2016, p. 443, § 8-1/SB 367.)

The 2012 amendment, effective July 1, 2012, added the fifth sentence of paragraph (a)(2).

The 2013 amendment, effective July 1, 2013, added the sixth sentence in paragraph (a)(2).

The 2015 amendment, effective July 1, 2015, in paragraph (a)(2), in the third sentence, inserted "or supervision" and inserted "or the Department of Community Supervision", inserted "State" preceding "Board of Pardons and Paroles" near the beginning of the sixth sentence; in paragraph (a)(3), substituted "sexual offender" for "sex offender" near the beginning, and inserted "the Department of Community Supervision," in the middle; in subsection (b), inserted "the Department of Community Supervision," near the end of the last sentence; and, in the second sentence of the undesignated language at the end of subsection (e), substituted "Department of Community Service if the sexually dangerous predator is under probation or parole supervision" for "Department of Corrections if the sexually dangerous predator is on probation; to the State Board of Pardons and Paroles if the sexually dangerous predator is on parole;". See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, substituted "Supervision" for "Service" in the second sentence of the undesignated paragraph of subsection (e).

Editor's notes.

- Ga. L. 2006, p. 379, § 30/HB 1059, not codified by the General Assembly, provides, in part, that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Ga. L. 2010, p. 878, § 54(e), not codified by the General Assembly, provides: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subsection (a) of this Code section by Ga. L. 2010, 878, § 42, was not given effect.

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For annual survey on criminal law, see 71 Mercer L. Rev. 69 (2019).

JUDICIAL DECISIONS

Lifetime GPS monitoring after sentence served unconstitutional.

- Georgia Supreme Court held O.C.G.A. § 42-1-14(e), which authorized lifetime satellite-based monitoring of a sex offender no longer serving any part of their sentences, unconstitutional because the statute authorized a patently unreasonable search that ran afoul of protections afforded by the Fourth Amendment to the United States Constitution. Park v. State, 305 Ga. 348, 825 S.E.2d 147 (2019).

Following the defendant's final classification as a sexually dangerous predator, the requirement to wear a GPS monitoring device for the rest of the defendant's life was deemed unconstitutional as the search authorized by O.C.G.A. § 42-1-14(e) was unreasonable when an individual had completed their sentences as such individuals do not have a diminished expectation of privacy. Park v. State, 305 Ga. 348, 825 S.E.2d 147 (2019).

Cited in Taylor v. State, 304 Ga. App. 878, 698 S.E.2d 384 (2010).

RESEARCH REFERENCES

ALR.

- Admissibility of actuarial risk assessment testimony in proceeding to commit sex offender, 20 A.L.R.6th 607.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - Claims for downward departure, 66 A.L.R.6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - Claims challenging upward departure, 67 A.L.R.6th 1.

Validity, construction, and application of federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.A. § 16901 et seq., its enforcement provision, 18 U.S.C.A § 2250, and associated regulations, 30 A.L.R. Fed. 2d 213.

Validity and applicability of state requirement that person convicted or indicted of sex offenses be subject to electronic location monitoring, including use of satellite or global positioning system, 57 A.L.R. 6th 1.

Validity of state sex offender registration laws under ex post facto prohibitions, 63 A.L.R. 6th 351.

Validity, construction and application of state sex offender registration statutes concerning level of classification - general principles, evidentiary matters, and assistance of counsel, 64 A.L.R. 6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - claims for downward departure, 66 A.L.R.6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - claims challenging upward departure, 67 A.L.R. 6th 1.

Removal of adults from state sex offender registries, 77 A.L.R.6th 197.

Validity of state sex offender registration laws under equal protection guarantees, 93 A.L.R.6th 1.

42-1-15. Restriction on registered offenders residing, working, or loitering within certain distance of child care facilities, churches, schools, or areas where minors congregate; penalty for violations; civil causes of action.

  1. As used in this Code section, the term:
    1. "Individual" means a person who is required to register pursuant to Code Section 42-1-12.
    2. "Lease" means a right of occupancy pursuant to a written and valid lease or rental agreement.
    3. "Minor" means any person who is under 18 years of age.
    4. "Volunteer" means to engage in an activity in which one could be, and ordinarily would be, employed for compensation, and which activity involves working with, assisting, or being engaged in activities with minors; provided, however, that such term shall not include participating in activities limited to persons who are 18 years of age or older or participating in worship services or engaging in religious activities or activities at a place of worship that do not include supervising, teaching, directing, or otherwise participating with minors who are not supervised by an adult who is not an individual required to register pursuant to Code Section 42-1-12.
  2. On and after July 1, 2008, no individual shall reside within 1,000 feet of any child care facility, church, school, or area where minors congregate if the commission of the act for which such individual is required to register occurred on or after July 1, 2008. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points.
    1. On and after July 1, 2008, no individual shall be employed by or volunteer at any child care facility, school, or church or by or at any business or entity that is located within 1,000 feet of a child care facility, a school, or a church if the commission of the act for which such individual is required to register occurred on or after July 1, 2008. Such distance shall be determined by measuring from the outer boundary of the property of the location at which such individual is employed or volunteers to the outer boundary of the child care facility, school, or church at their closest points.
    2. On or after July 1, 2008, no individual who is a sexually dangerous predator shall be employed by or volunteer at any business or entity that is located within 1,000 feet of an area where minors congregate if the commission of the act for which such individual is required to register occurred on or after July 1, 2008. Such distance shall be determined by measuring from the outer boundary of the property of the location at which the sexually dangerous predator is employed or volunteers to the outer boundary of the area where minors congregate at their closest points.
  3. Notwithstanding any ordinance or resolution adopted pursuant to Code Section 16-6-24 or subsection (d) of Code Section 16-11-36, it shall be unlawful for any individual or for any person who is or should be registered on another state's sexual offender registry to loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or area where minors congregate.
    1. If an individual owns or leases real property and resides on such property and a child care facility, church, school, or area where minors congregate thereafter locates itself within 1,000 feet of such property, or if an individual has established employment at a location and a child care facility, church, or school thereafter locates itself within 1,000 feet of such employment, or if a sexual predator has established employment and an area where minors congregate thereafter locates itself within 1,000 feet of such employment, such individual shall not be guilty of a violation of subsection (b) or (c) of this Code section, as applicable, if such individual successfully complies with subsection (f) of this Code section.
    2. An individual owning or leasing real property and residing on such property or being employed within 1,000 feet of a prohibited location, as specified in subsection (b) or (c) of this Code section, shall not be guilty of a violation of this Code section if such individual had established such property ownership, leasehold, or employment prior to July 1, 2008, and such individual successfully complies with subsection (f) of this Code section.
    1. If an individual is notified that he or she is in violation of subsection (b) or (c) of this Code section, and if such individual claims that he or she is exempt from such prohibition pursuant to subsection (e) of this Code section, such individual shall provide sufficient proof demonstrating his or her exemption to the sheriff of the county where the individual is registered within ten days of being notified of any such violation.
    2. For purposes of providing proof of residence, the individual may provide a driver's license, government issued identification, or any other documentation evidencing where the individual's habitation is fixed. For purposes of providing proof of property ownership, the individual shall provide a copy of his or her warranty deed, quitclaim deed, or voluntary deed, or other documentation evidencing property ownership.
    3. For purposes of providing proof of a leasehold, the individual shall provide a copy of the applicable lease agreement. Leasehold exemptions shall only be for the duration of the executed lease.
    4. For purposes of providing proof of employment, the individual may provide an Internal Revenue Service Form W-2, a pay check, or a notarized verification of employment from the individual's employer, or other documentation evidencing employment. Such employment documentation shall evidence the location in which such individual actually carries out or performs the functions of his or her job.
    5. Documentation provided pursuant to this subsection may be required to be date specific, depending upon the individual's exemption claim.
  4. Any individual who knowingly violates this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than ten nor more than 30 years.
  5. Nothing in this Code section shall create, either directly or indirectly, any civil cause of action against or result in criminal prosecution of any person, firm, corporation, partnership, trust, or association other than an individual required to be registered under Code Section 42-1-12.

(Code 1981, §42-1-15, enacted by Ga. L. 2008, p. 680, § 4/SB 1; Ga. L. 2010, p. 168, § 13/HB 571; Ga. L. 2017, p. 347, § 1/SB 250.)

The 2017 amendment, effective July 1, 2017, inserted "or for any person who is or should be registered on another state's sexual offender registry" in the middle of subsection (d).

Editor's notes.

- This Code section formerly pertained to restriction on registered offenders residing, working, or loitering within certain distance of child care facilities, churches, schools, or areas where minors congregate; penalty for violations; civil causes of action. The former Code section was based on Ga. L. 2006, p. 379, § 24/HB 1059.

Law reviews.

- For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). For summary review article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For comment, "'An Era of Human Zoning': Banning Sex Offenders from Communities Through Residence and Work Restrictions," see 57 Emory L.J. 1347 (2008).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the subject matter, decisions under former Code 1981, § 42-1-13, enacted by Ga. L. 2003, p. 878, § 1 and former O.C.G.A. § 42-1-15, are included in the annotations for this Code section.

Statute not unconstitutional ex post facto law.

- Even though former O.C.G.A. § 42-1-13 was passed after a sex offender's statutory rape conviction, and used the prior conviction as an element of a future offense, it was not an ex post facto law since it only punished a future offense, which punishment was enhanced by the prior conviction, and the sex offender could only have been punished under former § 42-1-13 if the offender prospectively chose to violate the statute by continuing to live at the offender's current home; the fact that the prior conviction subjected the sex offender to possible punishment under former § 42-1-13 did not make the statute into an unconstitutional ex post facto law. Denson v. State of Ga., 267 Ga. App. 528, 600 S.E.2d 645 (2004) (decided under former O.C.G.A. § 42-1-13).

Unconsitutional when applied to sex offender's residence.

- In a declaratory action suit brought by a registered sex offender, former O.C.G.A. § 42-1-15(a) was held unconstitutional as to the sex offender's residence, which was acquired prior to a child care facility locating itself within 1,000 feet of the property as forcing the sex offender from the home was a regulatory taking of the property without just and adequate compensation. However, no regulatory taking occurred with regard to prohibiting the sex offender from physically working at a business, pursuant to former § 42-1-15(b)(1), in which the sex offender held an ownership interest in as there existed no prohibition on owning a business within 1,000 feet of any child care facility, church, school, or other area where minors congregated and the sex offender failed to show that physically working at the premises was necessary. Mann v. Ga. Dep't of Corr., 282 Ga. 754, 653 S.E.2d 740 (2007) (decided under former O.C.G.A. § 42-1-15).

Life sentence for failing to register unconstitutional.

- Imposition of a mandatory sentence of life imprisonment imposed against a defendant, who was a second time offender, for failing to register as a sexual offender was held unconstitutional as grossly disproportionate to the crime of failing to register. Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008) (decided under former O.C.G.A. § 42-1-15).

Failure of homeless to register.

- Defendant's conviction under O.C.G.A. § 42-1-12 for failing to register as a sex offender was reversed because the record showed that the state has never contested the evidence showing the defendant's homeless status nor had the state ever alleged, either in the indictment or at trial, that, despite the defendant's homelessness, the defendant had a street or route address which the defendant failed to register with the sheriff's office. Chestnut v. State, 331 Ga. App. 69, 769 S.E.2d 779 (2015).

Cited in Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010); Taylor v. State, 304 Ga. App. 878, 698 S.E.2d 384 (2010).

RESEARCH REFERENCES

ALR.

- Validity of statutes imposing residency restrictions on registered sex offenders, 25 A.L.R.6th 227.

Validity, construction, and application of statutory and municipal enactments and conditions of release prohibiting sex offenders from parks, 40 A.L.R.6th 419.

Validity, construction, and application of federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.A. § 16901 et seq., its enforcement provision, 18 U.S.C.A § 2250, and associated regulations, 30 A.L.R. Fed. 2d 213.

Validity, construction, and application of state sex offender statutes prohibiting use of computers and internet as conditions of probation or sentence, 89 A.L.R.6th 261.

42-1-16. Definitions; employment restrictions for sexual offenders; penalties.

  1. As used in this Code section, the term:
    1. "Area where minors congregate" shall include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, and public and community swimming pools.
    2. "Individual" means a person who is required to register pursuant to Code Section 42-1-12.
    3. "Lease" means a right of occupancy pursuant to a written and valid lease or rental agreement.
    4. "Minor" means any person who is under 18 years of age.
  2. Any individual who committed an act between July 1, 2006, and June 30, 2008, for which such individual is required to register shall not reside within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points.
    1. Any individual who committed an act between July 1, 2006, and June 30, 2008, for which such individual is required to register shall not be employed by any child care facility, school, or church or by or at any business or entity that is located within 1,000 feet of a child care facility, a school, or a church. Such distance shall be determined by measuring from the outer boundary of the property of the location at which such individual is employed to the outer boundary of the child care facility, school, or church at their closest points.
    2. Any individual who committed an act between July 1, 2006, and June 30, 2008, for which such individual is required to register who is a sexually dangerous predator shall not be employed by any business or entity that is located within 1,000 feet of an area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property of the location at which the sexually dangerous predator is employed to the outer boundary of the area where minors congregate at their closest points.
  3. Notwithstanding any ordinance or resolution adopted pursuant to Code Section 16-6-24 or subsection (d) of Code Section 16-11-36, it shall be unlawful for any individual to loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or area where minors congregate.
    1. If an individual owns or leases real property and resides on such property and a child care facility, church, school, or area where minors congregate thereafter locates itself within 1,000 feet of such property, or if an individual has established employment at a location and a child care facility, church, or school thereafter locates itself within 1,000 feet of such employment, or if a sexual predator has established employment and an area where minors congregate thereafter locates itself within 1,000 feet of such employment, such individual shall not be guilty of a violation of subsection (b) or (c) of this Code section, as applicable, if such individual successfully complies with subsection (f) of this Code section.
    2. An individual owning or leasing real property and residing on such property or being employed within 1,000 feet of a prohibited location, as specified in subsection (b) or (c) of this Code section, shall not be guilty of a violation of this Code section if such individual had established such property ownership, leasehold, or employment prior to July 1, 2006, and such individual successfully complies with subsection (f) of this Code section.
    1. If an individual is notified that he or she is in violation of subsection (b) or (c) of this Code section, and if such individual claims that he or she is exempt from such prohibition pursuant to subsection (e) of this Code section, such individual shall provide sufficient proof demonstrating his or her exemption to the sheriff of the county where the individual is registered within ten days of being notified of any such violation.
    2. For purposes of providing proof of residence, the individual may provide a driver's license, government issued identification, or any other documentation evidencing where the individual's habitation is fixed. For purposes of providing proof of property ownership, the individual shall provide a copy of his or her warranty deed, quitclaim deed, or voluntary deed, or other documentation evidencing property ownership.
    3. For purposes of providing proof of a leasehold, the individual shall provide a copy of the applicable lease agreement. Leasehold exemptions shall only be for the duration of the executed lease.
    4. For purposes of providing proof of employment, the individual may provide an Internal Revenue Service Form W-2, a pay check, or a notarized verification of employment from the individual's employer, or other documentation evidencing employment. Such employment documentation shall evidence the location in which such individual actually carries out or performs the functions of his or her job.
    5. Documentation provided pursuant to this subsection may be required to be date specific, depending upon the individual's exemption claim.
  4. Any individual who knowingly violates this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than ten nor more than 30 years.
  5. Nothing in this Code section shall create, either directly or indirectly, any civil cause of action against or result in criminal prosecution of any person, firm, corporation, partnership, trust, or association other than an individual required to be registered under Code Section 42-1-12.

(Code 1981, §42-1-16, enacted by Ga. L. 2010, p. 168, § 14/HB 571.)

42-1-17. Definitions; residency restrictions for sexual offenders; penalties.

  1. As used in this Code section, the term:
    1. "Area where minors congregate" shall include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed towards persons under 18 years of age.
    2. "Child care facility" means all public and private pre-kindergarten facilities, child care learning centers, and preschool facilities.
    3. "Individual" means a person who is required to register pursuant to Code Section 42-1-12.
    4. "Lease" means a right of occupancy pursuant to a written and valid lease or rental agreement.
    5. "Minor" means any person who is under 18 years of age.
  2. Any individual who committed an act between June 4, 2003, and June 30, 2006, for which such individual is required to register shall not reside within 1,000 feet of any child care facility, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, school, or area where minors congregate at their closest points.
    1. If an individual owns or leases real property and resides on such property and a child care facility, school, or area where minors congregate thereafter locates itself within 1,000 feet of such property, such individual shall not be guilty of a violation of subsection (b) of this Code section if such individual successfully complies with subsection (d) of this Code section.
    2. An individual owning or leasing real property and residing on such property within 1,000 feet of a prohibited location, as specified in subsection (b) of this Code section, shall not be guilty of a violation of this Code section if such individual had established such property ownership or leasehold prior to June 4, 2003, and such individual successfully complies with subsection (d) of this Code section.
    1. If an individual is notified that he or she is in violation of subsection (b) of this Code section, and if such individual claims that he or she is exempt from such prohibition pursuant to subsection (c) of this Code section, such individual shall provide sufficient proof demonstrating his or her exemption to the sheriff of the county where the individual is registered within ten days of being notified of any such violation.
    2. For purposes of providing proof of residence, the individual may provide a driver's license, government issued identification, or any other documentation evidencing where the individual's habitation is fixed. For purposes of providing proof of property ownership, the individual shall provide a copy of his or her warranty deed, quitclaim deed, or voluntary deed, or other documentation evidencing property ownership.
    3. For purposes of providing proof of a leasehold, the individual shall provide a copy of the applicable lease agreement. Leasehold exemptions shall only be for the duration of the executed lease.
    4. Documentation provided pursuant to this subsection may be required to be date specific, depending upon the individual's exemption claim.
  3. Any individual who knowingly violates this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than three years.
  4. Nothing in this Code section shall create, either directly or indirectly, any civil cause of action against or result in criminal prosecution of any person, firm, corporation, partnership, trust, or association other than an individual required to be registered under Code Section 42-1-12.

(Code 1981, §42-1-17, enacted by Ga. L. 2010, p. 168, § 14/HB 571; Ga. L. 2013, p. 135, § 12/HB 354.)

The 2013 amendment, effective July 1, 2013, substituted "child care learning centers" for "day-care centers" near the end of paragraph (a)(2).

JUDICIAL DECISIONS

Failure of homeless to register.

- Defendant's conviction under O.C.G.A. § 42-1-12 for failing to register as a sex offender was reversed because the record showed that the state has never contested the evidence showing the defendant's homeless status nor had the state ever alleged, either in the indictment or at trial, that, despite the defendant's homelessness, the defendant had a street or route address which the defendant failed to register with the sheriff's office. Chestnut v. State, 331 Ga. App. 69, 769 S.E.2d 779 (2015).

42-1-18. "Photograph" defined; photographing minor without consent of parent or guardian prohibited; penalty.

  1. As used in this Code section, the term "photograph" means to take any picture, film or digital photograph, motion picture film, videotape, or similar visual representation or image of a person.
  2. No person required to register as a sexual offender pursuant to Code Section 42-1-12 shall intentionally photograph a minor without the consent of the minor's parent or guardian.
  3. Any person who knowingly violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature.

(Code 1981, §42-1-18, enacted by Ga. L. 2010, p. 168, § 14/HB 571; Ga. L. 2011, p. 505, § 1/HB 162.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required.

- Any misdemeanor offenses arising under subsection (b) of O.C.G.A. § 42-1-18 are offenses for which those charged are to be fingerprinted. 2010 Op. Att'y Gen. No. 10-6.

42-1-19. Petition for release from registration requirements.

  1. An individual required to register pursuant to Code Section 42-1-12 may petition a superior court for release from registration requirements and from any residency or employment restrictions of this article if the individual:
    1. Has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; and
      1. Is confined to a hospice facility, skilled nursing home, residential care facility for the elderly, or nursing home;
      2. Is totally and permanently disabled as such term is defined in Code Section 49-4-80; or
      3. Is otherwise seriously physically incapacitated due to illness or injury;
    2. Was sentenced for a crime that became punishable as a misdemeanor on or after July 1, 2006, and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2;
    3. Is required to register solely because he or she was convicted of kidnapping or false imprisonment involving a minor and such offense did not involve a sexual offense against such minor or an attempt to commit a sexual offense against such minor. For purposes of this paragraph, the term "sexual offense" means any offense listed in division (a)(10)(B)(i) or (a)(10)(B)(iv) through (a)(10)(B)(xix) of Code Section 42-1-12; or
    4. Has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2.
    1. A petition for release pursuant to this Code section shall be filed in the superior court of the jurisdiction in which the individual was convicted; provided, however, that if the individual was not convicted in this state, such petition shall be filed in the superior court of the county where the individual resides.
    2. Such petition shall be served on the district attorney of the jurisdiction where the petition is filed, the sheriff of the county where the petition is filed, and the sheriff of the county where the individual resides. Service on the district attorney and sheriff may be had by mailing a copy of the petition with a proper certificate of service.
    3. If a petition for release is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.
    1. An individual who meets the requirements of paragraph (1), (2), or (3) of subsection (a) of this Code section shall be considered for release from registration requirements and from residency or employment restrictions.
    2. An individual who meets the requirements of paragraph (4) of subsection (a) of this Code section may be considered for release from registration requirements and from residency or employment restrictions only if:
      1. Ten years have elapsed since the individual completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; or
      2. The individual has been classified by the board as a Level I risk assessment classification, provided that if the board has not done a risk assessment classification for such individual, the court shall order such classification to be completed prior to considering the petition for release.
  2. In considering a petition pursuant to this Code section, the court may consider:
    1. Any evidence introduced by the petitioner;
    2. Any evidence introduced by the district attorney or sheriff; and
    3. Any other relevant evidence.
  3. The court shall hold a hearing on the petition if requested by the petitioner.
  4. The court may issue an order releasing the individual from registration requirements or residency or employment restrictions, in whole or part, if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense. The court may release an individual from such requirements or restrictions for a specific period of time. The court shall send a copy of any order releasing an individual from any requirements or restrictions to the sheriff and the district attorney of the jurisdiction where the petition is filed, to the sheriff of the county where the individual resides, to the Department of Corrections, to the Department of Community Supervision, and to the Georgia Bureau of Investigation.

(Code 1981, §42-1-19, enacted by Ga. L. 2010, p. 168, § 15/HB 571; Ga. L. 2015, p. 422, § 5-67/HB 310.)

The 2015 amendment, effective July 1, 2015, inserted "to the Department of Community Supervision," in the last sentence of subsection (f). See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

JUDICIAL DECISIONS

Release from registration requirements proper.

- Trial court did not abuse the court's discretion in releasing the defendant from the sex offender registration requirements because under O.C.G.A. § 17-10-6.2(c)(1)(D), there was evidence that the underlying child molestation offense consisted of the defendant touching the genitals of the child victim with the defendant's hands; thus, the sexual offense did not rise to the level of intentional physical harm so as to preclude release from the registration requirements. State v. Randle, 331 Ga. App. 1, 769 S.E.2d 724 (2015).

Phrase "intentional physical harm," as it was used in O.C.G.A. § 17-10-6.2(c)(1)(D), providing conditions for release from the sex offender registry, meant intentional physical contact that caused actual physical damage, injury, or hurt to the victim; a sex offender registrant was entitled to release from registration because his unwanted touching of a ten-year-old boy's penis did not constitute such physical damage, injury, or hurt. State v. Randle, 298 Ga. 375, 781 S.E.2d 781 (2016).

Denial of petition for release from requirement to register.

- Trial court erred when the court denied the defendant's petition for release from the requirement to register as a sex offender and failed to determine whether the defendant ever touched a woman who testified at the criminal trial without the woman's consent, thereby committing a sexual offense; thus, since neither the verdict nor the evidentiary ruling in the defendant's case conclusively established that the encounter was a "relevant similar transaction," further proceedings were necessary. Yelverton v. State of Georgia, 300 Ga. 312, 794 S.E.2d 613 (2016).

Trial court was indeed authorized, after denying the petition to be released from the sex offender registration requirement on one specific ground and being reversed on appeal, to deny the petition a second time for a wholly different reason. Royster v. State of Ga., 346 Ga. App. 333, 814 S.E.2d 455 (2018).

Trial court did not err in denying the defendant's request to be released from the sex offender registration requirements as the record showed that the defendant was convicted of an intentional act of aggravated child molestation which resulted in physical injury to the victim when the defendant placed the defendant's finger inside the rectum of a child under the age of 14 years, with the intent to satisfy the sexual desires of the accused, and which resulted in physical injury to the child. Strickland v. State, 347 Ga. App. 216, 818 S.E.2d 675 (2018).

Second petition for release from registration improperly dismissed.

- Because O.C.G.A. § 42-1-19 barred a person on the sex offender registry from filing a second petition for release from registration requirements within two years from a final order on a previous petition, if the first petition for relief was denied, but the defendant's first petition was not denied as the petition was treated as either a voluntary dismissal or, alternatively, a dismissal for failure to prosecute, neither of which operated as an adjudication on the merits of the first petition, the trial court erred by dismissing the defendant's second petition for release from sex offender registration requirements as that petition was not filed within two years of the previous petition. Hawkins v. State, 330 Ga. App. 547, 768 S.E.2d 523 (2015).

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state sex offender registration statutes concerning level of classification - Claims for downward departure, 66 A.L.R.6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - claims for downward departure, 66 A.L.R.6th 1.

CHAPTER 2 BOARD AND DEPARTMENT OF CORRECTIONS

Editor's notes.

- Ga. L. 1985, p. 283, § 1 changed the name of the Department of Offender Rehabilitation, the Board of Offender Rehabilitation, and the commissioner of offender rehabilitation to the Department of Corrections, the Board of Corrections, and the commissioner of corrections, respectively, and amended sections throughout the Code to conform to the change. Section 2 of that Act, not codified by the General Assembly, provided as follows: "For administrative convenience, equipment and supplies bearing the name Board of Offender Rehabilitation, Department of Offender Rehabilitation, or commissioner of offender rehabilitation may be used by the Board of Corrections, Department of Corrections, or commissioner of corrections as if such equipment or supplies bore the name Board of Corrections, Department of Corrections, or commissioner of corrections."

Law reviews.

- For comment, "Inherently Governmental: A Legal Argument for Ending Private Federal Prisons and Detention Centers," see 67 Emory L.J. 293 (2017).

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 20, 21.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 12-16.

42-2-1. Creation.

There is created the Department of Corrections.

(Ga. L. 1982, p. 3, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 2012, p. 899, § 7-3/HB 1176.)

The 2012 amendment, effective July 1, 2012, substituted the present provisions of this Code section for the former provisions, which read: "As used in this chapter, the term:

"(1) 'Board' means the Board of Corrections.

"(2) 'Commissioner' means the commissioner of corrections.

"(3) 'Department' means the Department of Corrections." See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Law reviews.

- For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012).

JUDICIAL DECISIONS

Cited in Wolcott v. State, 278 Ga. 664, 604 S.E.2d 478 (2004); Gay v. Owens, 292 Ga. 480, 738 S.E.2d 614 (2013).

42-2-2. Board members, officers, records, and compensation.

  1. On and after July 1, 1983, the board shall consist of one member from each congressional district in the state and five additional members from the state at large. All members shall be appointed by the Governor, subject to confirmation by the Senate. The initial terms of members shall be as follows: two members representative of congressional districts and one at-large member shall be appointed for a term ending July 1, 1984; two members representative of congressional districts and one at-large member shall be appointed for a term ending July 1, 1985; two members representative of congressional districts and one at-large member shall be appointed for a term ending July 1, 1986; two members representative of congressional districts and one at-large member shall be appointed for a term ending July 1, 1987; and two members representative of congressional districts and one at-large member shall be appointed for a term ending July 1, 1988. Thereafter, all members appointed to the board by the Governor shall be appointed for terms of five years and until their successors are appointed and qualified. In the event of a vacancy during the term of any member by reason of death, resignation, or otherwise, the appointment of a successor by the Governor shall be for the remainder of the unexpired term of such member.
  2. The first members appointed under this Code section shall be appointed for terms which begin July 1, 1983. The members of the board serving on April 1, 1983, shall remain in office until their successors are appointed and qualified.
  3. The board shall annually elect one of its members as chairman and shall elect from its membership a secretary of the board. The secretary of the board shall keep adequate records and minutes of all business and official acts of the board. Records of the board shall be maintained in the office of the commissioner.
  4. Each member of the Board of Corrections shall receive the sum provided for by Code Section 45-7-21 for each day of actual attendance at meetings of the board and for each day of travel as a member of a committee of the board. In addition, upon recommendation by the chairman or the board, each member shall receive for out-of-state travel actual expenses incurred in connection therewith and reimbursement for actual transportation costs while traveling by public carrier or the legal mileage rate for the use of a personal automobile in connection with such attendance. Such sums, expenses, and costs shall be paid from funds appropriated or otherwise available to the Department of Corrections.

(Ga. L. 1956, p. 161, § 8; Ga. L. 1983, p. 507, § 2; Ga. L. 1984, p. 22, § 42; Ga. L. 1986, p. 179, § 1.)

Editor's notes.

- Ga. L. 1983, p. 507, § 1, not codified by the General Assembly, provides as follows: "It is the intent of this Act to implement certain changes required by Article III, Section VI, Paragraph IV, subparagraph (b) of the Constitution of the State of Georgia."

42-2-3. Board meetings.

The board shall meet once each month in the office of the commissioner, unless in the discretion of a majority of the board it is necessary or convenient to meet elsewhere to carry out the duties of the board. Special meetings may be held at such times and places as shall be specified by the call of the chairman of the board or by the commissioner. The secretary of the board shall give written notice of the time and place of all meetings of the board to each member of the board and to the commissioner. Meetings of the board shall be open to the public. However, the board may hold executive sessions pursuant to Chapter 14 of Title 50 whenever it, in its discretion, deems advisable. A majority of the board shall constitute a quorum for the transaction of business.

(Ga. L. 1956, p. 161, § 7; Ga. L. 1987, p. 457, § 1; Ga. L. 2002, p. 1426, § 1.)

42-2-4. Department created.

There is created the Department of Corrections.

(Ga. L. 1972, p. 1069, § 9; Ga. L. 1985, p. 283, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Liability for probationers' injuries.

- Neither the state, and particularly the Department of Offender Rehabilitation (Corrections) and its employees in their official capacities, may incur liability as a result of a probationer injured while performing court-ordered community service work except to the extent permitted by O.C.G.A. § 28-5-85. 1983 Op. Att'y Gen. No. 83-18.

Department of Offender Rehabilitation (Corrections) employees, authorized by law to supervise probationers while the probationers are performing approved court-ordered tasks under O.C.G.A. §§ 42-8-71,42-8-72, and42-8-73 are performing a governmental function as opposed to a ministerial task, and therefore will not be personally liable for injuries to the probationers sustained while performing the tasks unless the employees' conduct is willful and wanton. 1983 Op. Att'y Gen. No. 83-18.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 20.

42-2-5. Administrative functions of department.

  1. The department shall administer the state's correctional institutions and the rehabilitative programs conducted therein.
  2. The department shall provide The Council of Superior Court Clerks of Georgia the data set forth in Code Section 15-12-40.1, without charge and in the electronic format requested.

(Ga. L. 1972, p. 1069, § 15; Ga. L. 1978, p. 1647, § 4; Ga. L. 2014, p. 451, § 13/HB 776.)

The 2014 amendment, effective July 1, 2014, designated the existing provisions as subsection (a) and added subsection (b).

Administrative Rules and Regulations.

- Organization, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Administration, Chapter 125-1-1.

JUDICIAL DECISIONS

Cited in Gay v. Owens, 292 Ga. 480, 738 S.E.2d 614 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Collection of child support payments.

- Department of Offender Rehabilitation (Corrections) should collect child support payments for individuals between the ages of 18 and 21 when such payments arise out of court orders in existence prior to July 1, 1972. 1972 Op. Att'y Gen. No. U72-40.

42-2-5.1. Special school district for school age youth.

  1. In order to provide education for any school age youth incarcerated within any facility of the department, the department shall be considered a special school district which shall be given the same funding consideration for federal funds that school districts within this state are given. The special school district under the department shall have the powers, privileges, and authority exercised or capable of exercise by any other school district. The schools within the special school district shall be under the control of the commissioner, who shall serve as the superintendent of schools for such district, except as otherwise provided in subsection (b) of this Code section. The board shall serve as the board of education for such district. The board, acting alone or in cooperation with the State Board of Education, shall establish education standards for the district. As far as is practicable, such standards shall adhere to the standards adopted by the State Board of Education for the education of school age youth, while taking into account:
    1. The overriding security needs of correctional institutions and other restrictions inherent to the nature of correctional facilities;
    2. The effect of limited funding on the capability of the department to meet certain school standards; and
    3. Existing juvenile education standards of the Correctional Education Association and the American Correctional Association, which shall be given primary consideration where any conflicts arise.
  2. Any school within the department that is operated by a state charter school pursuant to a contract entered into in accordance with Code Section 20-2-2084.1 shall be under the control of the State Charter Schools Commission and the governing board of the state charter school, subject to any conditions in the contract. Any such school shall not be considered a part of the special school district established pursuant to this Code section.
  3. The effect of subsection (a) of this Code section shall not be to provide state funds to the special school district under the department through Part 4 of Article 6 of Chapter 2 of Title 20, except as otherwise provided in Code Section 20-2-2084.1.

(Code 1981, §42-2-5.1, enacted by Ga. L. 1995, p. 357, § 1; Ga. L. 2011, p. 632, § 3/HB 49; Ga. L. 2014, p. 34, § 1-6/SB 365; Ga. L. 2016, p. 443, § 2-5/SB 367.)

The 2014 amendment, effective July 1, 2014, substituted "department" for "Department of Corrections" in the first sentence of subsection (a) and in paragraph (a)(2); substituted "board" for "Board of Corrections" in the fourth sentence of subsection (a); and redesignated former subsection (c) as present subsection (a) of Code Section 42-2-5.2.

The 2016 amendment, effective July 1, 2016, in subsection (a), substituted "youth" for "youths" near the beginning and substituted "this" for "the" near the end, and, in the second sentence, added ", except as otherwise provided in subsection (b) of this Code section"; added present subsection (b); redesignated former subsection (b) as present subsection (c); and added ", except as otherwise provided in Code Section 20-2-2084.1" at the end.

Law reviews.

- For article on the 2014 amendment of this Code section, see 31 Ga. Sr. U.L. Rev. 25 (2014) For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

42-2-5.2. Educational programs for adult offenders; awarding of Program and Treatment Completion Certificate.

  1. The board, acting alone or in cooperation with the State Board of the Technical College System of Georgia or other relevant education agencies, shall provide overall direction of educational programs for adult offenders in the correctional system and shall exercise program approval authority. The board may enter into written agreements with other educational organizations and agencies in order to provide adult offenders with such education and employment skills most likely to encourage gainful employment and discourage return to criminal activity upon release. The board may also enter into agreements with other educational organizations and agencies to attain program certification for its vocational and technical education programs.
  2. The board shall develop and implement programs to assist adult offenders with reentry into society upon release from prison. In addition to educational and vocational programs, reentry programs may include social and behavioral programs, substance abuse counseling, mentoring programs, financial planning, physical and mental health programs, and housing and federal assistance programs.
  3. The board shall create a Program and Treatment Completion Certificate that may be issued to offenders under the rules and regulations of the board. Such certificate shall symbolize an offender's achievements toward successful reentry into society. The board's rules and regulations relating to the issuance of such certificate shall take into account an offender's disciplinary record and any other factor the board deems relevant to an individual's qualification for such certificate. The board's rules and regulations shall specify eligibility considerations and requirements for completion of such certificate. An offender who was convicted of a serious violent felony, as such term is defined in Code Section 17-10-6.1, shall not be eligible for such certificate.
  4. Nothing in this Code section shall be construed to constitute a waiver of the sovereign immunity of the state, and no action shall be maintained against the state or any agency or department thereof for issuance of or failure to issue any Program and Treatment Completion Certificate.

(Code 1981, §42-2-5.2, enacted by Ga. L. 2014, p. 34, § 1-6/SB 365.)

Effective date.

- This Code section became effective July 1, 2014.

Cross references.

- Presumptions in issuance of Program and Treatment Completion Certificate, § 51-1-54.

42-2-6. Office of commissioner created; general duties; appointment; compensation.

  1. There is created the position of commissioner of corrections. The commissioner shall be the chief administrative officer of the department. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department by this title.
  2. The commissioner shall be appointed by and shall serve at the pleasure of the board. Beginning July 1, 1999, the salary of the commissioner shall be set by the Governor and the expenses and allowances of the commissioner shall be as set by statute.

(Ga. L. 1972, p. 1069, § 11; Ga. L. 1978, p. 1647, § 2; Ga. L. 1985, p. 283, § 1; Ga. L. 1999, p. 910, § 2; Ga. L. 1999, p. 1213, § 3.)

JUDICIAL DECISIONS

Cited in Busbee v. Reserve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 279 (1978); State v. Roulain, 159 Ga. App. 233, 283 S.E.2d 89 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Duty to maintain records of tort actions.

- Commissioner of offender rehabilitation (corrections) should maintain any records related to possible tort action for at least two years after a possible tort occurs. 1972 Op. Att'y Gen. No. 72-75.

Penal institution in Georgia is any facility used to punish criminal offenders. 1980 Op. Att'y Gen. No. 80-121.

Designation of places for carrying out execution.

- Present law limits the place of execution only to penal institutions other than the old prison farm in Baldwin County. The commissioner is authorized to designate any such penal institution as the place for carrying out an execution. 1980 Op. Att'y Gen. No. 80-121.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 20. 63A Am. Jur. 2d, Public Officers and Employees, §§ 26, 93 et seq., 223, 298 et seq., 431 et seq., 448 et seq.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 318, 322-326.

42-2-7. Duties of commissioner relating to department retirements.

The commissioner shall act for the department for and in compliance to any retirement provisions for the employees and officials of the department.

(Ga. L. 1961, p. 124, § 1.)

42-2-8. Additional duties of commissioner.

  1. The commissioner shall direct and supervise all the administrative activities of the board and shall attend all meetings of the board. The commissioner shall also make, publish in print or electronically, and furnish to the General Assembly and to the Governor annual reports regarding the work of the board, along with such special reports as he or she may consider helpful in the administration of the penal system or as may be directed by the board. The commissioner shall perform such other duties and functions as are necessary or desirable to carry out the intent of this chapter and which he or she may be directed to perform by the board.
  2. The commissioner or the commissioner's designee shall be authorized to make and execute contracts and all other instruments necessary or convenient for the acquisition of professional and personal employment services and for the leasing of real property. Subject to legislative appropriations, the commissioner shall also be authorized to make and execute any contract for the land acquisition, design, construction, operation, maintenance, use, lease, or management of a state correctional institution or for any services pertaining to the custody, care, and control of inmates or other functions as are related to the discharge of these responsibilities and to designate any person or organization with whom the commissioner contracts as a law enforcement unit under paragraph (7) of Code Section 35-8-2.
  3. The commissioner and any person designated and serving in the position of his or her chief of staff shall be authorized to issue a warrant for the arrest of an offender who has escaped from the custody of the department upon probable cause to believe the offender has violated Code Section 16-10-52, relating to escape from lawful confinement.

(Ga. L. 1956, p. 161, § 9; Ga. L. 1958, p. 413, § 1; Ga. L. 1962, p. 689, § 1; Ga. L. 1966, p. 121, § 1; Ga. L. 1988, p. 1448, § 1; Ga. L. 1996, p. 691, § 1; Ga. L. 2007, p. 224, § 1/HB 313; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2016, p. 608, § 3/SB 270; Ga. L. 2016, p. 811, § 7/HB 874.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, inserted "and any person designated and serving in the position of his or her chief of staff" near the beginning of subsection (c). See Editor's notes for applicability. The second 2016 amendment, effective July 1, 2016, made identical changes. See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2016, p. 608, § 6/SB 270, not codified by the General Assembly, provides, in part, that: "Section 3 of this Act shall become effective on July 1, 2016, and shall apply to offenses committed on or after such date."

Ga. L. 2016, p. 811, § 9/HB 874, not codified by the General Assembly, provides, in part, that: "Section 7 of this Act shall become effective on July 1, 2016, and shall apply to offenses committed on or after such date."

JUDICIAL DECISIONS

Cited in State v. MacDougall, 139 Ga. App. 815, 229 S.E.2d 667 (1976); Busbee v. Reserve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 279 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Determination of mental disease and transfer to mental hospital.

- This section, and Ga. L. 1956, p. 161, §§ 9, 10, 11, and 14 (see now O.C.G.A. §§ 42-2-8,42-2-9,42-2-11, and42-2-52) indicate that the director (now commissioner) of corrections was authorized to determine whether or not an inmate was mentally diseased and should be transferred to a state mental hospital. 1968 Op. Att'y Gen. No. 68-136.

42-2-9. Selection of department personnel; establishment and maintenance of roster of employees.

The commissioner is authorized to appoint and employ such clerical force as is necessary to carry on the administration of the penal system. He may also employ such experts and technical help as are needed, along with assistants to the commissioner, wardens, superintendents, guards, and other employees necessary for the operation of the state operated institutions where inmates are confined. The commissioner shall establish and maintain in his office a complete roster of all employees in his office and in each of the various institutions operating under the authority of the board.

(Ga. L. 1956, p. 161, § 10; Ga. L. 1984, p. 940, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Determination of mental disease and transfer to mental hospital.

- Ga. L. 1956, p. 161, §§ 9, 10, 11, and 14 (see now O.C.G.A. §§ 42-2-8,42-2-9,42-2-11, and42-5-52) indicate that the director (now commissioner) of corrections was authorized to determine whether or not an inmate was mentally diseased and should be transferred to a state mental hospital. 1968 Op. Att'y Gen. No. 68-136.

Wardens are employees of state or counties.

- Law provides for two types of wardens: those at "state-operated institutions" under Ga. L. 1956, p. 161, § 10 (see now O.C.G.A. § 42-2-9), and those "appointed by the governing authority of the county" under Ga. L. 1956, p. 161, § 18 (see now O.C.G.A. § 42-5-30); a person cannot be a warden within the state penal system unless the warden is an employee either of the state or a county authorized to maintain a county correctional institution under the supervision of the Board of Corrections. 1973 Op. Att'y Gen. No. 73-72.

Duty of selecting and employing wardens is vested exclusively in Board of Corrections and the director (now commissioner) thereof; the board and the board's director (now commissioner) are to exercise their informed and expert judgment in selecting and discharging such officials, and any contract or agreement whereby they seek to divest themselves of that discretion, power, and judgment is void as being contrary to public policy. 1958-59 Op. Att'y Gen. p. 241.

Supplementing employee salaries.

- Department of Offender Rehabilitation (Corrections) may supplement salaries of teachers at Georgia Industrial Institute who are provided by the local board of education. 1962 Op. Att'y Gen. p. 162.

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 13, 115.

42-2-10. Office of board, commissioner, and staff.

The executive office of the board and the commissioner shall be located in the City of Atlanta, and suitable quarters shall be assigned to the board and the commissioner and to his staff of employees.

(Ga. L. 1956, p. 161, § 27.)

JUDICIAL DECISIONS

Cited in Busbee v. Reserve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 279 (1978).

42-2-11. Powers and duties of board; adoption of rules and regulations.

  1. The board shall establish the general policy to be followed by the department and shall have the duties, powers, authority, and jurisdiction provided for in this title or as otherwise provided by law.
  2. The board is authorized to adopt, establish, and promulgate rules and regulations governing the transaction of the business of the penal system of the state by the department and the commissioner and the administration of the affairs of the penal system in the different penal institutions coming under its authority and supervision and shall make the institutions as self-supporting as possible.
    1. The board shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training, and hospitalization of all inmates coming under its custody.
      1. As used in this paragraph, the term:
        1. "Evidence based practices" means supervision policies, procedures, programs, and practices that scientific research demonstrates reduce recidivism among individuals who are under some form of correctional supervision.
        2. "Recidivism" means returning to prison or jail within three years of being placed on probation or being discharged or released from a department or jail facility.
      2. The board shall adopt rules and regulations governing the management and treatment of inmates coming under its custody to ensure that evidence based practices, including the use of a risk and needs assessment and any other method the board deems appropriate, guide decisions related to preparing inmates for release into the community. Any risk and needs assessment instrument shall be revalidated by January 1, 2019, and every five years thereafter. The board shall require the department to collect and analyze data and performance outcomes relevant to the level and type of treatment given to an inmate and the outcome of the treatment on his or her recidivism and prepare an annual report regarding such information which shall be submitted to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the House Committee on Judiciary and the Senate Judiciary Committee.
      3. Using evidence based practices, the board shall evaluate the quality of the programming utilized at all department facilities, except state prisons, by January 1, 2019, and every five years thereafter, and shall publicly publish its report.
  3. The board shall also adopt rules and regulations governing the conduct and the welfare of the employees of the state institutions operating under its authority and of the county correctional institutions and correctional facilities or programs operating under its supervision. It shall prescribe the working hours and conditions of work for employees in the office of the commissioner and in institutions operating under the authority of the board.
  4. The board shall also adopt rules and regulations governing the negotiation and execution of any contract for the land acquisition, design, construction, operation, maintenance, use, lease, or management of a state correctional institution or for any services pertaining to the custody, care, and control of inmates or other functions as are related to the discharge of these responsibilities.
  5. The board shall adopt rules:
    1. Providing for the transfer to a higher security facility of each inmate who commits battery or aggravated assault against a correctional officer while in custody; provided, however, that this provision shall not apply in instances where the inmate is already incarcerated in a maximum security facility; and
    2. Specifying the procedures for offering department assistance to employees who are victims of battery or aggravated assault by inmates in filing criminal charges or civil actions against their assailants, including procedures for posting notices that such assistance is available to any employee who is subjected to battery or aggravated assault by an inmate, but not including legal representation of such employees.
  6. All rules and regulations adopted pursuant to this Code section shall be adopted, established, promulgated, amended, repealed, filed, and published in accordance with the applicable provisions and procedure as 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.
  7. As used in this Code section, the words "rules and regulations" shall have the same meaning as the word "rule" is defined in paragraph (6) of Code Section 50-13-2.
  8. The board shall have the authority to request bids and proposals and to enter into contracts for the operation of probation detention centers by private companies and entities for the confinement of probationers under Code Section 42-8-35.4. The board shall have the authority to adopt, establish, and promulgate rules and regulations for the operation of probation detention centers by private companies and entities.

(Ga. L. 1956, p. 161, § 11; Ga. L. 1969, p. 598, § 1; Ga. L. 1978, p. 1647, § 1; Ga. L. 1983, p. 3, §§ 31, 60; Ga. L. 1983, p. 507, § 3; Ga. L. 1996, p. 691, § 2; Ga. L. 1996, p. 726, § 1; Ga. L. 2006, p. 727, § 1/SB 44; Ga. L. 2012, p. 899, § 7-4/HB 1176; Ga. L. 2013, p. 141, § 42/HB 79; Ga. L. 2015, p. 422, § 5-68/HB 310; Ga. L. 2016, p. 443, § 8-2/SB 367; Ga. L. 2017, p. 585, § 2-2/SB 174.)

The 2012 amendment, effective July 1, 2012, designated the existing provisions of subsection (c) as paragraph (c)(1) and added paragraph (c)(2). See Editor's notes for applicability.

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "House Committee on State Properties" for "House Committee on State Institutions and Property" near the end of the last sentence of subparagraph (c)(2)(B).

The 2015 amendment, effective July 1, 2015, in subparagraph (c)(2)(B), in the first sentence, substituted "inmates coming under its custody" for "inmates and probationers" near the middle, and deleted "and managing probationers in the community" at the end, and deleted "or probationer" following "an inmate" near the middle of the second sentence. See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, in subsection (i), deleted "and probation diversion centers for the confinement of probationers under Code Section 42-8-35.5" following "Code Section 42-8-35.4" at the end of the first sentence and deleted "and probation diversion" preceding "centers" near the end of the second sentence.

The 2017 amendment, effective July 1, 2017, in subparagraph (c)(2)(B), inserted the second sentence and substituted "House Committee on Judiciary and the Senate Judiciary Committee" for "House Committee on State Properties and the Senate State Institutions and Property Committee" at the end of the last sentence; and added subparagraph (c)(2)(C).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, subsection (g) as enacted by Ga. L. 1996, p. 726, § 1, was redesignated as subsection (f) and subsections (f) and (g) as enacted by Ga. L. 1996, 691, § 2, were redesignated as subsections (g) and (h), respectively.

Editor's notes.

- Ga. L. 1983, p. 507, § 1, not codified by the General Assembly, provides as follows: "It is the intent of this Act to implement certain changes required by Article III, Section VI, Paragraph IV, subparagraph (b) of the Constitution of the State of Georgia."

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017). For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974). For review of 1996 department of corrections legislation, see 13 Ga. St. U.L. Rev. 253 (1996).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code 1933, §§ 77-307, 77-311, and 77-313 are included in the annotations for this Code section.

Authority for rules regarding drug testing.

- Rule authorizing the warden to "direct and manage" employees does not encompass the authority to order employees to submit to random drug testing. Any rule regarding drug testing of the employees of a penal institution operating under the authority of the Board of Corrections must be promulgated by the board rather than by the warden of the institution. Department of Cors. v. Colbert, 260 Ga. 255, 391 S.E.2d 759 (1990).

Safety and health of inmates.

- Corrections department has a nondelegable duty to protect the safety and health of state inmates that cannot be relieved by employing independent contractors. Williams v. Georgia Dep't of Cors., 224 Ga. App. 571, 481 S.E.2d 272 (1997).

Liability of warden for torts of inmates.

- Warden of a public works camp (now county correctional institution) will not be held liable for torts of convicts on mere averment that the warden was negligent "in permitting said convicts to roam the roads of this county and state in a truck, without any guard," whereby injuries resulted from a collision of the truck with the plaintiff's car as it was discretionary with the warden to determine how and in what manner convicts employed outside the confines of the camp (now county correctional institution) doing work in connection with its operation should be suffered to go at large, and wardens acting in a discretionary capacity will not be liable unless guilty of willfulness, fraud, malice, or corruption, or unless the warden knowingly act wrongfully, and not according to the warden's honest convictions of duty. Price v. Owen, 67 Ga. App. 58, 19 S.E.2d 529 (1942) (decided under former Code 1933, §§ 77-307, 77-311, and 77-313 prior to revision by Ga. L. 1956, p. 101).

Procedure for inmate to contest rules as to treatment.

- Complaint by an inmate of the invalidity of one or more of the department's rules, or for failure to apply and abide by one or more of the department's rules, or for violation of one or more of the department's rules, with respect to treatment, discipline, or conditions of confinement of the inmate must be asserted in an action against the director of the department of corrections (now commissioner of corrections), and such action must assert that administrative procedures provided by the department for the correction of such alleged complaints have been exhausted prior to the filing of the action. Brown v. Caldwell, 231 Ga. 795, 204 S.E.2d 137 (1974).

Rules on lethal injections not "treatment."

- Contrary to the inmate's claim, the Board of Corrections did not have a duty under the mandatory rulemaking provision of O.C.G.A. § 42-2-11(c)(1), regarding the "treatment" of inmates, to make rules governing lethal injections because "treatment" referred to medical care and lethal injections did not constitute the practice of medicine. Hill v. Owens, 292 Ga. 380, 738 S.E.2d 56 (2013).

Supervision of prisoners discretionary function.

- Supervision of a prisoner work detail is a discretionary function by virtue of which the supervisor is entitled to official immunity. Parrish v. State, 270 Ga. 878, 514 S.E.2d 834 (1999), reversing Simmons v. Coweta County, 229 Ga. App. 550, 494 S.E.2d 362 (1997).

Injunctions against Board of Commissioners.

- Injunction will not lie against the prison commissioners (now Board of Corrections) when an injunction interferes with the commissioners' duties. Southern Mining Co. v. Lowe, 105 Ga. 352, 31 S.E. 191 (1898) (decided under former law).

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); Patterson v. MacDougall, 506 F.2d 1 (5th Cir. 1975); Conklin v. Zant, 202 Ga. App. 528, 414 S.E.2d 741 (1992).

OPINIONS OF THE ATTORNEY GENERAL

Applicability to "state prisoners."

- Ga. L. 1956, p. 161, §§ 11 and 23 (see now O.C.G.A. §§ 42-2-11 and42-5-57) relate to "state prisoners," rather than "county prisoners"; the distinction between "state" and "county" prisoners continues in effect even though both may be confined in a county work camp (now county correctional institution). 1970 Op. Att'y Gen. No. U70-134.

Use of profits generated in penal or correctional institution store.

- Board of Corrections can use the profits generated in a prison store to offset the expense of employing an athletic director to direct the athletic activities of inmates, by withdrawing such sums from the prison athletic fund and depositing the same in the treasury of the Board of Corrections. 1969 Op. Att'y Gen. No. 69-314.

Board authorized to develop service-type industrial programs.

- Board of Corrections is authorized to develop service-type industrial programs such as furniture refinishing, but such programs may not be developed by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration). 1970 Op. Att'y Gen. No. 70-156.

Prison may farm county property and share crop with county.

- Board of Corrections may enter into an agreement with a county whereby the county gives the prison a crop allotment and allows the prison to farm county property, furnishing the fertilizer and equipment for gathering the crop, and in return for which the county is to receive a portion of the crop grown on the property, with the remainder to be consumed within the prison branch. 1970 Op. Att'y Gen. No. 70-83.

Determination of mental disease and transfer to mental hospital.

- Ga. L. 1956, p. 161, §§ 9, 10, 11 and 14 (see now O.C.G.A. §§ 42-2-8,42-2-9,42-2-11, and42-5-52) indicate that the director (now commissioner) of corrections was authorized to determine whether or not an inmate was mentally diseased and should be transferred to a state mental hospital. 1968 Op. Att'y Gen. No. 68-136.

RESEARCH REFERENCES

C.J.S.

- 73 C.J.S., Public Administrative Law and Procedure, §§ 161-170, 182, 195, 196.

42-2-12. Reasonableness of rules and regulations.

All rules and regulations enacted by the board under the authority of this chapter must be reasonable.

(Ga. L. 1956, p. 161, § 12.)

JUDICIAL DECISIONS

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); Brown v. Caldwell, 231 Ga. 795, 204 S.E.2d 137 (1974); Jones v. Townsend, 267 Ga. 489, 480 S.E.2d 24 (1997).

RESEARCH REFERENCES

C.J.S.

- 73 C.J.S., Public Administrative Law and Procedure, §§ 171 et seq.

ALR.

- Censorship of convicted prisoners' "legal" mail, 47 A.L.R.3d 1150.

Censorship of convicted prisoners' "nonlegal" mail, 47 A.L.R.3d 1192.

Validity and construction of prison regulation of inmates' possession of personal property, 66 A.L.R.4th 800.

42-2-13. Grants to municipal corporations and counties for local jails and correctional institutions.

  1. The commissioner may make grants of funds to municipal corporations and counties for establishing, constructing, and operating local jails and correctional institutions. Any such grant shall be in addition to, and not in lieu of, state payments made pursuant to Code Section 42-5-51 and Code Section 42-5-53. The commissioner shall make such grants where the recipient, sum, and purpose have been specified by appropriation. From funds generally available for such grants, but when such funds are available without specification other than general purpose, the commissioner shall allocate such funds according to criteria established by the commissioner, including, but not limited to, overpopulation, innovativeness, efficiency, multigovernment involvement, and readiness.
  2. Pursuant to Article VII, Section III, Paragraph III of the Constitution and as otherwise may be authorized, all grants similar to grants provided for in subsection (a) of this Code section made by the department before March 15, 1988, are ratified, confirmed, and approved.

(Code 1981, §42-2-13, enacted by Ga. L. 1988, p. 256, § 1; Ga. L. 1989, p. 14, § 42; Ga. L. 1990, p. 8, § 42.)

42-2-14. Power of Governor to declare state of emergency with regard to jail and prison overcrowding.

The Governor, upon certification by the commissioner of corrections and approval by the director of the Office of Planning and Budget that the population of the prison system of the State of Georgia has exceeded the capacity of the prison system for any period of 90 consecutive days, beginning at any time after December 31, 1988, may declare a state of emergency with regard to jail and prison overcrowding. Following the declaration of such emergency, the department may establish additional facilities for use by the department, such facilities to be either of a permanent type of construction or of a temporary or movable type as the department may find most advantageous to the particular needs, to the end that the inmates under its supervision may be so distributed throughout the state as to facilitate individualization of treatment designed to prepare them for lawful living in the community where they are most likely to reside after their release from a correctional facility. For this purpose, the department may purchase or lease sites and suitable lands and erect necessary buildings thereon or purchase or lease existing facilities, all within the limits of appropriations as approved by the General Assembly. With the approval of the Governor, provisions of Chapter 5 of Title 50, relating to the Department of Administrative Services, or provisions of Code Section 50-6-25 or Chapter 22 of Title 50, relating to control over acquisition of professional services, may be waived by the department to facilitate the rapid construction or procurement of facilities for inmates; provided, however, that the authority to waive provisions of Code Section 50-6-25 shall terminate as of July 1, 1991. During any year in which correctional facilities are constructed or procured under this Code section and any requirements are waived, the department shall furnish the Governor and the General Assembly with a detailed report specifying the facilities constructed or procured, the requirements waived, and the reasons therefor.

(Code 1981, §42-2-14, enacted by Ga. L. 1989, p. 57, § 1; Ga. L. 1990, p. 135, § 1; Ga. L. 2012, p. 775, § 42/HB 942.)

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, deleted "provisions, other than bonding requirements, of Chapter 3 of this title, known as the 'Georgia Building Authority (Penal) Act,'" preceding "provisions of Chapter 5" in the fourth sentence of this Code section.

Law reviews.

- For note on 1989 enactment of this Code section, see 6 Ga. St. U.L. Rev. 287 (1989).

42-2-15. Employee benefit fund.

  1. As used in this Code section, the term:
    1. "Employee" means a full-time or part-time employee of the department or an employee serving under contract with the department.
    2. "Employee benefit fund" means an account containing the facility's profits generated from vending services maintained by a local facility.
    3. "Executive director of the facility" means the warden, superintendent, or such other head of a facility.
    4. "Facility" means a prison, institution, detention center, or such other similar property under the jurisdiction or operation of the department.
    5. "Vending services" means one or more vending machines in a location easily accessible by employees, which services may also be accessible by members of the general public, but which vending machines do not require a manager or attendant for the purpose of purchasing food or drink items. Vending services shall be for the provision of snack or food items or nonalcoholic beverages and shall not include any tobacco products or alcoholic beverages.
  2. It is the intent of the General Assembly to provide an employee benefit as set forth in this Code section which benefit shall be of de minimis cost to the state and which shall in turn benefit the state through the retention of dedicated and experienced employees.
  3. Any other provision of the law notwithstanding, a facility is authorized to purchase vending machines or enter into vending service agreements by contract, sublease, or license for the purpose of providing vending services to each facility under the jurisdiction of the department. Vending services shall be provided in any facility where the operation of such vending services is capable of generating a profit for that facility. The facility's profits generated from the vending services shall be maintained by the local facility under the authority of the executive director of the facility in an interest-bearing account and the account shall be designated the "employee benefit fund."
  4. The fund shall be administered by a committee of five representatives of the facility to be selected by the executive director of the facility. Funds from the account may be spent as determined by a majority vote of the committee. Funds may be expended on an individual employee of the facility for the purpose of recognizing a death, birth, marriage, or prolonged illness or to provide assistance in the event of a natural disaster or devastation adversely affecting an employee or an employee's immediate family member. Funds may also be expended on an item or activity which shall benefit all employees of the facility equally for the purposes of developing camaraderie or otherwise fostering loyalty to the department or bringing together the employees of the facility for a meeting, training session, or similar gathering. Funds spent for an individual employee shall not exceed $250.00 per person per event and funds expended for employee gatherings or items shall not exceed $1,000.00 per event or single item; provided, however, that events conducted for the benefit of employees of an entire institution shall not exceed $4,500.00 per event.
  5. The employee benefit fund account of each facility shall be reviewed and audited by the administrative office of the local facility and by the department in accordance with standards and procedures established by the department. No account shall maintain funds in excess of $5,000.00. Any funds collected which cause the fund balance to exceed $5,000.00 shall be remitted to the department's general operating budget.
  6. Nothing in this Code section shall prohibit a facility from purchasing vending machines or providing or maintaining vending services which do not generate a profit, provided that such services are of no cost to the department, nor shall this Code section be construed so as to prohibit a private provider of vending services from making or retaining a profit pursuant to any agreement for such services.

(Code 1981, §42-2-15, enacted by Ga. L. 2006, p. 332, § 1/HB 1318; Ga. L. 2015, p. 422, § 5-69/HB 310; Ga. L. 2016, p. 443, § 8-3/SB 367.)

The 2015 amendment, effective July 1, 2015, deleted "chief probation official," following "superintendent," in paragraph (a)(3); and deleted "probation office," following "diversion center," in paragraph (a)(4). See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, deleted "diversion center," following "detention center," in paragraph (a)(4).

Editor's notes.

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

42-2-16. Retaining department issued weapons.

  1. An employee leaving the service of the department under honorable conditions who has accumulated 20 or more years of service with the department as a certified officer shall be entitled as part of such employee's compensation to retain his or her department issued weapon.
  2. The board is authorized to promulgate rules and regulations for the implementation of this Code section.

(Code 1981, §42-2-16, enacted by Ga. L. 2013, p. 82, § 1/HB 482.)

Effective date.

- This Code section became effective July 1, 2013.

CHAPTER 3 COMMUNITY SUPERVISION AND TRANSITION

Article 1 Board of Community Supervision; Department of Community Supervision.
Article 2 Successful Transition and Reentry of Offender.
Article 3 Community Service.
Article 4 Pretrial Release and Diversion Programs.
Article 5 Diversion Center and Program for Violation of Alimony and Child Support Orders.
Article 6 Probation Management.
Effective date.

- This chapter became effective July 1, 2015.

Editor's notes.

- The former chapter consisted of Code Sections 42-3-1 through 42-3-32, and was based on Ga. L. 1960, p. 892, §§ 2-30, 32; Ga. L. 1964, p. 91, §§ 1-3; Ga. L. 1965, p. 591, § 1; Ga. L. 1967, p. 810, § 1; Ga. L. 1967, p. 864, §§ 1-4; Ga. L. 1970, p. 552, § 1; Ga. L. 1972, p. 1015, § 419; Ga. L. 1982, p. 3, § 42; Ga. L. 1983, p. 3, § 60; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 1988, p. 426, § 1; Ga. L. 1989, p. 415, § 1; Ga. L. 1991, p. 94, § 42.

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2015 enactment of this chapter, see 32 Ga. St. U. L. Rev. 231 (2015).

ARTICLE 1 BOARD OF COMMUNITY SUPERVISION; DEPARTMENT OF COMMUNITY SUPERVISION

42-3-1. Definitions.

As used in this chapter, the term:

  1. "Board" means the Board of Community Supervision.
  2. "Commissioner" means the commissioner of community supervision.
  3. "Community supervision officer" means an individual employed by DCS who supervises probationers or parolees.
  4. "DCS" means the Department of Community Supervision.
  5. "Split sentence" means any felony sentence that includes a term of imprisonment followed by a term of probation.

(Code 1981, §42-3-1, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-2. Board of Community Supervision created; membership; creation of Program and Treatment Completion Certificate; adoption of rules and regulations; duties.

  1. There is created the Board of Community Supervision which shall establish the general policy to be followed by the Department of Community Supervision. The powers, functions, and duties of the Board of Corrections as they exist on June 30, 2015, with regard to the probation division of the Department of Corrections and supervision of probationers unless otherwise provided in this chapter are transferred to the Board of Community Supervision effective July 1, 2015. The powers, functions, and duties of the State Board of Pardons and Paroles as they exist on June 30, 2015, with regard to the supervision of parolees, unless otherwise provided in this chapter are transferred to the Board of Community Supervision effective July 1, 2015. The powers, functions, and duties of the Board of Juvenile Justice and the Department of Juvenile Justice as they exist on June 30, 2016, with regard to the probation supervision of children and reentry services for children who have been released from restrictive custody and who were adjudicated for a Class A designated felony act or Class B designated felony act, as such terms are defined in Code Section 15-11-2, are transferred to the Board of Community Supervision effective July 1, 2016, except as otherwise provided by the rules and regulations of the Board of Juvenile Justice governing such supervision. The powers, functions, and duties of the County and Municipal Probation Advisory Council as they exist on June 30, 2015, are transferred to the Board of Community Supervision effective July 1, 2015. The powers, functions, and duties of the Governor's Office of Transition, Support, and Reentry as they exist on June 30, 2016, with regard to reentry services are transferred to the board and DCS effective July 1, 2016. The powers, functions, and duties of the board that were transferred from the former County and Municipal Probation Advisory Council as it existed on June 30, 2015, to the board are transferred to DCS effective July 1, 2016; provided, however, that the power to set policy and promulgate rules and regulations for DCS shall be retained by the board.
  2. The board shall consist of 11 members. The commissioner of corrections, commissioner of juvenile justice, chairperson and vice chairperson of the State Board of Pardons and Paroles, director of the Division of Family and Children Services of the Department of Human Services, and commissioner of behavioral health and developmental disabilities shall be members of the board and shall serve on the board so long as they remain in their appointed positions. The Governor shall appoint:
    1. A sheriff who shall serve an initial term ending June 30, 2019, each subsequent term being four years;
    2. A mayor or city manager who shall serve an initial term ending June 30, 2018, each subsequent term being four years;
    3. A county commissioner or county manager who shall serve an initial term ending June 30, 2017, each subsequent term being four years;
    4. An individual who owns or is employed by a private corporation, private enterprise, private agency, or other private entity that is providing probation supervision services pursuant to Article 6 of Chapter 8 of this title who shall serve an initial term ending June 30, 2019, each subsequent term being four years; and
    5. An individual who is employed by a governing authority of a county, municipality, or consolidated government that is providing probation supervision services pursuant to Article 6 of Chapter 8 of this title who shall serve an initial term ending June 30, 2018, each subsequent term being four years.
  3. Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant. An appointment to fill a vacancy, other than by expiration of a term of office, shall be for the balance of the unexpired term.
  4. Members of the board may be removed from office under the same conditions for removal from office of members of professional licensing boards provided in Code Section 43-1-17.
  5. There shall be a chairperson of the board, elected by and from the membership of the board, who shall be the presiding officer of the board.
  6. The members of the board shall receive per diem and expenses as shall be set and approved by the Office of Planning and Budget and in conformance with rates and allowances set for members of other state boards.
    1. As used in this subsection, the term:
      1. "Evidence based practices" means supervision policies, procedures, programs, and practices that scientific research demonstrates reduce recidivism among individuals who are under some form of correctional supervision.
      2. "Recidivism" means returning to prison or jail within three years of being placed on probation or being discharged or released from a department or jail facility.
    2. The board shall adopt rules and regulations governing the management and treatment of probationers and parolees to ensure that evidence based practices, including the use of a risk and needs assessment and any other method the board deems appropriate, guide decisions related to managing probationers and parolees in the community. Any risk and needs assessment instrument shall be revalidated by January 1, 2019, and every five years thereafter. The board shall require DCS to collect and analyze data and performance outcomes relevant to the level and type of treatment given to a probationer or parolee and the outcome of the treatment on his or her recidivism and prepare an annual report regarding such information which shall be submitted to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the House Committee on Judiciary and the Senate Judiciary Committee.
    3. Using evidence based practices, the board shall evaluate the quality of the programming utilized at day reporting centers by January 1, 2019, and every five years thereafter, and shall publicly publish its report.
    1. The board, acting alone or in cooperation with the State Board of the Technical College System of Georgia or other relevant educational organizations and agencies, may provide educational programs for probationers and shall exercise program approval authority. The board may enter into written agreements with other educational organizations and agencies in order to provide probationers with such education and employment skills most likely to encourage gainful employment and discourage return to criminal activity. The board may also enter into agreements with other educational organizations and agencies to attain program certification for its vocational and technical education programs.
    2. The board shall create a Program and Treatment Completion Certificate that may be issued to probationers under the rules and regulations of the board. Such certificate shall symbolize a probationer's achievements toward successful reentry into society. The board's rules and regulations relating to the issuance of such certificate shall take into account a probationer's violations of the terms of his or her probation and any other factor the board deems relevant to an individual's qualification for such certificate. The board's rules and regulations shall specify eligibility considerations and requirements for completion of such certificate.
    3. Nothing in this subsection shall be construed to constitute a waiver of the sovereign immunity of the state, and no action shall be maintained against the state or any agency or department thereof for issuance of or failure to issue any Program and Treatment Completion Certificate.
  7. The board shall adopt rules and regulations and such rules and regulations shall be adopted, established, promulgated, amended, repealed, filed, and published in accordance with the applicable provisions and procedure as 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.
  8. As used in this Code section, 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.
  9. The board shall perform duties required of it by law and shall, in addition thereto, be responsible for promulgation of all rules and regulations not in conflict with this chapter that may be necessary and appropriate to the administration of DCS, to the accomplishment of the purposes of this chapter and Chapters 8 and 9 of this title, and to the performance of the duties and functions of DCS as set forth in this chapter and Chapters 8 and 9 of this title.

(Code 1981, §42-3-2, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2016, p. 443, § 5-1/SB 367; Ga. L. 2017, p. 585, § 2-3/SB 174.)

The 2016 amendment, effective July 1, 2016, in subsection (a), deleted "and the Governor's Office of Transition, Support, and Reentry" following "Community Supervision" at the end of the first sentence, in the fourth sentence, inserted "and reentry services for children" and inserted ", except as otherwise provided by the rules and regulations of the Board of Juvenile Justice governing such supervision" at the end, and added the last two sentences; in subsection (b), substituted "11 members" for "nine members" at the end of the first sentence, deleted "and" at the end of paragraph (b)(2), substituted a semicolon for a period at the end of paragraph (b)(3), and added paragraphs (b)(4) and (b)(5); and, in subsection (j), twice deleted "and the Governor's Office of Transition, Support, and Reentry" following "DCS".

The 2017 amendment, effective July 1, 2017, substituted "department" for "Department of Corrections" in subparagraph (g)(1)(B); in paragraph (g)(2), added the second sentence, and substituted "House Committee on Judiciary and the Senate Judiciary Committee" for "House Committee on State Properties and the Senate State Institutions and Property Committee" at the end of the last sentence; added paragraph (g)(3); added present subsection (h); and redesignated former subsections (h) through (j) as present subsections (i) through (k), respectively.

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017).

42-3-3. Department of Community Supervision created; responsibilities.

  1. There is created the Department of Community Supervision. DCS shall be the agency primarily responsible for:
    1. Supervision of all defendants who receive a felony sentence of straight probation;
    2. Supervision of all defendants who receive a split sentence;
    3. Supervision of all defendants placed on parole or other conditional release from imprisonment by the State Board of Pardons and Paroles;
    4. Supervision of juvenile offenders released from restrictive custody due to an adjudication for a Class A designated felony act or Class B designated felony act, as such terms are defined in Code Section 15-11-2, except as otherwise provided by the rules and regulations of the Board of Juvenile Justice governing such supervision;
    5. Administration of laws, rules, and regulations relating to probation and parole supervision, as provided for by law;
    6. Enforcement of laws, rules, and regulations relating to probation and parole supervision, as provided for by law;
    7. Administration of laws as provided in this chapter and Chapters 8 and 9 of this title;
    8. Regulating entities and individuals that provide probation supervision services pursuant to Article 6 of Chapter 8 of this title;
    9. Reviewing the uniform professional standards for private probation officers and uniform contract standards for private probation contracts established in Code Section 42-8-107 and submit a report with its recommendations to the board. DCS shall submit its initial report on or before January 1, 2018, and shall continue such reviews every two years thereafter. Such report shall provide information which will allow the board to review the effectiveness of the uniform professional standards and uniform contract standards and, if necessary, to revise such standards;
    10. Producing an annual summary report; and
    11. Administering laws, rules, and regulations relating to misdemeanor probation supervision pursuant to Article 6 of Chapter 8 of this title.
  2. DCS shall ensure that community supervision officers who supervise juvenile offenders receive the same training to work specifically with children and adolescents as is provided for Department of Juvenile Justice probation officers. DCS shall offer the same array of services to juvenile offenders as are available to offenders who are committed to the Department of Juvenile Justice who are not placed in restrictive custody. With respect to the supervision of children, DCS shall be mindful of the purpose of Chapter 11 of Title 15 as set forth in Code Section 15-11-1.

(Code 1981, §42-3-3, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2016, p. 443, § 5-2/SB 367.)

The 2016 amendment, effective July 1, 2016, near the beginning of paragraph (a)(4), substituted "released from" for "when such offender had been placed in" and at the end substituted "except as otherwise provided by the rules and regulations of the Board of Juvenile Justice governing such supervision" for "and is released from such custody"; deleted "and" at the end of paragraph (a)(6); substituted "and Chapters 8 and 9 of this title" for a period at the end of paragraph (a)(7); and added paragraphs (a)(8) through (a)(11).

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

JUDICIAL DECISIONS

Search at probation/parole facility.

- Motion to suppress marijuana found in the defendant's wallet during a search at a probation facility was properly denied because the searches at the facility served a legitimate governmental interest in protecting against violence and the defendant's expectation of privacy was diminished by warning signs and the defendant's status as a convicted offender reporting to a probation appointment. Day v. State, 350 Ga. App. 328, 829 S.E.2d 418 (2019).

42-3-4. Commissioner of community supervision; duties.

  1. There shall be a commissioner of community supervision who shall be both appointed by and serve at the pleasure of the Governor. Subject to the policies, rules, and regulations established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions of DCS.
  2. The commissioner shall receive an annual salary to be set by the Governor which shall be his or her total compensation for services as commissioner. The commissioner shall be reimbursed for all actual and necessary expenses incurred by him or her in carrying out his or her official duties.
  3. The position of commissioner shall be a separate and distinct position from any other position in state government. The duties of the commissioner shall be performed by the commissioner and not by any other officer of state government, and the commissioner shall not perform the duties of any other officer of state government.

(Code 1981, §42-3-4, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-5. Administrative functions of department.

  1. The commissioner, with the approval of the board, may establish units within DCS as he or she deems proper for its administration and shall designate persons to be assistant commissioners of each unit and to exercise authority as he or she may delegate to them in writing. The commissioner shall establish an offender transition and reentry unit within DCS to coordinate successful offender reentry in this state, reduce recidivism, enhance public safety through collaboration among stakeholders, and assist in ensuring the appropriate and responsible use of cost savings realized by justice reforms through reinvestment in evidence based, community centered services. The commissioner shall establish a misdemeanor probation unit within DCS to coordinate and oversee services provided under Article 6 of Chapter 8 of this title. The commissioner shall establish a victim services unit within DCS to coordinate:
    1. Payment of court ordered restitution; and
    2. Victim services, including, but not limited to, payments available to victims as provided by law and assisting victims with support services.
  2. The commissioner shall have the authority to employ as many individuals as he or she deems necessary for the administration of DCS and for the discharge of the duties of his or her office. The commissioner shall issue all necessary directions, instructions, orders, and rules applicable to employees of DCS. The commissioner shall have authority, as the commissioner deems proper, to employ, assign, compensate, and discharge employees of DCS within the limitations of DCS's appropriation and the restrictions set forth by law.
  3. No employee of DCS shall be compensated for services to DCS on a commission or contingent fee basis.
  4. Neither the commissioner nor any community supervision officer or employee of DCS shall be given or receive any fee, compensation, loan, gift, or other thing of value in addition to the compensation and expense allowance provided by law for any service or pretended service either rendered or to be rendered as commissioner or as a community supervision officer or employee of DCS.

(Code 1981, §42-3-5, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2016, p. 443, § 5-3/SB 367.)

The 2016 amendment, effective July 1, 2016, added the second and third sentences in subsection (a).

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

42-3-6. Rules and regulations.

  1. The commissioner, with the approval of the board, shall have the power to make and publish reasonable rules and regulations not inconsistent with this title or other laws or with the Constitution of this state or of the United States for the administration of this chapter or any law which it is his or her duty to administer.
  2. The commissioner may prescribe forms as he or she deems necessary for the administration and enforcement of this chapter and Chapters 8 and 9 of this title or any law which it is his or her duty to administer.
  3. The commissioner may confer all powers of a police officer of this state, including, but not limited to, the power to make summary arrests for violations of any of the criminal laws of this state and the power to carry weapons, upon persons in the commissioner's employment as the commissioner deems necessary, provided that individuals so designated meet the requirements specified in all applicable laws.
  4. The commissioner or his or her designee may authorize certain persons in the commissioner's employment to assist law enforcement officers or correctional officers of local governments in preserving order and peace when so requested by such local authorities.
  5. The following rules and regulations shall remain in full force and effect as rules and regulations of DCS until amended, repealed, or superseded by rules or regulations adopted by the board:
    1. All rules and regulations previously adopted by the Advisory Council for Probation which relate to functions transferred under this chapter from the state-wide probation system to DCS;
    2. All rules and regulations previously adopted by the Department of Corrections or the Board of Corrections which relate to functions transferred under this chapter from the Department of Corrections to DCS;
    3. All rules and regulations previously adopted by the State Board of Pardons and Paroles which relate to functions transferred under this chapter from the State Board of Pardons and Paroles to DCS;
    4. All rules and regulations previously adopted by the Department of Juvenile Justice or the Board of Juvenile Justice which relate to functions transferred under this chapter from the Department of Juvenile Justice to DCS;
    5. All rules and regulations previously adopted by the County and Municipal Probation Advisory Council which relate to functions transferred under this chapter from the County and Municipal Probation Advisory Council to DCS; and
    6. All rules and regulations previously adopted by the Governor's Office of Transition, Support, and Reentry which relate to functions transferred under this chapter from the Governor's Office of Transition, Support, and Reentry to DCS.

(Code 1981, §42-3-6, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2016, p. 443, § 5-4/SB 367.)

The 2016 amendment, effective July 1, 2016, deleted "and" at the end of paragraph (e)(4); substituted "; and" for a period at the end of paragraph (e)(5); and added paragraph (e)(6).

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

42-3-7. Transfer of prior appropriations, personnel, equipment, and facilities; probation and parole not affected by creation of department.

  1. Appropriations to the Department of Corrections, the Department of Juvenile Justice, the County and Municipal Probation Advisory Council, the State Board of Pardons and Paroles, and the Governor's Office of Transition, Support, and Reentry for functions transferred to DCS pursuant to this chapter shall be transferred to DCS as provided for in Code Section 45-12-90. Personnel, equipment, and facilities previously employed by the Department of Corrections, the Department of Juvenile Justice, the County and Municipal Probation Advisory Council, the State Board of Pardons and Paroles, and the Governor's Office of Transition, Support, and Reentry for functions transferred to DCS pursuant to this chapter shall likewise be transferred to DCS. Any disagreement as to any of such transfers shall be resolved by the Governor. Any individual who is employed by the Department of Corrections as a probation officer or probation supervisor or by the State Board of Pardons and Paroles as a parole officer on or before July 1, 2016, and who is required by the terms of his or her employment to comply with the requirements of Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act," may remain in the employment of the employing agency but shall be transferred for administrative purposes only to DCS on July 1, 2015.
  2. The enactment of this chapter and the Act by which it is enacted shall not affect or abate the status of probation, parole, a probation revocation, or a parole revocation which occurred prior to July 1, 2015.

(Code 1981, §42-3-7, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2016, p. 443, § 5-5/SB 367.)

The 2016 amendment, effective July 1, 2016, in subsection (a), twice substituted "the State Board of Pardons and Paroles, and the Governor's Office of Transition, Support, and Reentry" for "and the State Board of Pardons and Paroles" and inserted "State" in the last sentence.

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

42-3-8. Employee benefit fund.

  1. As used in this Code section, the term:
    1. "Employee" means a full-time or part-time employee of DCS or an employee serving under contract with DCS.
    2. "Employee benefit fund" means an account containing the facility's profits generated from vending services maintained by a local facility.
    3. "Executive director of the facility" means the chief community supervision officer or such other head of a facility.
    4. "Facility" means a community supervision office or such other similar property under the jurisdiction or operation of DCS.
    5. "Vending services" means one or more vending machines in a location easily accessible by employees, which services may also be accessible by members of the general public, but which vending machines do not require a manager or attendant for the purpose of purchasing food or drink items. Vending services shall be for the provision of snack or food items or nonalcoholic beverages and shall not include any tobacco products or alcoholic beverages.
  2. It is the intent of the General Assembly to provide an employee benefit as set forth in this Code section, which benefit shall be of de minimis cost to the state and which shall in turn benefit the state through the retention of dedicated and experienced employees.
  3. Any other provision of the law notwithstanding, a facility is authorized to purchase vending machines or enter into vending service agreements by contract, sublease, or license for the purpose of providing vending services to each facility under the jurisdiction of the Department of Corrections. Vending services shall be provided in any facility where the operation of such vending services is capable of generating a profit for that facility. The facility's profits generated from the vending services shall be maintained by the local facility under the authority of the executive director of the facility in an interest-bearing account, and the account shall be designated the employee benefit fund.
  4. The employee benefit fund shall be administered by a committee of five representatives of the facility to be selected by the chief community supervision officer for such facility. Funds from the account may be spent as determined by a majority vote of the committee. Funds may be expended on an individual employee of the facility for the purpose of recognizing a death, birth, marriage, or prolonged illness or to provide assistance in the event of a natural disaster or devastation adversely affecting an employee or an employee's immediate family member. Funds may also be expended on an item or activity which shall benefit all employees of the facility equally for the purposes of developing camaraderie or otherwise fostering loyalty to DCS or bringing together the employees of the facility for a meeting, training session, or similar gathering. Funds spent for an individual employee shall not exceed $250.00 per person per event, and funds expended for employee gatherings or items shall not exceed $1,000.00 per event or single item; provided, however, that events conducted for the benefit of employees of an entire institution shall not exceed $4,500.00 per event.
  5. The employee benefit fund account of each facility shall be reviewed and audited by the administrative office of the local facility and by DCS in accordance with standards and procedures established by DCS. No account shall maintain funds in excess of $5,000.00. Any funds collected which cause the fund balance to exceed $5,000.00 shall be remitted to DCS's general operating budget.
  6. Nothing in this Code section shall prohibit a facility from purchasing vending machines or providing or maintaining vending services which do not generate a profit, provided that such services are of no cost to DCS, nor shall this Code section be construed so as to prohibit a private provider of vending services from making or retaining a profit pursuant to any agreement for such services.

(Code 1981, §42-3-8, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-9. Retention of issued weapon and badge; survivor's rights to badge.

  1. An employee leaving the service of DCS under honorable conditions who has accumulated 20 or more years of service with DCS as a community supervision officer, or 20 or more years of combined service as a parole officer with the State Board of Pardons and Paroles, a probation officer or supervisor with the Department of Corrections, and community supervision officer, shall be entitled as part of such employee's compensation to retain his or her DCS issued weapon and badge.
  2. As used in this subsection, the term "disability" means a disability that prevents an individual from working as a community supervision officer. When a community supervision officer leaves DCS as a result of a disability arising in the line of duty, such officer shall be entitled as part of such officer's compensation to retain his or her weapon and badge in accordance with regulations promulgated by the commissioner.
  3. A community supervision officer who is killed in the line of duty shall be entitled to have his or her DCS issued badge given to a surviving family member.
  4. The board is authorized to promulgate rules and regulations for the implementation of this Code section.

(Code 1981, §42-3-9, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-10. Appeals of sanctions; venue; no waiver of immunity.

  1. In order to appeal a sanction imposed by the board, a person shall remit a request for a hearing, in writing by certified mail or statutory overnight delivery, return receipt requested, to the board within 30 days from the date of personal notice or receipt of the notice of the sanction; otherwise, the right to such hearing shall be deemed waived. The board shall hold a hearing as provided in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." If the sanction is sustained, the person who received the sanction shall have a right to file for a judicial review of the final decision, as provided for in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; while such appeal is pending, the order of the board shall not be stayed. A petition for judicial review shall name the board as defendant, shall be served by certified mail or statutory overnight delivery, return receipt requested, and shall be filed in the superior court of the county where the offices of the board are located.
  2. Actions at law and in equity against the board or any of its members predicated upon omissions or acts done in a member's official capacity or under color thereof shall be brought in the superior court of the county where the offices of the board are located; provided, however, that nothing in this Code section shall be construed as waiving the immunity of the state to be sued without its consent.

(Code 1981, §42-3-10, enacted by Ga. L. 2016, p. 443, § 5-6/SB 367.)

Effective date.

- This Code section became effective July 1, 2016.

Law reviews.

- For article on the 2016 enactment of this Code section, see 33 Ga. St. U.L. Rev. 139 (2016).

ARTICLE 2 SUCCESSFUL TRANSITION AND REENTRY OF OFFENDER

42-3-30 through 42-3-35.

Reserved. Repealed by Ga. L. 2016, p. 443, § 1/SB 367, effective July 1, 2016.

Editor's notes.

- This article was based Ga. L. 2015, p. 422, § 1-1/HB 310.

Law reviews.

- For article on the 2016 repeal of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

ARTICLE 3 COMMUNITY SERVICE

Editor's notes.

- This article is the same as or substantially similar to former Article 4 of Chapter 8 of Title 42.

42-3-50. Definitions; assignment of community service for personal gain prohibited.

  1. As used in this article, the term:
    1. "Agency" means any private or public entity or organization that provides services to the public and enhances the social welfare and general well-being of the community. Such term may include educational institutions and religious organizations that are nonprofit corporations or are qualified as tax exempt under 26 U.S.C. Section 501(c)(3), as it existed on March 1, 2018.
    2. "Community service" means uncompensated work by an offender with an agency pursuant to an order by a court as a condition of probation or in lieu of payment of financial obligations imposed by a court.
    3. "Community service officer" means an individual appointed by the court to place and supervise offenders sentenced to community service or educational advancement. Such term includes a paid professional or a volunteer.
    4. "Educational advancement" means attending a work or job skills training program, a preparatory class for the general educational development (GED) diploma, or similar activity.
  2. Except as provided in subsection (c) of this Code section, it shall be unlawful for an agency or community service officer to use or allow an offender to be used for any purpose resulting in private gain to any individual.
  3. Subsection (b) of this Code section shall not apply to:
    1. Work on private property because of a natural disaster; or
    2. An order or direction by the court.
  4. Any person who violates subsection (b) of this Code section shall be guilty of a misdemeanor.

(Code 1981, §42-3-50, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2018, p. 550, § 2-11/SB 407.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of paragraph (a)(1) for the former provisions, which read: " 'Agency' means any private or public agency or organization approved by the court to participate in a community service program."; substituted the present provisions of paragraph (a)(2) for the former provisions, which read: " 'Community service' means uncompensated work by an offender with an agency for the benefit of the community pursuant to an order by a court as a condition of probation. Such term includes uncompensated service by an offender who lives in the household of a disabled person and provides aid and services to such disabled person, including, but not limited to, cooking, housecleaning, shopping, driving, bathing, and dressing."; in paragraph (a)(3), added "or educational advancement" at the end of the first sentence, substituted "includes" for "may mean" in the second sentence; added paragraph (a)(4); deleted former paragraph (c)(1), which read: "Services provided by an offender to a disabled person in accordance with paragraph (1) of subsection (c) of Code Section 42-3-52;"; redesignated former paragraphs (c)(2) and (c)(3) as present paragraphs (c)(1) and (c)(2), respectively; and deleted "sentencing" preceding "court" in paragraph (c)(2).

Editor's notes.

- This Code section is the same as or substantially similar to former Code Section 42-8-70.

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018).

42-3-51. Community service or educational advancement program; letter of application; requirements; limitation of liability.

  1. Agencies desiring to allow offenders to participate in their program shall file with the court a letter of application showing:
    1. Eligibility;
    2. Number of offenders who may be placed with the agency;
    3. Work to be performed by the offender; and
    4. Provisions for supervising the offender.
  2. An agency selected by the court shall work with offenders who are assigned to the agency by the court. If an offender violates a court order, the agency shall report such violation to the community service officer.
  3. If an agency violates any court order or this article, the offender shall be removed from the agency and the agency shall no longer be eligible to participate in the court's community service or educational advancement program.
  4. No agency or community service officer shall be liable at law as a result of any of such agency's or community service officer's acts performed while an offender was participating in community service or in an educational advancement program. This limitation of liability shall not apply to actions on the part of any agency or community service officer which constitute gross negligence, recklessness, or willful misconduct.

(Code 1981, §42-3-51, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2018, p. 550, § 2-11/SB 407; Ga. L. 2019, p. 1056, § 42/SB 52.)

The 2018 amendment, effective July 1, 2018, substituted "allow offenders to participate in their program" for "participate in a community service program" in subsection (a); substituted "by the court" for "for the community service program" in the first sentence of subsection (b); inserted "or educational advancement" near the end of subsection (c) and near the end of the first sentence of subsection (d); in subsection (c), deleted "provision of" preceding "this article" near the middle, inserted "court's" in the middle; and inserted "an offender was" in the middle of the first sentence of subsection (d).

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, inserted "with" in the first sentence of subsection (b); and inserted "in an" near the end of the first sentence of subsection (d).

Editor's notes.

- This Code section is the same or substantially similar to former Code Section 42-8-71.

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

42-3-52. Community service or educational advancement as condition of probation.

  1. Community service or educational advancement may be considered as a condition of probation or in lieu of court imposed financial obligations with primary consideration given to the following categories of offenders:
    1. Traffic violations;
    2. Ordinance violations;
    3. Noninjurious or nondestructive, nonviolent misdemeanors;
    4. Noninjurious or nondestructive, nonviolent felonies; and
    5. Other offenders considered upon the discretion of the court.
  2. The court may confer with the prosecuting attorney, the offender or his or her attorney if the offender is represented by an attorney, a community supervision officer, a community service officer, or other interested persons to determine if community service or educational advancement is appropriate for an offender. A court order shall specify that the court has approved community service or educational assistance for an offender. If community service or educational advancement is ordered, the court shall order:
    1. Not less than 20 hours nor more than 250 hours in cases involving traffic or ordinance violations or misdemeanors, such service to be completed within one year; or
    2. Not less than 20 hours nor more than 500 hours in felony cases, such service to be completed within three years.
  3. The court may order an offender to perform community service hours in a 40 hour per week work detail in lieu of incarceration.
  4. Community service or educational advancement hours may be added to original court ordered hours as a disciplinary action by the court, as an additional requirement of any program in lieu of incarceration, or as part of the sentencing options system as set forth in Article 6 of this chapter.

(Code 1981, §42-3-52, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2018, p. 550, § 2-11/SB 407.)

The 2018 amendment, effective July 1, 2018, in the introductory paragraph of subsection (a), inserted "or educational advancement" and "or in lieu of court imposed financial obligations"; in subsection (b), substituted "if community service or educational advancement" for "if the community service program" near the end of the first sentence, added the second sentence, and substituted "or educational advancement is ordered," for "is ordered as a condition of probation," in the third sentence; deleted former subsection (c), which read: "(1) Any agency may recommend to the court that certain disabled persons are in need of a live-in attendant. The court shall confer with the prosecuting attorney, the offender or his or her attorney if the offender is represented by an attorney, a community supervision officer, a community service officer, or other interested persons to determine if a community service program involving a disabled person is appropriate for an offender. If community service as a live-in attendant for a disabled person is deemed appropriate and if both the offender and the disabled person consent to such service, the court may order such live-in community service as a condition of probation but for no longer than two years.

"(2) The agency shall be responsible for coordinating the provisions of the cost of food or other necessities for the offender which the disabled person is not able to provide. The agency, with the approval of the court, shall determine a schedule which will provide the offender with certain free hours each week.

"(3) Such live-in arrangement shall be terminated by the court upon the request of the offender or the disabled person. Upon termination of such arrangement, the court shall determine if the offender has met the conditions of probation.

"(4) The appropriate agency shall make personal contact with the disabled person on a frequent basis to ensure the safety and welfare of the disabled person."; redesignated former subsections (d) and (e) as present subsections (c) and (d), respectively; and inserted "or educational advancement" near the beginning of subsection (d).

Editor's notes.

- This Code section is the same as or substantially similar to former Code Section 42-8-72.

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018).

42-3-53. Placement with appropriate agency; approval by court; report of offender's performance.

The community service officer shall place an offender sentenced to community service or educational advancement with an appropriate agency. The agency and work schedule shall be approved by the court. If the offender is employed at the time of sentencing or if the offender becomes employed after sentencing, the community service officer shall consider the offender's work schedule and, to the extent practicable, shall schedule the community service or educational advancement so that it will not conflict with the offender's work schedule. This scheduling accommodation shall not be construed as requiring the community service officer to alter scheduled community service or educational advancement based on changes in an offender's work schedule. The community service officer shall supervise the offender for the duration of the sentence which requires community service or educational advancement. Upon completion of the such sentence, the community service officer shall prepare a written report evaluating the offender's performance which shall be used to determine if the conditions of probation or sentence have been satisfied.

(Code 1981, §42-3-53, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2018, p. 550, § 2-11/SB 407.)

The 2018 amendment, effective July 1, 2018, substituted "or educational advancement" for "as a condition of probation" in the first sentence, inserted "or educational advancement" in the third and fourth sentences, inserted "scheduling accommodation" near the beginning of the fourth sentence, substituted "sentence which requires community service or educational advancement" for "community service sentence" in the next-to-last sentence, and, in the last sentence, substituted "such" for "community service" near the middle, and inserted "or sentence" near the end.

Editor's notes.

- This Code section is the same as or substantially similar to former Code Section 42-8-73.

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

42-3-54. Applicability of Articles 2, 3, and 6 of this chapter.

Article 2 of Chapter 8 of this title shall be applicable to offenders sentenced to community service or educational advancement pursuant to this article. Article 3 of Chapter 8 of this title shall be applicable to first offenders sentenced to community service or educational advancement pursuant to this article. Article 6 of Chapter 8 of this title shall be applicable to misdemeanor or ordinance violator offenders sentenced to community service or educational advancement pursuant to this article.

(Code 1981, §42-3-54, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2018, p. 550, § 2-11/SB 407.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of this Code section for the former provisions, which read: "(a) The provisions of Article 2 of Chapter 8 of this title shall be applicable to offenders sentenced to community service as a condition of probation pursuant to this article. The provisions of Article 3 of Chapter 8 of this title shall be applicable to first offenders sentenced pursuant to this article. The provisions of Article 6 of Chapter 8 of this title shall be applicable to misdemeanor or ordinance violator offenders sentenced to community service as a condition of probation pursuant to this article.

"(b) Any offender who provides live-in community service but who is later incarcerated for breaking the conditions of probation or for any other cause may be awarded good time for each day of live-in community service the same as if such offender were in prison for such number of days."

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

ARTICLE 4 PRETRIAL RELEASE AND DIVERSION PROGRAMS

Editor's notes.

- This article is the same as or substantially similar to former Article 5 of Chapter 8 of Title 42.

42-3-70. Operation of pretrial release and diversion programs.

DCS shall be authorized to establish and operate pretrial release and diversion programs as rehabilitative measures for persons charged with felonies for which bond is permissible under the law in the courts of this state prior to conviction; provided, however, that no such program shall be established in a county without the unanimous approval of the superior court judges, the district attorney, and the sheriff of such county. The board shall promulgate rules and regulations governing any pretrial release and diversion programs established and operated by DCS and shall grant authorization for the establishment of such programs based on the availability of sufficient staff and resources.

(Code 1981, §42-3-70, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

Editor's notes.

- This Code section is the same as or substantially similar to former Code Section 42-8-80.

42-3-71. Discretionary release upon application by person charged with felony.

The court in which a person is charged with a felony for which bond is permissible under the law may, upon the application by the person so charged, at its discretion release the person prior to conviction and upon recognizance to the supervision of a pretrial release or diversion program established and operated by DCS after an investigation and upon recommendation of the staff of the pretrial release or diversion program. In no case, however, shall any person be so released unless after consultation with his or her attorney or an attorney made available to the person if he or she is indigent that person has voluntarily agreed to participate in the pretrial release or diversion program and knowingly and intelligently has waived his or her right to a speedy trial for the period of pretrial release or diversion.

(Code 1981, §42-3-71, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-72. Contracts with counties for services and facilities.

DCS may contract with the various counties of this state for the services and facilities necessary to operate pretrial release and diversion programs established under this article, and both DCS and the counties are authorized to enter into such contracts as are appropriate to carry out the purpose of this article.

(Code 1981, §42-3-72, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-73. Authority to establish and operate pretrial release diversion programs does not affect contracting authority of Georgia Department of Labor.

The authority to establish and operate pretrial release and diversion programs granted to DCS under this article shall not affect the authority of the Georgia Department of Labor to enter into agreements with district attorneys of the several judicial circuits of this state for the purpose of establishing and operating pretrial intervention programs in such judicial circuits.

(Code 1981, §42-3-73, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-74. Judicial approval for pretrial release and diversion program required.

No person shall be released on his or her own recognizance or approved for a pretrial release and diversion program without first having the approval in writing of the judge of the court having jurisdiction of the case.

(Code 1981, §42-3-74, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

ARTICLE 5 DIVERSION CENTER AND PROGRAM FOR VIOLATION OF ALIMONY AND CHILD SUPPORT ORDERS

Editor's notes.

- This article is the same as or substantially similar to former Article 8 of Chapter 8 of Title 42.

42-3-90. Establishment of diversion center; authorization for travel to and from employment; requirements during confinement at diversion center.

A county shall be authorized to establish a diversion center under the direction of the sheriff of the county in which the diversion center is located and a diversion program for the confinement of certain individuals who have been found in contempt of court for violation of orders granting temporary or permanent alimony or child support and sentenced pursuant to subsection (c) of Code Section 15-1-4. While in such diversion program, the respondent shall be authorized to travel to and from his or her place of employment and to continue his or her occupation. The official in charge of the diversion program or his or her designee shall prescribe the routes, manner of travel, and periods of travel to be used by the respondent in attending to his or her occupation. If the respondent's occupation requires the respondent to travel away from his or her place of employment, the amount and conditions of such travel shall be approved by the official in charge of the diversion center or his or her designee. When the respondent is not traveling to or from his or her place of employment or engaging in his or her occupation, such respondent shall be confined in the diversion center during the term of the sentence. With the approval of the sheriff or his or her designee, the respondent may participate in educational or counseling programs offered at the diversion center. While participating in the diversion program, such respondent shall be liable for alimony or child support as previously ordered, including arrears, and his or her income shall be subject to the provisions of Code Sections 19-6-30 through 19-6-33.1 and Chapter 11 of Title 19. In addition, should any funds remain after payment of child support or alimony, such respondent may be charged a fee payable to the county operating the diversion program to cover the costs of his or her incarceration and the administration of the diversion program which fee shall be not more than $30.00 per day or the actual per diem cost of maintaining the respondent, whichever is less, for the entire period of time such respondent is confined to the diversion center and participating in the diversion program. If such respondent fails to comply with any of the requirements imposed upon him or her in accordance with this Code section, nothing shall prevent the sentencing judge from revoking such assignment to such diversion program and providing for alternative methods of incarceration.

(Code 1981, §42-3-90, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2017, p. 646, § 2-5/SB 137.)

The 2017 amendment, effective July 1, 2017, substituted "individuals" for "persons" in the middle of the first sentence; substituted "such respondent" for "such person" in the middle of the fifth sentence; in the seventh sentence, substituted "such respondent" for "the respondent" near the beginning and substituted "19-6-33.1" for "19-6-33" near the end; in the next-to-last sentence, substituted "such respondent" for "the respondent", substituted "such respondent" for "the person", deleted "and" following "be charged", and twice inserted "diversion"; and, in the last sentence, substituted "such respondent" for "the respondent" near the beginning, and substituted "such diversion program" for "a diversion program" near the end.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2015, "and" was deleted following "the respondent may be charged" in the middle of this Code section.

Editor's notes.

- This Code section is the same as or substantially similar to former Code Section 42-8-130.

ARTICLE 6 PROBATION MANAGEMENT

Editor's notes.

- This article is the same as or substantially similar to former Article 9 of Chapter 8 of Title 42.

42-3-110. Short title.

This article shall be known and may be cited as the "Probation Management Act."

(Code 1981, §42-3-110, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-111. Definitions.

For purposes of this article, the term:

  1. "Chief community supervision officer" means the highest ranking field community supervision officer in each judicial circuit.
  2. "Electronic monitoring" means supervising, mapping, or tracking the location of a probationer by means including electronic surveillance, voice recognition, facial recognition, fingerprinting or biometric scan, automated kiosk, automobile ignition interlock device, or global positioning systems which may coordinate data with crime scene information.
  3. "Hearing officer" means an impartial DCS employee or representative who has been selected and appointed to hear alleged cases regarding violations of probation for administrative sanctioning.
  4. "Initial sanction" means the sanction set by the judge upon initial sentencing.
  5. "Options system day reporting center" means a state facility providing supervision of probationers which includes, but is not limited to, mandatory reporting, program participation, drug testing, community service, all special conditions of probation, and general conditions of probation as set forth in Code Section 42-8-35.
  6. "Options system probationer" means a probationer who has been sentenced to the sentencing options system.
  7. "Probation supervision" means a level of probation supervision which includes, but is not limited to, general conditions of probation as set forth in Code Section 42-8-35 and all special conditions of probation.
  8. "Residential substance abuse treatment facility" means a state correctional facility that provides inpatient treatment for alcohol and drug abuse.
  9. "Sentencing options system" means a continuum of sanctions for probationers that includes the sanctions set forth in subsection (c) of Code Section 42-3-113.

(Code 1981, §42-3-111, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

Law reviews.

- For article, "Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public," see 66 Emory L.J. 527 (2017).

42-3-112. Sentencing options system.

  1. In addition to any other terms or conditions of probation provided for under this chapter, the sentencing judge may require that defendants who are sentenced to probation pursuant to subsection (c) of Code Section 42-8-34 be ordered to the sentencing options system.
  2. When a defendant has been ordered to the sentencing options system, the court shall retain jurisdiction throughout the period of the probated sentence as provided in subsection (g) of Code Section 42-8-34 and may modify or revoke any part of a probated sentence as provided in Code Section 42-8-34.1 and subsection (c) of Code Section 42-8-38.

(Code 1981, §42-3-112, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-113. System of administrative sanctions.

  1. DCS shall be authorized to establish by rules and regulations a system of administrative sanctions as an alternative to judicial modifications or revocations for probationers who violate the terms and conditions of the sentencing options system established under this article. DCS may not, however, sanction probationers for violations of special conditions of probation or general conditions of probation for which the sentencing judge has expressed an intention that such violations be heard by the court pursuant to Code Section 42-8-34.1.
  2. DCS shall only impose restrictions which are equal to or less restrictive than the sanction cap set by the sentencing judge.
  3. The administrative sanctions which may be imposed by DCS are as follows, from most restrictive to least restrictive:
    1. Probation detention center or residential substance abuse treatment facility;
    2. Probation boot camp;
    3. DCS day reporting center;
    4. Electronic monitoring;
    5. Community service; or
    6. Probation supervision.
  4. DCS may order offenders sanctioned pursuant to paragraphs (1) through (3) of subsection (c) of this Code section to be held in the local jail until transported to a designated facility.

(Code 1981, §42-3-113, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-114. Preliminary hearing for alleged violation of probation.

  1. Whenever an options system probationer is arrested on a warrant for an alleged violation of probation, an informal preliminary hearing shall be held within a reasonable time not to exceed 15 days.
  2. A preliminary hearing shall not be required when:
    1. The probationer is not under arrest on a warrant;
    2. The probationer signed a waiver of a preliminary hearing; or
    3. The administrative hearing referred to in Code Section 42-3-115 will be held within 15 days of arrest.

(Code 1981, §42-3-114, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-115. Authorization to impose administrative sanctions; petition; hearing; administrative proceeding.

  1. If an options system probationer violates the conditions of probation, DCS may impose administrative sanctions as an alternative to judicial modification or revocation of probation.
  2. Upon issuance of a petition outlining the alleged probation violations, the chief community supervision officer, or his or her designee, may conduct a hearing to determine whether an options system probationer has violated a condition of probation. If the chief community supervision officer determines that the probationer has violated a condition of probation, the chief community supervision officer shall be authorized to impose sanctions consistent with paragraphs (4) through (6) of subsection (c) of Code Section 42-3-113. The failure of an options system probationer to comply with a sanction imposed by the chief community supervision officer shall constitute a violation of probation.
    1. Upon issuance of a petition outlining the alleged probation violations, the hearing officer may initiate an administrative proceeding to determine whether an options system probationer has violated a condition of probation. If the hearing officer determines by a preponderance of the evidence that the probationer has violated a condition of probation, the hearing officer may impose sanctions consistent with Code Section 42-3-113.
    2. The administrative proceeding provided for under this subsection shall be commenced within 15 days but not less than 48 hours after notice of the administrative proceeding has been served on the probationer. The administrative proceeding may be conducted electronically.
  3. The failure of a probationer to comply with the sanction or sanctions imposed by the chief community supervision officer or hearing officer shall constitute a violation of probation.
  4. An options system probationer may at any time waive a hearing and voluntarily accept the sanctions proposed by DCS.

(Code 1981, §42-3-115, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310; Ga. L. 2016, p. 864, § 42/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "paragraphs (4) through (6)" for "paragraphs (4) through (7)" in the second sentence of subsection (b).

42-3-116. Finality of hearing officer's decision; request for review; appeal.

  1. The hearing officer's decision shall be final unless the options system probationer files a request for review with the senior hearing officer. A request for review must be filed within 15 days of the issuance of DCS's decision. Such request shall not stay DCS's decision. The senior hearing officer shall issue a response within seven days of receipt of the review request.
  2. The senior hearing officer's decision shall be final unless the options system probationer files an appeal in the sentencing court. Such appeal shall name the commissioner as defendant and shall be filed within 30 days of the issuance of the decision by the senior hearing officer.
  3. This appeal shall first be reviewed by the judge upon the record. At the judge's discretion, a de novo hearing may be held on the decision. The filing of the appeal shall not stay DCS's decision.
  4. Where the sentencing judge does not act on the appeal within 30 days of the date of the filing of the appeal, DCS's decision shall be affirmed by operation of law.

(Code 1981, §42-3-116, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-117. Article not construed as repealing any court's probationary or supervisory power.

Nothing contained in this article shall be construed as repealing any power given to any court of this state to place offenders on probation or to provide conditions of supervision for offenders.

(Code 1981, §42-3-117, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-118. Applicability of article.

This article shall only apply in judicial circuits where DCS has allocated certified hearing officers.

(Code 1981, §42-3-118, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

42-3-119. Liberal construction of article.

This article shall be liberally construed so that its purposes may be achieved.

(Code 1981, §42-3-119, enacted by Ga. L. 2015, p. 422, § 1-1/HB 310.)

CHAPTER 4 JAILS

Article 1 General Provisions.
Article 2 Conditions of Detention.
Article 3 Medical Services for Inmates.
Article 4 Deductions from Inmate Accounts for Expenses.
Article 5 Regional Jail Authorities.
Cross references.

- Standards relating to construction of county jails, § 36-9-9.

JUDICIAL DECISIONS

Court order that sheriff transfer prisoner to secure jail.

- While it is beyond dispute that the sheriff, and not the superior court, is charged with administration of jails, when an issue is properly raised before the trial court regarding jail security or other matters of jail administration and evidence is presented on the issue, the court is empowered to make a determination. Upon a determination that the jail is not secure, the trial court is authorized to order the sheriff to transfer a prisoner to the nearest county having a secure jail. In re Irvin, 254 Ga. 251, 328 S.E.2d 215 (1985).

RESEARCH REFERENCES

ALR.

- Constitutional right of prisoners to abortion services and facilities - federal cases, 90 A.L.R. Fed. 683.

ARTICLE 1 GENERAL PROVISIONS

RESEARCH REFERENCES

ALR.

- Validity and construction of prison regulation of inmates' possession of personal property, 66 A.L.R.4th 800.

42-4-1. Appointment of county and municipal jailers.

  1. By virtue of their offices, sheriffs are jailers of the counties and have the authority to appoint other jailers, subject to the supervision of the county governing authority, as prescribed by law.
  2. By virtue of their offices, chiefs of police are the jailers of the municipal corporations and have the authority to appoint other jailers, subject to the supervision of the municipal governing authority, as prescribed by law. Each jailer of a municipal corporation shall maintain the records required of sheriffs by subsection (a) of Code Section 42-4-7.

(Orig. Code 1863, § 331; Code 1868, § 392; Code 1873, § 356; Code 1882, § 356; Penal Code 1895, § 1120; Penal Code 1910, § 1149; Code 1933, § 77-101; Ga. L. 1988, p. 266, § 1.)

Cross references.

- Sheriffs generally, T. 15, C. 16.

JUDICIAL DECISIONS

Liability of sheriff for prisoner's death.

- After a prisoner has been placed in the custody of and accepted by a sheriff through the sheriff's deputy, the jailor of the county, and when the prisoner is drunk and as a result of the prisoner's drunkenness sets fire to himself and is burned to death, the sheriff and the sureties on the sheriff's official bond are not liable to the dependents of the deceased prisoner, upon the ground that the jailor was negligent in incarcerating the prisoner in a cell by alone without first searching the prisoner and removing from the prisoner's any object or article with which the prisoner might inflict injury upon himself or others, such as matches, and on the ground that the jailor did not respond to the drunken cries of the prisoner for help. Kendrick v. Adamson, 51 Ga. App. 402, 180 S.E. 647 (1935).

Liability of municipality for bail policy.

- In Georgia, a municipality had power under O.C.G.A. § 36-35-3(a) and Ga. Unif. Mun. Ct. R. 18.1 and under the municipality's charter to set a bail policy for its municipal court, and its police also had authority under O.C.G.A. §§ 17-6-2(b) and42-4-1(b); therefore, the municipality could be held liable under 42 U.S.C. § 1983 for constitutional violations relating to the municipality's bail policy. Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018), cert. denied, 139 S. Ct. 1446, 2019 U.S. LEXIS 2446, 203 L. Ed. 2d 681 (U.S. 2019).

Sheriff of county has a statutory duty to accept all city prisoners and the county commissioners have authority to require the sheriff to do so. Griffin v. Chatham County, 244 Ga. 628, 261 S.E.2d 570 (1979).

Cited in Chappell v. Kilgore, 196 Ga. 591, 27 S.E.2d 89 (1943); Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957).

OPINIONS OF THE ATTORNEY GENERAL

Person arrested by a campus police officer for violation of a state criminal law should be incarcerated in the county jail as the sheriff is, by virtue of the sheriff's office, the county jailer; whether the accused is to be admitted to bail and the amount thereof are matters which are addressed to the commitment court. 1970 Op. Att'y Gen. No. 70-69.

No surcharge payment as condition to serving sentence.

- Sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and the sheriff may not require payment of a surcharge as a condition precedent to service of the sentence. 1992 Op. Att'y Gen. No. U92-4.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 20, 21.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 12-14, 115. 80 C.J.S., Sheriffs and Constables, § 32.

42-4-2. Oath and bond of jailers.

Before commencing to carry out the duties of their office, jailers must give to the sheriff a bond and surety for the sum of $1,000.00, conditioned for the faithful performance of their duties as jailers, and shall take and subscribe before the sheriff of their respective counties, to be filed in and entered into the records of the sheriff's office, the following oath:

"I do swear that I will well and truly do and perform, all and singular, the duties of jailer for the County of ______; and that I will humanely treat prisoners who may be brought to the jail of which I am keeper and not suffer them to escape by any negligence or inattention of mine. So help me God."

(Laws 1811, Cobb's 1851 Digest, pp. 201, 202; Code 1863, § 332; Code 1868, § 393; Code 1873, § 357; Code 1882, § 357; Penal Code 1895, § 1121; Penal Code 1910, § 1150; Code 1933, § 77-102; Ga. L. 1987, p. 342, § 1.)

JUDICIAL DECISIONS

Duty of care sheriff owes prisoners.

- Sheriff owes to a prisoner placed in the sheriff's custody a duty to keep the prisoner safely and free from harm, to render the prisoner medical aid when necessary, and to treat the prisoner humanely and refrain from oppressing the prisoner; and if a sheriff is negligent in the sheriff's care and custody of a prisoner, and as a result the prisoner receives injury or meets death, or where a sheriff fails in the performance of the sheriff's duty to the prisoner, and the latter suffers injury or meets death as a result of such failure, the sheriff would, in a proper case, be liable on the sheriff's official bond to the injured prisoner or to the prisoner's dependents. Kendrick v. Adamson, 51 Ga. App. 402, 180 S.E. 647 (1935).

Liability of sheriff for prisoner's death.

- When a prisoner has been placed in the custody of and accepted by a sheriff through the sheriff's deputy, the jailor of the county, and when the prisoner is drunk and as a result of drunkenness sets fire to himself and is burned to death, the sheriff and the sureties on the sheriff's official bond are not liable to the dependents of the deceased prisoner, upon the ground that the jailor was negligent in incarcerating the prisoner in a cell alone without first searching the prisoner and removing from the prisoner's person any object or article with which the prisoner might inflict injury upon himself or others, such as matches, and on the ground that the jailor did not respond to the drunken cries of the prisoner for help. Kendrick v. Adamson, 51 Ga. App. 402, 180 S.E. 647 (1935).

Sheriff's duty of safe confinement.

- Custody of the defendant, pending the defendant's trial under an indictment for criminal offense, is in the sheriff of the county wherein the offense was committed, and the responsibility for the defendant's safe and secure confinement in jail is that of the sheriff. Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957).

Jailer did not obey oath.

- Motion for general demurrer by the defendant, a county jailer, was properly denied on the defendant's indictment on a charge of violating the defendant's oath of office for receiving marijuana as payment for delivering a pack of cigarettes to an inmate because it could not be said that defendant had "well and truly" performed the defendant's duties. Murkerson v. State, 264 Ga. App. 701, 592 S.E.2d 184 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 63A Am. Jur. 2d, Public Officers and Employees, § 487 et seq.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, § 126.

ALR.

- Personal liability of policeman, sheriff, or similar peace officer on his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

42-4-3. When coroner to act as keeper of jail.

The county coroner shall be keeper of the jail when the sheriff is imprisoned or absent from the county leaving no deputy.

(Orig. Code 1863, § 564; Code 1868, § 628; Code 1873, § 587; Code 1882, § 587; Penal Code 1895, § 1122; Penal Code 1910, § 1151; Code 1933, § 77-105.)

Cross references.

- Coroners generally, T. 45, C. 16.

RESEARCH REFERENCES

C.J.S.

- 80 C.J.S., Sheriffs and Constables, §§ 31, 37.

42-4-4. Duties of sheriff as to jail inmates; designation of inmate as trusty; failure to comply with Code section.

  1. It shall be the duty of the sheriff:
    1. To take from the outgoing sheriff custody of the jail and the bodies of such persons as are confined therein, along with the warrant or cause of commitment;
    2. To furnish persons confined in the jail with medical aid, heat, and blankets, to be reimbursed if necessary from the county treasury, for neglect of which he shall be liable to suffer the penalty prescribed in this Code section; provided, however, that, with respect to an inmate covered under Article 3 of this chapter, the officer in charge will provide such person access to medical aid and may arrange for the person's health insurance carrier to pay the health care provider for the aid rendered; and
    3. To take all persons arrested or in execution under any criminal or civil process to the jail of an adjoining county, or to the jail of some other county if the latter is more accessible, if the jail of his county is in an unsafe condition, under such rules as are prescribed in this chapter.
  2. Subject to the provisions of this subsection and except as provided by law or as directed by a court of competent jurisdiction, a sheriff shall not release a prisoner from his custody prior to the lawful completion of his sentence including any lawful credits under a trusty system.The provision shall not, however, preclude a sheriff from designating an inmate as a trusty and utilizing him in a lawful manner and, furthermore, this provision shall not preclude a sheriff from transferring a prisoner to another jail in another county if the sheriff concludes that such transfer is in the best interest of the prisoner or that such transfer is necessary for the orderly administration of the jail.
  3. Any sheriff or deputy who fails to comply with this Code section shall be fined for contempt, as is the clerk of the superior court in similar cases. The sheriff or deputy shall also be subject to removal from office as prescribed in Code Section 15-16-26.

(Laws 1799, Cobb's 1851 Digest, p. 574; Laws 1810, Cobb's 1851 Digest, p. 577; Laws 1818, Cobb's 1851 Digest, p. 858; Laws 1820, Cobb's 1851 Digest, p. 480; Laws 1823, Cobb's 1851 Digest, p. 512; Code 1863, §§ 336, 340; Ga. L. 1865-66, p. 64, § 15; Code 1868, §§ 397, 401; Code 1873, §§ 361, 366; Code 1882, §§ 361, 366; Penal Code 1895, §§ 1127, 1128; Penal Code 1910, §§ 1156, 1157; Code 1933, §§ 77-110, 77-111; Ga. L. 1990, p. 1443, § 1; Ga. L. 1992, p. 2125, § 1; Ga. L. 2012, p. 173, § 2-10/HB 665.)

The 2012 amendment, effective July 1, 2012, substituted "Code Section 15-16-26" for "Code Section 15-6-82" at the end of the second sentence of subsection (c).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1990, "trusty" was substituted for "trustee" in the first sentence of subsection (b).

Law reviews.

- For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 310 (1992).

JUDICIAL DECISIONS

Legislative intent.

- O.C.G.A. § 42-4-4 was not intended to require that the availability of health insurance was a precondition to obtaining medical treatment for an inmate or that an inmate otherwise would be expected to pay for medical treatment received. Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

Duty of care sheriff owes prisoners.

- Sheriff owes to a prisoner placed in the sheriff's custody a duty to keep the prisoner safely and free from harm, to render to the prisoner medical aid when necessary, and to treat the prisoner humanely and refrain from oppressing the prisoner; and if a sheriff is negligent in the sheriff's care and custody of a prisoner, and as a result the prisoner receives injury or meets death, or if a sheriff fails in the performance of the sheriff's duty to the prisoner, and the latter suffers injury or meets death as a result of such failure, the sheriff would, in a proper case, be liable on the sheriff's official bond, to the injured prisoner or to the prisoner's dependents. Kendrick v. Adamson, 51 Ga. App. 402, 180 S.E. 647 (1935).

Code Sections42-4-4 and42-5-2 create an obligation merely to provide inmates with access to medical care and the county met that obligation by contracting with a local medical services provider to provide medical care to the detention center. Epps v. Gwinnett County, 231 Ga. App. 664, 499 S.E.2d 657 (1998).

When officers arrested a decedent who died shortly after the arrest, the officers and a city could not be held liable for violating O.C.G.A. § 42-4-4 or O.C.G.A. § 42-5-2 by denying the decedent medical care because: (1) O.C.G.A. § 42-4-4 imposed a duty only upon sheriffs and deputies; (2) O.C.G.A. § 42-5-2 imposed a duty only on a governmental unit having physical custody of a detainee; and (3) the decedent was taken into custody by a county police officer and transported to a county jail, so the decedent was never in the custody of the city, and the suit could not be brought against the city under § 42-5-2. Hoyt v. Bacon County, F. Supp. 2d (S.D. Ga. Jan. 26, 2011).

Sheriff's power to make purchases from third parties.

- County sheriff had the authority to repaint and remark county-owned sheriff's vehicles assigned to the sheriff's exclusive use, but lacked the authority to modify portions of a county-owned building in which the sheriff's office and jail were housed, as the facility was shared with the superior, state, and magistrate courts of Clayton County, as well as the clerks of those courts, the solicitor general, and the district attorney, and hence, not under the sheriff's exclusive use. Summary judgment in favor of the county was reversed as to the former, but affirmed as to the latter. Hill v. Clayton County Bd. of Comm'rs, 283 Ga. App. 15, 640 S.E.2d 638 (2006), overruled on other grounds, Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114, 728 S.E.2d 189 (Ga. 2012).

Removal from office.

- Under former Code 1933, §§ 24-2813, 24-2814, 77-110, and 77-111 (see now O.C.G.A. §§ 15-16-10 and42-4-4), the provisions of former Code 1933, § 24-2724 (see now O.C.G.A. § 15-6-82), providing for the removal of clerks of the superior court from office, applied to the removal of sheriffs from office. Adamson v. Leathers, 60 Ga. App. 382, 3 S.E.2d 871 (1939).

Under former Code 1933, § 24-2724 (see now O.C.G.A. § 15-6-82), sheriffs were subject to be removed from office for "any sufficient cause," and sufficient cause means a cause relating to and affecting the administration of the office and material to the interests of the public. Adamson v. Leathers, 60 Ga. App. 382, 3 S.E.2d 871 (1939).

County's duty to use convicts for road work.

- County has statutory authority to use the county's quota of convicts for constructing and maintaining the county's system of public roads, and it may also legally use convict labor for the purpose of doing any necessary work in or about the county's public works camps (now county correctional institutions). Newman v. Aldredge, 210 Ga. 765, 82 S.E.2d 823 (1954).

Authority to transfer prisoner.

- Sheriff, and not the judge of the court, has the authority to transfer a prisoner awaiting trial to a jail in another county, and then only when the jail in the county where the prisoner is confined is "in an unsafe condition." Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957).

Court transferring prisoner to another jail.

- Trial court may not, on the court's own motion, transfer a prisoner to another jail when the court, without the issue being raised, concludes the local jail is not secure. In re Irvin, 254 Ga. 251, 328 S.E.2d 215 (1985).

Recovery of fee by physician.

- When a physician performs an operation on a prisoner at the physician request of the sheriff, the physician cannot maintain an action against the county to recover the physician's fee. Nolan v. Cobb County, 141 Ga. 385, 81 S.E. 124, 50 L.R.A. (n.s.) 1223 (1914).

Sovereign immunity in providing medical care.

- Providing adequate medical attention for inmates under the defendant's custody and control is a ministerial act by the sheriff and his or her deputies and does not involve the exercise of discretion to provide medical care; thus, such act is not subject to either sovereign immunity or official immunity. Cantrell v. Thurman, 231 Ga. App. 510, 499 S.E.2d 416 (1998).

Violation of duty.

- Court granted summary judgment to the United States in a suit alleging that conditions at a county jail violated the inmates' federal due process rights. A sheriff and the members of a county board of commissioners did not dispute that the conditions, including the denial of medical care in violation of O.C.G.A. § 42-4-4, were unconstitutional, and the evidence showed that they had subjective knowledge of the conditions, including copies of the United States' investigation reports, and acted with indifference that exceeded negligence. United States v. Terrell County, 457 F. Supp. 2d 1359 (M.D. Ga. 2006).

Cited in Lumpkin County v. Davis, 185 Ga. 393, 195 S.E. 169 (1938); Tate v. National Sur. Corp., 58 Ga. App. 874, 200 S.E. 314 (1938); Moore v. Baldwin County, 209 Ga. 541, 74 S.E.2d 449 (1953); Cole v. Holland, 219 Ga. 227, 132 S.E.2d 657 (1963); Whiddon v. State, 160 Ga. App. 777, 287 S.E.2d 114 (1982); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Board entering contract with county to house county prisoners.

- Board of Offender Rehabilitation (Corrections) cannot enter into contract with a county to house county prisoners while county jail is being rebuilt. 1954-56 Op. Att'y Gen. p. 527.

Expenditure of funds for parolee's medical expenses.

- Board of Offender Rehabilitation (Corrections) is not authorized to expend funds for payment of medical expenses of a parolee injured in an escape from custody of county law enforcement officials prior to revocation of parole; rather, such is the duty of the sheriff. 1971 Op. Att'y Gen. No. 71-120.

Sheriffs' derivative duties.

- As a natural concomitance of the duties imposed under former Code 1933, §§ 77-101, 77-110, and 77-111, and Ga. L. 1976, p. 949, § 2 (see now O.C.G.A. §§ 42-4-1,42-4-5, and42-5-100), the sheriff would be responsible for calculating the sentences of felony prisoners held in the county jail pending appeal, and would be the appropriate discharging authority should a sentence expire before a prisoner is transferred to the custody of state authorities. 1978 Op. Att'y Gen. No. U78-46.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 20-22.

C.J.S.

- 18 C.J.S., Convicts, §§ 2, 5, 14. 72 C.J.S., Prisons and Rights of Prisoners, §§ 14, 63 et seq., 78 et seq., 123-125. 80 C.J.S., Sheriffs and Constables, §§ 128, 256, 257-259, 271.

ALR.

- Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Civil liability of prison or jail authorities for self-inflicted injury or death of prisoner, 79 A.L.R.3d 1210.

42-4-5. Cruelty to inmates.

  1. No jailer, by duress or other cruel treatment, shall make or induce an inmate to accuse or give evidence against another; nor shall he be guilty of willful inhumanity or oppression to any inmate under his care and custody.
  2. Any jailer who violates subsection (a) of this Code section shall be punished by removal from office and imprisonment for not less than one year nor longer than three years.

(Cobb's 1851 Digest, p. 805; Code 1863, § 4367; Code 1868, § 4405; Code 1873, § 4473; Code 1882, § 4473; Penal Code 1895, § 282; Penal Code 1910, § 286; Code 1933, §§ 77-104, 77-9901.)

Cross references.

- Prohibition against cruel and unusual punishment, U.S. Const., amend. 8 and Ga. Const. 1983, Art. I, Sec. I, Para. XVII.

JUDICIAL DECISIONS

Duty of care sheriff owes prisoners.

- Sheriff owes to a prisoner placed in the sheriff's custody a duty to keep the prisoner safely and free from harm, to render to the prisoner medical aid when necessary, and to treat the prisoner humanely and refrain from oppressing the prisoner; and when a sheriff is negligent in the sheriff's care and custody of a prisoner and as a result the prisoner receives injury or meets death, or when a sheriff fails in the performance of the sheriff's duty to the prisoner and the latter suffers injury or meets death as a result of such failure, the sheriff would, in a proper case, be liable on the sheriff's official bond, to the injured prisoner or to the prisoner's dependents. Kendrick v. Adamson, 51 Ga. App. 402, 180 S.E. 647 (1935).

Liability of sheriff for prisoner's death.

- When a prisoner has been placed in the custody of and accepted by a sheriff through the sheriff's deputy, the jailor of the county, and if the prisoner is drunk and as a result of the prisoner's drunkenness sets fire to himself and is burned to death, the sheriff and the sureties on the sheriff's official bond are not liable to the dependents of the deceased prisoner, upon the ground that the jailor was negligent in incarcerating the prisoner in a cell alone without first searching the prisoner and removing from the prisoner's person any object or article with which the prisoner might inflict injury upon himself or others, such as matches, and on the ground that the jailor did not respond to the drunken cries of the prisoner for help. Kendrick v. Adamson, 51 Ga. App. 402, 180 S.E. 647 (1935).

Rape allegation failed.

- Arrestee's state law claims in 42 U.S.C. § 1983 suit against a county sheriff, alleging that she was raped by a deputy at the county jail, failed as a matter of law because O.C.G.A. § 42-4-5 did not provide for a civil remedy. Boyd v. Nichols, 616 F. Supp. 2d 1331 (M.D. Ga. 2009).

Evidence sufficient to support conviction.

- See Waddell v. State, 224 Ga. App. 172, 480 S.E.2d 224 (1996).

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Jackson v. Zant, 210 Ga. App. 581, 436 S.E.2d 771 (1993); Dep't of Corr. v. Barkwell, 256 Ga. App. 877, 570 S.E.2d 13 (2002); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 20-22, 157, 171, 172.

ALR.

- Liability for death or injury to prisoner, 61 A.L.R. 569.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Duress, necessity, or conditions of confinement as justification for escape from prison, 69 A.L.R.3d 678.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

Constitutional right of prisoners to abortion services and facilities, 28 A.L.R.6th 485.

42-4-6. Confinement and care of tubercular inmates; crediting of time spent in hospital or institution against sentence.

  1. When any person confined in the common jail who is awaiting trial for any offense against the penal laws of this state or who has been convicted of an offense or who is serving any jail sentence imposed upon him by authority or who has been committed for any civil or criminal contempt or who is serving any misdemeanor sentence under county jurisdiction in a county correctional institution or other institution for the maintenance of county inmates is afflicted with tuberculosis, the judge of the superior court may order the person's delivery by the sheriff to an institution as may be approved and supported by the Department of Public Health for the care of tubercular patients; thereupon, he shall be so delivered and received in such institution and shall be securely confined, kept, and cared for.
  2. The period of time a person is kept and confined in a hospital or institution pursuant to subsection (a) of this Code section shall be credited upon any jail sentence being served by him, in the same manner as though he had remained in jail. Any person committed for any civil or criminal contempt shall remain for all purposes under the orders, jurisdiction, and authority of the court committing him for contempt while in the hospital or institution, in the same manner as though he had remained in the common jail.

(Ga. L. 1960, p. 769, § 2; Ga. L. 1964, p. 365, § 1; Ga. L. 1994, p. 97, § 42; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Cross references.

- Hospitalization of persons for tuberculosis, T. 31, C. 14.

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

Confinement of tubercular prisoners.

- When a prisoner is found to have tuberculosis, the prisoner will be sent to a state hospital or other approved hospital, and confinement there will count toward the prisoner's prison sentence. 1962 Op. Att'y Gen. p. 383.

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 18, 136., 140.

42-4-7. Maintenance of inmate record by sheriff; earned time allowances.

  1. The sheriff shall keep a record of all persons committed to the jail of the county of which he or she is sheriff. This record shall contain the name of the person committed, such person's age, sex, race, under what process such person was committed and from what court the process issued, the crime with which the person was charged, the date of such person's commitment to jail, the day of such person's discharge, under what order such person was discharged, and the court from which the order issued. This record shall be subject to examination by any person in accordance with the provisions of Article 4 of Chapter 18 of Title 50, relating to the inspection of public records.
    1. The sheriff, chief jailer, warden, or other officer designated by the county as custodian of inmates confined as county inmates for probation violations of felony offenses or as provided in subsection (a) of Code Section 17-10-3 may award earned time allowances to such inmates based on institutional behavior. Earned time allowances shall not be awarded which exceed one-half of the period of confinement imposed, except that the sheriff or other custodian may authorize the award of not more than four days' credit for each day on which an inmate does work on an authorized work detail; provided, however, that such increased credit for performance on a work detail shall not apply to an inmate who is incarcerated for:
      1. A second or subsequent offense of driving under the influence under Code Section 40-6-391 within a five-year period of time, as measured from the date of any previous arrest for which a conviction was obtained or a plea of nolo contendere was accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted;
      2. A misdemeanor of a high and aggravated nature; or
      3. A crime committed against a family member as defined in Code Section 19-13-1.
    2. While an inmate sentenced to confinement as a county inmate is in custody as a county inmate, the custodian of such inmate may award an earned time allowance consistent with this subsection and subsection (b) of Code Section 17-10-4 based on the institutional behavior of such inmate while in custody as a county inmate.
    3. An inmate sentenced to confinement as a county inmate shall be released at the expiration of his or her sentence less the time deducted for earned time allowances.
  2. Commencing January 1, 1984, those provisions of subsection (b) of this Code section which provide for good-time allowances to be awarded to inmates sentenced to confinement as county inmates as provided in subsection (a) of Code Section 17-10-3 shall apply to all such inmates in confinement on December 31, 1983, and all inmates who commit crimes on or after January 1, 1984, and are subsequently convicted and sentenced to confinement as county inmates. Conversion of the computation of the sentences of county inmates in confinement on December 31, 1983, from earned time governed sentences to good-time governed sentences shall be made by the sheriff or other custodian of such inmates. Commencing July 1, 1994, those provisions of subsection (b) of this Code section which provide for good-time allowances to be awarded to inmates sentenced to confinement as county inmates for probation violations of felony offenses shall apply to all such inmates in confinement on June 30, 1994, and all inmates whose probation is revoked or who commit crimes on or after July 1, 1994, and are subsequently sentenced to confinement as county inmates. Commencing July 1, 2000, the award of earned time allowances pursuant to subsection (b) of this Code section for persons who commit crimes on or after July 1, 2000, and are subsequently convicted and sentenced to confinement as county inmates and inmates whose probation is revoked on or after July 1, 2000, or who commit crimes on or after July 1, 2000, and are subsequently sentenced to confinement as county inmates is not automatic or mandatory but shall be based upon institutional behavior.

(Ga. L. 1877, p. 111, § 1; Code 1882, § 366a; Penal Code 1895, § 1125; Penal Code 1910, § 1154; Code 1933, § 77-108; Ga. L. 1983, p. 1340, § 1; Ga. L. 1993, p. 632, § 1; Ga. L. 1994, p. 1955, § 1; Ga. L. 2000, p. 1111, § 2; Ga. L. 2004, p. 155, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1994, "of felony offenses" was substituted for "of, felony offenses," in the first sentence of paragraph (b)(1).

Editor's notes.

- Ga. L. 2000, p. 1111, § 3, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2000, and shall apply to persons who commit crimes on or after such date and who are subsequently convicted and sentenced to confinement as county inmates and to persons whose probation is revoked on or after such date or who commit crimes on or after such date and who subsequently are sentenced to confinement as county inmates."

JUDICIAL DECISIONS

Constitutionality of section.

- This section is violative of U.S. Const., amend. 14 to the extent that the statute requires segregation of the races in the prisons and jails of Georgia. Otherwise, the statute remains in full force and effect. Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga.), aff'd, 393 U.S. 266, 89 S. Ct. 477, 21 L. Ed. 2d 425 (1968).

Administrative enforcement of good-time credit provisions.

- Good-time credit provisions of O.C.G.A. § 42-4-7 work toward the end of encouraging good behavior among inmates while incarcerated. The provisions are directly related to the duties of administration and are affirmatively delegated to the custodians of inmates by the legislature. A trial court would therefore be without jurisdiction to usurp this function by ordering that good-time credit be withheld until fines are paid. Davis v. State, 181 Ga. App. 498, 353 S.E.2d 7 (1987).

Claim lay against sheriff in individual capacity for violation.

- In a detainee's suit against a sheriff, county, and city arising out of the detainee's improper detention, the defendants' motion to dismiss was denied as to the sheriff's individual liability for violations of federal law, and for failure to update the detainee's criminal record as required by O.C.G.A. § 42-4-7 and bring the detainee before a judicial officer; however, claims against the city and county were dismissed based on immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d) and Ga. Const. 1983, Art. IX, Sec. II, Para. IX. Purvis v. City of Atlanta, 142 F. Supp. 3d 1337 (N.D. Ga. 2015).

Imposition of probation on any time by which confinement is shortened due to good-time credit is prohibited by the provision of paragraph (b)(3) of O.C.G.A. § 42-4-7. Hutchins v. State, 243 Ga. App. 261, 533 S.E.2d 107 (2000).

Requirement that sentence be served day for day or probation be substituted prohibited.

- Following the defendant's conviction of misdemeanor offenses of driving under the influence - less safe (O.C.G.A. § 40-6-391(a)(1)) and operating a motor vehicle with defective or no headlights (O.C.G.A. § 40-8-22), the defendant's sentence of consecutive terms of 12 months' imprisonment, for a total sentence of 24 months, to be served day-for-day, and to be served on probation if the defendant was released before the end of the term, was error because it usurped the authority of the custodian of a county inmate under O.C.G.A. § 42-4-7(b) to grant earned-time allowances. Evans v. State, 349 Ga. App. 712, 824 S.E.2d 708 (2019).

Cited in Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

Automatic accrual of earned-time.

- Custodian of a county inmate was not required to take any affirmative action under former law to award earned-time, which was automatic. 1984 Op. Att'y Gen. No. U84-10.

"Conversion" to good-time under subsection (c) of O.C.G.A. § 42-4-7 requires the custodian of an inmate in custody on December 31, 1983 to recompute the term of confinement by reducing that term by any period of time an inmate may have spent in a time-out status. 1984 Op. Att'y Gen. No. U84-10.

Due process requirements for deduction of good-time.

- Since deductions of good-time from county misdemeanor inmates under paragraph (b)(2) amount to the deprivation of a liberty interest, the minimal procedures established by Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), must be followed; therefore, an inmate is entitled to: (1) at least 24 hours written notice of the charges against the inmate; (2) a hearing at which the inmate may, consistent with the needs and good order of the prison, call witnesses and present evidence; and (3) a written statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary action. 1984 Op. Att'y Gen. No. U84-10.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 20-22, 204, 208 et seq.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 14, 142 et seq.

42-4-8. Inquiry into contents of inmate record by grand jury; failure to comply with Code Section 42-4-7.

It shall be the duty of the grand jury, at each term of the superior court held in the county, to inquire into the contents of the record kept by the sheriff as required by Code Section 42-4-7. If the record is not kept or is incorrectly kept, the grand jury shall so report to the court. Upon the report's being made, the judge presiding shall cause the district attorney to have the sheriff served with a rule requiring him to show cause why he should not be punished for contempt. The judge shall inquire into the facts and, if he finds that Code Section 42-4-7 has not been complied with, he shall impose a fine of not less than $25.00 nor more than $50.00 for the first offense and not more than $100.00 and not less than $50.00 for each subsequent offense. The fines shall be enforced and collected by attachment, as in other cases of attachments against sheriffs.

(Ga. L. 1877, p. 111, § 2; Code 1882, § 366b; Penal Code 1895, § 1126; Penal Code 1910, § 1155; Code 1933, § 77-109; Ga. L. 1994, p. 97, § 42.)

Cross references.

- Frequency with which grand jury must perform duties, § 15-12-71.

RESEARCH REFERENCES

Am. Jur. 2d.

- 38 Am. Jur. 2d, Grand Jury, §§ 34-37.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 123, 124.

42-4-9. Conditions for receipt of federal prisoners.

The keeper of a county jail may decline to receive a person from the custody of anyone acting under the authority of the United States government. He may receive the person if the consent of the authority having control of county matters is first obtained. If the keeper receives the person he shall have the same duties and responsibilities toward him as in the case of inmates committed under the authority of this state.

(Orig. Code 1863, § 334; Code 1868, § 395; Code 1873, § 359; Code 1882, § 359; Ga. L. 1889, p. 47, § 2; Penal Code 1895, § 1123; Penal Code 1910, § 1152; Code 1933, § 77-106.)

JUDICIAL DECISIONS

Liability for mistreatment of federal prisoner.

- In the absence of Georgia statutory law there would be no liability on the part of a jailer for mistreatment of a United States prisoner whom a jailer is not required to receive. Tate v. National Sur. Corp., 58 Ga. App. 874, 200 S.E. 314 (1938).

Keeper of county jail officer of United States court.

- Keeper of a county jail of a state, who receives prisoners for the federal government, and is paid for their maintenance, is an officer of the United States court. In re Birdsong, 39 F. 599 (S.D. Ga. 1889). See Erwin v. United States, 37 F. 470 (S.D. Ga. 1889), rev'd on other grounds, 47 U.S. 676, 13 S. Ct. 439, 37 L. Ed. 328 (1893).

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, § 3.

42-4-10. Receipt of additional federal prisoners after initial acceptance.

If the keeper of the jail consents to receive a person from the custody of federal authorities, as provided in Code Section 42-4-9, neither the jailer nor the county authorities shall refuse to receive any other person so committed by the authority of the United States government unless 20 days' prior written notice of the sheriff's refusal to receive any more persons committed by the federal authorities is given by him to the United States marshal or other federal officers charged with the custody of such persons.

(Ga. L. 1889, p. 47, § 3; Penal Code 1895, § 1124; Penal Code 1910, § 1153; Code 1933, § 77-107.)

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, § 3.

42-4-11. Procedure for transfer of person in custody upon change of venue.

In all cases in which a change of venue is made, the sheriff of the county from which a person in custody is to be moved shall carry the person to the county to which the change of venue was directed and deliver him to the sheriff of such county, who shall then take charge of the person as in other cases. The sheriff of the county from which the person is to be moved shall carry with him and deliver to the sheriff the warrant under which the person was arrested or the commitment.

(Ga. L. 1868, p. 133, § 1; Code 1873, § 4688; Code 1882, § 4688; Penal Code 1895, § 1129; Penal Code 1910, § 1158; Code 1933, § 77-112.)

Cross references.

- Change of venue generally, Ga. Const. 1983, Art. VI, Sec. II, Para. VIII and § 17-7-150 et seq.

JUDICIAL DECISIONS

Official authorized to receive documents when change of venue granted.

- When in a criminal case a change of venue is granted, a certified copy of the order for that purpose is required to be transmitted to the clerk of the superior court of the county to which the change is made; but the original indictment and other papers in the case are required to be sent to that county. Graham v. State, 143 Ga. 440, 85 S.E. 328, 1917A Ann. Cas. 595 (1915).

Cited in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

42-4-12. Penalty for refusal by officer to receive persons charged with or guilty of offense.

Except as otherwise provided in this Code section, any sheriff, constable, keeper of a jail, or other officer whose duty it is to receive persons charged with or guilty of an indictable offense who refuses to receive and take charge of such a person shall, upon conviction thereof, be guilty of a misdemeanor and shall be punished by a fine of not more than $1,000.00. A sheriff, constable, keeper of a jail, or other officer whose duty it is to receive persons charged with or guilty of an indictable offense shall be authorized to refuse acceptance of any person who has not received medical treatment for obvious physical injuries or conditions of an emergency nature. Upon such refusal, it shall be the responsibility of the arresting agency to take the individual to a health care facility or health care provider in order to secure a medical release. Upon medical release by the health care facility or health care provider, the sheriff, constable, or keeper of the jail must assume custody of the individual; provided, however, that in all cases the sheriff, constable, or keeper of the jail must assume custody where no health care facility is located in the county in which the arrest occurred and, in such instances, the governing authority of the arresting agency shall pay all costs related to the medical release.

(Cobb's 1851 Digest, p. 807; Code 1863, § 4380; Code 1868, § 4418; Code 1873, § 4486; Code 1882, § 4486; Penal Code 1895, § 285; Penal Code 1910, § 289; Code 1933, § 77-9902; Ga. L. 1996, p. 1638, § 1.)

Law reviews.

- For review of 1996 legislation relating to jails, see 13 Ga. U. L. Rev. 269 and 273 (1996).

JUDICIAL DECISIONS

Implied right to refuse persons not charged with indictable offense.

- This section by implication gives the sheriff a right to refuse to receive any prisoner who is not charged with or guilty of an indictable offense, in that the only penalties provided are for refusal to receive persons charged with or guilty of indictable offenses. Tate v. National Sur. Corp., 58 Ga. App. 874, 200 S.E. 314 (1938).

Sheriff of county has a statutory duty to accept all city prisoners and the county commissioners have authority to require the sheriff to do so. Griffin v. Chatham County, 244 Ga. 628, 261 S.E.2d 570 (1979).

Cited in Smith v. Glen Falls Indem. Co., 71 Ga. App. 697, 32 S.E.2d 105 (1944); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

No surcharge payment as condition of serving sentence.

- Sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and the sheriff may not require payment of a surcharge as a condition precedent to service of the sentence. 1992 Op. Att'y Gen. No. U92-4.

42-4-13. Possession of drugs, weapons, alcohol, or tobacco products by inmates.

  1. As used in this Code section, the term:
    1. "Alcoholic beverage" means and includes all alcohol, distilled spirits, beer, malt beverage, wine, or fortified wine.
    2. "Controlled substance" means a drug, substance, or immediate precursor as defined in Code Section 16-13-21.
    3. "Dangerous drug" has the same meaning as defined by Code Section 16-13-71.

      (3.1) "Inmate" means a prisoner, detainee, criminal suspect, immigration detainee, or other person held, incarcerated, or detained in a jail, whether or not such person is inside or outside of the jail.

    4. "Jail" means any county jail, municipal jail, or any jail or detention facility operated by a county, municipality, or a regional jail authority as authorized under Article 5 of this chapter.
    5. "Jailer" means the sheriff in the case of any county jail, or the chief of police if the jail is under the supervision of the chief of police of a municipality, or the warden, captain, administrator, superintendent, or other officer having supervision of any other jail, or the designee of such officer.
    1. It shall be unlawful for an inmate to possess any controlled substance, dangerous drug, gun, pistol, or other dangerous weapon or marijuana.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years.
    3. Notwithstanding the provisions of this subsection, possession of a controlled substance, a dangerous drug, or marijuana shall be punished as provided in Chapter 13 of Title 16; provided, however, that the provisions of Code Section 16-13-2 shall not apply to a violation of paragraph (1) of this subsection.
    4. The provisions of this subsection shall not prohibit the lawful use or dispensing of a controlled substance or dangerous drug to an inmate with the knowledge and consent of the jailer when such use or dispensing is lawful under the provisions of Chapter 13 of Title 16.
    1. Unless otherwise authorized by law or the jailer, it shall be unlawful for an inmate to possess any alcoholic beverage or tobacco or any product containing tobacco.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor.
      1. It shall be unlawful for any person to come inside the guard lines established at any jail with, or to give or have delivered to an inmate, any controlled substance, dangerous drug, marijuana, or any gun, pistol, or other dangerous weapon without the knowledge and consent of the jailer or a law enforcement officer.
      2. It shall be unlawful for any person to come inside the guard lines established at any jail with, or to give or have delivered to an inmate, any alcoholic beverage without the knowledge and consent of the jailer or a law enforcement officer; provided, however, that the provisions of this subsection shall not apply to nor prohibit the use of an alcoholic beverage by a clergyman or priest in sacramental services only.
    1. Except as otherwise provided in paragraph (3) of this subsection, any person who violates subparagraph (A) of paragraph (1) of this subsection shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years. Any person who violates subparagraph (B) of paragraph (1) of this subsection shall be guilty of a misdemeanor.
    2. Notwithstanding the provisions of paragraph (2) of this subsection, the possession, possession with intent to distribute, trafficking, or distribution of a controlled substance or marijuana shall be punished as provided in Chapter 13 of Title 16; provided, however, that the provisions of Code Section 16-13-2 shall not apply to a violation of subparagraph (A) of paragraph (1) of this subsection.
  2. It shall be unlawful for any person to obtain, to procure for, or to give to an inmate, or to bring within the guard lines, any other article or item without the knowledge and consent of the jailer or a law enforcement officer. Any person violating this subsection shall be guilty of a misdemeanor.
    1. It shall be unlawful for any person to come inside the guard lines or be within any jail while under the influence of a controlled substance, dangerous drug, or marijuana without the knowledge and consent of the jailer or a law enforcement officer unless such person has a valid prescription for such controlled substance or dangerous drug issued by a person licensed under Chapter 11 or 34 of Title 43 and such prescribed substance is consumed only as authorized by the prescription. Any person convicted of a violation of this subsection shall be punished by imprisonment for not less than one nor more than four years.
    2. It shall be unlawful for any person to come inside the guard lines or be within any jail while under the influence of alcohol without the knowledge and consent of the jailer or a law enforcement officer. Any person violating this subsection shall be guilty of a misdemeanor.
  3. It shall be unlawful for any person to loiter where inmates are assigned after having been ordered by the jailer or a law enforcement officer to desist therefrom. Any person violating this subsection shall be guilty of a misdemeanor.
  4. It shall be unlawful for any person to attempt, conspire, or solicit another to commit any offense defined by this Code section and, upon conviction thereof, shall be punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt, conspiracy, or solicitation.
  5. Any violation of this Code section shall constitute a separate offense.
  6. Perimeter guard lines shall be established at every jail by the jailer thereof. Such guard lines shall be clearly marked by signs on which shall be plainly stamped or written: "Guard line of ________." Signs shall also be placed at all entrances and exits for vehicles and pedestrians at the jail and at such intervals along the guard lines as will reasonably place all persons approaching the guard lines on notice of the location of the jail.

(d.1) (1)It shall be unlawful for any person to obtain for, to procure for, or to give to an inmate tobacco or any product containing tobacco without the knowledge and consent of the jailer.

Any person who violates this Code section shall be guilty of a misdemeanor.

(Code 1981, §42-4-13, enacted by Ga. L. 1987, p. 611, § 1; Ga. L. 1993, p. 630, § 1; Ga. L. 1999, p. 648, § 1; Ga. L. 2000, p. 136, § 42; Ga. L. 2017, p. 673, § 3-1/SB 149.)

The 2017 amendment, effective July 1, 2017, added paragraph (a)(3.1); deleted "of a jail" following "inmate" in paragraphs (b)(1) and (c)(1) and in subparagraphs (d)(1)(A) and (d)(1)(B); in paragraph (c)(1), inserted "or the jailer" near the beginning, and added "or tobacco or any product containing tobacco" at the end; and added subsection (d.1).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1989, the subsection (a) designation was added at the beginning of this Code section.

Law reviews.

- For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 181 (1993).

JUDICIAL DECISIONS

Definition of dangerous weapon.

- Words "dangerous weapon" are not words of art but words of common understanding and meaning which require no definition for understanding by the jury. Stone v. State, 236 Ga. App. 365, 511 S.E.2d 915 (1999).

Attorney disbarred for violating provisions.

- Attorney was disbarred as a result of 10 convictions for violating O.C.G.A. § 42-4-13(e) for providing contraband to an inmate because the convictions involved moral turpitude subject to discipline under Ga. St. Bar R. 4-102(d):8.4(a)(3) as the offenses reflected on the attorney's dishonesty, amounted to obstruction of justice, and placed others in danger. In the Matter of Jones, 293 Ga. 264, 744 S.E.2d 6 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprintable offenses.

- Violation of subsection (c), which provides that it is a misdemeanor for an inmate of a jail to possess any alcoholic beverage, is not at this time designated as an offense for which those charged with a violation are to be fingerprinted. 1987 Op. Att'y Gen. No. 87-21.

If the person is not already incarcerated, violations of subsections (e) and (h) and subparagraph (d)(1)(B) are designated as offenses for which those charged are to be fingerprinted. 1999 Op. Att'y Gen. No. 99-17.

Violation of paragraph (f)(2) is not designated as an offense for which fingerprinting is required. 1999 Op. Att'y Gen. No. 99-17.

Violation of subsection (g) is designated as an offense for which those charged are to be fingerprinted. 1999 Op. Att'y Gen. No. 99-17.

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 62, 73.

42-4-14. "Illegal alien" defined; determination of nationality of person charged with felony and confined in a jail facility.

  1. As used in this Code section, the term "illegal alien" means a person who is verified by the federal government to be present in the United States in violation of federal immigration law.
  2. When any person is confined, for any period, in the jail of a county or municipality or a jail operated by a regional jail authority in compliance with Article 36 of the Vienna Convention on Consular Relations, a reasonable effort shall be made to determine the nationality of the person so confined.
  3. When any foreign national is confined, for any period, in a county or municipal jail, a reasonable effort shall be made to verify that such foreign national has been lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired. If verification of lawful status cannot be made from documents in the possession of the foreign national, verification shall be made within 48 hours through a query to the Law Enforcement Support Center (LESC) of the United States Department of Homeland Security or other office or agency designated by the federal government. If the foreign national is determined to be an illegal alien, the keeper of the jail or other officer shall notify the United States Department of Homeland Security, or other office or agency designated for notification by the federal government.
  4. Nothing in this Code section shall be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release; provided, however, that upon verification that any person confined in a jail is an illegal alien, such person may be detained, arrested, and transported as authorized by state and federal law.
  5. The Georgia Sheriffs Association shall prepare and issue guidelines and procedures used to comply with the provisions of this Code section.

(Code 1981, §42-4-14, enacted by Ga. L. 2006, p. 105, § 5/SB 529; Ga. L. 2008, p. 1137, § 4/SB 350; Ga. L. 2009, p. 8, § 42/SB 46; Ga. L. 2009, p. 970, § 2/HB 2; Ga. L. 2011, p. 794, § 13/HB 87.)

Code Commission notes.

- The amendment of this Code section by Ga. L. 2009, p. 8, § 42, irreconcilably conflicted with and was treated as superseded by Ga. L. 2009, p. 970, § 2, effective January 1, 2010. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Editor's notes.

- Ga. L. 2006. p. 105, § 1/SB 529, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Security and Immigration Compliance Act.' All requirements of this Act concerning immigration or the classification of immigration status shall be construed in conformity with federal immigration law."

Ga. L. 2011, p. 794, § 1/HB 87, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Illegal Immigration Reform and Enforcement Act of 2011.'"

Ga. L. 2011, p. 794, § 21/HB 87, not codified by the General Assembly, provides that: "(a) If any provision or part of any provision of this Act or the application of the same is held invalid or unconstitutional, the invalidity shall not affect the other provisions or applications of this Act or any other part of this Act than can be given effect without the invalid provision or application, and to this end, the provisions of this Act are severable.

"(b) The terms of this Act regarding immigration shall be construed to have the meanings consistent with such terms under federal immigration law.

"(c) The provisions of this Act shall be implemented in a manner consistent with federal laws governing immigration and civil rights."

Ga. L. 2011, p. 794, § 22/HB 87, not codified by the General Assembly, provides, in part, that the amendment of this Code section by that Act shall apply to offenses and violations occurring on or after July 1, 2011.

Law reviews.

- For article on 2006 enactment of this Code section, see 23 Ga. St. U.L. Rev. 247 (2006). For article, "The Georgia Security and Immigration Compliance Act: Comprehensive Immigration Reform in Georgia - 'Think Globally ... Act Locally'," see 13 Ga. St. B. J. 14 (2007).

42-4-15. Limitations on medical charges for providing emergency medical care services to individuals in custody.

  1. As used in this Code section, the term:
    1. "Detainee" means a person held in a detention facility who is charged with or convicted of a criminal offense or charged with or adjudicated for a delinquent act and a person detained, arrested, or otherwise held in lawful custody for a criminal offense or delinquent act.
    2. "Detention facility" means any municipal or county jail or other facility used for the detention of persons charged with or convicted of a criminal offense or charged with or adjudicated for a delinquent act.
    3. "Emergency health care" means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in placing the person's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term covers any form of emergency medical treatment, including dental, optical, psychological, or other types of emergency conditions.
    4. "Follow-up health care" means medical and hospital care and medication administered in conjunction with and arising from emergency health care treatment.
  2. A hospital or other health care facility licensed or established pursuant to Chapter 7 of Title 31 which is not a party to an emergency health care services contract with a sheriff or a governing authority or its agent on July 1, 2011, shall be reimbursed no more than the applicable Georgia Medicaid rate for emergency health care and follow-up health care services provided to a detainee.
  3. No hospital or other health care facility shall discharge a detainee with an emergency health care condition so as to require an immediate transfer to another medical provider for the same condition unless the reasonable standard of care requires such a transfer.
  4. Nothing in this Code section shall be construed to limit reimbursements for emergency health care services when insurance coverage is available for payment for such services. Nor shall this Code section be construed so as to limit or remove responsibility for payment of emergency health care services by a provider of insurance that is otherwise responsible for payment of part or all of such services.
  5. Nothing in this Code section shall prohibit the governing authority from negotiating higher fees or rates with hospitals.

(Code 1981, §42-4-15, enacted by Ga. L. 2011, p. 440, § 1/HB 197.)

ARTICLE 2 CONDITIONS OF DETENTION

OPINIONS OF THE ATTORNEY GENERAL

Article does not repeal Ch. 2, T. 25. - While the statutory provisions of detention deals, in part, with the same subject matter as the fire safety standards set forth in Ch. 2, T. 25 for certain jails, the General Assembly, in enacting these provisions, apparently did not intend to impliedly amend Ga. L. 1949, p. 1057, § 1 (see now O.C.G.A. Ch. 2, T. 25) and such construction is not necessary for a reasonable interpretation of the detention provisions. 1980 Op. Att'y Gen. No. 80-66.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 77-79, 81-86, 97, 157 et seq.

Prisoners' Rights Litigation, 22 Am. Jur. Trials 1.

Asserting Claims of Unconstitutional Prison Conditions, 64 Am. Jur. Trials 425.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61-88, 123-127.

ALR.

- Sex discrimination in treatment of jail or prison inmates, 12 A.L.R.4th 1219.

Mandamus, under 28 USC § 1361, to obtain change in prison condition or release of federal prisoner, 114 A.L.R. Fed. 225.

42-4-30. Definitions.

As used in this article, the term:

  1. "Detention facility" means a municipal or county jail used for the detention of persons charged with or convicted of either a felony, a misdemeanor, or a municipal offense.
  2. "Inmate" means a person who is detained in a detention facility by reason of being charged with or convicted of a felony, a misdemeanor, or a municipal offense.
  3. "Officer in charge" means the sheriff, if the detention facility is under his supervision, or the warden, captain, or superintendent having the supervision of any other detention facility.

(Ga. L. 1973, p. 890, § 1; Ga. L. 1985, p. 149, § 42.)

JUDICIAL DECISIONS

Cited in Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

42-4-31. Required safety and security measures.

  1. It shall be unlawful for any person having charge of or responsibility for any detention facility to incarcerate any person in the detention facility unless a full-time jailer is on duty at the detention facility at all times while a person is incarcerated therein.For purposes of this Code section, a full-time dispatcher may also serve simultaneously as a full-time jailer in the case of:
    1. A municipal detention facility with 12 or fewer inmates incarcerated therein if such dispatcher either:
      1. Is equipped with mobile telephone and radio equipment which will allow such dispatcher to perform the duties of a dispatcher and the duties of a full-time jailer at the same time; or
      2. Is provided with temporary assistance or relief from the duties of a dispatcher while performing the duties of a jailer; or
    2. A municipal detention facility of a municipal corporation having a population of 6,000 or less if such dispatcher is certified both as a jailer and a dispatcher by the Georgia Peace Officer Standards and Training Council.
  2. If the local governing authority having jurisdiction over a detention facility has knowledge that the facility is operating without a full-time jailer on duty while persons are incarcerated therein, each member of the local governing authority having such knowledge and failing to attempt to correct the deficiency shall be in violation of this article.
  3. The officer in charge of a detention facility shall have the facility inspected semiannually by an officer from the state fire marshal's office or an officer selected by the Safety Fire Commissioner. Each detention facility shall be required to comply with this article with regard to fire safety and the applicable rules and regulations promulgated by the Safety Fire Commissioner. The inspecting officer shall fill out a form provided by the officer in charge and the form shall be posted in a conspicuous place by the officer in charge, thereby evidencing inspection of the facility.
  4. There shall be at least two separate keys for all locks at a detention facility, with one set in use and all duplicate keys safely stored under the control of a jailer or other administrative employee for emergency use. All security personnel must be familiar with the locking system of the detention facility and must be able immediately to release inmates in the event of a fire or other emergency. Regular locking and unlocking of door and fire escape locks shall be made to determine if they are in good working order. Any damaged or nonfunctioning security equipment shall be promptly repaired.

(Ga. L. 1973, p. 890, § 2; Ga. L. 1990, p. 1371, § 1; Ga. L. 1991, p. 1009, § 1.)

Cross references.

- Liability of sheriffs for misconduct of jailers, § 15-16-24.

Regulation of fire hazards to persons and property generally, T. 25, C. 2.

JUDICIAL DECISIONS

Cited in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

RESEARCH REFERENCES

ALR.

- Liability for death or injury to prisoner, 61 A.L.R. 569.

42-4-32. Sanitation and health requirements generally; meals; inspections; medical treatment.

  1. All aspects of food preparation and food service shall conform to the applicable standards of the Department of Public Health.
  2. All inmates shall be given not less than two substantial and wholesome meals daily.
  3. Sanitation inspections of both facilities and inmates shall be made as frequently as is necessary to ensure against the presence of unsanitary conditions. An official from the Department of Public Health or an officer designated by the commissioner of public health shall inspect the facilities at least once every three months. New inmates should be carefully classified, with adequate separation and treatment given as needed.
  4. The officer in charge or his designated representative shall assure that each inmate is observed daily, and a physician shall be immediately called if there are indications of serious injury, wound, or illness. The instructions of the physician shall be strictly carried out. Ill inmates shall be furnished such food as is prescribed by the attending physician.

(Ga. L. 1973, p. 890, § 3; Ga. L. 1977, p. 761, § 1; Ga. L. 1990, p. 135, § 2; Ga. L. 2009, p. 453, §§ 1-4, 1-6/HB 228; Ga. L. 2011, p. 705, §§ 6-3, 6-5/HB 214.)

Cross references.

- Authority of grand juries to inspect sanitary conditions in jails, § 15-12-78.

Liability of sheriffs for misconduct of jailers, § 15-16-24.

Law reviews.

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

JUDICIAL DECISIONS

Violation of duties.

- Court granted summary judgment to the United States in a suit alleging that conditions at a county jail violated the inmates' federal due process rights. A sheriff and the members of a county board of commissioners did not dispute that the conditions, including the presence of vermin and sewerage problems, in violation of O.C.G.A. § 42-4-32, were unconstitutional, and the evidence showed that they had subjective knowledge of the conditions, including copies of the United States' investigation reports, and acted with indifference that exceeded negligence. United States v. Terrell County, 457 F. Supp. 2d 1359 (M.D. Ga. 2006).

Sovereign immunity to deputy sheriff.

- Deputy sheriff in the deputy's official capacity was entitled to sovereign immunity with respect to a former inmate's claims arising from denial of a dietary request; the sheriff's powers were derived from the state, and provision of food to county jail inmates was a state function. Lake v. Skelton, 840 F.3d 1334 (11th Cir. 2016), cert. denied, 138 S. Ct. 1549, 2018 U.S. LEXIS 2492, 200 L. Ed. 2d 741 (U.S. 2018).

Cited in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

42-4-33. Penalty for violations of article.

Any person who violates this article shall be guilty of a misdemeanor.

(Ga. L. 1973, p. 890, § 4.)

ARTICLE 3 MEDICAL SERVICES FOR INMATES

Code Commission notes.

- Ga. L. 1992, p. 2125, § 2, and Ga. L. 1992, p. 2942, § 1, both enacted a new Article 3 of Chapter 4. Pursuant to Code Section 28-9-5, in 1992, the article enacted by Ga. L. 1992, p. 2942, § 1, was redesignated Article 4 of Chapter 4.

42-4-50. Definitions.

As used in this article, the term:

  1. "Detention facility" means a municipal or county jail used for the detention of persons charged with or convicted of either a felony, a misdemeanor, or a municipal offense.
  2. "Governing authority" means the governing authority of the county or municipality in which the detention facility is located.
  3. "Inmate" means a person who is detained in a detention facility by reason of being charged with or convicted of a felony, a misdemeanor, or a municipal offense. Such term does not include any sentenced inmate who is the responsibility of the Department of Corrections.
  4. "Medical care" includes medical attention, dental care, and medicine and necessary and associated costs such as transportation, guards, room, and board.
  5. "Officer in charge" means the sheriff, if the detention facility is under his or her supervision, or the warden, captain, or superintendent having the supervision of any other detention facility.

(Code 1981, §42-4-50, enacted by Ga. L. 1992, p. 2125, § 2; Ga. L. 1995, p. 1059, § 1; Ga. L. 1996, p. 1081, § 1; Ga. L. 1996, p. 1264, § 1; Ga. L. 2015, p. 422, § 5-70/HB 310.)

The 2015 amendment, effective July 1, 2015, deleted "State" preceding "Department of Corrections" in paragraph (3). See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 310 (1992). For review of 1996 legislation relating to jails, see 13 Ga. St. U.L. Rev. 269 and 273 (1996).

JUDICIAL DECISIONS

Cited in Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

RESEARCH REFERENCES

ALR.

- Prisoner's right to die or refuse medical treatment, 66 A.L.R.5th 111.

Provision of hormone therapy or sexual reassignment surgery to state inmates with Gender Identity Disorder (GID), 89 A.L.R.6th 701.

42-4-51. Information as to inmate's health insurance or eligibility for benefits; access to medical services; liability for payment; inmate's liability for costs of medical care; procedure for recovery against inmate.

  1. The officer in charge or his or her designee may require an inmate to furnish the following information:
    1. The existence of any health insurance, group health plan, or prepaid medical care coverage under which the inmate is insured;
    2. The eligibility for benefits to which the inmate is entitled under Article 7 of Chapter 4 of Title 49, the "Georgia Medical Assistance Act of 1977";
    3. The name and address of the third-party payor; and
    4. The policy or other identifying number.
  2. The officer in charge will provide a sick, injured, or disabled inmate access to medical services and may arrange for the inmate's health insurance carrier to pay the health care provider for the medical service rendered.
  3. The liability for payment for medical care described under subsection (b) of this Code section may not be construed as requiring payment by any person or entity, except by an inmate personally or his or her carrier through coverage or benefits described under paragraph (1) of subsection (a) of this Code section.
  4. If an inmate is not eligible for such health insurance benefits, then the inmate shall be liable for the costs of such medical care provided to the inmate and the assets and property of such inmate may be subject to levy and execution under court order to satisfy such costs. An inmate in a detention facility shall cooperate with the governing authority in seeking reimbursement under this article for medical care expenses incurred by the governing authority for that inmate. An inmate who willfully refuses to cooperate as provided in this Code section shall not receive or be eligible to receive any good-time allowance or other reduction of time to be served.
    1. An attorney for a governing authority may file a civil action to seek reimbursement from an inmate for the costs of medical care provided to such inmate while incarcerated.
    2. A civil action brought under this article shall be instituted in the name of the governing authority and shall state the date and place of sentence, the medical care provided to such inmate, and the amount or amounts due to the governing authority pursuant to this Code section.
    3. If necessary to protect the governing authority's right to obtain reimbursement under this article against the disposition of known property, the governing authority may seek issuance of an ex parte restraining order to restrain the defendant from disposing of the property pending a hearing on an order to show cause why the particular property should not be applied to reimbursement of the governing authority for the costs of medical care provided to the defendant as an inmate.
    4. To protect and maintain the property pending resolution of the matter, the court, upon request, may appoint a receiver.
  5. Before entering any order on behalf of the governing authority against the defendant, the court shall take into consideration any legal obligation of the defendant to support a spouse, minor children, or other dependents and any moral obligation to support dependents to whom the defendant is providing or has in fact provided support.
  6. The court may enter a money judgment against the defendant and may order that the defendant's property is liable for reimbursement for the costs of medical care provided to the defendant as an inmate.
  7. The sentencing judge and the sheriff of any county in which a prisoner's property is located shall furnish to the attorney for the governing authority all information and assistance possible to enable the attorney to secure reimbursement for the governing authority under this article.
  8. The reimbursements secured under this article shall be credited to the general fund of the governing authority to be available for general fund purposes. The treasurer of such governing authority may determine the amount due the governing authority under this article and render sworn statements thereof. These sworn statements shall be considered prima-facie evidence of the amount due.
  9. Nothing in this Code section shall be construed to relieve the governing authority, governmental unit, subdivision, or agency having the physical custody of an inmate from its responsibility to pay for any medical and hospital care rendered to such inmate regardless of whether such individual has been convicted of a crime.

(Code 1981, §42-4-51, enacted by Ga. L. 1992, p. 2125, § 2; Ga. L. 1996, p. 1264, § 2.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "third-party" was substituted for "third party" in paragraph (a)(3).

JUDICIAL DECISIONS

Violation of duties.

- Court granted summary judgment to the United States in a suit alleging that conditions at a county jail violated the inmates' federal due process rights. A sheriff and the members of a county board of commissioners did not dispute that the conditions, including the denial of medical care, in violation of O.C.G.A. § 42-4-51, were unconstitutional, and the evidence showed that they had subjective knowledge of the conditions, including copies of the United States' investigation reports, and acted with indifference that exceeded negligence. United States v. Terrell County, 457 F. Supp. 2d 1359 (M.D. Ga. 2006).

Cited in Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

RESEARCH REFERENCES

ALR.

- Provision of hormone therapy or sexual reassignment surgery to state inmates with Gender Identity Disorder (GID), 89 A.L.R.6th 701.

ARTICLE 4 DEDUCTIONS FROM INMATE ACCOUNTS FOR EXPENSES

Code Commission notes.

- Ga. L. 1992, p. 2125, § 2, and Ga. L. 1992, p. 2942, § 1, both enacted a new Article 3 of Chapter 4. Pursuant to Code Section 28-9-5, in 1992, the article enacted by Ga. L. 1992, p. 2942, § 1, was redesignated Article 4 of Chapter 4.

42-4-70. Definitions.

As used in this article, the term:

  1. "Detention facility" means a municipal or county jail used for the detention of persons charged with or convicted of either a felony, a misdemeanor, or a municipal offense.
  2. "Inmate" means a person who is detained in a detention facility by reason of being charged with or convicted of a felony, a misdemeanor, or a municipal offense.
  3. "Medical treatment" means each visit initiated by the inmate to an institutional physician; physician's extender, including a physician assistant or a nurse practitioner; dentist; optometrist; or psychiatrist for examination or treatment.
  4. "Officer in charge" means the sheriff, if the detention facility is under his supervision, or the warden, captain, or superintendent having the supervision of any other detention facility.

(Code 1981, §42-4-70, enacted by Ga. L. 1992, p. 2942, § 1; Ga. L. 1995, p. 1059, § 2; Ga. L. 1996, p. 1081, § 2; Ga. L. 2009, p. 859, § 3/HB 509.)

Editor's notes.

- Ga. L. 1995, p. 1059, effective July 1, 1995, purported to amend paragraph (1) of subsection (a); however, this Code section does not contain a subsection (a), and the amendment is deemed to apply to paragraph (1) following the undesignated introductory paragraph.

Law reviews.

- For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 310 (1992). For review of 1996 legislation relating to jails, see 13 Ga. St. U.L. Rev. 269 and 273 (1996).

JUDICIAL DECISIONS

Cited in Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

42-4-71. Deduction of costs from inmate's account for destruction of property, medical treatment, and other causes; exception for certain medical costs.

  1. The officer in charge may establish by rules or regulations criteria for a reasonable deduction from money credited to the account of an inmate to:
    1. Repay the costs of:
      1. Public property willfully damaged or destroyed by the inmate during his incarceration;
      2. Medical treatment for injuries inflicted by the inmate upon himself or others;
      3. Searching for and apprehending the inmate when he escapes or attempts to escape;such costs to be limited to those extraordinary costs incurred as a consequence of the escape; or
      4. Quelling any riot or other disturbance in which the inmate is unlawfully involved;
    2. Defray the costs paid by a municipality or county for medical treatment for an inmate, which medical treatment has been requested by the inmate, provided that such deduction from money credited to the account of an inmate shall not exceed $5.00 for each such occurrence of treatment received by the inmate at the inmate's request; provided, further, that if the balance in an inmate's account is $10.00 or less, such fee shall not be charged; and provided, further, that in the event that the costs of medical treatment of an inmate have been collected from said inmate pursuant to Code Section 42-4-51, there shall be no deductions from money credited to the account of an inmate under the provisions of this paragraph for the cost of such medical treatment.
  2. The provisions of paragraph (2) of subsection (a) of this Code section shall not apply in any case where an officer of the detention facility or a medical practitioner determines that an inmate is in need of medical treatment.
  3. All sums collected for medical treatment shall be reimbursed to the inmate if such inmate is acquitted or otherwise exonerated of all charges for which the inmate was being held.

(Code 1981, §42-4-71, enacted by Ga. L. 1992, p. 2942, § 1; Ga. L. 1993, p. 304, § 1; Ga. L. 1996, p. 1264, § 3.)

Cross references.

- Repayment of costs as condition of probation, § 42-8-35.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "and provided, further, that in the event" was substituted for "provided, however, that in the event" in paragraph (a)(2).

ARTICLE 5 REGIONAL JAIL AUTHORITIES

42-4-90. Short title.

This article shall be known and may be cited as the "Regional Jail Authorities Act."

(Code 1981, §42-4-90, enacted by Ga. L. 1995, p. 292, § 1.)

42-4-91. Statement of authority; policy of state.

  1. This article is enacted pursuant to authority granted to the General Assembly by the Constitution of Georgia. Each authority created by this article is created for nonprofit and public purposes; and it is found, determined, and declared that the creation of each such authority and the carrying out of its corporate purposes is in all respects for the benefit of the people of this state and that the authority is an institution of purely public charity and will be performing an essential governmental function in the exercise of the power conferred upon it by this article. For such reasons, the state covenants from time to time with the holders of the bonds issued under this article that such authority shall be required to pay no taxes or assessments imposed by the state or any of its counties, municipal corporations, political subdivisions, or taxing districts upon any property acquired by the authority or under its jurisdiction, control, possession, or supervision or leased by it to others; or upon its activities in the operation or maintenance of any such property; or upon any rentals, charges, purchase price, installments, or otherwise; and that the bonds of such authority, their transfer, and the income therefrom shall at all times be exempt from taxation within the state. The tax exemption provided in this Code section shall include exemption from sales and use tax on property purchased by the authority or for use by the authority.
  2. It is the express policy of the State of Georgia that any authority created by this article shall be authorized to enter into agreements with any county or municipality within the same county as the regional jail authority for the purpose of building, owning, and operating a jail facility for the county or municipality.

(Code 1981, §42-4-91, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 1.)

42-4-92. Definitions.

As used in this article, the term:

  1. "Authority" means each public body corporate and politic created pursuant to this article.
  2. "Cost of project" means all costs of site preparation and other start-up costs; all costs of construction; all costs of real and personal property required for the purposes of the jail facilities related thereto, including land and any rights or undivided interest therein, easements, franchises, fees, permits, approvals, licenses, and certificates and the securing of such permits, approvals, licenses, and certificates and all machinery and equipment, including motor vehicles which are used for jail functions; financing charges and interest prior to and during construction and during such additional period as the authority may reasonably determine to be necessary for the placing of the jail in operation; costs of engineering, architectural, and legal services; cost of plans and specifications and all expenses necessary or incident to determining the feasibility or practicability of the jail; administrative expenses; and such other expenses as may be necessary or incidental to the financing authorized in this article. The costs of any jail may also include funds for the creation of a debt service reserve, a renewal and replacement reserve, and such other reserves as may be reasonably required by the authority for the operation of any jail and as may be authorized by any bond resolution or trust agreement or indenture pursuant to the provisions of which the issuance of any such bonds may be authorized. Any obligation or expense incurred for any of the foregoing purposes shall be regarded as a part of the costs of the jail and may be paid or reimbursed as such out of the proceeds of user fees, or revenue bonds or notes issued under this article for such jail, or from other revenues obtained by the authority.
  3. "County" means any county of this state or governmental entity formed by the consolidation of a county and one or more municipal corporations.
  4. "County regional jail authority" means a regional jail authority formed by counties pursuant to this article.
  5. "Governing body" means the elected or duly appointed officials constituting the governing body of each county in the state.
  6. "Management committee" means a regional jail authority management committee created pursuant to Code Section 42-4-95.
  7. "Municipal regional jail authority" means a regional jail authority formed by municipalities within the same county pursuant to this article.
  8. "Municipality" means any municipal corporation of this state.
  9. "Project" means a jail and all other structures including electric, gas, water, and other utilities and facilities, equipment, personal property, and vehicles which are deemed by the authority as necessary and convenient for the operation of the jail.

(Code 1981, §42-4-92, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 2; Ga. L. 1997, p. 143, § 42.)

42-4-93. Creation of authorities; ordinance or resolution required; agreement; approval of sheriff; exemption from Georgia State Financing and Investment Commission Act.

  1. Any two or more counties may jointly form an authority, to be known as the county regional jail authority for such counties. Any two or more municipalities within the same county may jointly form an authority, to be known as the municipal regional jail authority for such municipalities. Municipalities located in more than one county may participate in municipal regional jail authorities in each county in which the municipality is located. No authority shall transact any business or exercise any powers under this article until the governing authorities of the counties or municipalities involved declare, by ordinance or resolution, that there is a need for an authority to function and until the governing authorities authorize the chief elected official of each county or municipality to enter into an agreement with the other counties or municipalities participating in the authority for the activation of an authority and such agreement is executed. Such authorities shall be public bodies, corporate and politic, and instrumentalities of the State of Georgia. A copy of the ordinance or resolution and agreement among participant counties or participant municipalities shall be filed with the Secretary of State who shall maintain a record of all authority activities under this article.
  2. No county may be included in an authority without approval of the sheriff of the participant county.
  3. Article 2 of Chapter 17 of Title 50, the "Georgia State Financing and Investment Commission Act," shall not apply to any authority created under this Code section.

(Code 1981, §42-4-93, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 3.)

42-4-94. Board of directors; members; election of officers; expenses; duties; addition of counties or municipalities to authority.

  1. Control and management of the authority shall be vested in a board of directors. Each county participating in an authority shall appoint the sheriff of the county for the term of such sheriff's office. One other member from each participating county shall be appointed for a four-year term. Each municipality participating in an authority shall appoint two people to serve on the board of directors, each for a four-year term. For each county or municipal regional jail authority board of directors, an additional member shall be appointed by the directors themselves. The directors shall elect one of their members as chairperson and another as vice chairperson and shall also elect a secretary and a treasurer or a secretary-treasurer, either of whom may, but need not be, a director. The directors shall receive no compensation for their services but shall be reimbursed for actual expenses incurred in the performance of their duties. The directors may make bylaws and regulations for the governing of the authority and may delegate to one or more of the officers, agents, and employees of the authority such powers and duties as may be deemed necessary and proper.
  2. It is the duty of the board of directors to erect or repair, when necessary, the jail and to furnish the jail with all the furniture necessary for the different rooms, offices, and cells. The jail shall be erected and kept in order and repaired at the expense of the authority under the direction of the board of directors which is authorized to make all necessary contracts for that purpose. The board of directors shall pass an annual budget sufficient for the efficient and effective operation of the jail.
  3. Members of the board of directors of an authority formed pursuant to this Code section may agree that additional counties, if a county regional jail authority, or additional municipalities, if a municipal regional jail authority, may become members of such authority subsequent to its formation upon an affirmative vote of two-thirds of the members of such board of directors under such terms as may be imposed by such two-thirds of the members of such board of directors.

(Code 1981, §42-4-94, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 4.)

42-4-95. Management committee of county regional jail authority; management and operation of municipal regional jail authority.

  1. The jail of a county regional jail authority shall be managed and operated by a regional jail authority management committee composed of all of the sheriffs from the participant counties. The county regional jail authority management committee shall have all of the responsibilities provided in Code Section 15-16-24 and this chapter, including the employment and supervision of all personnel employed to operate the jail. The sheriffs shall elect one of their members as chairperson and another as vice chairperson and shall also elect a secretary who may or may not be a member of the committee. The committee shall receive no compensation for their services but shall be reimbursed for actual expenses incurred in the performance of their duties. The committee may delegate to one or more of the officers, agents, and employees of the committee such powers and duties as may be deemed necessary and proper.
  2. In the event that the county regional jail authority consists of an even number of counties, the sheriffs shall then elect one member, who may or may not be a member of the authority's board of directors, to serve on the management committee.
  3. The board of directors of a municipal regional jail authority shall hire or contract with a person, firm, corporation, or local government to manage and operate the regional jail. Such person, firm, corporation, or local government shall have all of the responsibilities provided in this chapter for municipal jails and jailers, including the employment and supervision of all personnel employed to operate the jail.

(Code 1981, §42-4-95, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 5.)

42-4-96. Quorums; voting requirements.

  1. A majority of the board of directors shall constitute a quorum for the transaction of business of the authority. However, any action with respect to any project of the authority must be approved by the affirmative vote of not less than a majority of the directors.
  2. A majority of the regional jail authority management committee shall constitute a quorum for the transaction of business of the management committee.

(Code 1981, §42-4-96, enacted by Ga. L. 1995, p. 292, § 1.)

42-4-97. Powers of authority.

Each authority shall have all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this article, including, but without limiting the generality of the foregoing, the power:

  1. To bring and defend actions except to the extent the authority has governmental immunity, venue being located in the host county of any project of the authority. The authority shall have no governmental immunity against suits by bondholders or their investors;
  2. To adopt and amend the corporate seal;
  3. To acquire, construct, improve, or modify, to place into operation, or to operate or cause to be placed in operation and operated, a jail or jails within the counties in which the authority is activated and subject to execution of agreements with appropriate political subdivisions affected within other counties or municipalities and to pay all or part of the cost of any such jail or jails from the proceeds of revenue bonds of the authority or from any contribution or loan by persons, firms, or corporations or from any other contribution or use fees, all of which the authority is authorized to receive, accept, and use;
  4. To acquire, in its own name, by purchase on such terms and conditions and in such manner as it may deem proper, or by condemnation in accordance with any and all laws applicable to the condemnation of property for public use, or by gift, grant, lease, or otherwise, real property or rights and easements therein and franchises and personal property necessary or convenient for its corporate purposes, which purposes shall include, but shall not be limited to, the constructing or acquiring of a jail or jails; the improving, extending, adding to, reconstructing, renovating, or remodeling of any jail or jails or parts thereof already constructed or acquired; or the demolition to make room for such jail or any part thereof and to insure the same against any and all risks as such insurance may, from time to time, be available. The authority may also use such property and rent or lease the same to or from others or make contracts with respect to the use thereof or sell, lease, exchange, transfer, assign, pledge, or otherwise dispose of or grant options for any such property in any manner which the authority deems to the best advantage of itself and its purposes, provided that the powers to acquire, use, and dispose of property as set forth in this paragraph shall include the power to acquire, use, and dispose of any interest in such property, whether divided or undivided, which acquisition may result in the ownership of such property or any part thereof in common with any other party or parties, public or private;
  5. To make contracts and leases and to execute all instruments necessary or convenient, including contracts for construction of jails and leases of jails or contracts with respect to the use of jails which it causes to be acquired or constructed on a negotiated basis without competitive bid, provided that all private persons, firms, and corporations, this state, and all political subdivisions, departments, instrumentalities, or agencies of the state or of local government are authorized to enter into contracts, leases, or agreements with the authority, upon such terms and for such purposes as they deem advisable; and, without limiting the generality of the provisions of this paragraph, authority is specifically granted to municipal corporations and counties and to the authority to enter into contracts, lease agreements, or other undertakings relative to the furnishing of project activities and facilities or either of them by the authority to such municipal corporations and counties and by such municipal corporations and counties to the authority for a term not exceeding 50 years;
  6. To exercise any one or more of the powers, rights, and privileges conferred by this Code section either alone or jointly or in common with one or more other public or private parties. In any such exercise of such powers, rights, and privileges jointly or in common with others with respect to the construction, operation, and maintenance of jail facilities, the authority may own an undivided interest in such facilities with any other party with which it may jointly or in common exercise the rights and privileges conferred by this article and may enter into an agreement or agreements with respect to any such jail facility with the other party or parties participating therein; and such agreement may contain such terms, conditions, and provisions, consistent with this article, as the parties thereto shall deem to be in their best interests, including, but not limited to, provisions for the construction, operation, and maintenance of such jail facility by any one or more of the parties to such agreement, which party or parties shall be designated in or pursuant to such agreement as agent or agents on behalf of itself and one or more of the other parties thereto, or by such other means as may be determined by the parties thereto, and including provisions for a method or methods of determining and allocating, among or between the parties, costs of construction, operation, maintenance, renewals, replacements, improvements, and disposal with respect to such facility, such agent shall be governed by the laws and regulations applicable to such agent as a separate legal entity and not by any laws or regulations which may be applicable to any of the other participating parties; provided, however, the agent shall act for the benefit of the public. Notwithstanding anything contained in any other law to the contrary, pursuant to the terms of any such agreement, the authority may delegate its powers and duties with respect to the construction, operation, and maintenance of such facility to the party acting as agent; and all actions taken by such agent in accordance with the provisions of such agreement may be binding upon the authority without further action or approval of the authority;
  7. To accept, receive, and administer gifts, grants, appropriations, and donations of money, materials, and property of any kind, including loans and grants from the United States, this state, a unit of local government, or any agency, department, authority, or instrumentality of any of the foregoing, upon such terms and conditions as the United States, this state, a unit of local government, or such agency, department, authority, or instrumentality shall impose; to administer trusts; and to sell, lease, transfer, convey, appropriate, and pledge any and all of its property and assets;
  8. To do any and all things necessary or proper for the accomplishment of the objectives of this article and to exercise any power usually possessed by private corporations performing similar functions which is not in conflict with the Constitution and laws of this state, including the power to employ professional and administrative staff and personnel by and through the management committee and to retain legal, engineering, fiscal, accounting, and other professional services; the power to purchase all kinds of insurance, including, without limitation, insurance against tort liability and against risks of damage to property; the power to borrow money for any of the corporate purposes of the authority; the power to indemnify and hold harmless any parties contracting with the authority or its agents from damage to persons or property; and the power to act as self-insurer with respect to any loss or liability; provided, however, that obligations of the authority other than revenue bonds, for which provision is made in this article, shall be payable from the general funds of the authority and shall not be a charge against any special fund allocated to the payment of revenue bonds;
  9. To borrow money and issue its revenue bonds and bond anticipation notes from time to time and to use the proceeds thereof for the purpose of paying all or part of the cost of any jail, including the cost of extending, adding to, or improving such jail, or for the purpose of refunding any such bonds of the authority theretofore issued; and otherwise to carry out the purposes of this article and to pay all other costs of the authority incident to, or necessary and appropriate to, such purposes, including the provision of funds to be paid into any fund or funds to secure such bonds and notes, provided that all such bonds and notes shall be issued in accordance with the procedures and subject to the limitations set forth in Code Section 42-4-100; and
  10. To fix rentals and other charges which any user shall pay to the authority for the use of a jail or part or combination thereof, and to charge and collect the same, and to lease and make contracts with political subdivisions and agencies with respect to the use of any part of any jail or jails. Such rentals and other charges shall be so fixed and adjusted with respect to the aggregate thereof from the jail or any part thereof so as to provide a fund with other revenues of such jail, if any, to pay the cost of maintaining, repairing, and operating the jail, including reserves for extraordinary repairs and insurance, unless such cost shall be otherwise provided for, which costs shall be deemed to include the expenses incurred by the authority on account of the jail for water, light, sewer, and other services furnished by other facilities at such jail.

(Code 1981, §42-4-97, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 6; Ga. L. 1997, p. 143, § 42.)

42-4-98. Duties and responsibilities of sheriffs and governing bodies imposed upon management committee and authority.

  1. Every duty and responsibility of the sheriff of a participant county to operate a jail in an efficient and orderly manner is imposed upon the management committee and to that extent the sheriff of a participant county is relieved of those duties with respect to the operation of a jail including specifically, but without limitation, Code Section 15-16-24 and this chapter.
  2. Every duty and responsibility of the governing body of a participant county to erect, repair, and furnish a jail in an efficient and orderly manner is imposed on the authority as provided in the agreement between the participating government and the authority and to that extent the county is relieved, including specifically but without limitation, of those duties imposed by Code Sections 36-9-5 through 36-9-11, with respect to jails. The authority shall adopt a budget for the operation of the jail that reasonably and adequately provides for the personnel, training of personnel, equipment, facilities, and other items necessary for the management committee to operate the jail. The authority shall hold budget hearings not less than 120 days prior to the adoption of the budget.

(Code 1981, §42-4-98, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1997, p. 143, § 42.)

42-4-99. Limitation on liability of members, officers, or employees.

Except for willful or wanton misconduct, neither the members of the authority nor any officer or employee of the authority, acting on behalf thereof and while acting within the scope of his or her responsibilities, shall be subject to any liability resulting from:

  1. The design, construction, ownership, maintenance, operation, or management of a jail or jails; or
  2. The carrying out of any of the discretionary powers or duties expressly provided for in this article.

(Code 1981, §42-4-99, enacted by Ga. L. 1995, p. 292, § 1.)

42-4-100. Bonds or other obligations; requirements and procedure for issuance.

  1. Subject to the limitations and procedures provided by this Code section, the obligations of any authority evidenced by bonds, bond anticipation notes, trust indentures, deeds to secure obligations, security agreements, or mortgages executed in connection therewith may contain such provisions not inconsistent with law as shall be determined by the board of directors of the authority. The authority, in such instruments, may provide for the pledging of all or any part of its revenues, income, or charges and for the mortgaging, encumbering, or conveying of all or any part of its real or personal property; may covenant against pledging any or all of its revenues, income, or charges; and may further provide for the disposition of proceeds realized from the sale of any bonds and bond anticipation notes, for the replacement of lost, destroyed, stolen, or mutilated bonds and notes, and for the payment and redemption of such bonds and notes. Similarly, subject to the limitations and procedures of this Code section, undertakings of any authority may prescribe the procedure by which bondholders and noteholders may enforce rights against the authority and provide for rights upon breach of any covenant, condition, or obligation of the authority. Bonds, resolutions, trust indentures, mortgages, or deeds to secure obligations executed by an authority and bond anticipation notes executed by an authority may contain such provisions not otherwise contrary to law as the authority shall deem necessary or desirable.
  2. The proceeds derived from the sale of all bonds and bond anticipation notes issued by an authority shall be held and used for the ultimate purpose of paying, directly or indirectly as permitted in this article, all or part of the cost of any jail, including the cost of extending, financing, adding to, or improving such jail, or for the purpose of refunding any bond anticipation notes issued in accordance with this article or refunding any previously issued bonds of the authority.
  3. All bonds and bond anticipation notes issued by an authority shall be revenue obligations of such authority and may be made payable out of any revenues or other receipts, funds, or moneys of the authority, subject only to any agreements with the holders of other bonds or bond anticipation notes or to particular security agreements pledging any particular revenues, receipts, funds, or moneys.
  4. Issuance by an authority of one or more series of bonds or bond anticipation notes for one or more purposes shall not preclude it from issuing other bonds or notes in connection with the same jail or with any other jails, but the proceeding wherein any subsequent bonds or bond anticipation notes shall be issued shall recognize and protect any prior pledge or mortgage made in any prior security agreement or made for any prior issue of bonds or bond anticipation notes, unless in the resolution authorizing such prior issue the right is expressly reserved to the authority to issue subsequent bonds or bond anticipation notes on a parity with such prior issue.
  5. An authority shall have the power and is authorized, whenever revenue bonds of the authority have been validated as provided in this article, to issue, from time to time, its notes in anticipation of the issuance of such bonds as validated and to renew from time to time any such notes by the issuance of new notes, whether the notes to be renewed have or have not matured. The authority may issue notes only to provide funds which would otherwise be provided by the issuance of the bonds as validated. The notes may be authorized, sold, executed, and delivered in the same manner as bonds. As with its bonds, the authority may sell such notes at public or private sale. Any resolution or resolutions authorizing notes of the authority or any issue thereof may contain any provision which the authority is authorized to include in any such resolution or resolutions; and the authority may include in any notes any terms, covenants, or conditions which it is authorized to include in any bonds. Validation of such bonds shall be a condition precedent to the issuance of the notes, but it shall not be required that such notes be judicially validated. Bond anticipation notes shall not be issued in an amount exceeding the par value of the bonds in anticipation of which they are to be issued.
  6. The interest rate on or rates to be borne by any bonds, notes, or other obligations issued by the authority shall be fixed by the board of directors of the authority. Any limitation with respect to interest rates found in Article 3 of Chapter 82 of Title 36 or in the usury laws of this state shall not apply to obligations issued under this article.
  7. All revenue bonds issued by an authority under this article will be issued and validated under and in accordance with Article 3 of Chapter 82 of Title 36, except as provided in subsection (f) of this Code section and except as specifically set forth below:
    1. Revenue bonds issued by an authority shall be fully registered and shall be subject to such exchangeability and transferability provisions as the bond resolution authorizing the issuance of such bonds or any indenture or trust agreement may provide;
    2. Revenue bonds shall bear a certificate of validation. The signature of the clerk of the superior court of the judicial circuit in which the issuing authority is located may be made on the certificate of validation of such bonds by facsimile or by manual execution, stating the date on which such bonds were validated; and such entry shall be original evidence of the fact of judgment and shall be received as original evidence in any court in this state; and
    3. In lieu of specifying the rate or rates of interest which revenue bonds to be issued by an authority are to bear, the notice to the district attorney or the Attorney General and the notice to the public of the time, place, and date of the validation hearing may state that the bonds, when issued, will bear interest at a rate not exceeding a maximum per annum rate of interest specified in such notes or, in the event the bonds are to bear different rates of interest for different maturity dates, that none of such bonds shall bear interest at such rate or rates without regard to any limitation contained in any other statute or law of this state; provided, however, that nothing contained in this paragraph shall be construed as prohibiting or restricting the right of the authority to sell such bonds at a discount, even if in so doing the effective interest cost resulting therefrom would exceed the maximum per annum interest rate specified in such notices.
  8. The term "cost of project" shall have the meaning prescribed in paragraph (2) of Code Section 42-4-92 whenever referred to in bond resolutions of an authority, bonds, and bond anticipation notes issued by an authority, or notices and proceedings to validate such bonds.

(Code 1981, §42-4-100, enacted by Ga. L. 1995, p. 292, § 1.)

42-4-101. Bonds or other obligations not indebtedness of state or political subdivision; payment.

No bonds or other obligations of and no indebtedness incurred by any authority shall constitute an indebtedness or obligation of the State of Georgia or of any county, municipal corporation, or political subdivision thereof, nor shall any act of any authority in any manner constitute or result in the creation of an indebtedness of this state or of any such county, municipal corporation, or political subdivision. However, provisions of this Code section shall not preclude counties, municipal corporations, or other political subdivisions from choosing to guarantee the bonds, indebtedness, or other obligations of a jail authority as part of its demonstration of adequate financial responsibility pursuant to this article. All such bonds and obligations shall be payable solely from the revenues therein pledged to such payment, including pledged rentals, sales proceeds, insurance proceeds, and condemnation awards; and no holder or holders of any such bond or obligation shall ever have the right to compel any exercise of the taxing power of this state or of any county, municipal corporation, or political subdivision thereof or to enforce the payment thereof against any property of the state or of any such county, municipal corporation, or political subdivision.

(Code 1981, §42-4-101, enacted by Ga. L. 1995, p. 292, § 1.)

42-4-102. Construction of article; bonds not subject to regulation under Georgia Uniform Securities Act; power of counties and municipalities to activate authorities.

  1. This article shall be liberally construed to effect the purposes hereof. Sale or issuance of bonds by any authority shall not be subject to regulation under Chapter 5 of Title 10, the "Georgia Uniform Securities Act of 2008," or any other law.
  2. A county or any number of counties or a municipality or any number of municipalities shall have the right to activate any authority under this article, notwithstanding the existence of any other authority having similar powers or purposes within the county or a municipal corporation created pursuant to any general law or amendment to the Constitution of this state. However, nothing in this article shall be construed as repealing, amending, superseding, or altering the organization of or abridging the powers of such authorities as are now in existence.

(Code 1981, §42-4-102, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 7; Ga. L. 2008, p. 381, § 10/SB 358.)

42-4-103. Operation and finance agreement required; withdrawal from authority.

  1. Failure of a participant county or participant municipality to execute an operation and finance agreement duly adopted by the authority at a regularly scheduled meeting or a meeting called for that purpose within 60 days after such agreement has been executed by two or more participant counties or participant municipalities shall constitute a withdrawal from the authority.
  2. Any participant county or participant municipality may withdraw from the authority subject to any contract, obligation, or agreement with the authority, but no participant county or participant municipality shall be permitted to withdraw from any authority after any obligation has been incurred by the authority. The governing body of the participant county or participant municipality wishing to withdraw from an existing authority shall signify its desire by resolution or ordinance.

(Code 1981, §42-4-103, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 8.)

42-4-104. Authority of county or municipality to establish and maintain jail or jail-holding facility.

Notwithstanding anything contained in this article, no participant county or participant municipality shall be prohibited from establishing and maintaining any jail or jail-holding facility. Notwithstanding any other provision in this chapter, such jails shall be operated as provided in the laws of this state as if the county or municipality was not a participant in the regional jail authority.

(Code 1981, §42-4-104, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 9.)

42-4-105. Immunity of authorities from liability.

Regional jail authorities shall be carrying out an essential governmental function on behalf of participant counties or participant municipalities and are, therefore, given immunity from liability for carrying out their intended functions.

(Code 1981, §42-4-105, enacted by Ga. L. 1995, p. 292, § 1; Ga. L. 1996, p. 1098, § 10.)

CHAPTER 5 CORRECTIONAL INSTITUTIONS OF STATE AND COUNTIES

Article 1 General Provisions.
Article 2 Wardens, Superintendents, and Other Personnel.
Article 3 Conditions of Detention Generally.
Article 4 Granting Special Leaves, Emergency
Leaves, and Limited Leave Privileges.
Article 5 Awarding Earned-time Allowances.
Article 6 Voluntary Labor Program.
Editor's notes.

- Ga. L. 1998, p. 270, § 13, not codified by the General Assembly, provides: "The General Assembly recognizes that criminal street gangs have succeeded at times in maintaining their structure, organization, and discipline in penal institutions and have continued to conduct criminal activities while incarcerated. Therefore, the General Assembly requests and encourages state and local officials with responsibility for the operation of adult and juvenile penal institutions and related facilities to develop policies and procedures which will identify members of criminal street gangs and, where necessary, to separate members and associates of the same criminal street gang in order that such gang members cannot maintain the gang's structure, organization, and discipline and will have a more difficult time in conducting criminal activities while incarcerated in this state."

ARTICLE 1 GENERAL PROVISIONS

Cross references.

- Escape of person in lawful custody, and as to assault on, resistance to, or other action against officer or guard within penal institution, § 16-10-52 et seq.

Editor's notes.

- By resolution (Ga. L. 1987, p. 3550), the General Assembly directed the Board of Corrections to designate the correctional facility in Forsyth, Monroe County, Georgia, as the "A.L. 'Al' Burruss Correctional Training Center" and to affix an appropriate plaque at the entrance to that center indicating that designation.

By resolution (Ga. L. 1988, p. 334), the General Assembly designated the correctional facility in Pennville, Chattooga County, Georgia, as the "Forest Hays, Jr., Correctional Institution."

By resolution (Ga. L. 1988, p. 1470), the General Assembly created the Commission on Criminal Sanctions and Correctional Facilities, to be abolished January 1, 1990.

By resolution (Ga. L. 1991, p. 1203), the General Assembly designated the probation detention center in Fulton County, Georgia as the "J. Carrell Larmore Probation Detention Center."

By resolution (Ga. L. 1992, p. 3109), the General Assembly designated the correctional institution in Mitchell County as the "Jimmy Autry Correctional Institution."

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 12, 13, 20-22.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 6-8, 11-16.

ALR.

- Validity and construction of prison regulation of inmates' possession of personal property, 66 A.L.R.4th 800.

State prisoner's right to personally appear at civil trial to which he is a party - state court cases, 82 A.L.R.4th 1063.

Propriety of telephone testimony or hearings in prison proceedings, 9 A.L.R.5th 451.

42-5-1. Definitions.

As used in this chapter, the term:

  1. "Board" means the Board of Corrections.
  2. "Commissioner" means the commissioner of corrections.
  3. "Department" means the Department of Corrections.

(Code 1981, §42-5-1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.)

Cross references.

- Notification to Department of Corrections, Uniform Superior Court Rules, Rule 35.1.

Editor's notes.

- This Code section was created as part of the Code revision and was thus enacted by Ga. L. 1981, Ex. Sess., p. 8 (Code enactment Act).

42-5-2. Responsibilities of governmental unit with custody of inmate; costs of emergency and follow-up care; access to medical services or hospital care; hospital requirements for providing emergency health care services to state inmates.

  1. Except as provided in subsection (b) of this Code section, it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention; to defend any habeas corpus or other proceedings instituted by or on behalf of the inmate; and to bear all expenses relative to any escape and recapture, including the expenses of extradition.Except as provided in subsection (b) of this Code section, it shall be the responsibility of the department to bear the costs of any reasonable and necessary emergency medical and hospital care which is provided to any inmate after the receipt by the department of the notice provided by subsection (a) of Code Section 42-5-50 who is in the physical custody of any other political subdivision or governmental agency of this state, except a county correctional institution, if the inmate is available and eligible for the transfer of his custody to the department pursuant to Code Section 42-5-50.Except as provided in subsection (b) of this Code section, the department shall also bear the costs of any reasonable and necessary follow-up medical or hospital care rendered to any such inmate as a result of the initial emergency care and treatment of the inmate. With respect to state inmates housed in county correctional institutions, the department shall bear the costs of direct medical services required for emergency medical conditions posing an immediate threat to life or limb if the inmate cannot be placed in a state institution for the receipt of this care.The responsibility for payment will commence when the costs for direct medical services exceed an amount specified by rules and regulations of the Board of Corrections.The department will pay only the balance in excess of the specified amount. Except as provided in subsection (b) of this Code section, it shall remain the responsibility of the governmental unit having the physical custody of an inmate to bear the costs of such medical and hospital care, if the custody of the inmate has been transferred from the department pursuant to any order of any court within this state.The department shall have the authority to promulgate rules and regulations relative to payment of such medical and hospital costs by the department.
    1. The officer in charge will provide an inmate access to medical services or hospital care and may arrange for the inmate's health insurance carrier to pay the health care provider for the services or care rendered as provided in Article 3 of Chapter 4 of this title.
    2. With respect to an inmate covered under Article 3 of Chapter 4 of this title, the costs of any medical services, emergency medical and hospital care, or follow-up medical or hospital care as provided in subsection (a) of this Code section for which a local governmental unit is responsible shall mean the costs of such medical services and hospital care which have not been paid by the inmate's health insurance carrier or the Department of Community Health.
  2. A hospital authority or hospital which is not a party to a contract with the Georgia Department of Corrections or its agents on July 1, 2009, shall be reimbursed no more than the applicable Georgia Medicaid rate for emergency services provided to such state inmate. For purposes of this subsection, the term "state inmate" means any inmate for whom the Georgia Department of Corrections shall be responsible for the payment of medical care thereof. Nothing in this Code section shall prohibit the Georgia Department of Corrections from negotiating higher fees or rates with health care providers. It is the intent of the General Assembly that the Georgia Department of Corrections or its agents enter into negotiations with health care providers to contract for the provision of services as provided in this Code section.

(Ga. L. 1956, p. 161, § 13; Ga. L. 1982, p. 1361, §§ 1, 2; Ga. L. 1983, p. 3, § 31; Ga. L. 1986, p. 493, § 1; Ga. L. 1992, p. 2125, § 3; Ga. L. 1999, p. 296, § 24; Ga. L. 2009, p. 136, § 1A/HB 464.)

Cross references.

- Habeas corpus generally, T. 9, C. 14.

Law reviews.

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 310 (1992). For note, "Finding Immunity: Manders v. Lee and the Erosion of 1983 Liability," see 55 Mercer L. Rev. 1505 (2004).

JUDICIAL DECISIONS

Extent of duty.

- O.C.G.A. §§ 42-4-4 and42-5-2 create an obligation merely to provide inmates with access to medical care and the county met that obligation by contracting with a local medical services provider to provide medical care to the detention center. Epps v. Gwinnett County, 231 Ga. App. 664, 499 S.E.2d 657 (1998).

When officers arrested a decedent who died shortly after the arrest, the officers and a city could not be held liable for violating O.C.G.A. § 42-4-4 or O.C.G.A. § 42-5-2 or by denying the decedent medical care because: (1) Code Section42-4-4 imposed a duty only upon sheriffs and deputies; (2) Code Section42-5-2 imposed a duty only on a governmental unit having physical custody of a detainee; and (3) the decedent was taken into custody by a county police officer and transported to a county jail, so the decedent was never in the custody of the city, and the suit could not be brought against the city under § 42-5-2. Hoyt v. Bacon County, F. Supp. 2d (S.D. Ga. Jan. 26, 2011).

Although the third amended complaint asserted a per se violation of O.C.G.A. § 42-5-2, but to the extent that statute applied to the medical care provider by virtue of the provider's contract with the sheriff's office, the statute only created an obligation to provide detainees with access to medical care, but did not address the issue of proper medical care; because it was undisputed the deceased detainee was provided access to medical care, the trial court did not err in concluding that O.C.G.A. § 42-5-2(a) provided no basis for a negligence per se claim against the medical care provider. Graham v. WellStar Health Sys., 338 Ga. App. 178, 789 S.E.2d 369 (2016).

County was responsible for detainee's medical care after the detainee was injured while being taken into custody by the county sheriff's department and, but for the seriousness of the detainee's injuries, would have been placed in the county's detention facility. Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

Violation of prisoner's constitutional rights.

- When medical policies were promulgated and carried out under the mandate of O.C.G.A. § 42-5-2 and the seriously ill prisoner was seen only by undertrained LPNs, not by a physician, before the prisoner died, this was a violation of a constitutional right that was coupled with causation. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Use of prisoners' funds for medical expenses.

- As it is the city's responsibility to pay all medical and hospital expenses for a prisoner in the city's custody, using a fund recovered from the prisoner after a shoot-out to pay these expenses, the city, in effect, appropriated the entire fund to itself. Johnson v. Mayor of Carrollton, 249 Ga. 173, 288 S.E.2d 565 (1982) (decided prior to 1982 amendment, which added last four sentences).

Department's right to recover from third-party tortfeasor.

- Although plaintiff Department of Corrections had a duty under O.C.G.A. § 42-5-2(a) to provide medical care to the Department's inmates, this duty did not absolve the defendant driver of the driver's alleged liability for causing the inmates' injuries in an automobile accident; thus, the trial court erred in granting the driver summary judgment in the Department's suit against the driver to recover the Department's expenses incurred in treating the inmates' injuries. Dep't of Corr. v. Barkwell, 256 Ga. App. 877, 570 S.E.2d 13 (2002).

Charged detainees are inmates.

- Term "inmate" means not only a person who has been convicted of an offense, but also a person who has been detained by reason of being charged with a crime, such that the county was responsible for the medical expenses of an individual arrested and charged with theft, regardless of the person's procedural status, and, additionally, of the self-inflicted nature of the person's injuries. Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530, 428 S.E.2d 374 (1993).

Handcuffing of persons taken to hospital.

- In an action by a hospital seeking to recover the expenses of medical treatment provided to three men brought to the hospital by a county sheriff's deputy, the fact that the three men had been handcuffed for transportation to the hospital was not determinative of their subsequent status, when the handcuffs were removed. Macon-Bibb County Hosp. Auth. v. Reece, 236 Ga. App. 669, 513 S.E.2d 243 (1999).

Fact issue on custody determination.

- In an action by a hospital against the county seeking reimbursement for medical treatment provided detainees of the sheriff's department, issues of fact as to whether the individuals were in custody of the county when the expenses were incurred and whether the individuals were "inmates" precluded summary judgment for either the county or sheriff. Macon-Bibb County Hosp. Auth. v. Reece, 228 Ga. App. 532, 492 S.E.2d 292 (1997).

Deputy sheriff in the deputy's official capacity was entitled to sovereign immunity with respect to a former inmate's claims arising from denial of a dietary request; the sheriff's powers were derived from the state, and provision of food to county jail inmates was a state function. Lake v. Skelton, 840 F.3d 1334 (11th Cir. 2016), cert. denied, 138 S. Ct. 1549, 2018 U.S. LEXIS 2492, 200 L. Ed. 2d 741 (U.S. 2018).

Sovereign immunity.

- Providing adequate medical attention for inmates under the defendant's custody and control is a ministerial act by the sheriff and his or her deputies and does not involve the exercise of discretion; thus, such act is not subject to either sovereign immunity or official immunity. Cantrell v. Thurman, 231 Ga. App. 510, 499 S.E.2d 416 (1998).

While subsection (a) of O.C.G.A. § 42-5-2 imposes the duty and the cost for medical care of inmates in the custody of a county upon the county, it does not waive sovereign immunity of the county or the county's agents and employees. Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2218, 147 L. Ed. 2d 250 (2000).

Without proof by the administrator of the decedent inmate's estate that any actions undertaken by the county officers and employees sued for wrongful death amounted to wilfulness, malice, or corruption, they were entitled to official immunity as a matter of law; further, any failure to adopt other or additional requirements as to their policies of supervision and training in dealing with a suicidal inmate did not amount to wilfulness, malice, or corruption. Middlebrooks v. Bibb County, 261 Ga. App. 382, 582 S.E.2d 539 (2003), overruled in part Tattnall County v. Armstrong, 333 Ga. App. 46, 775 S.E.2d 573, 2015 Ga. App. LEXIS 446 (2015).

Trial court incorrectly denied a prison official's motion for summary judgment on the estate administrators' 42 U.S.C. § 1983 claim against the official, following an inmate's death from a Tylenol overdose, because, while the official was aware that the decedent faced a substantial risk of serious harm, the administrators did not show that the official displayed deliberate indifference to the decedent's serious medical needs. Furthermore, the administrators failed to prove that the official was acting outside the scope of the person's official duties or employment; consequently, even if the official acted with malice or intent to injure the decedent, the official was immune from liability on the administrators' state law claims against the official. Minor v. Barwick, 264 Ga. App. 327, 590 S.E.2d 754 (2003).

County sheriff was not entitled to Eleventh Amendment immunity because, under Georgia law, the sheriff was not acting as an arm of the state when caring for the medical needs of an inmate; instead, the sheriff was carrying out a statutory duty assigned to the county under O.C.G.A. § 42-5-2(a). Dukes v. State, 428 F. Supp. 2d 1298 (N.D. Ga. 2006), aff'd, 212 Fed. Appx. 916 (11th Cir. 2006).

In a parent's wrongful death action, the trial court erred in denying a county's motion for summary judgment because O.C.G.A. § 42-5-2 did not waive the county's sovereign immunity for claims based on failure to provide medical care; Code Section42-5-2 does not provide an express waiver, and nothing in the statute can be read to imply a waiver. Gish v. Thomas, 302 Ga. App. 854, 691 S.E.2d 900 (2010).

Trial court correctly determined that the state law claims made against a county and against a sheriff and medical contract compliance administrator in their official capacities were barred because although O.C.G.A. § 42-5-2(a) imposed upon the county the duty and cost of medical care for inmates in the county's custody, the county did not waive sovereign immunity of the county or the county's agents or employees. Graham v. Cobb County, 316 Ga. App. 738, 730 S.E.2d 439 (2012).

Appellate court erred by affirming a trial court's denial of a city's motion to dismiss an inmate's complaint because the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived; therefore, the inmate was precluded from pursuing negligence claims. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).

Georgia Supreme Court finds that the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); McKenzey v. State, 140 Ga. App. 402, 231 S.E.2d 149 (1976); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Bunyon v. Burke County, 306 F. Supp. 2d 1240 (S.D. Ga. 2004); Lawson v. Lincoln County, 292 Ga. App. 527, 664 S.E.2d 900 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- Most of the following annotations were taken from opinions rendered prior to the 1982 amendment of this section, which added the last four sentences of subsection (a).

Responsibility for medical bills accrued for treatment.

- See 1986 Op. Att'y Gen. No. U86-23.

Medical bills arising from injury of work release inmate.

- Private employer is primarily responsible for payment of medical bills arising from injuries, fatal or otherwise, received by a work release inmate while on the job, but upon default by employer, the Department of Offender Rehabilitation (Corrections) is ultimately responsible for paying for those medical services. 1981 Op. Att'y Gen. No. 81-27.

Medical care and expenses of escaped prisoners.

- Board may pay only those medical expenses incurred by an escaped prisoner, as a result of the prisoner's wrecking a stolen automobile, which may properly be classified as an expense relating to the recapture of the prisoner. 1967 Op. Att'y Gen. No. 67-218.

Responsibility for providing medical and dental care rests upon the governmental unit having physical custody of an inmate; there is, however, no statutory prohibition against taking an inmate to the inmate's private physician or dentist for specialized treatment at the expense of the inmate; however, while the Board of Corrections may permit an inmate to receive private specialized treatment, the inmate has no right to demand that the board permit such treatments. 1967 Op. Att'y Gen. No. 67-336.

Liability for medical expenses depends upon physical custody.

- Municipality is only liable for a prisoner's medical expenses incurred while the prisoner is in the physical custody of the municipality. 1990 Op. Att'y Gen. No. U90-8.

When custody of a prisoner ceases by virtue of the prisoner's posting an appearance bond, the municipality's responsibility for needed medical care and hospital attention ceases. At that point the municipality ceases to have physical custody of the individual, since the individual is free to leave at any time the individual desires. 1990 Op. Att'y Gen. No. U90-8.

Chiropractic aid.

- There is no prohibition against chiropractic aid to prisoners; however, such should be furnished only upon request of the prisoner. 1960-61 Op. Att'y Gen. p. 357.

Medical expenses of assignees to medical centers.

- Board is liable for medical expenses of probationers and parolees assigned to community centers operated by the board. 1974 Op. Att'y Gen. No. 74-129.

Medical expenses of woman resulting from assault and rape by escaped prisoner.

- Board may not pay the medical expenses of an 83-year-old woman who was assaulted and raped by an escaped inmate from the Georgia Industrial Institute. 1967 Op. Att'y Gen. No. 67-301.

Defense of habeas corpus proceeding.

- Governmental unit having physical custody of prisoner is required to defend any habeas corpus proceeding, including an appeal therefrom; it is the responsibility of the attorney representing the governmental unit having physical custody of a prisoner to defend the appeal in the Supreme Court of this state. 1969 Op. Att'y Gen. No. 69-39.

Responsibility for extradition proceedings expenses.

- There is an initial responsibility for payment of expenses incurred by an agency within the executive authority of this state initiating extradition proceedings, and that agency is under an obligation to secure the indemnification of the funds which it was obligated to expend relative to the escape of a prisoner from the county having physical custody of the prisoner at the time of the escape. 1970 Op. Att'y Gen. No. 70-13.

Responsibility for asylum expenses of escaped fugitive.

- Ultimate responsibility for bearing the expenses incurred in the asylum state attending upon the arrest and delivery of the escaped fugitive rests with the governmental unit having the physical custody of the prisoner. 1970 Op. Att'y Gen. No. 70-13.

RESEARCH REFERENCES

ALR.

- What justifies escape or attempt to escape, or assistance in that regard, 70 A.L.R.2d 1430.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.

Right of state prison authorities to administer neuroleptic or antipsychotic drugs to prisoner without his or her consent - state cases, 75 A.L.R.4th 1124.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

Constitutional right of prisoners to abortion services and facilities, 28 A.L.R.6th 485.

42-5-3. Department's responsibility for trial costs and expenses.

The whole costs of the case and expenses of the trial involving an inmate of the state penal system charged with the violation of any criminal statute shall be borne by the department, provided the offense was committed by the inmate within the confines of a state correctional institution or was the crime of escape or attempted escape. The costs and expenses of the trial shall include, but shall not be limited to, the cost of the sheriff, bailiff, clerks, jurors, and jail fees and shall be paid by the department to the governing authority of the county in which the trial was conducted, for proper disposition.

(Orig. Code 1863, § 4690; Code 1868, § 4714; Code 1873, § 4812; Code 1882, § 4812; Penal Code 1895, § 1174; Penal Code 1910, § 1230; Code 1933, § 77-401; Ga. L. 1964, p. 462, § 1; Ga. L. 1975, p. 1590, § 1.)

Cross references.

- Payment of costs of criminal proceedings generally, T. 17, Ch. 11.

JUDICIAL DECISIONS

Fund out of which expenses paid.

- No reference is made in this section or elsewhere in this Code as to the fund from which the expense is to be paid, and it seems that the provision that the expense shall be paid out of the penitentiary fund remains unrepealed. Campbell v. Davison, 162 Ga. 221, 133 S.E. 468 (1926).

OPINIONS OF THE ATTORNEY GENERAL

Costs of trial conducted after discharge from custody.

- Board is liable for costs of trial of former inmate in custody of department tried for crime committed while inmate was incarcerated in custody of department, but whose trial will take place after the inmate is discharged from custody. 1979 Op. Att'y Gen. No. 79-64.

Costs include incarceration in local jail during trial but not for incarceration, if any, at the local jail after the trial and before the inmate is returned to the custody of the Department of Offender Rehabilitation (Corrections). 1979 Op. Att'y Gen. No. 79-64.

Other costs and fees department obligated to pay.

- Department of Corrections is obligated to pay all costs and expenses listed on the statement submitted to the department, including court-appointed attorneys' fees and the per diem of the court reporter. 1963-65 Op. Att'y Gen. p. 743.

42-5-4. Payment of trial costs and expenses.

The clerk of the superior court from the county in which the trial specified in Code Section 42-5-3 was conducted shall submit a statement of the charges, certified by the judge of the superior court or the judge of the city court, to the department, which shall pay the charges out of the appropriations provided therefor in accordance with schedules authorized by law.

(Ga. L. 1964, p. 462, § 2.)

42-5-5. Reimbursement of court costs and transportation and detention expenses incurred in trying escapees from state correctional institutions.

The department is authorized and directed to reimburse the clerk of the court for court costs incurred in trying a defendant for the crime of escape when the escape is from a state correctional institution and to reimburse the sheriff of the county wherein the trial takes place for the expense of transporting the defendant from the place of detention to court for trial and returning the defendant from the court to the place of detention, such reimbursement to be at the rate of 10› per mile.

(Ga. L. 1971, p. 572, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Costs limited to actual costs.

- This section limits payment of court costs in cases related to escapees from state institutions to actual costs incurred by the clerks of courts in which such escapees are tried; in addition, it allows reimbursement to the sheriffs of the counties in which the trials take place only for the expense of transporting the defendants to and from their places of detention. 1972 Op. Att'y Gen. No. 72-43.

42-5-6. Participation by county correctional institutions in state purchasing contracts.

County correctional institutions may participate in all state purchasing contracts for the purpose of providing materials and supplies to state or county inmates.

(Ga. L. 1975, p. 908, § 2.)

Cross references.

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

42-5-7. Sudden or unusual death of inmate.

Whenever any inmate dies suddenly or under unusual circumstances in any correctional institution, the warden or superintendent of that institution shall immediately notify the commissioner and shall also notify the coroner of the county in which the death occurs. The warden or superintendent is also directed to furnish the department with a copy of the findings of the coroner's inquest, together with any other information available that would be of use to the commissioner in determining the cause of death.

(Ga. L. 1956, p. 161, § 25.)

Cross references.

- Reimbursement of counties for expenses of burial of inmates, § 36-12-5.

Requirement of autopsy and inquest upon death of inmate occurring when physician not present or as a result of violence, § 45-16-27.

OPINIONS OF THE ATTORNEY GENERAL

Notification of next of kin of inmates' death.

- Neither the warden nor any staff member at the Georgia State Prison is legally required to notify the next of kin of the death of an inmate who has been transferred to a hospital. 1967 Op. Att'y Gen. No. 67-445.

RESEARCH REFERENCES

ALR.

- Liability for death or injury to prisoner, 61 A.L.R. 569.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

42-5-8. Notification upon escape of inmate.

In addition to any all-points bulletin issued by the department notifying all local law enforcement agencies within the state of the escape of any inmate from the custody of the department, the department shall also, within 72 hours of the discovery of the escape, notify all parties who in the judgment of the commissioner have a legitimate need to know that the inmate has escaped and who have requested in writing that the department notify the party prior to the inmate's release from custody.

(Ga. L. 1980, p. 393, § 1; Ga. L. 1985, p. 149, § 42.)

42-5-9. Notification of projected release date of inmate.

At least 15 days prior to the projected release date of any inmate scheduled to be released pursuant to the authority of the department, the department shall notify the following persons of such projected release date by the following methods:

  1. Each district attorney and all local law enforcement agencies throughout the state by making the necessary information available on a publicly accessible website; and
  2. The presiding judge and the victims of crimes against the person by mail or electronic transmission. Notice to the victim shall only be required when the victim has provided the department with his or her current address. The notice to the victim or victims as required by the department in this Code section shall be reasonable notice and no liability or sanctions to the department related to notification or failure to notify shall lie against the department, its officers, or employees if said attempt at notice is of a reasonable effort.

(Ga. L. 1980, p. 393, § 2; Ga. L. 2000, p. 1422, § 1; Ga. L. 2001, p. 4, § 42; Ga. L. 2005, p. 60, § 42/HB 95.)

42-5-10. Promulgation of rules governing plans and specifications for new correctional institutions; certification of acceptability of old facilities by state fire marshal.

The board shall prescribe by rule and regulation the required plans and specifications defining the size and type of construction and materials to be employed in constructing all state and county correctional institutions. The specifications shall require that the buildings be as nearly free from fire hazards and as nearly escape-proof as is possible under all circumstances. A certificate of approval from the state fire marshal shall be conclusive as to the acceptability of all old state or county correctional institutions from a standpoint of fire hazard. No county shall establish a county correctional institution until its establishment and the plans and specifications thereof have been approved by the board.

(Ga. L. 1956, p. 161, § 17.)

OPINIONS OF THE ATTORNEY GENERAL

Dormitory standard set by board cannot fall below standard set by Safety Fire Commissioner.

- The Board of Offender Rehabilitation (Corrections) has authority to require a prison dormitory of any standard, so long as the standard is not below that set by the Georgia Safety Fire Commission (now Safety Fire Commissioner). 1954-56 Op. Att'y Gen. p. 526.

42-5-11. General prohibition against receipt of remuneration in regard to assignment, transfer, or status of inmate.

  1. It shall be unlawful for anyone other than a duly licensed attorney who is an active member in good standing of the State Bar of Georgia and who is not a member of the General Assembly to accept a fee, money, or other remuneration, other than actual expenses, for contacting, in any manner, the commissioner, any employee of the department, or any member of the board in an attempt to influence the commissioner, employee, or board member concerning a transfer of an inmate from one correctional institution to another or concerning the status and assignment of an inmate within a correctional institution.
  2. Any person who receives any fee, money, or other remuneration other than actual expenses, in violation of subsection (a) of this Code section, shall be guilty of a misdemeanor.

(Ga. L. 1975, p. 1218, § 1.)

42-5-12. Receipt of remuneration by state officials in regard to assignment, transfer, or status of inmate.

  1. It shall be unlawful for members of the General Assembly or any other state elected or appointed official to accept a fee, money, or other remuneration for contacting, in any manner, the commissioner, any employee of the department, or any member of the board in an attempt to influence the commissioner, employee, or board member concerning a transfer of an inmate from one correctional institution to another or concerning the status and assignment of an inmate within a correctional institution.
  2. Nothing in this Code section shall be construed so as to prohibit:
    1. Members of the General Assembly or other state elected or appointed officials from appearing before or contacting the commissioner, employees of the department, or members of the board when their official duties require them to do so;
    2. Members of the General Assembly or other state elected or appointed officials from requesting information from and presenting information to the commissioner, employees of the department, or members of the board on behalf of constituents when no compensation, gift, favor, or anything of value is accepted, either directly or indirectly, for such services; or
    3. Members of the General Assembly or other state elected or appointed officials from contacting the commissioner, any employee of the department, or any member of the board on behalf of any person so long as there is no fee, money, or other remuneration being paid or received for such contacting.
  3. Nothing in this Code section shall be construed to apply to the acceptance of compensation, expenses, and allowances received by members of the General Assembly or any other state elected or appointed official for his duties as a member or official.
  4. Nothing contained in this Code section shall preclude any attorney from contacting a client who may be in a correctional institution or from making any reasonable contact with employees of the department to the extent that the contact with employees may be necessary to contact his client.
  5. Any person violating this Code section shall be guilty of a misdemeanor.

(Ga. L. 1975, p. 1218, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Inspection of correspondence between inmate and attorney.

- Prison officials may inspect correspondence between attorneys and the attorney's clients; in addition to the prisoner's general correspondence, reasonable censorship of attorney correspondence may be imposed. 1967 Op. Att'y Gen. No. 67-314.

42-5-13. Record of person contacting commissioner, department, or board on behalf of inmate.

The department shall maintain a complete written record of every person contacting the commissioner, any employee of the department, or any member of the board concerning a transfer of an inmate from one correctional institution to another or concerning the status and assignment of an inmate within a correctional institution. The record shall include the name and address of the person contacting the commissioner, employee, or board member and the reason for the contact.

(Ga. L. 1975, p. 1218, § 2.)

42-5-14. Establishment of guard lines and signs at state or county correctional institutions.

Guard lines shall be established by the warden, superintendent, or his designated representative in charge at the various state or county correctional institutions in the same manner that land lines are established, except that, at each corner of the lines, signs must be used on which shall be plainly stamped or written: "Guard line of ____________." Signs shall also be placed at all entrances and exits for vehicles and pedestrians at the institutions and at such intervals along the guard lines as will reasonably place all persons approaching the guard lines on notice of the location of the institutions.

(Ga. L. 1903, p. 71, § 3; Penal Code 1910, § 1231; Code 1933, § 77-403; Ga. L. 1961, p. 45, § 1.)

JUDICIAL DECISIONS

Cited in Cox Communications, Inc. v. Lowe, 173 Ga. App. 812, 328 S.E.2d 384 (1985).

42-5-15. Crossing of guard lines with weapons, intoxicants, or drugs without consent of warden or superintendent.

  1. It shall be unlawful for any person to come inside the guard lines established at any state or county correctional institution with a gun, pistol, or any other weapon or with or under the influence of any intoxicating liquor, amphetamines, biphetamines, or any other hallucinogenic or other drugs, without the knowledge or consent of the warden, superintendent, or his or her designated representative.
  2. Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than four years.

(Ga. L. 1903, p. 71, § 1; Penal Code 1910, § 1232; Code 1933, § 77-404; Ga. L. 1961, p. 45, § 1; Ga. L. 1971, p. 220, § 1; Ga. L. 2017, p. 673, § 3-2/SB 149.)

The 2017 amendment, effective July 1, 2017, inserted "or her" near the end of subsection (a).

JUDICIAL DECISIONS

Sufficient evidence prison guard intended to distribute drugs in prison.

- Evidence supported convictions of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and crossing a prison guard line with drugs when the defendant, a corrections officer, was found with a cookie box containing drugs. Although the defendant claimed to be unaware of the contents of the package, none of the people the defendant named as being involved in the transaction were proven to exist, and the jury was authorized to infer that it was unreasonable for a corrections officer to take a suspicious package from an unknown person into a prison to give to an unknown recipient; furthermore, given the large amount and variety of contraband, its high street value, and that the defendant was taking it inside a heavily guarded prison facility, the jury was authorized to infer that the defendant intended to distribute the drugs to others instead of using the drugs personally. Bradley v. State, 292 Ga. App. 737, 665 S.E.2d 428 (2008).

Cited in Cox Communications, Inc. v. Lowe, 173 Ga. App. 812, 328 S.E.2d 384 (1985); Howard v. State, 185 Ga. App. 465, 364 S.E.2d 600 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Correctional staff are authorized to search visitors entering or leaving correctional institutions; these searches may be conducted by regular members of the correctional staff, properly supervised and trained; staff should conduct searches according to clear guidelines prepared for them by the Department of Offender Rehabilitation (Corrections). 1974 Op. Att'y Gen. No. 74-146.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 70-73.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 62, 100-102.

42-5-16. Trading with inmates without consent of warden or superintendent.

It shall be unlawful for any person to trade or traffic with, buy from, or sell any article to an inmate without the knowledge and consent of the warden, superintendent, or the designated representative in charge.

(Ga. L. 1903, p. 71, § 2; Penal Code 1910, § 1233; Code 1933, § 77-405; Ga. L. 1961, p. 45, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Paid interview with inmate.

- Interview with an inmate, for which the inmate is paid, is an illegal transaction unless consummated with the knowledge and approval of the warden or deputy warden in charge of the prisoner. 1969 Op. Att'y Gen. No. 69-299.

Payment for blood collected from inmate.

- Hospital may collect blood from an inmate and pay the inmate a fee for the blood with the approval of the appropriate warden or deputy warden. 1969 Op. Att'y Gen. No. 69-21.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 95.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, § 73.

42-5-17. Loitering near inmates after being ordered to desist.

It shall be unlawful for any person to loaf, linger, or stand around where inmates are employed or kept after having been ordered by the warden, superintendent, or designated representative in charge of the inmates to desist therefrom.

(Ga. L. 1903, p. 71, § 5; Penal Code 1910, § 1234; Code 1933, § 77-406; Ga. L. 1961, p. 45, § 1.)

Cross references.

- Prohibition against solicitation of business by professional bondsmen at places where prisoners are confined, § 17-6-52.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 70-76.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 100-102.

ALR.

- Validity, construction, and application of loitering statutes and ordinances, 72 A.L.R.5th 1.

42-5-18. Items prohibited for possession by inmates; warden's authorization; penalty; use of unmanned aircraft to accomplish violations.

  1. As used in this Code section, the term:
    1. "Inmate" means a prisoner, detainee, criminal suspect, immigration detainee, or other person held, incarcerated, or detained in a place of incarceration, whether or not such person is inside or outside of such place of incarceration.
    2. "Place of incarceration" means any prison, probation detention center, jail, or institution, including any state, federal, local, or privately operated facility, used for the purpose of incarcerating criminals or detainees.
    3. "Telecommunications device" means a device, an apparatus associated with a device, or a component of a device that enables, or may be used to enable, communication with a person outside a place of incarceration, including a telephone, cellular telephone, personal digital assistant, transmitting radio, or computer connected or capable of being connected to a computer network, by wireless or other technology, or otherwise capable of communicating with a person or device outside of a place of incarceration.
    4. "Warden or superintendent" means the commissioner or any warden, superintendent, sheriff, chief jailor, or other person who is responsible for the overall management and operation of a place of incarceration.
  2. It shall be unlawful for any person to obtain for, to procure for, or to give to an inmate a gun, pistol, or any other weapon; any intoxicating liquor; amphetamines, biphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; any telecommunications device; or any other article or item without the authorization of the warden or superintendent or his or her designee.
  3. It shall be unlawful for an inmate to possess a gun, pistol, or any other weapon; any intoxicating liquor; tobacco or any product containing tobacco; amphetamines, biphetamines, or any other hallucinogenic drugs or other drugs, regardless of the amount; a telecommunications device; or any other item without the authorization of the warden or superintendent or his or her designee.
    1. An inmate who commits or attempts to commit a violation of subsection (c) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years; provided, however, that if an inmate violates this Code section while being held pursuant to an arrest or conviction for a misdemeanor offense, the possession of a telecommunications device in violation of this Code section shall be treated as a misdemeanor.
    2. A person who commits or attempts to commit a violation of subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be sentenced to a mandatory minimum term of imprisonment of two years but not more than ten years, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.
    3. A person who commits or attempts to commit a violation of subsection (b.1) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years.
    1. It shall be unlawful for an inmate to possess a stored value card, the account number of a stored value card, or the personal identification number of a stored value card.
    2. It shall be unlawful for any person to obtain for, to procure for, or to give an inmate a stored value card, the account number of a stored value card, or the personal identification number of a stored value card.
    3. A person who commits a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced to a term of imprisonment of not less than one nor more than ten years, unless the judge imposes a misdemeanor sentence pursuant to Code Section 17-10-5.
    1. It shall be unlawful for any person to intentionally use an unmanned aircraft system to violate the provisions of subsection (b) or (b.1) of this Code section.
      1. It shall be unlawful for any person to intentionally photograph or otherwise record images of a place of incarceration through the use of an unmanned aircraft system for purposes of committing a criminal offense.
      2. Any person may secure prior authorization from the warden or the superintendent, or his or her designated representative, of such place of incarceration for photographing or recording as evidence of a noncriminal intent; provided, however, that failure to secure such prior authorization shall not evidence a criminal intent.
    2. Any person who commits or attempts to commit a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced as follows:
      1. Any person convicted of a violation of paragraph (1) of this subsection shall be imprisoned for not less than one nor more than ten years; and
      2. Any person convicted of paragraph (2) of this subsection shall be imprisoned for not less than one nor more than five years.
    3. For purposes of this Code section, the term "unmanned aircraft system" shall have the same meaning as provided for in Code section 6-1-4.

(b.1)It shall be unlawful for any person to obtain for, to procure for, or to give to an inmate tobacco or any product containing tobacco without the authorization of the warden or superintendent or his or her designee.

(Ga. L. 1976, p. 1506, § 2; Ga. L. 1984, p. 593, § 1; Ga. L. 2008, p. 533, § 1/SB 366; Ga. L. 2016, p. 811, § 8/HB 874; Ga. L. 2017, p. 673, § 3-3/SB 149; Ga. L. 2018, p. 1112, § 42/SB 365; Ga. L. 2019, p. 293, § 1/SB 6.)

The 2016 amendment, effective May 3, 2016, designated the existing provisions of subsection (d) as paragraph (d)(1); in paragraph (d)(1), substituted "An inmate" for "A person" in the beginning, inserted "subsection (c) of", and substituted "an inmate" for "a person" in the middle; and added paragraph (d)(2).

The 2017 amendment, effective July 1, 2017, added ", whether or not such person is inside or outside of such place of incarceration" at the end of paragraph (a)(1); added paragraph (b.1); inserted "tobacco or any product containing tobacco;" near the beginning of subsection (c); added paragraph (d)(3); and added subsection (e).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "means the commissioner" for "shall mean the commissioner" in paragraph (a)(4); and substituted "provided, however, that if an inmate" for "provided, however, if an inmate" in the proviso of paragraph (d)(1).

The 2019 amendment, effective July 1, 2019, added subsection (f).

Cross references.

- Similar provisions regarding furnishing of alcoholic beverages to inmates of jails, penal institutions, correctional facilities, or other lawful places of confinement, § 3-3-25.

JUDICIAL DECISIONS

"Weapon" defined.

- Jury's finding that a "water bug" (a device used to bring a liquid to a boil), which defendant threw at correctional officers, was a "weapon," within the meaning of subsection (b) of O.C.G.A. § 42-5-18, was not unreasonable. Culbertson v. State, 193 Ga. App. 9, 386 S.E.2d 894 (1989).

Evidence sufficient for conviction of possession of drugs by an inmate. Webb v. State, 249 Ga. App. 214, 547 S.E.2d 767 (2001).

Defendant's conviction for the unauthorized possession of drugs by an inmate, contrary to O.C.G.A. § 42-5-18(b), was based on sufficient evidence as the evidence showed that during a confiscation and inventory of defendant's personal possessions, before moving the defendant to a new cell, a shampoo bottle containing a substance determined to be marijuana was discovered. Collinsworth v. State, 276 Ga. App. 58, 622 S.E.2d 419 (2005).

There was sufficient evidence to support the defendant's conviction for furnishing prohibited items to inmates, including the defendant's admission that the defendant agreed to bring items to the prison and planned to throw the items over the fence, the defendant was seen outside the prison fence long after visiting hours had ended, lying in the grass attempting to conceal the bundles, and the defendant ran when approached, leading to the conclusion that the warden had not authorized the defendant's actions. Terrell v. State, 353 Ga. App. 780, 839 S.E.2d 274 (2020).

Evidence insufficient to support conviction.

- Defendant's conviction for possession of drugs by an inmate in violation of O.C.G.A. § 42-5-18(c) was reversed because the state failed to present any evidence to support even an inference that the defendant had any prior knowledge of drugs that were found in a bag or any idea what was in the bag; the state failed to demonstrate that the defendant had the bag in the defendant's possession for any reason other than the performance of the defendant's assigned duties of cleaning the visitation lobby in the prison and, thus, failed to exclude the reasonable hypothesis that the defendant was merely performing the job when the defendant removed the bag from one trash can and placed the bag in the other. Strozier v. State, 313 Ga. App. 804, 723 S.E.2d 39 (2012).

Sentencing based on listed items.

- Trial court did not err in sentencing the defendant on all three counts because O.C.G.A. § 42-5-18 unequivocally listed a variety of specific items, separated by semicolons, and defendant was sentenced related to crimes involving distinct, separate items, identified in different statutory clauses. Terrell v. State, 353 Ga. App. 780, 839 S.E.2d 274 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Applicability.

- This section is applicable only when the items referred to are obtained or procured for or given to a convict. It is not applicable if the items referred to are obtained or procured for or given to a prisoner being held in a county jail who has not yet been convicted of any crime. 1980 Op. Att'y Gen. No. U80-12.

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 62, 73.

ALR.

- Nature and elements of offense of conveying contraband to state prisoner, 64 A.L.R.4th 902.

Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 A.L.R.5th 767.

42-5-19. Penalty for violating Code Section 42-5-16 or 42-5-17.

Any person who violates Code Section 42-5-16 or 42-5-17 shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years.

(Ga. L. 1961, p. 45, § 1; Ga. L. 1976, p. 1506, § 1; Ga. L. 2008, p. 533, § 2/SB 366.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 70-76, 95.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 62, 73, 100-102.

ALR.

- Validity, construction, and application of loitering statutes and ordinances, 72 A.L.R.5th 1.

42-5-20. Alcohol or Drug Use Risk Reduction Program.

The department shall provide within the correctional system an Alcohol or Drug Use Risk Reduction Program. The program shall be made available to every person sentenced to the custody of the state whose criminal offense or history indicates alcohol or drug involvement; provided, however, that the provisions of this Code section shall not apply to a person who has been sentenced to the punishment of death or those deemed mentally incompetent.

(Code 1981, §42-5-20, enacted by Ga. L. 1995, p. 625, § 1.)

Law reviews.

- For note on the 1995 enactment of this Code section, see 12 Ga. St. U.L. Rev. 301 (1995).

42-5-21. Family Violence Counseling Program.

The department shall provide within the correctional system a Family Violence Counseling Program. The program shall be made available to every person sentenced to the custody of the state who committed an offense which has been identified to involve family violence as such term is defined in Code Section 19-13-1; provided, however, that the provisions of this Code section shall not apply to a person who has been sentenced to the punishment of death or to those deemed mentally incompetent.

(Code 1981, §42-5-21, enacted by Ga. L. 1996, p. 1113, § 1.)

ARTICLE 2 WARDENS, SUPERINTENDENTS, AND OTHER PERSONNEL

Cross references.

- Indemnification of prison guards, and other personnel for death or disablement in line of duty, § 45-9-80 et seq.

42-5-30. Qualifications for wardens, superintendents, and other personnel; appointment of wardens of county correctional institutions.

The board shall by rule and regulation define the qualifications for wardens, superintendents, and other personnel employed in the state and county correctional institutions. The board shall by rule and regulation specify appropriate titles of personnel so employed, but no such personnel shall be known as or designated by the board as "guards" or "prison guards." The wardens and deputy wardens of the various county correctional institutions shall be appointed by the governing authority of the county, subject to approval of the board, and shall serve at the pleasure of the county or the board.

(Ga. L. 1956, p. 161, § 18; Ga. L. 1984, p. 639, § 1; Ga. L. 1993, p. 417, § 1.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Penal Code 1910, § 1192 are included in the annotations for this Code section.

Proceedings for removal of warden.

- Proceeding before the prison commission (now Board of Corrections) for the removal of a warden is not "litigation" within the meaning of Ga. Const. 1877, Art. VII, Sec. VI, Para. II (see Ga. Const. 1983, Art. IX, Sec. IV, Para. I). Hence, the governing authority of a county has no authority to employ an attorney to represent it in a proceeding before the prison commission (now Board of Corrections) for the discharge of a warden. Humber v. Dixon, 147 Ga. 480, 94 S.E. 565 (1917) (decided under former Penal Code 1910, § 1192).

OPINIONS OF THE ATTORNEY GENERAL

Ga. L. 1956, p. 161, § 18 (see now O.C.G.A. § 42-5-30) provides for two types of wardens: those at "state-operated institutions" under Ga. L. 1956, p. 161, § 10 (see now O.C.G.A. § 42-2-9) and those "appointed by the governing authority of the county," under Ga. L. 1956, p. 161, § 18; a person cannot be a warden within the state penal system unless the warden is an employee either of the state or a county authorized to maintain a county correctional institution under the supervision of the Board of Corrections. 1973 Op. Att'y Gen. No. 73-72.

Authority to issue rules establishing qualifications for wardens.

- Board of Offender Rehabilitation (Corrections) has the authority to issue rules establishing the practical experience and educational background necessary for the position of warden of a county correctional institution. 1973 Op. Att'y Gen. No. 73-41.

It is within the ambit of the board to decide what is "experience" and when it is "equivalent" for purposes of satisfying educational requirements and the board may use the board's power to remove wardens and prisoners to ensure that county wardens do in fact possess the requisite qualifications. 1973 Op. Att'y Gen. No. 73-41.

Recourse when county institutions fail to hire qualified wardens.

- If a county correctional institution fails to employ a warden duly qualified according to the requirements set forth by the board, the board may remove all the prisoners from that institution. 1973 Op. Att'y Gen. No. 73-41.

Eighteen-year-olds may legally be hired for correctional officers. 1974 Op. Att'y Gen. No. 74-138.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63A Am. Jur. 2d, Public Officers and Employees, § 162.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 13, 115.

42-5-31. Oath of office of wardens and superintendents, their deputies, and other correctional officers.

Before entering upon the duties of their office, wardens and superintendents, their deputies, and other correctional officers or employees shall take and subscribe, before some officer authorized to administer oaths, the following oath:

"I do solemnly swear (or affirm) that I will support and defend the Constitutions of the United States of America and the State of Georgia and that I will faithfully perform and discharge the duties of my office conscientiously and without malice or partiality, to the best of my ability. So help me God."

(Penal Code 1910, § 1197; Code 1933, § 77-311; Ga. L. 1968, p. 1155, § 1; Ga. L. 1984, p. 639, § 2.)

JUDICIAL DECISIONS

Liability for acts committed by convicts.

- Warden of a public works camp (now county correctional institution) will not be held liable for torts of convicts on mere averment that the warden was negligent "in permitting said convicts to roam the roads of county and state in a truck, without any guard," whereby injuries resulted from a collision of the truck with the plaintiff's car, as it was discretionary with the warden to determine how and in what manner convicts employed outside confines of the camp (now county correctional institution) doing work in connection with the operation should be allowed to go at large, and wardens acting in a discretionary capacity will not be liable unless guilty of willfulness, fraud, malice, or corruption, or unless they knowingly act wrongfully, and not according to their honest convictions of duty. Price v. Owen, 67 Ga. App. 58, 19 S.E.2d 529 (1942) (decided under former Code 1933, §§ 77-307, 77-311, and 77-313).

Cited in Cleveland v. State, 260 Ga. 770, 399 S.E.2d 472 (1991); Bradley v. State, 292 Ga. App. 737, 665 S.E.2d 428 (2008).

RESEARCH REFERENCES

C.J.S.

- 67 C.J.S., Oaths and Affirmations, §§ 4, 6, 7.

ALR.

- Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

42-5-32. Bonds of superintendents, wardens, and other officials and employees.

  1. Before any state or county correctional institution or other facility operating under the jurisdiction of the board shall be approved to receive inmates, the board shall require the warden, superintendent, or other chief custodial officer of the institution to execute a bond, in an amount as the board may require, with good securities to be approved by it, such bond to be not less than $10,000.00, payable to the Governor and his successors in office and conditioned upon the following:
    1. To account faithfully for all public and other funds or property coming into the principal's custody, control, care, or possession; and
    2. To discharge truly and faithfully all the duties imposed upon him by law or by the rules and regulations of the board.
  2. The board may also require that any other officials, employees, or agents of the department or of the various penal institutions referred to in subsection (a) of this Code section shall give bond as referred to in subsection (a) of this Code section, in an amount to be determined by the board, but in no case to be less than $5,000.00.
  3. All bonds given under this Code section shall be liable for any breach of the conditions specified in paragraphs (1) and (2) of subsection (a) of this Code section by a deputy, agent, or subordinate of the principal, whether expressed therein or not; and all such bonds shall be subject to and governed by all the provisions of Chapter 4 of Title 45 which are not in conflict with this Code section. The costs of bonds obtained for wardens and other officials or employees of the county correctional institutions shall be paid for by the county. The costs of bonds obtained for superintendents and other officials or employees of the state correctional institutions and of the department shall be paid for by the state.

(Penal Code 1910, § 1197; Code 1933, § 77-311; Ga. L. 1956, p. 161, § 20; Ga. L. 1957, p. 477, § 5.)

Cross references.

- Official bonds generally, T. 45, C. 4.

JUDICIAL DECISIONS

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga. App. 401, 163 S.E.2d 834 (1968); Price v. Arrendale, 119 Ga. App. 589, 168 S.E.2d 193 (1969).

RESEARCH REFERENCES

Am. Jur. 2d.

- 63A Am. Jur. 2d, Public Officers and Employees, § 487 et seq.

ALR.

- Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563.

Personal liability of policeman, sheriff, or similar peace officer on his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

42-5-33. Submission of monthly reports to commissioner by wardens and superintendents.

The wardens or superintendents of all state or county correctional institutions shall send monthly reports to the commissioner showing the names of all inmates held in custody.

(Ga. L. 1956, p. 161, § 26.)

42-5-34. Powers of arrest of wardens, superintendents, and deputies.

Wardens and superintendents shall have authority to deputize any person in their employ. Wardens, superintendents, and their deputies are legally constituted arresting officers, with or without warrants, for the purpose of arresting persons violating Code Sections 42-5-14 through 42-5-18. Any person resisting arrest shall be dealt with as the law directs for resisting an officer.

(Ga. L. 1961, p. 45, § 1; Ga. L. 1986, p. 1170, § 1.)

JUDICIAL DECISIONS

Cited in State v. Roulain, 159 Ga. App. 233, 283 S.E.2d 89 (1981).

42-5-35. Conferral of police powers; authorization to assist local law enforcement officers or correctional officers; retention of badge.

  1. The commissioner may confer all powers of a police officer of this state, including, but not limited to, the power to make summary arrests for violations of any of the criminal laws of this state and the power to carry weapons, upon wardens of county correctional institutions and upon persons in the commissioner's employment as the commissioner deems necessary, provided that individuals so designated meet the requirements specified in all applicable laws.
  2. The commissioner or his designee may authorize certain persons in his employment to assist law enforcement officers or correctional officers of local governments in preserving order and peace when so requested by such local authorities.
  3. Correctional employees leaving the service of the department under honorable conditions who have accumulated 25 or more years of service with the department as a certified peace officer or who are killed in the line of duty shall be entitled as part of such employee's compensation to retain his or her department issued badge or have such badge given to his or her surviving family member. If a correctional employee serving in a certified position leaves the service of the department due to a disability that arose in the line of duty and the disability prevents the employee from working as a law enforcement officer, then the employee shall be entitled as part of such employee's compensation to retain his or her department issued badge regardless of his or her number of years of service with the department. The board is authorized to promulgate rules and regulations for the implementation of this subsection.

(Ga. L. 1956, p. 161, § 19; Ga. L. 1972, p. 599, § 1; Ga. L. 1975, p. 1246, § 1; Ga. L. 1983, p. 672, § 1; Ga. L. 1984, p. 22, § 42; Ga. L. 1986, p. 1170, § 2; Ga. L. 1987, p. 454, § 1; Ga. L. 1988, p. 464, § 1; Ga. L. 2007, p. 274, § 1/SB 235.)

JUDICIAL DECISIONS

Cited in State v. Roulain, 159 Ga. App. 233, 283 S.E.2d 89 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Officer's actions in preventing escape must be with sole intent of discharging duty to prevent escape and arrest inmate. Any other intent on officer's part will eliminate the officer's defense of justification. 1981 Op. Att'y Gen. No. 81-82.

Extent of force permissible in preventing inmate escapes.

- See 1981 Op. Att'y Gen. No. 81-82.

42-5-36. Confidentiality of information supplied by inmates; penalties for breach; classified nature of department investigation reports; confidentiality of certain identifying information; custodians of records.

  1. Officials and employees of the department shall respect the confidential nature of information supplied by inmates who cooperate in remedying abuses and wrongdoing in the penal system. Any official or employee who breaks such a confidence and thereby subjects a cooperating inmate to physical jeopardy or harassment shall be subject to suspension or discharge.
  2. Investigation reports and intelligence data prepared by the Internal Investigations Unit of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner.
    1. As used in this subsection, the term:
      1. "Serious offense" shall have the same meaning as set forth in Code Section 42-9-42.
      2. "Serious violent felony" shall have the same meaning as set forth in Code Section 17-10-6.1.
    2. All institutional inmate files and central office inmate files of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner; provided, however, that these records shall be subject to subpoena by a court of competent jurisdiction of this state and provided, further, that the commissioner shall prepare a report of the conduct of record of any inmate serving a sentence for a serious violent felony. When the report includes conduct which would constitute a serious offense, reasonably related information connected to such offense shall be included in the report. Such report shall be subject to disclosure under paragraph (2) of subsection (a) of Code Section 42-9-43.
    1. As used in this subsection, the term "identifying information" means any records or information that reveals a name, residential or business address, residential or business telephone number, day and month of birth, social security number, or professional qualifications.
    2. The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.
  3. The commissioner shall designate members of the department to be the official custodians of the records of the department. The custodians may certify copies or compilations, including extracts thereof, of the records of the department. Subject to the provisions of this Code section, in response to a subpoena or upon the request of any appropriate government or judicial official, the department may provide a duly authenticated copy of any record or other document. This authenticated copy may consist of a photocopy or computer printout of the requested document certified by the commissioner or his or her duly authorized representative.

(Ga. L. 1968, p. 1399, § 5; Ga. L. 1983, p. 680, § 1; Ga. L. 1984, p. 22, § 42; Ga. L. 1984, p. 1361, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 1997, p. 851, § 1; Ga. L. 2013, p. 1056, § 1A/HB 122; Ga. L. 2017, p. 585, § 2-4/SB 174.)

The 2013 amendment, effective July 1, 2013, added subsection (d); and redesignated former subsection (d) as present subsection (e).

The 2017 amendment, effective July 1, 2017, substituted the present provisions of subsection (c) for the former provisions, which read: "(c) All institutional inmate files and central office inmate files of the department shall be classified as confidential state secrets and privileged under law, unless declassified in writing by the commissioner; provided, however, these records shall be subject to subpoena by a court of competent jurisdiction of this state."

Cross references.

- Privileged communications generally, § 24-5-501 et seq.

Inspection of public records generally, § 50-18-70 et seq.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 230 (1997). For article, "Death Penalty," see 66 Mercer L. Rev. 51 (2014). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017).

JUDICIAL DECISIONS

Constitutionality.

- Georgia Supreme Court held that it is was not unconstitutional for the State of Georgia to maintain the confidentiality of the names and other identifying information of the persons and entities involved in executions, pursuant to O.C.G.A. § 42-5-36(d), including those who manufacture the drug or drugs to be used. Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (2014).

Prisoner's challenge to Lethal Injection Secrecy Act.

- Condemned prisoner's challenge to the state's method of execution based on Georgia's Lethal Injection Secrecy Act, O.C.G.A. § 42-5-36, was not timely because the Act was not a change to the injection protocol itself. The Act merely altered how the state responded to requests for information about executions, which was different from how the state carried out the protocol. Gissendaner v. Ga. Dep't of Corr., 779 F.3d 1275 (11th Cir. 2015), cert. denied, 135 S. Ct. 1580, 2015 U.S. LEXIS 1849, 191 L. Ed. 2d 661 (U.S. 2015); cert. denied, 135 S. Ct. 1581, 2015 U.S. LEXIS 1857, 191 L. Ed. 2d 661 (U.S. 2015).

Prisoner's emergency motion to stay the prisoner's execution was denied because the motion was made at the last moment and without adequate explanation, the prisoner did not show a substantial likelihood of success on the merits, and the equities counseled against imposing the stay since the prisoner did not identify a cognizable liberty interest infringed by the Georgia Lethal Injection Secrecy Act, O.C.G.A. § 42-5-36, the prisoner did not appeal the dismissal of the prisoner's Eighth Amendment claim, the prisoner failed to state a claim that could be redressed, the prisoner's conclusory allegation about an alternate drug source was implausible, Georgia's current protocol had been used at least seven times in the last year without incident, and the prisoner was provided with Georgia's analysis, drug logs, and testing results. Jones v. Comm'r, Ga. Dep't of Corr., 811 F.3d 1288 (11th Cir. 2016), cert. denied, 136 S. Ct. 998, 194 L. Ed. 2d 16 (2016).

Change in law did not affect statute of limitations on method of execution claim.

- Neither the Georgia Department of Corrections' anticipated use of an adulterated pentobarbital nor the lethal injection secrecy act, O.C.G.A. § 42-5-36, established a significant alteration in Georgia's method of execution sufficient to restart the statute of limitations on a death row inmate's 42 U.S.C. § 1983 claim, which had expired. Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260 (11th Cir. 2014).

Changes made in 2013 were not substantial changes to Georgia's execution protocol and the defendant's method- of-execution claim accrued in October 2001 and must have been filed by October 2003 to be timely; the defendant's federal complaint challenging lethal injection, filed on May 12, 2017, was over ten years too late. Ledford v. Comm'r, Ga. Dep't of Corr., 856 F.3d 1312 (11th Cir. 2017).

Cited in Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Declassification by commissioner.

- Pursuant to O.C.G.A. § 42-5-36 investigation reports and intelligence data prepared by the Internal Investigations Unit of the Department of Offender Rehabilitation (Corrections) are classified as confidential state secrets and privileged under law except as declassified in writing by the commissioner of offender rehabilitation (corrections). 1985 Op. Att'y Gen. No. 85-4.

42-5-37. Employees in control of inmates prohibited from receiving profit from inmate labor; penalties.

  1. No warden, superintendent, deputy, inspector, physician, or any officer or other employee who has charge, control, or direction of inmates shall be interested in any manner whatever in the work or profit of the labor of any inmate; nor shall any such personnel receive any pay, gift, gratuity, or favor of a valuable character from any person interested, either directly or indirectly, in such labor.
  2. Any person violating subsection (a) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for a term of not less than two years and not more than five years. The offense may be reduced to a misdemeanor by recommendation of the jury trying the case, if the court concurs in the jury's recommendation. In addition, a person who violates subsection (a) of this Code section shall be summarily discharged from the service of the state by the department.
  3. This Code section shall not prohibit a part-time professional employee from the regular practice of his profession.

(Ga. L. 1908, p. 1119, § 11; Penal Code 1910, § 1196; Code 1933, § 77-9906; Ga. L. 1984, p. 639, § 3.)

JUDICIAL DECISIONS

Constitutionality of subsection (a).

- While it is commonly understood that a warden will have a permissible interest in the performance of labor by inmates under the waarden's control as that labor benefits the county or state, the clear meaning of O.C.G.A. § 42-5-37 is that a warden may not receive a personal interest or benefit from the labor of inmates under the warden's control. Therefore, subsection (a) is not void for vagueness. Cleveland v. State, 260 Ga. 770, 399 S.E.2d 472 (1991).

Warden's use of inmate labor for personal benefit.

- Although, as warden, the defendant was permitted to live rent-free in a house located on county property, the county did not benefit from routine use of inmates to perform personal housekeeping chores at the warden's home, as well as to walk the warden's dogs and clean the dog pens, baby-sit the warden's children, and wash the warden's personal vehicles. Inmates who refused to perform these chores were punished. The extensive evidence that the warden directed inmates to perform labor for the warden's personal benefit supports the warden's convictions for violating subsection (a) of O.C.G.A. § 42-5-37 beyond a reasonable doubt. Cleveland v. State, 260 Ga. 770, 399 S.E.2d 472 (1991).

Cited in Smith v. Deering, 880 F. Supp. 816 (S.D. Ga. 1994).

42-5-37.1. Compensation of employees of institutions operated by department for damages to wearing apparel caused by inmate action.

  1. As used in this Code section, the term "wearing apparel" means eyeglasses, hearing aids, clothing, and similar items worn on the person of the employee.
  2. When action by an inmate in one of the penal institutions operated by the department results in damage to an item of wearing apparel of an employee of the institution, the department shall compensate the employee for the loss in the amount of the repair cost, the replacement value, or the cost of the item of wearing apparel, whichever is less.
  3. Such losses shall be compensated only in accordance with procedures to be established by the department.

(Ga. L. 1981, p. 1429, § 1.)

42-5-38. Making false statement as to age to procure employment.

Any person who makes a false statement as to his age in order to procure employment as a correctional officer, warden, superintendent, or other employee shall be guilty of a misdemeanor.

(Ga. L. 1908, p. 1119, § 10; Penal Code 1910, § 1193; Code 1933, § 77-9905.)

42-5-39. Refusal by officer to receive inmates in correctional institution.

If the superintendent or warden of a state or county correctional institution or other officer or person employed therein whose duty it is to receive inmates fails or refuses to do so, he shall be punished by confinement not exceeding ten years and shall be dismissed from office.

(Cobb's 1851 Digest, p. 807; Code 1863, § 4381; Code 1868, § 4419; Code 1873, § 4487; Code 1882, § 4487; Penal Code 1895, § 286; Penal Code 1910, § 290; Code 1933, § 77-9903.)

42-5-40. Requiring inmates to do unnecessary work on Sunday.

Any superintendent, warden, or other correctional official who causes any inmate to do any work on Sunday, except works of necessity, shall be guilty of a misdemeanor.

(Ga. L. 1908, p. 1119, § 14; Penal Code 1910, § 420; Code 1933, § 26-6909; Code 1933, § 26-9909, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For comment criticizing judicial intervention in Brown v. Teel, 236 A.2d 699 (N.H. 1967), and advocating deference to legislative determination of Sunday business law, see 19 Mercer L. Rev. 445 (1968). For comment on Hughes v. Reynolds, 223 Ga. 727, 157 S.E.2d 746 (1967), holding the Sunday Business Activities Act of 1967 (Code 1933, Ch. 96-8) unconstitutional, see 19 Mercer L. Rev. 479 (1968).

RESEARCH REFERENCES

ALR.

- Validity, construction, and effect of "Sunday closing" or "blue" laws - modern status, 10 A.L.R.4th 246.

42-5-41. Compensation of department employee injured by inmate or probationer.

Repealed by Ga. L. 1986, p. 1491, § 2, effective July 1, 1986.

Editor's notes.

- This Code section was based on Ga. L. 1985, p. 1113, § 1. For current provisions regarding compensation of department employees injured in the line of duty by an act of external violence, see Code Section 45-7-9.

ARTICLE 3 CONDITIONS OF DETENTION GENERALLY

RESEARCH REFERENCES

ALR.

- Sex discrimination in treatment of jail or prison inmates, 12 A.L.R.4th 1219.

State regulation of conjugal or overnight familial visits in penal or correctional institutions, 29 A.L.R.4th 1216.

42-5-50. Transmittal of information on convicted persons; place of detention; payment for inmates not transferred to the custody of the department; notice in the event of convicted person free on bond pending appeal.

  1. The clerk of the court shall notify the commissioner of a sentence within 30 working days following the receipt of the sentence and send other documents set forth in this Code section. Such notice shall be submitted electronically and shall contain the following documents:
    1. A certified copy of the sentence;
    2. A complete history of the convicted person, including a certified copy of the indictment, accusation, or both and such other information as the commissioner may require;
    3. An affidavit of the custodian of such person indicating the total number of days the convicted person was incarcerated prior to the imposition of the sentence. It shall be the duty of the custodian of such person to transmit the affidavit provided for in this paragraph to the clerk of the superior court within ten days following the date on which the sentence is imposed;
    4. Order of probation revocation or tolling of probation; and
    5. A copy of the sentencing information report is required in all jurisdictions with an options system day reporting center certified by the Department of Community Supervision. The failure to provide the sentencing information report shall not cause an increase in the 15 day time period for the department to assign the inmate to a correctional institution as set forth in subsection (b) of this Code section.

      All of the aforementioned documents shall be submitted on forms provided by the commissioner. The commissioner shall file one copy of each such document with the State Board of Pardons and Paroles within 30 working days of receipt of such documents from the clerk of the court. Except where the clerk is on a salary, the clerk shall receive from funds of the county the fee prescribed in Code Section 15-6-77 for such service.

  2. Within 15 days after the receipt of the information provided for in subsection (a) of this Code section, the commissioner shall assign the convicted person to a correctional institution designated by the commissioner in accordance with subsection (b) of Code Section 42-5-51. It shall be the financial responsibility of the correctional institution to provide for the picking up and transportation, under guard, of the inmate to the inmate's assigned place of detention. If the inmate is assigned to a county correctional institution or other county facility, the county shall assume such duty and responsibility.
  3. The state shall pay for each such inmate not transferred to the custody of the department from a county facility the per diem rate specified by subsection (c) of Code Section 42-5-51 for each day the inmate remains in the custody of the county after the department receives the notice provided by subsection (a) of this Code section.
  4. In the event that the convicted person is free on bond pending the appeal of his or her conviction, the notice provided for in subsection (a) of this Code section shall not be transmitted to the commissioner until all appeals of such conviction have been disposed of or until the bond shall be revoked.

(Ga. L. 1956, p. 161, § 13; Ga. L. 1968, p. 1399, § 1; Ga. L. 1977, p. 1098, § 9; Ga. L. 1982, p. 1364, § 1; Ga. L. 1983, p. 3, § 31; Ga. L. 1985, p. 149, § 42; Ga. L. 1990, p. 565, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 1998, p. 194, § 1; Ga. L. 2004, p. 775, § 2; Ga. L. 2010, p. 214, § 17/HB 567; Ga. L. 2012, p. 899, § 7-5/HB 1176; Ga. L. 2013, p. 141, § 42/HB 79; Ga. L. 2015, p. 422, § 5-71/HB 310.)

The 2012 amendment, effective July 1, 2012, substituted "submitted electronically and shall contain" for "mailed within such time period by first-class mail and shall be accompanied by two complete and certified sentence packages containing" in the second sentence of the introductory paragraph of subsection (a); substituted "department" for "Department of Corrections" at the end of the first sentence in paragraph (a)(5); and substituted "documents shall" for "documents will" in the first sentence of the ending undesignated paragraph following paragraph (a)(5). See Editor's notes for applicability.

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised language at the end of the last sentence of paragraph (a)(5).

The 2015 amendment, effective July 1, 2015, substituted "Department of Community Supervision" for "department" in the first sentence of paragraph (a)(5). See Editor's notes for applicability.

Cross references.

- Imposition of sentence generally, § 17-10-1.

Editor's notes.

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1937, p. 758 are included in the annotations for this Code section.

Section is mandatory.

- O.C.G.A. § 42-5-50 is mandatory in the statute's application; moreover, even if Whidden v. State, 160 Ga. App. 177, 287 S.E.2d 114 (1982), was applicable, the state failed to show that the defendant's removal to the state penitentiary while the defendant's appeal was pending was for the defendant's own safety, since the number of prisoners in the county jail was less than the jail's capacity. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998).

Trial court erred in granting summary judgment in favor of a former clerk and a deputy clerk in an inmate's action alleging that they breached their duty to notify the department of corrections of the inmate's amended sentence as required by O.C.G.A. § 42-5-50(a), because the court of appeals previously ruled in the case that the clerks were not entitled to official immunity in their individual capacities for failing to perform the ministerial act of communicating the inmate's sentence to the DOC, and nothing in the record following remand changed that ruling; Code Section42-5-50(a) is imperative, and its performance is neither discretionary nor dependent upon a direction from the parties at interest. McGee v. Hicks, 303 Ga. App. 130, 693 S.E.2d 130 (2010), aff'd, 289 Ga. 573, 713 S.E.2d 841 (2011).

Ministerial duties of clerk.

- Because the duties of a clerk of court to forward sentencing orders to the DOC as mandated by O.C.G.A. § 42-5-50 were ministerial rather than discretionary, and were unambiguously triggered by the filing of a sentencing order which the clerk neglected to send, the clerk was not entitled to official immunity in a prisoner's case seeking damages for remaining incarcerated 22 months longer than necessary. Hicks v. McGee, 289 Ga. 573, 713 S.E.2d 841 (2011).

Trial court did not err in determining that the court clerk properly discharged the clerk's duties regarding the recording and reporting of the inmate's 2011 criminal case because the printout from a Georgia Department of Corrections (GCIC) website did not evince that the clerk failed to report that the 2011 convictions had been reversed. The director of the records and reporting division with the clerk's office averred that the clerk, within 30 working days of the court's decision, notified GCIC of the court's reversal. Seibert v. Alexander, 351 Ga. App. 446, 829 S.E.2d 473 (2019).

Language in sentence designating place of incarceration surplusage but not void.

- When one guilty of a misdemeanor is sentenced to be "confined at labor at the State Penitentiary at Reidsville, Georgia (Georgia State Prison), or such other place as the proper authority may direct," such portion of the sentence as seeks to designate the place of confinement, when no effort so to confine the prisoner is shown and since the director of the department of corrections (now commissioner of corrections) designates where most sentences are served, is mere surplusage, and, though technically not in the right form, is not such an irregularity as is hurtful to any right of liberty, or such a defect as makes the sentence void. Mathis v. Scott, 199 Ga. 743, 35 S.E.2d 285 (1945) (decided under Ga. L. 1937, p. 758).

Application of continuous tort doctrine to alleged violation.

- O.C.G.A § 9-3-33, under the continuous tort doctrine, did not bar a former inmate's negligence claim against two court clerks, based on their alleged failure to communicate the inmate's sentence to the Department of Corrections as the clerks' violation of their continuing duty to communicate the inmate's sentence to the Department resulted in continuous injury in the form of an ever-increasing illegal confinement that was not eliminated until the inmate was released from prison; hence, the trial court erred in finding that the claim was time-barred. Hicks v. McGee, 283 Ga. App. 678, 642 S.E.2d 379 (2007), cert. denied, 2007 Ga. LEXIS 512 (Ga. 2007).

Reversal of conviction not remedy.

- Defendant could not obtain a reversal of defendant's conviction due to an alleged violation of O.C.G.A. § 42-5-50(c) by defendant's transfer to the state penitentiary after the defendant's conviction as: (1) defendant never obtained a ruling on the defendant's O.C.G.A. § 42-5-50(c) motion, which waived the defendant's allegation of error for appeal purposes; (2) O.C.G.A. § 42-5-50(c) did not provide for reversal of a conviction if a trial court refused to keep a convicted defendant in the county jail; and (3) the defendant failed to show that the results of the defendant's appeal would have been different had the defendant been held in the county jail. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

Effect of failing to keep defendant in jail.

- O.C.G.A. § 42-5-50(c) does not provide for reversal of a conviction if a trial court refuses to keep a convicted defendant in the county jail. Wilbanks v. State, 251 Ga. App. 248, 554 S.E.2d 248 (2001).

Section did not provide sufficient grounds to prevent extradition.

- Trial court properly denied a prisoner's petition for a writ of habeas corpus pursuant to O.C.G.A. § 17-13-30 seeking to block extradition; O.C.G.A. § 42-5-50 did not prevent the defendant from being extradited while defendant's motion for a new trial was pending. Instead O.C.G.A. § 42-5-50 addresses the situation in which defense counsel certifies to the court that it is required that the convicted person remain in the local jail or lockup rather than being transferred to the assigned correctional institution in order to properly prosecute an appeal of the conviction. Bradford v. Brown, 277 Ga. 92, 586 S.E.2d 631 (2003).

Custody of defendant pending appeal in extraordinary circumstances.

- Following the conviction of the defendant, a former sheriff, for murdering a successful electoral opponent, the trial court did not violate O.C.G.A. § 42-5-50(c) by denying the defense counsel's requests that the defendant remain housed in a county facility so as to give counsel access to the defendant for purposes of prosecuting an appeal because the defendant was a high security risk, and the defendant's status as a former law enforcement officer required rotating the defendant's placement in metropolitan jails. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).

Absent evidence of defendant's inducement guilty plea not void.

- Defendant's dissatisfaction as to the defendant's incarceration in an institution other than one recommended by the court does not render the defendant's guilty plea void when there is no evidence that it constituted a part of the inducement to enter the plea. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).

Finality of board's decisions.

- Board controls prison system and the board's administrative decisions are final absent violation of rights enforceable in the courts; thus, enumeration of error is waived when the defendant admits that the trial court and the district attorney kept their part of the agreement. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).

Cited in Ricketts v. Brantley, 239 Ga. 151, 236 S.E.2d 51 (1977); Wise v. Balkcom, 245 Ga. 126, 263 S.E.2d 158 (1980); Whiddon v. State, 160 Ga. App. 777, 287 S.E.2d 114 (1982); Welch v. State, 172 Ga. App. 654, 324 S.E.2d 488 (1984); Eubanks v. State, 229 Ga. App. 667, 494 S.E.2d 564 (1998); Giles v. State, 257 Ga. App. 65, 570 S.E.2d 375 (2002); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Walker v. State, 289 Ga. App. 879, 658 S.E.2d 375 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Felons must serve sentence under department's custody.

- Since all convicted felons sentenced to a term of incarceration now serve their sentences under the jurisdiction of the department, judges of the superior courts lack the authority to sentence an inmate to the custody of any other person or entity. 1993 Op. Att'y Gen. No. 93-17.

Pending appeal, department cannot take custody of prisoner.

- Department cannot, without a valid request from the prisoner or the prisoner's attorney, take custody of a prisoner whose motion for new trial has been denied and whose attorney has stated that the attorney will file an appeal within the required 30 days, so long as this time has not expired. 1973 Op. Att'y Gen. No. 73-153.

Finality of convictions.

- During the 30-day period in which an appeal may be filed, a conviction is not final within the meaning of subsection (a) of this section; accordingly, unless there has been a valid request for transfer, the department cannot assume lawful custody of the prisoner. 1973 Op. Att'y Gen. No. 73-153.

Restrictions as to incarceration in board-operated institution.

- Individual awaiting disposition of a pending criminal charge and who is not serving a sentence in the state correctional system may not be incarcerated in an institution operated by the Board of Corrections. 1970 Op. Att'y Gen. No. 70-111.

Summons in lieu of indictment or accusation.

- When an inmate has been brought to trial and convicted upon a summons, rather than an indictment or an accusation, the clerk of the court in which the conviction was returned must furnish to the Department of Offender Rehabilitation (Corrections) a certified copy of that summons; in such cases, the certified copy of the summons stands in lieu of an indictment or accusation. 1969 Op. Att'y Gen. No. 69-517.

Lost indictment.

- Clerk's certification that indictment is lost is not sufficient replacement for a certified copy of the actual indictment. 1970 Op. Att'y Gen. No. 70-61.

Because the General Assembly contemplated receipt of the document specifying the charge of which the inmate had been found guilty, a clerk's certification that the indictment is lost is not sufficient replacement for a certified copy of the actual indictment. 1969 Op. Att'y Gen. No. 69-517.

Whether punishment computed on basis of felony or misdemeanor.

- Whether punishment is computed on the basis of a felony or a misdemeanor sentence is controlled by the conviction; a prisoner is either a misdemeanant or a felon, dependent on the crime for which the prisoner was convicted. 1970 Op. Att'y Gen. No. 70-49.

When sentence contains reduction of an offense from felony to misdemeanor, sentence should be computed as a misdemeanor because those authorized to fix the sentence have elected to so treat it. 1970 Op. Att'y Gen. No. 70-49.

Sentence does not have a shifting quality, allowing the sentence to vacillate between misdemeanor and felony status at different times or for different purposes. 1970 Op. Att'y Gen. No. 70-49.

Presumption of validity of sentence.

- When the director of corrections (now commissioner of corrections) receives the certificate of the clerk of the sentencing court, the presumption is that the sentence imposed is a valid sentence. 1977 Op. Att'y Gen. No. 77-71.

Board prescribes conditions of work required of prisoners.

- In view of the broad language found in subsection (e) of Ga. L. 1957, p. 477, § 4 (see now O.C.G.A. § 42-5-60) that prison labor could be required in public buildings in any such manner as deemed advisable by the Board of Offender Rehabilitation (Corrections), it is obvious that the legislature intended the board to prescribe the conditions of work required of the prisoners; and even though some of the prisoners are physically restrained for overnight periods in county jails, their primary assignment is nonetheless to the prison or public work camp (now county correctional institution) as determined by the commissioner; in turn the prison or camp has sole administrative responsibility and control of the prisoner even though the prisoner may be temporarily attached to the county jail to perform the required repair or maintenance services; such a temporary attachment is not an assignment which contravenes the language of Ga. L. 1956, p. 161, § 13 (see now O.C.G.A. § 42-5-50). 1963-65 Op. Att'y Gen. p. 72.

Data on inmates' jail time prior to trial.

- Director of corrections (now commissioner of corrections) is authorized to devise and distribute such forms as may be necessary to implement Ga. L. 1970, p. 692, §§ 1-4 (see now O.C.G.A. §§ 17-10-11 and17-10-12) (relating to time spent in confinement awaiting trial); the director may require that data concerning the number of days an inmate spent in jail prior to trial be transmitted to the Board of Corrections upon forms approved and distributed by the board. 1970 Op. Att'y Gen. No. 70-127.

Vehicles to transport prisoners.

- There are no specific requirements as to types of vehicles which may be used to transport prisoners. 1962 Op. Att'y Gen. p. 382.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 134.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 17-25, 128, 129.

ALR.

- Validity of statute empowering administrative officials to transfer to penitentiary inmate of reformatory, 95 A.L.R. 1455.

42-5-51. Jurisdiction over certain misdemeanor offenders; designation of place of confinement of inmates; reimbursement of county; transfer of inmates to federal authority.

  1. The department shall have no authority, jurisdiction, or responsibility with respect to misdemeanor offenders sentenced under paragraph (1) of subsection (a) of Code Section 17-10-3 to confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates. The county wherein the sentence is imposed shall have the sole responsibility of executing the sentence and of providing for the care, maintenance, and upkeep of the inmate while serving such sentence; provided, however, that, where the sentencing judge certifies to the department that the county facilities of that county are inadequate for maintaining female inmates, any female inmate may be committed to the department to serve her sentence in a state correctional institution, as may be directed by the department; provided, further, that the delivery of the female inmates to the proper place of incarceration shall be at the expense of the county of conviction.
  2. Where any person is convicted of any offense, misdemeanor, or felony and sentenced to serve time in any penal institution in this state other than as provided in subsection (a) of this Code section, he shall be committed to the custody of the commissioner who, with the approval of the board, shall designate the place of confinement where the sentence shall be served.
  3. After proper documentation is received from the clerk of the court, the department shall have 15 days to transfer an inmate under sentence to the place of confinement. If the inmate is not transferred within the 15 days, the department shall reimburse the county, in a sum not less than $7.50 per day per inmate and in such an amount as may be appropriated for this purpose by the General Assembly, for the cost of the incarceration, commencing 15 days after proper documentation is received by the department from the clerk of the court; provided, however, that, subject to an appropriation of funds, local governing authorities that have entered into memorandums of understanding or agreement or that demonstrate continuous attempts to enter into memorandums of understanding or agreement with the federal government under Section 287(g) of the federal Immigration and Nationality Act shall receive an additional payment in the amount of 10 percent of the established rate paid for reimbursement for the confinement of state inmates in local confinement facilities. The reimbursement provisions of this Code section shall only apply to payment for the incarceration of felony inmates available for transfer to the department, except inmates under death sentence awaiting transfer after their initial trial, and shall not apply to inmates who were incarcerated under the custody of the commissioner at the time they were returned to the county jail for trial on additional charges or returned to the county jail for any other purposes, including for the purpose of a new trial.
  4. Notwithstanding any language in the sentence as passed by the court, the commissioner may designate as a place of confinement any available, suitable, and appropriate state or county correctional institution in this state operated under the jurisdiction or supervision of the department. The commissioner shall also have sole authority to transfer inmates from one state or county correctional institution in this state to any other such institution operated by or under the jurisdiction or supervision of or approved by the board. Neither male nor female state inmates shall be assigned to serve in any manner in a county jail unless they are participating in a state sponsored project and have the approval of the commissioner and the sheriff or the jail administrator of the county. Furthermore, the commissioner may transfer to the Attorney General of the United States for confinement any inmate if it is determined that the custody, care, treatment, training, or rehabilitation of the inmate has not been adequate or in the best interest of the inmate or his fellow inmates. The commissioner is authorized to contract with the Attorney General of the United States for the custody, care, subsistence, housing, treatment, training, and rehabilitation of such inmates.

(Ga. L. 1956, p. 161, § 13; Ga. L. 1964, p. 489, § 2; Ga. L. 1968, p. 1399, § 1; Ga. L. 1972, p. 582, § 1; Ga. L. 1973, p. 1297, § 1; Ga. L. 1979, p. 376, § 1; Ga. L. 1981, p. 1434, § 1; Ga. L. 1982, p. 1364, § 2; Ga. L. 1984, p. 604, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 2011, p. 794, § 14/HB 87.)

Editor's notes.

- Ga. L. 2011, p. 794, § 1/HB 87, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Illegal Immigration Reform and Enforcement Act of 2011.'"

Ga. L. 2011, p. 794, § 21/HB 87, not codified by the General Assembly, provides that: "(a) If any provision or part of any provision of this Act or the application of the same is held invalid or unconstitutional, the invalidity shall not affect the other provisions or applications of this Act or any other part of this Act than can be given effect without the invalid provision or application, and to this end, the provisions of this Act are severable.

"(b) The terms of this Act regarding immigration shall be construed to have the meanings consistent with such terms under federal immigration law.

"(c) The provisions of this Act shall be implemented in a manner consistent with federal laws governing immigration and civil rights."

Ga. L. 2011, p. 794, § 22/HB 87, not codified by the General Assembly, provides, in part, that the amendment of this Code section by that Act shall apply to offenses and violations occurring on or after July 1, 2011.

Law reviews.

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 35 (2011).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 77-313 and Ga. L. 1937, p. 758 are included in the annotations for this Code section.

Function of the prison commission (now Board of Corrections) is to enforce sentences that are lawfully imposed, and the question as to whether a court is acting within the court's jurisdiction in modifying a sentence is in nowise affected by this section. Gobles v. Hayes, 194 Ga. 297, 21 S.E.2d 624 (1942) (decided under former Code 1933, § 77-313).

Board of Corrections controls prison system and the Board's administrative decisions are final absent violation of rights enforceable in the courts; this enumeration of error is waived if the defendant admits that the trial court and the district attorney have kept their part of the agreement. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).

Standing.

- Because a county could sue the state agencies by challenging the constitutionality of O.C.G.A. §§ 42-9-49 and42-5-51(c) (regarding reimbursement of the detention costs of certain state inmates), and because the county did not dispute that the agencies complied with the sections, the trial court should have granted the agencies' motion for summary judgment. Ga. Dep't of Corr. v. Chatham County, 274 Ga. App. 865, 619 S.E.2d 373 (2005).

County was without authority.

- Since the defendant was sentenced as a felon upon the defendant's plea of guilty to the felony of making terroristic threats and misdemeanor battery, the court did not have authority to sentence the defendant to a county jail and the county had no authority to calculate the defendant's jail time. Eubanks v. State, 229 Ga. App. 667, 494 S.E.2d 564 (1998).

Absent evidence of defendant's inducement guilty plea not void.

- Defendant's dissatisfaction as to the defendant's incarceration in an institution other than the one recommended by the court does not render the defendant's guilty plea void, when there is no evidence that it constituted a part of the inducement to enter the plea. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).

Language in sentence designating place of incarceration surplusage.

- When one guilty of a misdemeanor is sentenced to be "confined at labor at the State Penitentiary (Georgia State Prison) at Reidsville, Georgia, or such other place as the proper authority may direct," such portion of the sentence as seeks to designate the place of confinement, when no effort so to confine the prisoner is shown and since the director of the department of corrections (now commissioner of corrections) designates where most sentences are served, is mere surplusage, and, though technically not in the right form, is not such an irregularity as is hurtful to any right of liberty, or such a defect as makes the sentence void. Mathis v. Scott, 199 Ga. 743, 35 S.E.2d 285 (1945) (decided under Ga. L. 1937, p. 758).

Trial court cannot require the Department of Corrections to place a convicted felon in a particular facility; however, language in a sentence purporting to designate a place of confinement is mere surplusage and is not a defect that will render the sentence void. Stewart v. State, 285 Ga. App. 760, 647 S.E.2d 411 (2007).

Superior court empowered to transfer habeas corpus petitioner.

- Superior court in this state has the power to order a habeas corpus petitioner under sentence of state court transferred from one penal institution to another, when this is necessary to grant the petitioner's constitutional right to meaningful access to the courts. To the extent that there exists a conflict between the statutory authority vested in the department to transfer prisoners from one correctional institute to another, and the authority vested in the superior court to enforce the Constitution, the former must yield to the latter. James v. Hight, 251 Ga. 563, 307 S.E.2d 660 (1983).

Trial court lacked jurisdiction over defendant once imprisonment imposed.

- Once a felony conviction was entered, and a defendant was sentenced to incarceration, the trial court lacked the authority to designate where that defendant must serve the incarceration, since this decision lies solely with the Department of Corrections under O.C.G.A. § 42-5-51(b). Florescu v. State, 276 Ga. App. 264, 623 S.E.2d 147 (2005).

Cited in Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); In re Prisoners Awaiting Transf., 236 Ga. 516, 224 S.E.2d 905 (1976); McKenzey v. State, 140 Ga. App. 402, 231 S.E.2d 149 (1976); Wise v. Balkcom, 245 Ga. 126, 263 S.E.2d 158 (1980); Whiddon v. State, 160 Ga. App. 777, 287 S.E.2d 114 (1982); Hawk v. Georgia Dep't of Cors., 44 F.3d 965 (11th Cir. 1995); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

General Consideration

Assignments to county correctional institutions.

- Only the director of corrections (now commissioner of corrections), with the approval of the Board of Corrections, may make assignments of state prisoners to county correctional institutions. 1975 Op. Att'y Gen. No. U75-93.

Board prescribes conditions of work required of prisoners.

- In view of the broad language found in subsection (e) of Ga. L. 1957, p. 477, § 4 (see now O.C.G.A. § 42-5-60) that prison labor could be required in public buildings in any such manner as deemed advisable by the Board of Corrections, it is obvious that the legislature intended the board to prescribe the conditions of work required of the prisoners; and even though some of the prisoners are physically restrained for overnight periods in county jails, their primary assignment is nonetheless to the prison or public work camp (now county correctional institution) as determined by the commissioner; in turn the prison or camp has sole administrative responsibility and control of the prisoner even though the prisoner may be temporarily attached to the county jail to perform the required repair or maintenance services; such a temporary attachment is not an assignment which contravenes the language of Ga. L. 1956, p. 161, § 13 (see now O.C.G.A. § 42-5-51). 1963-65 Op. Att'y Gen. p. 72.

Employment of inmates not prohibited.

- There is no provision in the law to prohibit employment for most inmates as long as the requirements of this section are met. 1980 Op. Att'y Gen. No. 80-44.

Part-time employment of "maintenance" inmates.

- If a program is implemented allowing "maintenance" inmates to have part-time jobs, it must fit all of the requirements of this section. 1980 Op. Att'y Gen. No. 80-44.

Though a program for part-time employment by "maintenance" inmates by center personnel could be developed under this section for "maintenance" inmates, such a program would be unwise. 1980 Op. Att'y Gen. No. 80-44.

Presumption of validity of sentence.

- When the director of corrections (now commissioner of corrections) receives the certificate of the clerk of the sentencing court, the presumption is that the sentence imposed is a valid sentence. 1977 Op. Att'y Gen. No. 77-71.

Incarceration of federal prisoners in penal system.

- Board of Corrections may not enter into a contract with the bureau of prisons for the incarceration of a federal prisoner in the penal system of this state. 1968 Op. Att'y Gen. No. 68-86.

Contracting with private consulting firm for operation of prerelease center.

- Board cannot contract with a private consulting firm for operation of a prerelease center; even if such power existed, the director of corrections (now commissioner of corrections) does not have the authority to assign inmates committed to the custody of the board to such a private institution. 1973 Op. Att'y Gen. No. 73-72.

Requests from county probation department for retention of custody of inmate pending arrival of deputy sheriff or probation officer must be disregarded by the wardens. 1969 Op. Att'y Gen. No. 69-151.

Commitment of prisoners to county correctional institution by recorder's court.

- Recorder's court would have the authority to commit an individual to a county public works camp (now county correctional institution) which operates under the jurisdiction of the Board of Corrections, provided that the city prisoners committed are not required to work on the county public works camp (now county correctional institution); that they are otherwise separated from county prisoners convicted of state felonies and misdemeanors; and that the receiving county is compensated for the board and upkeep of such city prisoners. 1968 Op. Att'y Gen. No. 68-175.

Vehicles to transport prisoners.

- There are no specific requirements as to types of vehicles which may be used to transport prisoners. 1962 Op. Att'y Gen. p. 382.

Reimbursement provisions of O.C.G.A. § 42-5-51(c) do not apply to probationers awaiting transfer to probation detention centers or probation diversion centers. 2002 Op. Att'y Gen. No. 2002-1.

Custody of Prisoners

Felons must serve sentence under department's custody.

- Since all convicted felons sentenced to a term of incarceration now serve their sentences under the jurisdiction of the department, judges of the superior courts lack the authority to sentence an inmate to the custody of any other person or entity. 1993 Op. Att'y Gen. No. 93-17.

Obligation of department to accept prisoner into state penal system arises only upon: (1) "sentencing" of prisoner to actually serve time in state institution; and (2) receipt by department of proper documentation of sentence by clerk of court. 1982 Op. Att'y Gen. No. 82-33.

Upon revocation of parole and the sentencing to serve time in a penal institution, the state has an obligation to accept such persons into the state penal system. 1982 Op. Att'y Gen. No. 82-33.

Pending appeal department cannot take custody of prisoner.

- Department of Corrections cannot, without a valid request from the prisoner or the prisoner's attorney, take custody of a prisoner whose motion for new trial has been denied and whose attorney has stated that the attorney will file an appeal within the required 30 days, so long as this time has not expired. 1973 Op. Att'y Gen. No. 73-153 (rendered prior to 1982 amendment).

Finality of conviction.

- During the 30-day period in which an appeal may be filed, a conviction is not final within the meaning of subsection (a) of Ga. L. 1968, p. 1399, § 1 (see now O.C.G.A. § 42-5-50); accordingly, unless there has been a valid request for transfer, the Department of Corrections cannot assume lawful custody of the prisoner. 1973 Op. Att'y Gen. No. 73-153 (rendered prior to 1982 amendment).

Restrictions as to incarceration in board-operated institution.

- Individual awaiting disposition of a pending criminal charge and who is not serving a sentence in the state correctional system may not be incarcerated in an institution operated by the Board of Corrections. 1970 Op. Att'y Gen. No. 70-111.

Custody of prisoners sentenced to death.

- Supervening events described by former Code 1933, § 27-2514 (see now O.C.G.A. § 17-10-33) did not include filing motion for new trial so that such nonfinality of conviction which, by the terms of subsection (a) of Ga. L. 1968, p. 1399, § 1 (see now O.C.G.A. § 42-5-50), precluded acceptance of custody of prisoners "sentenced to serve time" (subsection (b) of this section), did not in the case of prisoners sentenced to be executed, preclude acceptance of custody; the procedure of retention of convicted prisoners in the county jails until the prisoners' convictions have become final, as provided in subsection (a) of Ga. L. 1968, p. 1399, § 1, did not apply to persons sentenced to death because (1) the individuals not "sentenced to serve time" (subsection (b) of this section) and therefore did not have "such a sentence," in the words of subsection (a) of Ga. L. 1968, p. 1399, § 1, and, (2) former Code 1933, § 27-2514 specifically required the sheriff to convey the individuals to the penitentiary unless (a) the Governor directed otherwise, or (b) a stay had been caused by appeal, or (c) a new trial had been granted, or (d) a court ordered otherwise. 1971 Op. Att'y Gen. No. 71-188.

Youthful Offenders

Board designated sole agency for reception and assignment.

- As a general rule, the legislature has designated the Board of Offender Rehabilitation (Corrections) sole agency for reception and assignment of convicted misdemeanants and felons. Notable exceptions to this general provision concern individuals convicted of misdemeanors who, under certain conditions, must be placed in a county institution and, under other conditions, may be placed in such facilities in the discretion of the trial court; and one notable exception provides that the Division for Children and Youth is designated the exclusive state agency for the acceptance and incarceration of all misdemeanants and felons under the age of 17 years; provided, however, that those felons convicted of a capital felony shall only be sentenced into the custody of the Department of Offender Rehabilitation (Corrections). 1972 Op. Att'y Gen. No. 72-3.

Restriction and discretion on releasing and assigning youthful offenders.

- When a combination of youthful offender and standard sentences occur, the Youthful Offender Division may not approve a conditional or unconditional release for the described youthful offender until the youth's concurrent standard sentence has expired; nevertheless, the youth could be assigned to an institution maintained primarily for youthful offenders during the entire period for which the board is charged with custody over the youth, since Ga. L. 1956, p. 161 (see now O.C.G.A. § 42-5-50(b) and subsections (b) and (d) of O.C.G.A. § 42-5-51) empowers the board to assign inmates to any institution within its system, and the statutory law authorizes the director of corrections (now commissioner of corrections) to segregate youthful offenders from other prisoners. 1973 Op. Att'y Gen. No. 73-82.

Defined class of offenders set out.

- Ga. L. 1970, p. 451, § 3 (see now O.C.G.A. § 49-5-7) set apart a defined class of offenders and directed how those offenders were to be punished for the offense; in doing this, the power of any superior court to try an individual under the age of 17 for any given crime was in no way affected; in this respect, Ga. L. 1970, p. 451, § 3 was like Ga. L. 1968, p. 1399, § 1 (see now O.C.G.A. § 42-5-51) which provides that the commissioner of corrections and not the sentencing court designates the place of confinement of any individual within the court's jurisdiction. 1972 Op. Att'y Gen. No. 72-3.

Misdemeanants or Felons

Whether punishment computed on basis of felony or misdemeanor.

- Whether punishment is computed on the basis of a felony or a misdemeanor sentence is controlled by the conviction; a prisoner is either a misdemeanant or a felon, dependent on the crime for which the prisoner was convicted. 1970 Op. Att'y Gen. No. 70-49.

When sentence contains reduction of an offense from felony to misdemeanor, sentence should be computed as a misdemeanor because those authorized to fix the sentence have elected to so treat it. 1970 Op. Att'y Gen. No. 70-49.

Language in sentence designating place of incarceration.

- All felons and misdemeanants, other than those misdemeanants committed directly to a county public works camp (now county correctional institution), must be committed directly and exclusively to the Board of Corrections; only the director of corrections (now commissioner of corrections) is authorized to prescribe the place of confinement; so much of the language of a sentence committing an inmate to a term of penal servitude in the state prison system as purports to commit the inmate to Central State Hospital is surplusage and should not be relied upon by the officials of the hospital or the Board of Corrections as authority for the retention of custody of the inmate at the hospital. 1970 Op. Att'y Gen. No. 70-133.

Receipt of prisoners from mayor's court.

- Board has authority to receive misdemeanor prisoners from a mayor's court of a municipality when there is no city or county court in that county. 1954-56 Op. Att'y Gen. p. 529.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 7, 10, 12, 130, 134.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 17-25, 128, 129, 134.

ALR.

- Validity of statute empowering administrative officials to transfer to penitentiary inmate of reformatory, 95 A.L.R. 1455.

Validity, construction, and application of statutory provision for reimbursement of state (or subdivision thereof) for expense of keeping prisoner, 139 A.L.R. 1028.

What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.

Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.

Right of incarcerated mother to retain custody of infant in penal institution, 14 A.L.R.4th 748.

Validity, construction, and application of state statute requiring inmate to reimburse government for expense of incarceration, 13 A.L.R.5th 872.

42-5-52. Classification and separation of inmates generally; placement of juvenile offenders and of females; transfer of mentally diseased, alcoholic, drug addicted, or tubercular inmates.

  1. The department shall provide for the classification and separation of inmates with respect to age, first offenders, habitual criminals and incorrigibles, diseased inmates, mentally diseased inmates, and those having contagious, infectious, and incurable diseases. Incorrigible inmates in county correctional institutions shall be returned to the department at the request of the proper county authority.
  2. The department may establish separate correctional or similar institutions for the separation and care of juvenile offenders. The commissioner may transfer any juvenile under 17 years of age from the penal institution in which he or she is serving to the Department of Juvenile Justice, provided that the transfer is approved thereby. The juvenile may be returned to the custody of the commissioner when the commissioner of juvenile justice determines that the juvenile is unsuited to be dealt with therein. The commissioner may accept a juvenile for transfer into a penal institution upon the request of the commissioner of juvenile justice if such juvenile is 16 years of age or older and has been committed to the Department of Juvenile Justice for a class A designated felony act or class B designated felony act, as defined by Code Section 15-11-2, and such juvenile's behavior presents a substantial danger to any person at or within a Department of Juvenile Justice facility. In the event of such transfer, the department shall have the same authority over and responsibility for such juvenile as the Department of Juvenile Justice has for such juvenile and shall maintain sight and sound separation as set forth in paragraph (5) of subsection (c) of Code Section 15-11-504.
  3. Female inmates shall be removed from proximity to the place of detention for males and shall not be confined in a county correctional institution or other county facility except with the express written approval of the department.
  4. The department is authorized to transfer a mentally diseased inmate from a state or county correctional institution or other facility operating under its authority to a criminal ward or facility of the Department of Behavioral Health and Developmental Disabilities. The inmate shall remain in the custody of the Department of Behavioral Health and Developmental Disabilities until proper officials of the facility at which the inmate is detained declare that his or her sanity has been restored, at which time the inmate shall be returned to the custody of the department. At any time after completion of his or her sentence, an inmate detained by the Department of Behavioral Health and Developmental Disabilities on the grounds that he or she is mentally diseased may petition for release in accordance with the procedure provided in Chapter 3 of Title 37. Prior to completion of his or her sentence, this procedure shall not be available to the inmate.
  5. Upon being presented with a proper certification from the county physician of a county where a person has been sentenced to confinement that the person sentenced is addicted to drugs or alcohol to the extent that the person's health will be impaired or life endangered if immediate treatment is not rendered, the department shall transfer the inmate to the custody of the Department of Behavioral Health and Developmental Disabilities. The inmate shall remain in such custody until officials of the Department of Behavioral Health and Developmental Disabilities determine the inmate is able to serve his or her sentence elsewhere.
  6. The department may transfer any inmate afflicted with active tuberculosis from any state or county correctional institution, or any other facility operating under the authority of the department, to a tubercular ward or facility specially provided and maintained for criminals by the department at a tuberculosis facility or facilities operating under the Department of Public Health.

(Ga. L. 1897, p. 71, § 8; Penal Code 1910, § 1203; Ga. L. 1931, Ex. Sess., p. 118, §§ 8, 9; Code 1933, §§ 77-317, 77-318, 77-319; Ga. L. 1956, p. 161, § 14; Ga. L. 1957, p. 477, § 2; Ga. L. 1960, p. 234, § 1; Ga. L. 1962, p. 699, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 1992, p. 1983, § 21; Ga. L. 1997, p. 1453, §§ 1, 2; Ga. L. 2009, p. 453, § 3-23/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2013, p. 294, § 2-1/HB 242.)

The 2013 amendment, effective January 1, 2014, in subsection (b), inserted "or she" in the second sentence, and added the fourth and fifth sentences. See editor's note for applicability.

Cross references.

- Commitment of juvenile to adult correctional facility prohibited, § 15-11-34.

Editor's notes.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974).

JUDICIAL DECISIONS

Confinement of drug addict not cruel and unusual punishment.

- Although the defendant's physician certified that the defendant was a drug addict and withdrawal from drugs was inadvisable, a sentence of 12 months and a fine of $500.00 was not cruel and unusual punishment in light of subsection (e) of this section. Trammell v. State, 125 Ga. App. 39, 186 S.E.2d 438 (1971).

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga. 1968); Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); Southerland v. Ga. Dep't of Corr., 293 Ga. App. 56, 666 S.E.2d 383 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under former Code 1933, § 77-401 are included in the annotations for this Code section.

Transfer of inmate to mental hospital.

- Board of Corrections can transfer an inmate to Central State Hospital for treatment as a mentally diseased inmate; if an inmate is declared sane prior to completion of the inmate's existing sentence, the inmate can be returned to stand trial for outstanding charges. 1970 Op. Att'y Gen. No. 70-72.

Subsections (a) and (c) of former Code 1933, §§ 77-317, 77-318, and 77-319 (see now O.C.G.A. §§ 42-2-8,42-2-9, and42-5-52), indicate that the director of the Board of Corrections (now commissioner of corrections) is authorized to determine whether or not an inmate is mentally diseased and should be transferred to a state mental hospital. 1968 Op. Att'y Gen. No. 68-136.

Retention of administrative control over transferred prisoners.

- By implication from the language of this section, the Board of Corrections retains a certain amount of administrative control over a prisoner transferred to the criminal facilities at Central State Hospital. 1975 Op. Att'y Gen. No. 75-146.

Transfer to state hospital of alcoholic or drug addict prisoners.

- In order that an alcoholic or drug addict who is a prisoner be transferred to a state hospital, the county physician must certify that the health of the prisoner will be impaired or the prisoner's life endangered unless treatment is received. 1962 Op. Att'y Gen. p. 381.

Removal of alcoholic prisoner to other institution.

- When a prisoner certified to be an alcoholic is sent to a state hospital, that prisoner may be removed to another prison when hospital authorities determine the prisoner is able to serve the sentence elsewhere. 1962 Op. Att'y Gen. p. 378.

Good time allowances for mentally ill prisoners.

- Board of Corrections has the power to promulgate rules and regulations as to good time allowances which are applicable to prisoners transferred to Central State Hospital due to mental illness. 1975 Op. Att'y Gen. No. 75-146.

Administration of shock treatment to prisoners.

- Convicted felons should and will only be given shock treatment at the Milledgeville State Hospital (now Central State Hospital) and then only when prescribed by a staff physician of that hospital. 1965-66 Op. Att'y Gen. No. 66-214.

Responsibility for returning an insane fugitive convict to the state is on the Department of Corrections. 1945-47 Op. Att'y Gen. p. 427 (decided under former Code 1933, § 77-401).

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 83, 84, 133.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 23-25, 85, 86, 128, 129, 136, 140.

ALR.

- Constitutionality of statutes in relation to treatment or discipline of convicts, 50 A.L.R. 104.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568.

Right of incarcerated mother to retain custody of infant in penal institution, 14 A.L.R.4th 748.

42-5-52.1. Submission to HIV test; separate housing for HIV infected persons.

  1. Any term used in this Code section and defined in Code Section 31-22-9.1 shall have the meaning provided for that term in Code Section 31-22-9.1.
  2. Where any person is committed to the custody of the commissioner to serve time in any penal institution of this state on and after July 1, 1988, the department shall require that person to submit to an HIV test within 30 days after the person is so committed unless that person is in such custody because of having committed an AIDS transmitting crime and has already submitted to an HIV test pursuant to Code Section 17-10-15.
  3. No later than December 31, 1991, the department shall require to submit to an HIV test each person who has been committed to the custody of the commissioner to serve time in a penal institution of this state and who remains in such custody, or who would be in such custody but for having been transferred to the custody of the Department of Human Resources (now known as the Department of Behavioral Health and Developmental Disabilities) under Code Section 42-5-52, if that person has not submitted to an HIV test following that person's most recent commitment to the custody of the commissioner and unless that person is in such custody because of having committed an AIDS transmitting crime and has already submitted to an HIV test pursuant to Code Section 17-10-15.
  4. Upon failure of an inmate to cooperate in HIV test procedures under this Code section, the commissioner may apply to the superior court for an order authorizing the use of such measures as are reasonably necessary to require submission to the HIV test. Nothing in this Code section shall be construed to limit the authority of the department to require inmates to submit to an HIV test.
  5. Any person determined by the department to be an HIV infected person, whether or not by the test required by this Code section, should be housed separately at existing institutions from any other persons not infected with HIV if:
    1. That person is reasonably believed to be sexually active while incarcerated;
    2. That person is reasonably believed to be sexually predatory either during or prior to incarceration; or
    3. The commissioner determines that other conditions or circumstances exist indicating that separate confinement would be in the best interest of the department and the inmate population,

      but neither the department nor any officials, employees, or agents thereof shall be civilly or criminally liable for failing or refusing to house HIV infected persons separately from any other persons who are not HIV infected persons.

(Code 1981, §42-5-52.1, enacted by Ga. L. 1988, p. 1799, § 9; Ga. L. 2009, p. 453, § 3-24/HB 228.)

Editor's notes.

- Ga. L. 1988, p. 1799, § 1, not codified by the General Assembly, provides: "The General Assembly finds that Acquired Immunodeficiency Syndrome (AIDS) and its causative agent, including Human Immunodeficiency Virus (HIV), pose a grave threat to the health, safety, and welfare of the people of this state. In the absence of any effective vaccination or treatment for this disease, it threatens almost certain death to all who contract it. The disease is largely transmitted through sexual contacts and intravenous drug use, not through casual contact, and, while deadly, is therefore preventable. The key component of the fight against AIDS is education. Through public education and counseling our citizens can learn how the disease is transmitted and, thus, how to protect themselves and prevent its spread. The Department of Human Resources is encouraged to continue its efforts to educate all Georgians about the disease, its causative agent, and its means of transmission. In addition, voluntary testing should be encouraged for anyone who feels at risk of infection. While education, counseling, and voluntary testing are vital to the elimination of this epidemic, other measures are needed to protect the health of our citizens, and it is the intention of the General Assembly to enact such measures in the exercise of its police powers in order to deal with AIDS and HIV infection."

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 134.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 78, 83, 84, 128, 129, 136, 140.

ALR.

- Federal constitutional and statutory claims by HIV-positive inmates as to medical treatment or conditions of confinement, 162 A.L.R. Fed. 181.

42-5-52.2. Testing of prison inmates for HIV; consolidation of inmates testing positive.

  1. For purposes of this Code section, "HIV" means HIV as defined by Code Section 31-22-9.1.
  2. The department shall implement an HIV testing program whereby any state inmate who has been in the custody of a state penal institution for one year or longer and who has not previously tested positive for HIV shall be tested for HIV within 30 days prior to his or her expected date of release from the custody of the department.
  3. Each person tested as provided in subsection (b) of this Code section shall be notified by the department in writing of the results of such testing prior to his or her release. Prior to the release of any person testing positive for HIV, the appropriate information as required by Code Sections 24-12-21 and 31-22-9.2 or other law shall be provided by the department to the Department of Public Health. Prior to the release of any person testing positive for HIV, the department shall also provide to such person in writing contact information regarding medical, educational, and counseling services available through the Department of Public Health. Any person testing positive for HIV shall be provided instruction relating to living with HIV, the prevention of the spread of such virus, and the legal consequences of infecting unknowing partners.
  4. The department shall seek state and federal grants or other possible sources of revenue for the purpose of funding a program of HIV testing authorized by this Code section. In addition, the department is authorized to accept gifts, subject to the approval of the board, for the purpose of funding such program.
  5. The department shall consolidate inmates who have tested positive for HIV in a manner that most efficiently provides education, counseling, and treatment for such persons.
  6. The provisions of this Code section shall not be construed to limit the provision for HIV testing in Code Section 42-9-42.1.

(Code 1981, §42-5-52.2, enacted by Ga. L. 2009, p. 611, § 1/SB 64; Ga. L. 2011, p. 99, § 61/HB 24; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

42-5-53. Establishment of county correctional institutions; supervision by department; quota of inmates; funding; confinement and withdrawal of inmates.

  1. Subject to the provisions stated in this Code section, any county may purchase, rent, establish, construct, and maintain a county correctional institution for the care and detention of all inmates assigned to it by the department. The county may contract with other counties relative to the joint care, upkeep, and working of the inmates in such counties. Each county may pay its pro rata share of such expenses by taxes assessed and levied as provided by law.
  2. All county correctional institutions established by the counties as provided in subsection (a) of this Code section shall be subject to supervision and control by the department, and the board shall promulgate rules and regulations governing the administration and operation thereof.
    1. Each county establishing a county correctional institution which complies with the rules and requirements established by the board and which is approved by the board shall receive a quota of inmates in accordance with such methods of apportionment as may be established by the board.
    2. The department is authorized, pursuant to rules and regulations adopted by the board, to pay funds, in an amount appropriated by the General Assembly for the purposes specified in paragraph (1) of this subsection, for each state inmate assigned to a county correctional institution to the county operating the facility. The amount so paid shall be determined on the basis of an equal amount per day for each state inmate assigned to the county correctional institution.
    3. Each county is authorized to use the money paid to it pursuant to paragraph (2) of this subsection for the operation and maintenance of the county correctional institution or may use the money so paid to supplant county funds or previous levels of county funding for the county correctional institution. Following a full hearing, the board is given the authority to withhold payment or withdraw all inmates from any county correctional institution which does not at any time meet or comply with the rules, regulations, and requirements of the board or comply with its directions.
  3. In all cases in which an inmate is the sole responsibility of a county and the board has no authority, jurisdiction, or responsibility with respect to the sentence of the inmate, the county may confine the inmate in a county correctional institution established pursuant to this Code section. Counties without a county correctional institution may contract with counties having a county correctional institution to maintain the inmate.
  4. Nothing in this Code section shall be construed to prohibit the board from withdrawing inmates from any county correctional institution which does not at any time comply with the rules and regulations of the board promulgated pursuant to Code Section 42-5-10 or from withdrawing inmates from any county correctional institution which does not at any time meet the requirements of the board or comply with its directives. For reasons other than the failure to comply with the rules, regulations, requirements, and directives, the board is authorized to withdraw all inmates under its jurisdiction from all county correctional institutions under the following conditions:
    1. That such withdrawal shall include all inmates under the jurisdiction of the board assigned to all county correctional institutions and that the withdrawal shall be completed within one year after the effective date of the beginning of the withdrawal;
    2. That all county correctional institutions shall be notified at least one year in advance of the effective date of the beginning of the withdrawal;
    3. That each county affected by the withdrawal shall have the option of selling or leasing its county correctional institution to the department, provided the House Committee on State Properties and the Senate State Institutions and Property Committee shall certify to the department that the facility is suitable for inmate housing and provided, further, that the sale price of the facility or the lease rental payments for the facility shall be determined by a board of three appraisers selected as follows:
      1. One to be selected by the department;
      2. One to be selected by the governing authority of the county; and
      3. The third to be selected by the other two appraisers;
    4. That each county affected by the withdrawal shall have 30 days from the date of the issuance of the notice required by paragraph (2) of this subsection to notify the department that the facility is to be sold to the department, the facility is to be leased to the department, or the county will keep and maintain the facility for its own use. If the department is not so notified within the time limitation, the department shall be under no obligation to lease or purchase the facility;
    5. That if the county elects to sell or lease the facility, the committees named in paragraph (3) of this subsection shall have 60 days from the time the department is notified of such decision in which to inspect the facility and make its recommendations and certification to the department;
    6. That if any such facility is leased by the department, the term of the lease, the requirements relative to the repair, maintenance, and improvements of the facility by the county, and the requirements relative to the renewal of the lease shall be as agreed upon by the department and the governing authority of the county; and
    7. That the sales price or lease rental payments for each facility and the requirements relative to the lease contract when the facility is leased shall be determined within six months after the issuance of the notice of the effective date of the beginning of the withdrawal required by paragraph (2) of this subsection and that, if they are not determined within the time limitation, the department shall be under no obligation to lease or purchase the facility.

(Ga. L. 1956, p. 161, § 16; Ga. L. 1964, p. 491, § 1; Ga. L. 1970, p. 318, § 1; Ga. L. 1975, p. 908, § 1; Ga. L. 1980, p. 470, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 1995, p. 10, § 42; Ga. L. 2009, p. 303, § 3/HB 117; Ga. L. 2013, p. 141, § 42/HB 79.)

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "House Committee on State Properties" for "State Institutions and Property Committee of the House of Representatives" in paragraph (e)(3).

Editor's notes.

- Ga. L. 2009, p. 303, § 20/HB 117, not codified by the General Assembly, provides that: "This Act is intended to reflect the current internal organization of the Georgia Senate and House of Representatives and is not otherwise intended to change substantive law. In the event of a conflict with any other Act of the 2009 General Assembly, such other Act shall control over this Act."

JUDICIAL DECISIONS

Cited in Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga. 1968); Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); Williams v. Georgia Dep't of Cors., 224 Ga. App. 571, 481 S.E.2d 272 (1997); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

Distinction between state and county prisoners continues.

- Ga. L. 1956, p. 161, § 23 and Ga. L. 1969, p. 598, § 1 (see now O.C.G.A. §§ 42-2-11 and42-5-57) relate to "state prisoners" rather than "county prisoners"; the distinction between "state" and "county" prisoners continues in effect even though both may be confined in a county work camp (now county correctional institution). 1970 Op. Att'y Gen. No. U70-134.

Removal of prisoners from county institutions for failure to hire qualified warden.

- If a county correctional institution fails to employ a warden who is duly qualified according to the requirements set forth by the board, the board may remove all the prisoners from that institution. 1973 Op. Att'y Gen. No. 73-41.

County rental of correctional institution.

- This section expressly authorizes county to rent a public works camp (now county correctional institution), and does not require the county to obtain fee simple title as do the policies applicable to property acquired and institutions conducted by the state itself. 1958-59 Op. Att'y Gen. p. 254.

Board's control over lease by county.

- Terms of any lease are subject to approval and supervision of the Board of Corrections, and it is entirely a matter of policy for the board to determine as to whether a proposed lease is acceptable. 1958-59 Op. Att'y Gen. p. 254.

Use of city prisoners in county correctional institutions precluded.

- Exceptions to the general category of prisoners set forth in subsection (a) of this section must be explicitly set forth in the statute, as was done for county prisoners in subsection (d) of this section; this would preclude the use of city prisoners in public works camps (now county correctional institutions). 1963-65 Op. Att'y Gen. p. 571.

County public works camps (now county correctional institutions) are not "detention facilities" and are to be regulated as the camps have been in the past by the Board of Corrections. 1973 Op. Att'y Gen. No. 73-117.

RESEARCH REFERENCES

ALR.

- Institution for the punishment or rehabilitation of criminals, delinquents, or alcoholics as enjoinable nuisance, 21 A.L.R.3d 1058.

42-5-54. Information from inmates relating to medical insurance; provision and payment of medical treatment for inmates.

  1. As used in this Code section, the term:
    1. "Detention facility" means a county correctional institution, workcamp, or other county detention facility used for the detention of persons convicted of a felony or a misdemeanor.
    2. "Inmate" means a person who is detained in a detention facility by reason of being convicted of a felony or a misdemeanor and who is insured under existing individual health insurance, group health insurance, or prepaid medical care coverage or is eligible for benefits under Article 7 of Chapter 4 of Title 49, the "Georgia Medical Assistance Act of 1977." Such term does not include any sentenced inmate who is the responsibility of the Department of Corrections.
    3. "Officer in charge" means the warden, captain, or superintendent having the supervision of any detention facility.
  2. The officer in charge or his or her designee may require an inmate to furnish the following information:
    1. The existence of any health insurance, group health plan, or prepaid medical care coverage under which the inmate is insured;
    2. The eligibility for benefits to which the inmate is entitled under Article 7 of Chapter 4 of Title 49, the "Georgia Medical Assistance Act of 1977";
    3. The name and address of the third-party payor; and
    4. The policy or other identifying number.
  3. The officer in charge will provide a sick, injured, or disabled inmate access to medical services and may arrange for the inmate's health insurance carrier to pay the health care provider for the medical services rendered.
  4. The liability for payment for medical care described under subsection (b) of this Code section may not be construed as requiring payment by any person or entity, except by an inmate personally or by his or her carrier through coverage or benefits described under paragraph (1) of subsection (b) of this Code section or by or at the direction of the Department of Community Health pursuant to paragraph (2) of such subsection.
  5. Nothing in this Code section shall be construed to relieve the governing authority, governmental unit, subdivision, or agency having the physical custody of an inmate from its responsibility to pay for any medical and hospital care rendered to such inmate regardless of whether such individual has been convicted of a crime.

(Code 1981, §42-5-54, enacted by Ga. L. 1996, p. 1081, § 3; Ga. L. 1999, p. 296, § 24.)

Editor's notes.

- This former Code section, relating to temporary transfer of convicted persons pending appeals, was based on Ga. L. 1971, p. 341, § 2, and was repealed by Ga. L. 1982, p. 1364, § 3 effective January 1, 1983.

Law reviews.

- For review of 1996 legislation relating to jails, see 13 Ga. St. U.L. Rev. 269 and 273 (1996).

JUDICIAL DECISIONS

Supervision of prisoners discretionary function.

- Supervision of a prisoner work detail is a discretionary function by virtue of which the supervisor is entitled to official immunity. Parrish v. State, 270 Ga. 878, 514 S.E.2d 834 (1999), reversing Simmons v. Coweta County, 229 Ga. App. 550, 494 S.E.2d 362 (1997).

RESEARCH REFERENCES

ALR.

- Provision of hormone therapy or sexual reassignment surgery to state inmates with Gender Identity Disorder (GID), 89 A.L.R.6th 701.

42-5-55. Deductions from inmate accounts for payment of certain damages and medical costs; limit on deductions; fee for managing inmate accounts.

  1. As used in this Code section, the term:
    1. "Chronic illness" means an illness requiring care and treatment over an extended period of time. Chronic illness includes, but is not limited to, hypertension, diabetes, pulmonary illness, a seizure disorder, acquired immune deficiency syndrome, cancer, tuberculosis B, hepatitis C, rheumatoid arthritis, an autoimmune disorder, and renal disease.
    2. "Detention facility" means a state, county, or private correctional institution, workcamp, or other state or county detention facility used for the detention of persons convicted of a felony or a misdemeanor.
    3. "Inmate" means a person who is detained in a detention facility by reason of being convicted of a felony or a misdemeanor.
    4. "Medical treatment" means each visit initiated by the inmate to an institutional physician; physician's extender, including a physician assistant or a nurse practitioner; registered nurse; licensed practical nurse; medical assistant; dentist; dental hygienist; optometrist; or psychiatrist for examination or treatment.
    5. "Officer in charge" means the warden, captain, or superintendent having the supervision of any detention facility.
  2. The commissioner or, in the case of a county or private facility, the officer in charge may establish by rules or regulations criteria for a reasonable deduction from money credited to the account of an inmate to:
    1. Repay the costs of:
      1. Public property or private property in the case of an inmate housed in a private correctional facility willfully damaged or destroyed by the inmate during his or her incarceration;
      2. Medical treatment and prescription medication for injuries inflicted by the inmate upon himself or herself or others unless the inmate has a severe mental health designation as determined by the department;
      3. Searching for and apprehending the inmate when he or she escapes or attempts to escape; such costs to be limited to those extraordinary costs incurred as a consequence of the escape; or
      4. Quelling any riot or other disturbance in which the inmate is unlawfully involved; or
    2. Defray the costs paid by the state or county for:
      1. Medical treatment for an inmate when the request for medical treatment has been initiated by the inmate; and
      2. Medication prescribed for the treatment of a medical condition unrelated to pregnancy or a chronic illness.
  3. The provisions of paragraph (2) of subsection (b) of this Code section shall in no way relieve the governmental unit, agency, or subdivision having physical custody of an inmate from furnishing him or her with needed medical treatment.
  4. Notwithstanding any other provisions of this Code section, the deductions from money credited to the account of an inmate as authorized under subsection (b) of this Code section shall not be made whenever the balance in the inmate's account is $10.00 or less.
  5. The officer in charge of any detention facility is authorized to charge a fee for establishing and managing inmate money accounts. Such fee shall not exceed $1.00 per month.

(Code 1981, §42-5-55, enacted by Ga. L. 1996, p. 1081, § 3; Ga. L. 2003, p. 252, § 3; Ga. L. 2009, p. 136, § 1/HB 464; Ga. L. 2009, p. 859, § 3/HB 509.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "; or" was added at the end of subparagraph (b)(1)(D).

Editor's notes.

- This former Code section, relating to temporary transfer of convicted persons pending appeals and requests by convicted person or his attorney for transfer, was based on Ga. L. 1971, p. 341, § 3, and Ga. L. 1974, p. 479, § 1. This former Code section was repealed by Ga. L. 1982, p. 1364, § 3, effective January 1, 1983.

42-5-56. Visitation with minors by convicted sexual offenders.

  1. As used in this Code section, the term "sexual offense" means a violation of Code Section 16-6-1, relating to the offense of rape; Code Section 16-6-2, relating to the offenses of sodomy and aggravated sodomy; Code Section 16-6-5.1, relating to the offense of improper sexual contact by employee or agent; Code Section 16-6-22, relating to the offense of incest; or Code Section 16-6-22.2, relating to the offense of aggravated sexual battery, when the victim was under 18 years of age at the time of the commission of any such offense; or a violation of Code Section 16-6-3, relating to the offense of statutory rape; Code Section 16-6-4, relating to the offenses of child molestation and aggravated child molestation; or Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes, when the victim was under 16 years of age at the time of the commission of any such offense.
  2. Any inmate with a current or prior conviction for any sexual offense as defined in subsection (a) of this Code section shall not be allowed visitation with any person under the age of 18 years unless such person is the spouse, son, daughter, brother, sister, grandson, or granddaughter of the inmate and such person is not the victim of a sexual offense for which the inmate was convicted. If visitation with a minor is restricted by court order, permission for special visitation with the minor may be granted only by the court issuing such order.

(Code 1971, §42-5-56, enacted by Ga. L. 1999, p. 591, § 1; Ga. L. 2019, p. 912, § 6/SB 9.)

The 2019 amendment, effective July 1, 2019, substituted "improper sexual contact by employee or agent" for "sexual assault against a person in custody" in the middle of subsection (a).

Editor's notes.

- The former provisions of this Code section, concerning temporary transfer of convicted persons pending appeal and adoption of rules and regulations by the board, were based on Ga. L. 1971, p. 341, § 4, and were repealed by Ga. L. 1982, p. 1364, § 3, effective January 1, 1983.

Administrative Rules and Regulations.

- Visitation, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Institutional and Center Operations, Chapter 125-3-4.

42-5-57. Institution of rehabilitation programs; provision of opportunities for educational, religious, and recreational activities.

  1. The board, acting alone or in cooperation with the Department of Education, the Board of Regents of the University System of Georgia, or the several state, local, and federal agencies concerned therewith shall be authorized to institute a program of rehabilitation, which may include academic, industrial, mechanical, agricultural, and vocational training, within the confines of a penal institution.
  2. The department, in institutions under its control and supervision, shall give the inmates opportunity for reasonable educational, religious, and recreational activities where practicable.

(Ga. L. 1956, p. 161, § 23; Ga. L. 1964, p. 734, § 1; Ga. L. 1968, p. 1399, § 4.)

JUDICIAL DECISIONS

Cited in Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga. 1968); Krist v. Smith, 309 F. Supp. 497 (S.D. Ga. 1970).

OPINIONS OF THE ATTORNEY GENERAL

Application to state prisoners.

- Ga. L. 1956, p. 161, §§ 11 and 23 (see now O.C.G.A. §§ 42-2-11 and42-5-57) relate to state prisoners rather than county prisoners; the distinction between "state" and "county" prisoners continues in effect even though both may be confined in a county work camp (now county correctional institution). 1970 Op. Att'y Gen. No. U70-134.

Cost of instituting and maintaining academic programs in conjunction with the Board of Regents is a legal expenditure for the Board of Offender Rehabilitation (Corrections). 1969 Op. Att'y Gen. No. 69-267.

Prison authorities' discretion to regulate religious activities.

- Department of Offender Rehabilitation (Corrections) should not deny permission to all Jehovah's Witnesses' ministers to visit the prisons or to conduct services therein; however, the denial of permission in individual instances, in the discretion of prison authorities, would appear to be lawful as a valid exercise of the state's power to regulate religious activities for the safety and welfare of the state's citizens. 1967 Op. Att'y Gen. No. 67-270.

College attendance outside prison confines.

- Provisions of this section are not sufficiently broad to include or permit inmates who may be qualified to attend college outside the confines of a state prison institution. 1967 Op. Att'y Gen. No. 67-119.

Development of service-type industrial programs.

- Board of Corrections is authorized to develop service-type industrial programs such as furniture refinishing, but such programs may not be developed by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration). 1970 Op. Att'y Gen. No. 70-156.

Criterion for judging whether work performed by prisoner is prohibited is not whether the articles on which prisoner is working are publicly or privately owned; the real test is whether the transaction was for a good faith purpose rather than a subterfuge designed to benefit the private owner. 1967 Op. Att'y Gen. No. 67-452.

Use of prison store profits.

- Board of Corrections can use profits generated in a prison store to offset the expense of employing an athletic director to direct athletic activities of inmates by withdrawing such sums from the prison athletic fund and depositing the funds in the treasury of the Board of Corrections. 1969 Op. Att'y Gen. No. 69-314.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 32, 33, 36-45, 89, 90.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 59, 69, 89-92.

ALR.

- Constitutionality of statutes in relation to treatment or discipline of convicts, 50 A.L.R. 104.

Provision of religious facilities for prisoners, 12 A.L.R.3d 1276.

42-5-58. Prohibition against corporal punishment; use of handcuffs, leg chains, and other restraints; permissible punishment generally.

  1. Whipping of inmates and all forms of corporal punishment shall be prohibited. All shackles, manacles, picks, leg irons, and chains shall be barred from use as punishment by any penal institution operated under authority of the board. In transferring violent or potentially dangerous inmates within an institution or between facilities, handcuffs, leg chains, waist chains, and waist belts may be utilized. Handcuffs, leg chains, waist chains, and waist belts may also be used in securing violent or potentially dangerous inmates within an institution and in public and private areas such as hospitals and clinics; but in no event may handcuffs, leg chains, waist chains, and waist belts be used as punishment; provided, however, if the accused becomes violent in the courtroom, restraints may be used.
  2. The department shall restrict punishment for an infraction of correctional rules and regulations to isolation and restricted diet or to uniform standard humane punishment which the department may deem necessary for the control of inmates.

(Ga. L. 1956, p. 161, § 15; Ga. L. 1983, p. 1806, § 1; Ga. L. 1984, p. 22, § 42; Ga. L. 1989, p. 14, § 42.)

Cross references.

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

Prohibition against whipping as punishment for crimes, Ga. Const. 1983, Art. I, Sec. I, Para. XXI.

Penalty for assault by state officer under color of office or commission, § 45-11-3.

Law reviews.

- For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 1176 are included in the annotations for this Code section.

One in charge of state convicts cannot act with unlawful evidence towards a person under one's control; and if one does so, he may be guilty of a punishable offense. Loeb v. Jennings, 133 Ga. 796, 67 S.E. 101, 18 Ann. Cas. 376 (1910), aff'd, 219 U.S. 582, 31 S. Ct. 469, 55 L. Ed. 345 (1911).

Corporal punishment.

- Warden has no authority to administer corporal punishment to a convict, except such as may be reasonably necessary to compel the convict to work or to maintain proper discipline. Therefore, corporal punishment of a convict by a warden, administered when the circumstances are not of a character sufficient to authorize such punishment is an assault. Westbrook v. State, 133 Ga. 578, 66 S.E. 788, 25 L.R.A. (n.s.) 591, 18 Ann. Cas. 295 (1909).

Whipping of child by parents with court-supplied strap.

- Judge is in violation of O.C.G.A. § 42-5-58 when the judge permits parents to whip an eight-year-old child with a court-supplied strap, rather than subjecting the child to incarceration and a criminal record. In re Ellerbee, 248 Ga. 246, 282 S.E.2d 313 (1981).

Cited in Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); Patterson v. MacDougall, 506 F.2d 1 (5th Cir. 1975); Jenkins v. Department of Cors., 238 Ga. App. 336, 518 S.E.2d 730 (1999).

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 119, 122-127.

C.J.S.

- 18 C.J.S., Convicts, § 15. 72 C.J.S., Prisons and Rights of Prisoners, §§ 19, 20, 24, 25, 60.

ALR.

- Constitutionality of statutes in relation to treatment or discipline of convicts, 50 A.L.R. 104.

Prison conditions as amounting to cruel and unusual punishment, 51 A.L.R.3d 111.

42-5-59. Employment of inmates in the local community.

  1. The commissioner shall extend the limits of the place of confinement of an inmate, if there is reasonable cause to believe the inmate will honor his trust, by authorizing the inmate, under prescribed conditions, to work at paid employment or participate in a training program in the community on a voluntary basis while continuing as an inmate of the institution to which he is committed, provided that:
    1. Representatives of local union central bodies or similar labor union organizations are consulted;
    2. The paid employment will not result in the displacement of employed workers, be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services; and
    3. The rates of pay and other conditions of employment will not be less than those paid or provided for work of a similar nature in the locality in which the work is to be performed.
  2. An inmate authorized to work at paid employment in the community under subsection (a) of this Code section shall comply with all rules and regulations promulgated by the board relative to the handling, disbursement, and holding in trust of all funds earned by the inmate while under the jurisdiction of the department. An amount determined to be the cost of the inmate's keep and confinement shall be deducted from the earnings of each inmate, and such amount shall be deposited in the treasury of the department; provided, however, that, if the inmate is assigned to a county correctional institution, the deducted amount shall be deposited in the treasury of the county to which the inmate is assigned. After the deduction for keep and confinement, the commissioner shall:
    1. Allow the inmate to draw from the balance a reasonable sum to cover his incidental expenses;
    2. Retain to the inmate's credit an amount as is deemed necessary to accumulate a reasonable sum to be paid to him on his release from the penal institution;
    3. Deduct from the inmate's funds any amounts necessary to cover the costs of medical or dental attention provided to the inmate, said deductions to be made in accordance with policies and procedures promulgated by the commissioner; and
    4. Cause to be paid any additional balance as is needed for the support of the inmate's dependents.
  3. No inmate employed in the community under subsection (a) of this Code section shall be deemed to be an agent, employee, or involuntary servant of the department while working in the community or going to and from his employment.
  4. The willful failure of an inmate to remain within the extended limits of his confinement or to return within the time prescribed to an institution designated by the commissioner shall be deemed an escape from a penal institution and shall be punishable by law.

(Ga. L. 1956, p. 161, § 13; Ga. L. 1968, p. 1399, § 1; Ga. L. 1969, p. 602, § 1; Ga. L. 1971, p. 435, § 1; Ga. L. 1973, p. 1299, § 1; Ga. L. 1986, p. 1596, § 1; Ga. L. 1994, p. 97, § 42.)

Law reviews.

- For annual survey on workers' compensation, see 61 Mercer L. Rev. 399 (2009).

JUDICIAL DECISIONS

Confinement even when participating in work release programs.

- Even when an inmate was physically at a bakery on a work release program, the inmate was still legally "confined" under O.C.G.A. § 42-5-59(a). Thus, there was no error in finding that the inmate's participation in the work release program was part of the inmate's punishment and that, as a result, the inmate was not entitled to workers' compensation benefits. Clarke v. Country Home Bakers, 294 Ga. App. 302, 669 S.E.2d 177 (2008).

Cited in Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979); Wise v. Balkcom, 245 Ga. 126, 263 S.E.2d 158 (1980); Whiddon v. State, 160 Ga. App. 777, 287 S.E.2d 114 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Statutory provisions mandatory.

- Language of Ga. L. 1968, p. 1399, § 1 (see now O.C.G.A. §§ 42-5-5042-5-51, and42-5-59) is mandatory. 1977 Op. Att'y Gen. No. 77-71.

Performance of federal contracts.

- This section fully complies with requirements set forth in Executive Order 11755 which provides that nonfederal prison inmates may be employed in performance of federal contracts if the inmate participates in the work-release program on a voluntary basis, if representatives of local labor organizations have been consulted, if the inmate's employment will not result in the displacement of employed workers or result in a surplus of laborers in the locality, and if the rates of pay and other conditions of employment are not less than those provided for similar work in the locality. 1974 Op. Att'y Gen. No. 74-125.

Work-release programs.

- County may not recover the county's expenses in maintaining prisoners employed in work-release programs. 1969 Op. Att'y Gen. No. 69-248.

Room and board charges of prisoners on work release must be deposited into the state treasury. 1969 Op. Att'y Gen. No. 69-363.

Work-release program does not authorize compensation of inmates for work performed in institutions. 1973 Op. Att'y Gen. No. 73-7.

There is no authority for the superintendent of a correctional institution to allow work releasees to reside in their homes; a work releasee shall continue to be a prisoner of the institution to which the releasee has been committed. 1974 Op. Att'y Gen. No. 74-116.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 139.

ALR.

- Validity of statute empowering administrative officials to transfer to penitentiary inmate of reformatory, 95 A.L.R. 1455.

What justifies escape or attempt to escape, or assistance in that regard, 70 A.L.R.2d 1430.

Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.

42-5-60. Hiring out of inmates; participation of inmates in programs of volunteer service; sale of products produced by inmates; disposition of proceeds; payment to inmates for services.

    1. The board shall provide rules and regulations governing the hiring out of inmates by any penal institution under its authority to municipalities, cities, the Department of Transportation, and any other political subdivision, public authority, public corporation, agency, or state or local government, which entities are authorized by this subsection to contract for and receive the inmates. Such inmates shall not be hired out to private persons or corporations, nor shall any instrumentality of government authorized by this subsection to utilize penal labor use such labor in any business conducted for profit, except as provided in Code Section 42-5-59; provided, however, that:
      1. Inmate trainees enrolled in any vocational, technical, or educational training program authorized and supported by the department may repair or otherwise utilize any privately owned property or equipment as well as any other property or equipment in connection with the activities of any such training program, so long as the repair or utilization contributes to the inmate's acquisition of any desired vocational, technical, or educational skills; and
      2. To the extent authorized by the rules and regulations of the board, inmates may be allowed to participate in programs of volunteer service as authorized by this subparagraph. The rules and regulations of the board shall prescribe criteria for nonprofit organizations eligible to receive volunteer services. Such criteria shall require that any participating nonprofit organization be qualified as exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986 and shall give consideration in determining eligibility to the nonprofit organization's history of service activities and the length of time for which it has been in existence and providing such services. Any such volunteer service program shall include elements whereby the volunteer inmates provide services of benefit to the community while receiving training or work experience suitable for their rehabilitation. The board may authorize such voluntary inmate participation, notwithstanding the fact that the nonprofit organization may receive direct or indirect payment as a result of such inmate participation; notwithstanding the fact that the services rendered may provide some degree of benefit to private individuals or organizations or both; and notwithstanding the fact that some inmate participation may take place outside the confines of a penal institution.
    2. Notwithstanding any other provisions of this subsection, any private person, organization, or corporation with whom the commissioner has contracted for the land acquisition, design, construction, operation, maintenance, use, lease, or management of a state prison or for any services related to the custody, care, and control of inmates as authorized by Code Section 42-2-8 may utilize penal labor in the same manner as any such labor may be utilized by any other penal institution operated under the authority of the board. Agreements made pursuant to Code Section 42-2-8 for the land acquisition, design, construction, operation, maintenance, use, lease, or management of a state prison or for any services related to the care, custody, and control of inmates shall factor the value of penal labor such that the state is the only financial beneficiary of the same.
  1. No goods, wares, or merchandise which have been manufactured, produced, or mined, wholly or in part, by the inmates of any state or county correctional institution operated under the jurisdiction of the board shall be sold in this state to any private person, firm, association, or corporation, except that this prohibition shall not apply to:
    1. Sales to private colleges and universities;
    2. A sale to a private contractor of goods, wares, or merchandise for use in the completion of a publicly funded project; or
    3. Sales to privately owned correctional facilities that house inmates from the State of Georgia.

      Nothing in this subsection shall be construed to forbid the sale of such goods or merchandise to other political subdivisions, public authorities, municipalities, or agencies of the state or local governments to be consumed by them or to agencies of the state to be in turn sold by the agency to the public in the performance of the agency's duties as required by law. This subsection does not prohibit the sale of unprocessed agricultural products produced on state property.

  2. Funds arising from the sale of goods or other products manufactured or produced by any state correctional institution operated by the department shall be deposited with the treasury of the department. The funds arising from the sale of goods and products produced in a county correctional institution or from the hiring out of inmates shall be placed in the treasury or depository of the county, as the case may be. The department is authorized, pursuant to rules and regulations adopted by the board, to pay compensation of not more than $25.00 per month from funds available to the department to each inmate employed in any industry.
  3. Any superintendent, warden, guard, official, or other person who violates this Code section or any regulations promulgated pursuant thereto, relating to the sale of goods or products manufactured or produced in a correctional institution or the hiring out of inmates, shall be guilty of a misdemeanor.
  4. The department or any state correctional institution or county correctional institution operating under jurisdiction of the board shall be authorized to require inmates coming into its custody to labor on the public roads or public works or in such other manner as the board may deem advisable, including without limitation any labor authorized under Chapter 15A of Title 17. The department may also contract with municipalities, cities, counties, the Department of Transportation, or any other political subdivision, public authority, public corporation, or agency of state or local government created by law, which entities are authorized by this Code section to contract with the department, for the construction, repair, or maintenance of roads, bridges, public buildings, and any other public works by use of penal labor.
  5. Any provision of this chapter to the contrary notwithstanding, any inmate of any state or county correctional institution operated under the jurisdiction of the board may sell goods, wares, and merchandise created by such inmate through the pursuit of a hobby or recreational activity. The proceeds from the sales shall be distributed to the particular inmate who created the goods, wares, or merchandise. The board is authorized to promulgate rules and regulations governing the sale of such goods, wares, and merchandise and the distribution of the proceeds from the sales. All goods, wares, and merchandise created by an inmate must be sold within the institution or on the institution grounds during visiting hours or when on off-duty assignments.

(Ga. L. 1956, p. 161, § 22; Ga. L. 1957, p. 477, § 4; Ga. L. 1968, p. 1092, § 1; Ga. L. 1968, p. 1399, §§ 2, 3; Ga. L. 1971, p. 581, § 1; Ga. L. 1972, p. 577, § 1; Ga. L. 1984, p. 651, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1992, p. 6, § 42; Ga. L. 1993, p. 629, § 1; Ga. L. 1997, p. 851, § 2; Ga. L. 2000, p. 1584, § 1; Ga. L. 2001, p. 1090, § 1; Ga. L. 2003, p. 252, § 4.)

Cross references.

- Hiring out of inmates for public road projects, §§ 32-4-42,32-4-91.

Correctional Industries, T. 42, C. 10.

Use of inmate labor to abate hazard presented by abandoned well or hole, § 44-1-14.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 230 (1997).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former former Code 1882, § 4310, former Penal Code 1895, § 1137 et seq., and former Penal Code 1910, § 1166 are included in the annotations for this Code section.

Charge against county for labor.

- There was nothing in former Penal Code 1895, § 1137 et seq. authorizing or requiring a charge to be made against a county for the labor of misdemeanor convicts sentenced by the courts in such county to work on the county's chain gang (now county facilities or programs). Binns v. Ficklen, 130 Ga. 377, 60 S.E. 1051 (1908) (decided under former Penal Code 1895, § 1137 et seq.)

Convict cannot be hired out to a private individual. County of Walton v. Franklin, 95 Ga. 538, 22 S.E. 279 (1894) (decided under former Code 1882, § 4310).

Law requiring county to pay for hire of misdemeanor convicts.

- Special law requiring the county to pay for hire of misdemeanor convicts was unconstitutional, there being a general law relating to this subject. Binns v. Ficklen, 130 Ga. 377, 60 S.E. 1051 (1908) (decided under former Penal Code 1895, § 1137 et seq.)

Supervision of prisoners discretionary function.

- Supervision of a prisoner work detail is a discretionary function by virtue of which the supervisor is entitled to official immunity. Parrish v. State, 270 Ga. 878, 514 S.E.2d 834 (1999), reversing Simmons v. Coweta County, 229 Ga. App. 550, 494 S.E.2d 362) (1997).

Cited in Williams v. Georgia Dep't of Cors., 224 Ga. App. 571, 481 S.E.2d 272 (1997).

OPINIONS OF THE ATTORNEY GENERAL

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 77-325 are included in the annotations for this Code section.

Negotiation for use of prison labor in roads construction.

- Any agreement for the use of prison labor in constructing roads by the state must be negotiated by the Highway Department (now Department of Transportation) and the governmental unit having custody of the prisoners. 1969 Op. Att'y Gen. No. 69-5.

Board is authorized to develop service-type industrial program such as furniture refinishing, but such programs may not be developed by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration). 1970 Op. Att'y Gen. No. 70-156.

Transporting prisoners to job site.

- No legal problem exists in transporting prisoners by barge to a job site. 1969 Op. Att'y Gen. No. 69-5.

Rules governing payments to inmates.

- Place of confinement is irrelevant; if a state prisoner is engaged in an endeavor which may be classified as "industry," the prisoner would be eligible for incentive pay upon the adoption of an appropriate administrative rule; state prisoners confined in county public works camps (now county correctional institutions), would be paid from funds available to the board as no provision was made for payments from county funds. 1968 Op. Att'y Gen. No. 68-464.

Rules Governing Hiring Out Inmates

1. In General

Board prescribes conditions of work required of prisoners and retains administrative responsibility, etc., of prisoners. In view of the broad language found in subsection (e) of Ga. L. 1957, p. 477, § 4 (see now O.C.G.A. § 42-5-60) that prison labor could be required in public buildings in any such manner as deemed advisable by the Board of Offender Rehabilitation (Corrections), it is obvious that the legislature intended the board to prescribe the conditions of work required of the prisoners; and even though some of the prisoners are physically restrained for overnight periods in county jails, their primary assignment is, nonetheless, to the prison or public work camp (now county correctional institution) as determined by the commissioner; in turn the prison or camp has sole administrative responsibility and control of the prisoner even though the prisoner be temporarily attached to the county jail to perform the required repair or maintenance services; such a temporary attachment is not an assignment which contravenes the language of subsection (b) of Ga. L. 1956, p. 161, § 13 (see now O.C.G.A. § 42-5-50). 1963-65 Op. Att'y Gen. p. 72.

Use of prison labor for governmental functions.

- Prison labor may be used only in connection with those services and functions of municipalities which are deemed "governmental" in nature as opposed to "ministerial" functions which are those performed by municipalities for profit. 1963-65 Op. Att'y Gen. p. 632.

"Hiring" defined.

- Indispensable element of "hiring" is the rendering of services for compensation or something in return - a quid pro quo. 1960-61 Op. Att'y Gen. p. 349.

Permissible use of prisoners.

- This section includes no prohibition to the use of prisoners on road projects when federal funds are involved. 1965-66 Op. Att'y Gen. No. 65-52.

Prohibited use of prisoners.

- Prisoners in the Georgia penal system may not be leased to the United States Forest Service, which is an agency of the United States government. 1967 Op. Att'y Gen. No. 67-451.

2. Public Works

Public work defined.

- Courts will hold a public work to be any project upon which public funds could be lawfully expended; the underlying factual issue will always be the extent, if any, to which the public will receive common or corporate benefit. 1969 Op. Att'y Gen. No. 69-470.

Granting of an "easement" must not be taken as conclusively establishing the public nature of a works project. 1969 Op. Att'y Gen. No. 69-470.

Permissible works for use of inmates.

- It is legally permissible to use inmates of the prison system for daily civic labor in and about a municipality in exchange for the use by the Board of Offender Rehabilitation (Corrections) of an existing prison facility owned by the municipality. 1963-65 Op. Att'y Gen. p. 632.

Presentment of educational programs to civic clubs.

- Inmates in the Georgia prison system may, at the discretion of appropriate prison officials, present educational programs to civic clubs, even though the presentation may be in a privately owned facility. 1969 Op. Att'y Gen. No. 69-221.

Erection of hospitals.

- Convict labor may be used, under control of county authorities, in erection of hospital by the county hospital authority. 1945-47 Op. Att'y Gen. p. 422 (decided under former Code 1933, § 77-325 prior to revision by Ga. L. 1956, p. 161, § 22).

Building or repairing schools.

- County may permit use of convicts in building or repairing a public school building in a municipality if the convicts remain under the control and management of the county authorities. 1945-47 Op. Att'y Gen. p. 423.

Prison labor may be utilized to construct roads on land owned by the state. 1969 Op. Att'y Gen. No. 69-5.

Felony convicts may be used in the maintenance of roads in the state-aid system. 1945-46 Op. Att'y Gen. p. 424.

Inmates may be required to perform labor upon prison property, including the preparation of mobile home sites, if that is what is desired of their labors. 1969 Op. Att'y Gen. No. 69-418.

Farming.

- Board of Corrections may enter into an agreement with a county whereby the county gives the prison a crop allotment and allows the prison to farm county property, furnishing the fertilizer and equipment for gathering the crop and in return for which, the county is to receive a portion of the crop grown on the property, with the remainder to be consumed within the prison branch. 1970 Op. Att'y Gen. No. 70-83.

Use of convict labor on private property is permissible when the sole benefit flows to the state, and it is the duty of the Board of Offender Rehabilitation (Corrections) to examine each set of facts and determine whether the state is benefiting in the necessary degree. 1965-66 Op. Att'y Gen. No. 66-119.

3. Private Endeavors

Use of convict labor on private property is permissible when the sole benefit flows to the state. 1969 Op. Att'y Gen. No. 69-158.

Removal and resetting of fences.

- Highway Department (now Department of Transportation) can contract with private property owner to use prison labor or state maintenance forces to remove and reset fences upon private property which is to be used as right of way since the utilization of prison labor is to the benefit of the state; the department cannot guarantee to a county that it will perform these acts or expend this money if a county in turn entered into such an agreement with the private landowner which guaranteed to the private landowner that the state would perform such acts. 1969 Op. Att'y Gen. No. 69-158.

Removal of buildings.

- This section would not prohibit use of prison labor to remove a building from private property and to reerect the building on state property when the sole benefit would flow to the state. 1958-59 Op. Att'y Gen. p. 250.

Clearing land.

- City not prohibited from using prison labor to clear private land under local health ordinance so long as transaction is for good faith public purpose, rather than a subterfuge designed to benefit the private owner. 1958-59 Op. Att'y Gen. p. 248.

Agreement between warden of prison branch and private landowner, whereby in consideration of warden's clearing five acres of land belonging to landowner, the landowner will permit prison branch to occupy land rent free for period of three years, is not illegal so long as the agreement was entered into in good faith, for the purpose of procuring the use of land for the state, rather than as a guise whereby the private landowner is enabled to receive a gratuity from the state, prohibited by Ga. Const. 1976, Art. III, Sec. VIII, Para. XII (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI). 1958-59 Op. Att'y Gen. p. 248.

Soil conservation projects.

- It is legal to utilize convict labor to remove buildings on private land in connection with soil conservation projects being conducted by soil conservation district supervisors for the purpose of constructing water impounding structures and flooding pools since soil conservation districts are expressly declared to be agencies of the state government by Ga. L. 1937, p. 377, §§ 3 and 8 (see now O.C.G.A. §§ 2-6-22 and2-6-33), whose powers and duties include the erection of soil conservation structures. 1958-59 Op. Att'y Gen. p. 250.

Use of inmate labor to position and level a correctional officer's mobile home site on prison property is not a violation of Ga. Const. 1976, Art. III, Sec. VIII, Para. XII (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI). 1969 Op. Att'y Gen. No. 69-418.

Convict labor may be used for construction of school gymnasium though private contractor constructing when there are no disbursements or credits for use of such labor between board of education and contractors. 1962 Op. Att'y Gen. p. 379.

Corporation within prohibited category.

- Although a corporation is imbued with a community purpose and no profit is contemplated by the stockholders, it is nevertheless clearly within the prohibited category of private persons or corporation. 1963-65 Op. Att'y Gen. p. 317.

Prison labor could not be used in home for aged and infirm to be constructed by county and operated by charitable organization when control and management of home would be in hands of directors of organization; any arrangement whereby the custody, control, and labor of prisoners are vested in private parties would be illegal, and the prisoners would be entitled to relief by habeas corpus. 1958-59 Op. Att'y Gen. p. 246.

Solid waste management facility.

- Inmate labor may not be used to work for a solid waste management facility that is operated by a private, for-profit entity, if the labor inures to the benefit of the entity. 1999 Op. Att'y Gen. No. 99-12.

Manufacture of tags for private sale.

- Board of Offender Rehabilitation (Corrections) is prohibited from manufacturing tags in the penal institutions of this state for private sale to any person including charitable organizations such as the Veterans of Foreign Wars. 1952-53 Op. Att'y Gen. p. 400 (decided under former Code 1933, § 77-325).

Using prisoners for work on private highways.

- Counties may not use prison labor to repair and maintain private driveways which have not been validly dedicated to public use. 1963-65 Op. Att'y Gen. p. 426.

Work on private vehicles.

- It is not permissible for inmates of a training and development center for state prisoners to perform work on private vehicles to obtain practice in carrying out procedures learned in the automobile school. 1967 Op. Att'y Gen. No. 67-452.

Sale of Inmates' Products

1. In General

Manufacturing operations conducted by Board of Corrections.

- This section is applicable to manufacturing operations conducted by a prison operated by the Board of Corrections other than those manufacturing activities which are carried on by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration). 1968 Op. Att'y Gen. No. 68-126.

Use of inmates in civilian business.

- Real thrust of this prohibition is against actual use of inmates in a civilian business. 1972 Op. Att'y Gen. No. 72-96.

Canned and packed vegetables distinguished.

- Canned vegetables are "goods, wares, or merchandise", and packed vegetables are considered "manufactured" or "produced". 1965-66 Op. Att'y Gen. No. 65-28.

"Goods, wares, or merchandise" construed.

- Phrase "goods, wares, or merchandise", as set out in subsection (b) of this section, should be construed in its ordinary sense; this means such chattels as are ordinarily the subject of traffic and trade. 1972 Op. Att'y Gen. No. 72-96.

Board is authorized to sell to a municipality goods, wares, or merchandise manufactured, produced, or mined, wholly or in part, by convicts or prisoners. 1954-56 Op. Att'y Gen. p. 530 (decided under former Code 1933, § 77-325).

Hospital authorities may purchase goods manufactured by the Georgia Correctional Industries Administration. 1970 Op. Att'y Gen. No. 70-88.

2. Within State

Selling products produced by prison labor to other departments.

- Board of Offender Rehabilitation (Corrections) is authorized to sell to other departments of the state government any products produced by prison labor in a program of occupational and vocational training. 1948-49 Op. Att'y Gen. p. 286 (decided under former Code 1933, § 77-325).

Solicitation of paid advertisement in inmate publication.

- Restrictions on the sale of goods produced by inmates do not prohibit the solicitation and acceptance of paid advertising in an inmate publication. 1972 Op. Att'y Gen. No. 72-96.

3. Outside of State

Sale of goods outside state.

- Although this section does not prohibit the sale of goods, wares, or merchandise manufactured by inmates to firms or corporations outside the state, the words "no goods shall be sold in this state" indicate that no sale can be perfected. 1965-66 Op. Att'y Gen. No. 66-237.

Goods packed out of state.

- Subsections (b) and (d) of this section do not relate to goods which have been packed outside of this state by prison labor of another state. 1965-66 Op. Att'y Gen. No. 65-28.

Sales to factories for the blind.

- Georgia Correctional Industries Administration may be authorized to sell prisoner-made products to factories for the blind located in other states, providing the local state law does not prohibit the sale of prisoner-manufactured goods. 1974 Op. Att'y Gen. No. 74-157.

Sales to government contractors.

- There are no prohibitions in existence under statutes of this state restricting sales of products manufactured or produced by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration) to government contractors outside the state. 1967 Op. Att'y Gen. No. 67-349.

Sales made outside state excluded.

- Due to the fact that subsection (b) of this section prohibits only sales within the state to private persons, firms, associations, or corporations it is to be concluded that this expressed prohibition is to be construed as to the extent of the legislature's sanctions on sales of prison made or produced products and, therefore, that any sales made beyond the state are excluded from these prohibitions. 1967 Op. Att'y Gen. No. 67-349.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 141-149.

C.J.S.

- 18 C.J.S., Convicts, §§ 2, 16-24.

42-5-60.1. Utilization of inmates of county correctional institutions for work on outdoor assignments during inclement weather; supervision of inmates.

  1. As used in this Code section, the term "inclement weather" means weather in which there is rain or in which the temperature is below 28 degrees Fahrenheit.
  2. Inmates of a county correctional institution who are otherwise required to work on outdoor assignments shall work on such assignments notwithstanding inclement weather if employees of any governmental entity within the county in which the work is to be performed are performing outdoor work during such inclement weather and such work is similar in kind or in degree of exertion to that to be performed by the inmates.
  3. Correctional officers and other supervisory personnel shall be available to supervise adequately those inmates performing outdoor work in inclement weather.

(Ga. L. 1981, p. 1421, § 1.)

42-5-61. Services and benefits to be furnished inmates discharged by department or county correctional institutions.

  1. Except as otherwise provided in this Code section, whenever an inmate is discharged upon pardon or completion of his sentence or is conditionally released or paroled from any place of detention to which he has been assigned under the authority of the department, the department shall provide the inmate the following:
    1. Transportation to the inmate's home within the United States or to a place chosen by the inmate and authorized by regulations of the board;
    2. An amount of money of not less than $25.00 and not more than $150.00, as determined according to regulations of the board; and
    3. A travel kit, when appropriate, and suitable clothing, each as provided by regulation of the board.
  2. Whenever an inmate assigned to a county correctional institution by the department is discharged upon pardon or completion of his sentence or is conditionally released or paroled, the county shall provide the inmate the release benefits to which he is eligible under this Code section, and the department shall reimburse the county.
  3. An inmate whose limits of confinement have been extended to allow him to participate in a work-release program of paid employment shall receive the benefits provided by this Code section only to the extent of financial need, as determined pursuant to regulations of the board.
  4. An inmate convicted of an offense which is less than a felony shall receive the amount of $25.00 or less as determined under regulations of the board and transportation as provided in this Code section.
  5. The department shall administer these benefits through regulations which are based upon the knowledge and skill of the board in aiding an inmate to make the initial adjustment to his release.

(Ga. L. 1956, p. 161, § 21; Ga. L. 1969, p. 600, § 1; Ga. L. 1972, p. 602, § 1; Ga. L. 1973, p. 542, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Legislative intent.

- This statute was intended to alleviate hardships which prisoners encounter on reentry into free society; this policy would apply to a second release as well as a first, especially the inmate who was unsuccessful in the inmate's first attempt to make the social adjustment to freedom. 1972 Op. Att'y Gen. No. 72-102.

Issuance of suitable clothing to inmates released.

- This section permits the Board of Offender Rehabilitation (Corrections) to issue either work clothes or a business suit to inmates who are discharged, paroled, or conditionally released. 1972 Op. Att'y Gen. No. 72-160.

Second release inmates entitled to benefits.

- Inmate who has been paroled, conditionally released, or released on probation, and upon release has been given benefits pursuant to this section, and who has been returned to prison for violation of the conditions of release, is again entitled to receive benefits under this statute upon the completion of the inmate's sentence, provided the inmate is otherwise qualified. 1972 Op. Att'y Gen. No. 72-102.

Prisoner released upon payment of fine may fall within the category of prisoner "discharged upon completion of sentence" or within the category of a "conditionally released" prisoner, depending upon the particular order entered to effectuate the release; prisoners discharged in these categories with reference to discharge by payment of a fine are entitled to the benefits provided by this section. 1969 Op. Att'y Gen. No. 69-245.

Other released inmates entitled to benefits.

- Inmates being released from county jails who were committed to the director of corrections (now commissioner of corrections) and who have had files prepared for the inmates by the Georgia Diagnostic and Classification Center, but who have not been picked up by the center, are entitled to the gratuities provided in this section. 1975 Op. Att'y Gen. No. 75-93.

Prisoner who is released "by reason of remission to probation" is entitled to the benefits provided for in this section. 1969 Op. Att'y Gen. No. 69-245.

Prisoner who is discharged by an order of "remission to present service" is entitled to the benefits provided for by this section. 1969 Op. Att'y Gen. No. 69-245.

Prisoner released to a detainer is not entitled to benefits provided by this section; it is not contemplated that the state prison uniform will be taken away from a prisoner released under this category. 1969 Op. Att'y Gen. No. 69-245.

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, § 153.

42-5-62. Forfeiture of contraband.

The possession by an inmate on his person or in his cell, immediate sleeping area, locker, or immediate place of work or assignment of any form of securities, bonds, coins, currency, or legal tender, unless expressly and specifically authorized by the individual institution concerned, shall constitute contraband and be subject to forfeiture. With respect to state correctional institutions, all such securities, bonds, coins, currency, or legal tender shall vest in the state and shall be paid into the state treasury. With respect to county correctional institutions, all such currency and other items shall vest in the county and shall be paid into the county treasury.

(Ga. L. 1980, p. 1095, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 95.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 73.

42-5-63. Unauthorized possession of weapon by inmate.

  1. Every person confined in a penal institution or confined in any other facility under the jurisdiction of or subject to the authority of the board or who, while being conveyed to or from any facility, or while at any other location under such jurisdiction or authority, or while being conveyed to or from any such place, or while under the custody of officials, officers, or employees subject to such jurisdiction or authority, who, without authorization of the appropriate authorities, possesses or carries upon his person or has under his custody or control any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, or knuckles whether made from metal, thermoplastic, wood, or other similar material; or any pistol, revolver, or other firearm; or any explosive substance; or any dirk, dagger, switchblade, gravity knife, razor, or any other sharp instrument which is capable of such use as may endanger the safety or security of any of the facilities described in this subsection or of any person therein shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for a term of not less than one nor more than five years.
  2. A person is deemed "confined in a penal institution" if he is confined in any of the penal institutions specified in subsection (a) of this Code section by order made pursuant to law, regardless of the purpose of the confinement and regardless of the validity of the order directing the confinement, until a judgment of a competent court setting aside the order becomes final so as to entitle the person to his immediate release.
  3. A person is deemed "confined in" a penal institution even if, at the time of the offense, he is temporarily outside its walls or bounds for the purpose of confinement in a local place of confinement pending trial or for any other purpose for which an inmate may be allowed temporarily outside the walls or bounds of a penal institution; but an inmate who has been released on parole is not deemed "confined in" a penal institution for purposes of this Code section.

(Ga. L. 1973, p. 555, § 1; Ga. L. 1989, p. 14, § 42; Ga. L. 2008, p. 533, § 3/SB 366.)

Cross references.

- Penalty for possession of firearms by convicted felons, § 16-11-131.

JUDICIAL DECISIONS

Constitutionality.

- This section, which prohibits prison inmates from having deadly weapons, does not violate the equal protection clause of U.S. Const., amend. 14. Ridley v. State, 232 Ga. 646, 208 S.E.2d 466 (1974).

This section is not unconstitutionally vague or indefinite, and is consistent with due process requirements of both state and federal Constitutions, and is reasonable and necessary for the security and protection of correctional institutions and the people who reside and work in such institutions. Ridley v. State, 232 Ga. 646, 208 S.E.2d 466 (1974).

Making out a prima facie case.

- On indictment under this section, proof that the defendant, a convict, was searched while passing from one building to another, and a knife meeting the description of this section was found on the defendant's person, makes out a prima facie case. If the defendant claims authorized possession, the burden is on the defendant to offer evidence to that effect. Days v. State, 134 Ga. App. 585, 215 S.E.2d 520 (1975).

Subsection (b) of O.C.G.A. § 42-5-63 does not make production of an order an essential element of the crime which must be admitted into evidence at trial. Lehman v. State, 174 Ga. App. 767, 332 S.E.2d 17 (1985).

Offense not lesser included offense of aggravated assault.

- Offense of unauthorized possession of weapon by inmate is not a lesser included offense of aggravated assault. Weaver v. State, 176 Ga. App. 639, 337 S.E.2d 420 (1985).

Fact that weapon was found in defendant's locker, which was locked, with the defendant having the only key save a master key used by prison officials, was sufficient evidence to establish that the defendant had exclusive custody and control of the weapon. Black v. State, 179 Ga. App. 170, 345 S.E.2d 678 (1986).

Evidence was sufficient to sustain conviction.

- See Hood v. State, 192 Ga. App. 150, 384 S.E.2d 242 (1989); Dixon v. State, 192 Ga. App. 845, 386 S.E.2d 719 (1989).

Cited in Chaney v. State, 139 Ga. App. 211, 228 S.E.2d 199 (1976); Mathis v. State, 139 Ga. App. 322, 228 S.E.2d 358 (1976); Austin v. State, 146 Ga. App. 236, 246 S.E.2d 143 (1978); Raven v. State, 168 Ga. App. 398, 309 S.E.2d 656 (1983); Slater v. State, 185 Ga. App. 889, 366 S.E.2d 240 (1988).

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 62, 73.

ALR.

- Cane as a deadly weapon, 30 A.L.R. 815.

Sufficiency of evidence of possession in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons, 43 A.L.R.4th 788.

What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USCS § 5861, 133 A.L.R. Fed. 347.

42-5-64. Educational programming.

  1. The commissioner shall maintain an educational program within the state prison system to assist inmates in achieving at least a fifth-grade level on standardized reading tests. Inmates who test below the fifth-grade level and who have been sentenced to incarceration for a period of one year or longer shall be required by institutional staff to attend appropriate classes until they attain this level or until they are released from incarceration, whichever event occurs first; provided, however, that inmates who have remained in the educational program for 90 school days may voluntarily withdraw thereafter. The commissioner or his designee shall have the discretion to exclude certain inmates from the provisions of this subsection due to the inability of such inmates to benefit from an educational program for reasons which may include: custody status, particularly of those inmates under a death sentence; mental handicap or physical illness; participation in a boot camp program; or possession of a general education diploma or high school diploma. The State Board of Pardons and Paroles shall incorporate satisfactory participation in such an educational program into the parole guidelines adopted pursuant to Code Section 42-9-40.
  2. For the purposes of this Code section, educational programming shall not apply to inmates who:
    1. Have been sentenced to death;
    2. Have attained 50 years of age; or
    3. Have serious learning disabilities.
  3. The commissioner shall provide additional educational programs in which inmates can voluntarily participate to further their education beyond the fifth-grade level.
  4. The commissioner shall utilize available services and programs within the Department of Education, and the Department of Education shall cooperate with the commissioner in the establishment of educational programs and the testing of inmates as required in this Code section.
  5. The commissioner shall be authorized to promulgate rules and regulations necessary to carry out the provisions of this Code section.

(Code 1981, §42-5-64, enacted by Ga. L. 1986, p. 1596, § 2; Ga. L. 1992, p. 3219, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, "programming" was substituted for "programing" in subsection (b).

Pursuant to Code Section 28-9-5, in 1992, in subsection (a) as amended by Ga. L. 1992, p. 3219, § 1, "Paroles" was substituted for "Parole" in the fourth sentence of subsection (a).

Editor's notes.

- Ga. L. 1992, p. 3219, § 2, not codified by the General Assembly, provides: "This Act shall become effective only when funds are specifically appropriated for purposes of this Act in an appropriations Act making specific reference to this Act. This Act shall apply to those inmates sentenced to the Department of Corrections after its effective date." Funds were appropriated by the General Assembly at the 1993 session.

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, § 59.

42-5-65. Victim photographs prohibited; exception.

  1. For purposes of this Code section, the term "inmate" means any person confined in a penal institution or confined in another facility under the jurisdiction of or subject to the authority of the board or while under the custody of officials, officers, or employees under the authority of the board.
  2. An inmate who is serving a sentence for a violation of Chapter 5 of Title 16 relating to crimes against the person shall be prohibited from possessing or carrying about his or her person or maintaining in any prison cell or similar area under his or her control any photograph, picture, or similar depiction of any victim of the offense for which he or she is serving where such photograph, picture, or depiction was a part of the criminal investigation, prosecution, or evidence leading to the inmate's conviction.
  3. An inmate who is serving a sentence for a violation of Chapter 6 of Title 16 relating to sexual offenses shall be prohibited from possessing or carrying about his or her person or maintaining in any prison cell or similar area under his or her control any photograph, picture, or similar depiction of any victim of the offense for which he or she is serving.
  4. A person acting in violation of this Code section shall be guilty of a misdemeanor.
  5. This Code section shall not apply where the photograph or picture is needed for use in any civil or criminal proceeding provided that the inmate receives permission by a court having jurisdiction over the proceeding and only for so long as and in such manner as directed by court order.
  6. Nothing in this Code section shall limit further restrictions or limitations on the possession of contraband or victim photographs by persons confined or under the custody of the board as deemed appropriate by the board.

(Code 1981, §42-5-65, enacted by Ga. L. 2007, p. 169, § 1/SB 34; enacted by Ga. L. 2007, p. 224, § 2/HB 313.)

Code Commission notes.

- The enactment of this Code section by Ga. L. 2007, p. 169, § 1, irreconcilably conflicted with and was treated as superseded by Ga. L. 2007, p. 224, § 2. See County of Butts v. Strahan, 151 Ga. 417 (1921).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required.

- Violation of O.C.G.A. § 42-5-65(d) is not an offense designated as one that requires fingerprinting. 2008 Op. Att'y Gen. No. 2008-1.

ARTICLE 4 GRANTING SPECIAL LEAVES, EMERGENCY LEAVES, AND LIMITED LEAVE PRIVILEGES

42-5-80. Authorization and general procedure for granting special leave.

Whenever recommended by the warden or superintendent of any penal institution in which inmates committed to the custody of the commissioner have been assigned, the commissioner may grant special leave to an inmate to leave the institution in which he is incarcerated for participation in special community or other meritorious programs or activities deemed beneficial to the inmate and not detrimental to the public. The activity must be such as, in the opinion of the warden or superintendent and the commissioner, will contribute to the rehabilitation process of the inmate involved. In order to be considered for this special leave, the inmate shall be eligible solely upon the concurrence of the warden or superintendent and the commissioner that positive attitudinal and growth patterns are being established. Under no condition shall any inmate be permitted to leave the state under this Code section. This Code section shall not apply to convicted sex offenders.

(Ga. L. 1971, p. 342, §§ 1, 2; Ga. L. 1972, p. 579, §§ 1, 2; Ga. L. 1975, p. 898, § 1.)

42-5-81. Issuance of special leave; filing.

All special leaves must be issued in writing, must set a determinate period of duration, and must be signed by both the warden or superintendent and by the commissioner; this authority may not be delegated except as provided in Code Section 42-5-84. All such writings must be kept on file in the office of the commissioner.

(Ga. L. 1971, p. 342, § 2; Ga. L. 1972, p. 579, § 2.)

42-5-82. Purposes for which special leave may be granted.

A special leave may be granted for the purpose of:

  1. Attending educational programs;
  2. Improving job skills;
  3. Attending trade licensing examinations;
  4. Being interviewed for employment;
  5. Participating in drug abuse, delinquency, or crime prevention programs;
  6. Participating as a volunteer for a nonprofit organization or governmental agency in an activity serving the general public; or
  7. For any purpose which the department deems beneficial to both the inmate and the public.

(Ga. L. 1971, p. 342, § 3; Ga. L. 1972, p. 579, § 3.)

42-5-83. Emergency leaves.

The warden or superintendent of any penal institution in which inmates committed to the custody of the commissioner have been assigned may authorize, without the prior written approval of the commissioner, emergency leave to an inmate when it is confirmed that there exists a serious illness or death in the inmate's immediate family and when notice and confirmation of the illness or death does not reach the warden or superintendent in time to authorize special leave in the manner provided in Code Section 42-5-81. Emergency leave cannot be granted under this Code section to any inmate who has been convicted of a sex offense, who has escaped or attempted to escape within 12 months preceding the emergency, who has not served sufficient time to demonstrate his responsibility and dependability, or who has an assaultive pattern determined to exist either from the nature of the offense for which he has been convicted or from conduct while incarcerated in the penal institution. The warden or superintendent granting the emergency leave must forward immediately a written report of the action to the commissioner.

(Ga. L. 1975, p. 898, § 2.)

42-5-84. Delegation of authority to issue limited leave privileges; records.

The commissioner may delegate to any warden or superintendent of any penal institution in which inmates committed to his custody have been assigned the authority to issue limited privileges to leave the confines of the institution, not to exceed 12 hours and not to extend beyond daylight hours, to any inmate for whom the commissioner has extended, under the authority of Code Section 42-5-59, the limits of the inmate's place of confinement. The limited privileges authorized in this Code section may only be granted to accomplish the purposes enumerated in Code Section 42-5-82. The warden or superintendent granting privileges under this Code section must maintain detailed records of passes authorized by this Code section.

(Ga. L. 1975, p. 910, § 1.)

42-5-85. Leave privileges of inmates serving murder sentences.

  1. As used in this Code section, the term:
    1. "Aggravating circumstance" means that:
      1. The murder was committed by a person with a prior record of conviction for a capital felony;
      2. The murder was committed while the offender was engaged in the commission of another capital felony, aggravated battery, burglary in any degree, or arson in the first degree;
      3. The offender, by his or her act of murder, knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
      4. The offender committed the murder for himself, herself, or another, for the purpose of receiving money or any other thing of monetary value;
      5. The murder of a judicial officer, former judicial officer, district attorney or solicitor-general, or former district attorney, solicitor, or solicitor-general was committed during or because of the exercise of his or her official duties;
      6. The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;
      7. The murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
      8. The murder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his or her official duties;
      9. The murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; or
      10. The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement of himself, herself, or another.
    2. "Murder" means a violation of Code Section 16-5-1.
  2. No special leave, emergency leave, or limited leave privileges shall be granted to any inmate who is serving a murder sentence unless the commissioner has approved in writing a written finding by the department that the murder did not involve any aggravating circumstance.
  3. The department shall make a finding that a murder did not involve an aggravating circumstance only after an independent review of the record of the trial resulting in the conviction or of the facts upon which the conviction was based.

(Code 1981, §42-5-85, enacted by Ga. L. 1983, p. 1806, § 2; Ga. L. 1984, p. 22, § 42; Ga. L. 1996, p. 748, § 22; Ga. L. 2002, p. 660, § 4; Ga. L. 2002, p. 1259, § 11; Ga. L. 2012, p. 899, § 8-15/HB 1176; Ga. L. 2014, p. 444, § 2-11/HB 271.)

The 2012 amendment, effective July 1, 2012, inserted "in any degree" in paragraph (a)(2). See editor's note for applicability.

The 2014 amendment, effective July 1, 2014, substituted the present provisions of subsection (a) for the former provisions, which read: "As used in this Code section only, the term 'aggravating circumstance' means that:"; redesignated former paragraphs (a)(1) through (a)(10) as present subparagraphs (a)(1)(A) through (a)(1)(J), respectively; inserted "or her" in subparagraphs (a)(1)(C) and (a)(1)(H); inserted ", herself," in subparagraphs (a)(1)(D) and (a)(1)(J); and added paragraph (a)(2).

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."

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Law reviews.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012).

ARTICLE 5 AWARDING EARNED-TIME ALLOWANCES

42-5-100. Termination of board's power to award earned-time allowances.

The earned-time allowances, which could have been awarded by the board to inmates based upon the performance of the inmate, in effect on December 31, 1983, shall not apply to:

  1. Those persons who commit crimes on or after January 1, 1984, and who are subsequently convicted and sentenced to the custody of the board;
  2. Those persons who have committed a crime prior to January 1, 1984, but who have not been convicted and sentenced as of December 31, 1983, and who are subsequently sentenced to the custody of the board, including those whose sentences have been probated or suspended, on or after January 1, 1984; however, such persons shall receive the full benefit of the earned-time allowances, in effect on December 31, 1983, and shall receive a release or discharge date computed as if they had been sentenced to the custody of the board, prior to December 31, 1983; or
  3. Those persons previously sentenced to the custody of the board, including those whose sentences have been probated or suspended, as of December 31, 1983; however, such persons shall receive the full benefit of the earned-time allowances in effect on December 31, 1983, and shall receive a release or discharge date the same as reflected in the records of such person on December 31, 1983, less any creditable earned time that such person could have earned as a result of forfeited earned time.

(Code 1981, §42-5-100, enacted by Ga. L. 1983, p. 1340, § 2; Ga. L. 1984, p. 22, § 42.)

Cross references.

- Earned time allowance for persons sentenced for a misdemeanor of a high and aggravated nature, § 17-10-4.

Editor's notes.

- Ga. L. 1983, p. 1340, § 2, repealed former Code Section 42-5-100, pertaining to the enumeration of powers of the board regarding granting of earned-time allowances, and enacted the present Code section. The former Code section was based on Ga. L. 1976, p. 949, § 2; Ga. L. 1978, p. 985, §§ 2-4; and Ga. L. 1980, p. 2002, § 1.

Law reviews.

- For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Penal Code 1910, § 1221, former Code 1933, §§ 77-320 and 77-320.1, and under Ga. L. 1956, p. 161, as it read prior to revision by Ga. L. 1976, p. 949, § 1 are included in the annotations for this Code section.

When an inmate's good-time is forfeited, the following constitutionally minimum procedures are required: (1) a hearing; (2) written notice of the charges served at least 24 hours in advance of the hearing; and (3) a written report of the hearing setting out the reasons for the action taken and the evidence relied on. The prisoner may be permitted to call witnesses and present evidence consistent with the needs of the institution. There is no constitutional right to confrontation, cross-examination, or counsel. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under former Code 1933, § 77-320).

When disciplinary actions are taken against a prisoner, the Constitution requires only that the hearing be held before final disciplinary action is taken and final forfeiture occurs. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under former Code 1933, § 77-320).

Section as to punishment for aggravated misdemeanors not repealed.

- Ga. L. 1978, p. 985 did not repeal by implication Ga. L. 1970, p. 236 (see now O.C.G.A. § 17-10-4) (relating to punishment for misdemeanors of a high and aggravated nature). Sutton v. Garmon, 245 Ga. 685, 266 S.E.2d 497 (1980) (decided under Ga. L. 1978, p. 985).

Jurisdiction of court over good-time allowances.

- Sentence of confinement for a period of two years is fully served at the time the executive department releases the prisoner, and any attempt by a court to impose the court's will over the executive department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the executive department. Johns v. State, 160 Ga. App. 535, 287 S.E.2d 617 (1981) (decided under former Code 1933, § 77-320.1)

Applying federal system service toward state good-time allowances.

- Defendant's service under the federal system, during which time the defendant was serving a four-year probated sentence imposed by the state superior court, did not enable the defendant to earn statutory good-time and extra good-time allowances toward the defendant's probated state sentence. Wellons v. State, 164 Ga. App. 100, 296 S.E.2d 397 (1982) (decided under former Code 1933, § 77-320).

Trial for offense of escape.

- Even though a prisoner is not tried for the statutory offense of escape in the courts, the defendant may be found guilty by the Department of Corrections. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under former Code 1933, § 77-320).

Two sentences served concurrently.

- When a person was convicted of two felonies, and served the person's sentences concurrently, so that the person was entitled to be released upon termination of the longer sentence, the person could not have such term reduced on account of good conduct by calculating an allowance for good conduct on each of the two sentences, and deducting the aggregate time from the longer sentence. Chattahoochee Brick Co. v. Goings, 135 Ga. 529, 69 S.E. 865, 1912A Ann. Cas. 263 (1910) (decided under former Penal Code 1910, § 1221).

When prisoner entitled to extra good-time credit.

- One is only entitled to extra good time if one is a "deserving and exemplary" prisoner, and only then in accordance with the rules and regulations of the Board of Corrections. Balkcom v. Sellers, 219 Ga. 662, 135 S.E.2d 414 (1964) (decided under Ga. L. 1956, p. 161).

Granting and taking of good time is an administrative action.

- The action is upon sentences then being served and does not relate to the imposition of a sentence after conviction. Potts v. State, 134 Ga. App. 512, 215 S.E.2d 276 (1975) (decided under Ga. L. 1956, p. 161).

Judicial authority as to amount of good-time allowance.

- Judge has no authority to say what good-time or extra good-time allowance a prisoner shall be given as the law vests that authority in the Board of Corrections for prisoners under its jurisdiction. Grimes v. Stewart, 222 Ga. 713, 152 S.E.2d 369 (1966) (decided under Ga. L. 1956, p. 161).

When an inmate's good time is forfeited the following constitutionally minimum procedures are required: (1) a hearing; (2) written notice of the charges served at least 24 hours in advance of the hearing; and (3) a written report of the hearing setting out the reasons for the action taken and the evidence relied on. The prisoner may be permitted to call witnesses and present evidence consistent with the needs of the institution. There is no constitutional right to confrontation, cross-examination, or counsel. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under Ga. L. 1956, p. 161).

When disciplinary actions are taken against a prisoner, the Constitution requires only that the hearing be held before final disciplinary action is taken and final forfeiture occurs. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under Ga. L. 1956, p. 161).

Forfeiture of good-time allowance because of escape.

- Punishment by forfeiture of good-time allowances for escape is executive punishment and does not prevent prosecution for the same offense in a court of law. Mincey v. Hopper, 233 Ga. 378, 211 S.E.2d 283 (1974) (decided under Ga. L. 1956, p. 161).

There is no merit in the contention that an appellant's good-time allowance could not be forfeited because of the appellant's escape without the appellant's trial in a court of law for the crime of escape. Mincey v. Hopper, 233 Ga. 378, 211 S.E.2d 283 (1974) (decided under Ga. L. 1956, p. 161).

Probationer is not a prisoner within meaning of section and, therefore, one serving a sentence on probation is not entitled as a matter of law to statutory or extra good-time allowances. Balkcom v. Gaulding, 216 Ga. 410, 116 S.E.2d 545 (1960) (decided under Ga. L. 1956, p. 161).

Cited in Balkcom v. Heptinstall, 152 Ga. App. 539, 263 S.E.2d 275 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1956, p. 161, as it read prior to revision by Ga. L. 1976, p. 949, §§ 1, 2 are included in the annotations for this Code section.

Fundamental public policy underlying section is orderly administration of penitentiary service of prisoners, which is enhanced by a system of rewards in which the prisoner participates through a reduction of time served; the state also benefits through a lessening of ever constant discipline problems. The state receives no benefit by awarding statutory good time to an individual not "in any prison or county public works camp (now county correctional institution) operated under the jurisdiction of the board." This section was passed to benefit both the state and the prisoner. Since the state is not benefited directly when the prisoner is not under the jurisdiction of the board, the application of the provision dealing with statutory good time would be unauthorized. 1963-65 Op. Att'y Gen. p. 143 (decided under Ga. L. 1956, p. 161).

Effect on powers of State Board of Pardons and Parole.

- O.C.G.A. § 42-5-100, which terminates the power of the Board of Offender Rehabilitation (Corrections) to provide for earned-time allowances for inmates under its supervision or custody, has no effect on the powers of the State Board of Pardons and Paroles to grant earned time to persons serving their sentences on parole or other conditional release, and further has no effect on the board's authority to withhold or to forfeit, in whole or in part, any such earned-time allowances. 1984 Op. Att'y Gen. No. 84-7.

Earned-time credit by one sentenced before December 31, 1983, and paroled on January 31, 1984.

- See 1986 Op. Att'y Gen. No. 86-7.

Legislative intent behind this section is to provide for the uniform computation of sentences; therefore, an inmate who is held by a county, pending the appeal of a felony conviction, should benefit from the earned-time provisions in the computation of his release date. 1978 Op. Att'y Gen. No. U78-46 (decided under Ga. L. 1976, p. 949, §§ 1 and 2).

Sheriff responsible for calculating sentences.

- As a natural concomitance of the duties imposed under former Code 1933, §§ 77-101, 77-110, 77-111, and Ga. L. 1976, p. 949, § 2 (see now O.C.G.A. §§ 42-4-1,42-4-4, and42-5-100), the sheriff would be responsible for calculating sentences of felony prisoners held in the county jail pending appeal, and would be the appropriate discharging authority should a sentence expire before a prisoner was transferred to the custody of state authorities. 1978 Op. Att'y Gen. No. U78-46.

Youthful offender may be classified as habitual offender.

- Inmate sentenced under Youthful Offender Act (O.C.G.A. Ch. 7, T. 42) may also be classified as a habitual offender under this section for purposes of sentence computation. Further, in the rare case when a youthful offender is also classified as a habitual offender, earned-time adjustment for habitual offenders should be used in computing the offender's unconditional release date. 1981 Op. Att'y Gen. No. 81-62.

There are two types of "earned time": "parole earned time" granted by the State Board of Pardons and Paroles pursuant to its rules and regulations, and "incarcerated earned time" granted by the Department of Offender Rehabilitation (Corrections) pursuant to its rules and regulations. 1980 Op. Att'y Gen. No. 80-113.

Awarding of earned time against probated sentence would frustrate intent of sentencing judge who has made a previous judicial determination under §§ 17-10-1 and42-8-34 that the particular individual should be subject to a specific period of supervision and control while he is being reintegrated into society. 1982 Op. Att'y Gen. No. 82-58.

Felons confined in county jail.

- The crediting of earned time to misdemeanants confined to county correctional facilities under former subsection (d), applied in the situation where a felon was sentenced to confinement in a county jail as a condition of probation. 1982 Op. Att'y Gen. No. U82-47.

Prerequisite for computation of good-time allowances and deductions.

- With the limited exception of § 42-6-5 relating to temporary custody of convicted inmates in county facilities, good-time allowances and deductions therefrom can only be computed when inmates are under the jurisdiction and control of the institutions operated by the Department of Offender Rehabilitation (Corrections); moreover, with the limited exception of § 42-6-5, neither sheriffs nor the department can take jail credit away from inmates who have misbehaved in jails prior to their being sent to correctional institutions. 1972 Op. Att'y Gen. No. 72-61.

Penal systems not operated by board.

- The Board of Offender Rehabilitation (Corrections) has authority to adopt a policy under which the commissioner may designate penal systems other than those operated by the board as places of confinement for service of state sentences when concurrent sentences are imposed; this practice would enable a prisoner to earn all possible good time even though not actually serving his sentence in a state institution. 1963-65 Op. Att'y Gen. p. 240.

Where one has probated sentence to serve upon completion of in-prison time, probated sentence with its accompanying supervision begins upon discharge of inmate from confinement and continues to run through the period of time originally prescribed for the probated sentence; to allow the inmate to begin his probated sentence when he ordinarily would have been discharged from his in-prison sentence without the good-time allowances, is to allow the inmate to return to society without the benefit and guidance of supervision and without the help the court needs to become aware of violations by the probationer. 1971 Op. Att'y Gen. No. 71-48.

Requests for retention of custody of inmate by county probation department.

- Requests from a county probation department for the retention of custody of an inmate pending the arrival of a deputy sheriff or a probation officer must be disregarded by the wardens. 1969 Op. Att'y Gen. No. 69-151.

Prisoners at Central State Hospital.

- Board of Corrections has the power to promulgate rules and regulations as to good-time allowances which are applicable to prisoners transferred to Central State Hospital due to mental illness. 1975 Op. Att'y Gen. No. 75-146.

Time spent by felon incarcerated under Department of Human Resources not to be considered when computing good-time allowances; rather, good time should be computed from the date the felon is received by an institution under the Board of Corrections' jurisdiction. 1975 Op. Att'y Gen. No. 75-78.

Because a sentence begins running from the time of incarceration under the Department of Human Resources, the prisoner must serve one-third of the time to which he has been sentenced, including the time he has spent in the custody of the Department of Human Resources before becoming eligible for parole. 1975 Op. Att'y Gen. No. 75-78.

Effect of prisoner's acquittal in escape trial.

- The fact that a prisoner was acquitted in a trial on a charge of escape has no legal effect on the authority of the Board of Offender Rehabilitation (Corrections) to deduct from prisoner's good-time allowance for such an escape. 1967 Op. Att'y Gen. No. 67-234.

Means of computing good-time allowance.

- The word "only" in § 17-10-4 should be read as negating any implication that good-time allowances for persons sentenced under that section should be computed in the same manner as for persons convicted of ordinary misdemeanors under this section. 1972 Op. Att'y Gen. No. 72-138.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 204-217.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 142-151.

ALR.

- Withdrawal, forfeiture, modification, or denial of good-time allowance to prisoner, 95 A.L.R.2d 1265.

42-5-101. Work incentive credits.

  1. The Department of Corrections is authorized to devise and to provide by agency rule a system of work incentive credits which may be awarded by the department to persons committed to its custody for any felony prison term other than life imprisonment.
  2. Work incentive credits may be awarded by the department to recognize inmates' institutional attainments in academic or vocational education, satisfactory performance of work assignments made by the penal institution, and compliance with satisfactory behavior standards established by the department.
  3. The department may award up to one day of work incentive credits for each day during which the subject inmate has participated in approved educational or other counseling programs, has satisfactorily performed work tasks assigned by the penal institution, and has complied with satisfactory behavior standards established by the department.
  4. Any work incentive credits awarded an inmate by the department shall be reported by the department to the State Board of Pardons and Paroles which shall consider such credits when making a final parole release decision regarding the subject inmate.The department is authorized to recommend the board apply the work incentive credits to advance any tentative parole release date already established for the subject inmate.
  5. The department also shall report to the State Board of Pardons and Paroles the cases of inmates who decline or refuse to participate in work, educational, or counseling programs, who fail to comply with satisfactory behavior standards, and who therefore refuse to earn work incentive credits.

(Code 1981, §42-5-101, enacted by Ga. L. 1992, p. 3221, § 3.)

Editor's notes.

- Former Code Section 42-5-101, pertaining to the applicability of Code Section 42-5-100 to persons sentenced prior to July 1, 1976, was based on Ga. L. 1956, p. 161, § 24; Ga. L. 1961, p. 127, § 1; Ga. L. 1964, p. 495, § 1; Ga. L. 1968, p. 1399, § 6; Ga. L. 1976, p. 949, § 1; and Ga. L. 1978, p. 985, § 1, and was repealed by Ga. L. 1983, p. 1340, § 2, effective January 1, 1984.

ARTICLE 6 VOLUNTARY LABOR PROGRAM

Editor's notes.

- Ga. L. 2005, p. 1222, § 1/HB 58, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Working Against Recidivism Act.'"

Ga. L. 2005, p. 1222, § 2/HB 58, not codified by the General Assembly, provides that: "The General Assembly finds and declares that:

"(1) Many persons sentenced to confinement for criminal offenses commit additional criminal offenses after release from confinement, and such recidivism is a serious danger to public safety and a major source of expense to the state;

"(2) Under the appropriate conditions and limitations, work programs of voluntary labor by inmates of state and county correctional institutions for privately owned profit-making employers to produce goods, services, or goods and services for sale to public or private purchasers provide substantial public benefits by:

"(A) Providing job experience and skills to participating inmates;

"(B) Allowing participating inmates to accumulate savings available for their use when released from the correctional institution;

"(C) Lowering recidivism rates;

"(D) Generating taxes from inmate income;

"(E) Reducing the cost of incarceration by enabling participating inmates to pay room and board; and

"(F) Providing participating inmates income to pay fines, restitution, and family support;

"(3) Appropriate conditions and limitations for voluntary labor by inmates for such work programs include but are not limited to:

"(A) Assurance that inmates' work is voluntary;

"(B) Payment of inmates at wages at a rate not less than that paid for work of a similar nature in the locality in which the work is to be performed;

"(C) Provision of federal and state governmental benefits to participating inmates comparable to governmental benefits provided for similarly situated private sector workers;

"(D) Selection of participating inmates with careful attention to security issues;

"(E) Appropriate supervision of inmates during travel or employment outside the correctional institution;

"(F) Assurance that inmate labor will not result in the displacement of employed workers; be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality; or impair existing contracts for services;

"(G) Consultations with local private employers that may be economically impacted; and

"(H) Consultations with local labor union organizations and other local employee groups, especially those who have an interest in the trade or skill to be performed by the inmates; and

"(4) Requirements for the federal Prison Industry Enhancement Certification Program authorized by 18 U.S.C. Section 1761 and federal regulations are sufficient to ensure appropriate conditions and limitations in many areas of concern for programs of voluntary labor by inmates for privately owned profit-making employers to produce goods, services, or goods and services for sale to public and private purchasers."

42-5-120. Rules and regulations; requirements.

  1. The board is authorized to issue and promulgate rules and regulations for programs of voluntary labor by inmates for privately owned profit-making employers to produce goods, services, or goods and services for sale to public and private purchasers. Such rules and regulations shall be designed to meet the published requirements of the Prison Industry Enhancement Certification Program authorized by 18 U.S.C. Section 1761 and federal regulations and to provide other appropriate conditions and limitations. Such rules and regulations may provide for administration and management of such work programs by the department and the Georgia Correctional Industries Administration.
  2. The rules and regulations for the work programs authorized by this article shall include but not be limited to rules requiring:
    1. Assurance that inmates' work is voluntary and that there shall be no retribution against inmates who do not volunteer;
    2. Payment of inmates at wages at a rate not less than that paid for work of a similar nature in the locality in which the work is to be performed;
    3. Provision of federal and state governmental benefits to participating inmates comparable to governmental benefits provided for similarly situated private sector employees;
    4. Selection of participating inmates with careful attention to security issues;
    5. Appropriate supervision of inmates during travel and employment outside the correctional institution;
    6. Assurance that inmate labor will not result in the displacement of employed workers; be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality; or impair existing contracts for services;
    7. Consultations with local private businesses that may be economically impacted;
    8. Consultations with local labor union organizations and other local employee groups, especially those who have an interest in the trade or skill to be performed by the inmates; and
    9. Procedures for deductions from inmate wages for federal, state, and local taxes; reasonable charges for room and board; court-ordered child support and voluntary family support; and payments to the Georgia Crime Victims Emergency Fund of not less than 5 percent nor greater than 20 percent of gross wages, in compliance with Prison Industry Enhancement Certification Program requirements.
  3. Notwithstanding the provision of Code Section 50-13-2 exempting the Board of Corrections from the definition of the term "agency" and thus from the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the rules and regulations promulgated in accordance with this Code section shall be subject to the provisions of Code Section 50-13-4, relating to procedural requirements for the adoption, amendment, or repeal of rules; the limitation on an action to contest rules; and legislative override of rules to which the members of the General Assembly object.

(b.1)Regulations relating to paragraphs (2) and (6) of subsection (b) of this Code section and relating to whether labor shortages exist shall be promulgated and issued jointly by the board and the Commissioner of Labor.

(Code 1981, §42-5-120, enacted by Ga. L. 2005, p. 1222, § 4/HB 58; Ga. L. 2007, p. 224, § 3/HB 313.)

Administrative Rules and Regulations.

- Prison Industry Enhancement Certification Program (PIECP) Rules of General Applicability, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Labor, Employment Services Division, Chapter 300-9-1.

OPINIONS OF THE ATTORNEY GENERAL

Administration of voluntary labor programs.

- State law as of 2005 does not permit the Georgia Department of Corrections to delegate to the Georgia Correctional Industries Administration the administration and management of the voluntary inmate labor program authorized pursuant to the Working Against Recidivism Act. 2005 Op. Att'y Gen. No. 2005-5.

42-5-121. Federal certification.

The commissioner shall seek certification under the federal Prison Industry Enhancement Certification Program authorized by 18 U.S.C. Section 1761 and federal regulations for programs of voluntary labor by inmates for privately owned profit-making employers to produce goods, services, or goods and services for sale to public or private purchasers. After receiving certification, the board shall operate one or more such programs.

(Code 1981, §42-5-121, enacted by Ga. L. 2005, p. 1222, § 4/HB 58.)

42-5-122. Conflicting legislation preempted.

Any program for voluntary labor by inmates created in accordance with this article shall not be subject to the provisions of Code Section 42-5-60 prohibiting hiring out inmates to private persons, corporations, and businesses conducted for profit; prohibiting sale of goods, wares, or merchandise manufactured, produced, or mined by inmates to private persons, firms, associations, and corporations; and limiting the amount of compensation for inmates.

(Code 1981, §42-5-122, enacted by Ga. L. 2005, p. 1222, § 4/HB 58.)

42-5-123. Compensation by employers for administrative and other costs to the state.

  1. The board shall ensure by rules or by contractual provisions that the privately owned profit-making employers compensate the department and the Georgia Correctional Industries Administration for any administrative costs or other costs incurred by the department or the administration for the operation of the program or programs. The board shall ensure by rules or by contractual provisions that the department and the administration are compensated for use of any employees of the department or the administration, use of any space owned by or under the control of the department or the administration, or use of any other resources of the department or the administration in the operation of the program or programs.
  2. Employers that participate in inmate work programs under this article shall be prohibited from providing any thing of value to the Board of Corrections, the Department of Corrections, the Georgia Correctional Industries Administration, or any officer or employee thereof other than the payments authorized by this Code section. The Board of Corrections, the Department of Corrections, the Georgia Correctional Industries Administration, and any officer or employee thereof shall be prohibited from accepting any thing of value, other than the payments authorized by this Code section, from employers that participate in inmate work programs under this article. As used in this Code section, the term "thing of value" shall have the same meaning as that term is defined in Code Section 16-10-2.

(Code 1981, §42-5-123, enacted by Ga. L. 2005, p. 1222, § 4/HB 58; Ga. L. 2007, p. 224, § 4/HB 313.)

42-5-124. Publicizing and inviting participation in programs; cooperation with the Department of Labor.

Following the issuance and promulgation of rules and regulations, the department and the Georgia Correctional Industries Administration are authorized to publicize the program and invite employers to participate. The department shall rely upon the Georgia Department of Labor for determining whether inmates would be displacing other workers, whether labor shortages exist, and the prevailing local wage for work to be done by inmates. The Georgia Department of Labor is authorized to provide such determinations to the department.

(Code 1981, §42-5-124, enacted by Ga. L. 2005, p. 1222, § 4/HB 58; Ga. L. 2007, p. 224, § 5/HB 313.)

42-5-125. General applicability; exceptions.

  1. Every program involving employment of an inmate, convict, or prisoner by a business operated for profit to manufacture, produce, or mine goods, wares, or merchandise for transportation in interstate commerce or to provide services shall become a part of the programs authorized by this article and shall conform to the rules and regulations promulgated in accordance with this article.
  2. This Code section shall not apply to programs for the production of agricultural commodities, parts for the repair of farm machinery, or goods, wares, or merchandise manufactured for use by not for profit organizations, the federal government, the District of Columbia, or by any state or political subdivision of a state.
  3. This Code section shall not apply to an inmate, convict, or prisoner serving a term of supervised release, as described in 18 U.S.C. Section 3583.

(Code 1981, §42-5-125, enacted by Ga. L. 2005, p. 1222, § 4/HB 58.)

CHAPTER 6 DETAINERS

Article 1 General Provisions.
Article 2 Interstate Agreement on Detainers.

JUDICIAL DECISIONS

O.C.G.A. Ch. 6, T. 42 does not require the filing of a detainer, but only states what action is required by an inmate if a detainer is filed. Riley v. State, 180 Ga. App. 409, 349 S.E.2d 274 (1986).

Cited in Reed v. State, 249 Ga. 344, 290 S.E.2d 469 (1982).

ARTICLE 1 GENERAL PROVISIONS

JUDICIAL DECISIONS

Strict construction.

- Detainer statutes are in derogation of the common law and must be strictly construed. Street v. State, 211 Ga. App. 230, 438 S.E.2d 693 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Ga. L. 1968, p. 1110, § 1 is not an ex post facto or retroactive law. 1969 Op. Att'y Gen. No. 69-95.

Primary purpose of Ga. L. 1968, p. 1110, § 1 is to aid the prisoner in rendering the prisoner's future more certain by allowing the prisoner to request the disposition of outstanding charges against the prisoner while the prisoner is confined; such a purpose is inconsistent with an authorization to the Board of Offender Rehabilitation (Corrections) to hold the prisoner after the prisoner's sentence has expired. 1969 Op. Att'y Gen. No. 69-410.

Detaining prisoner after expiration of sentence.

- It was not contemplated that the board should have the power to hold a prisoner after the expiration of the prisoner's sentence. 1969 Op. Att'y Gen. No. 69-410.

42-6-1. Definitions.

As used in this article, the term:

  1. "Commissioner" means the commissioner of corrections.
  2. "Department" means the Department of Corrections.
  3. "Detainer" means a written instrument executed by the prosecuting officer of a court and filed with the department requesting that the department retain custody of an inmate pending delivery of the inmate to the proper authorities to stand trial upon a pending indictment or accusation, or to await final disposition of all appeals and other motions which are pending on any outstanding sentence, and to which is attached a copy of the indictment, accusation, or conviction which constitutes the basis of the request. The request shall contain a statement that the prosecuting officer desires and intends to bring the inmate to trial upon the pending indictment or accusation, and in the case of an outstanding sentence, that he intends to seek final disposition of all appeals and other motions.

(Ga. L. 1968, p. 1110, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 1982, p. 1373, §§ 1, 2; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1.)

JUDICIAL DECISIONS

Due process concerns.

- State inmate's 42 U.S.C. § 1983 suit against a county sheriff and state prison warden failed because the inmate's erroneous transfer to prison from the county jail after the inmate was granted an appeal bond in one criminal case did not preclude the inmate from being detained on a bench warrant prior to the trial of a second criminal case; such transfers did not violate the Fourteenth Amendment's due process clause because the inmate did not present any evidence the inmate's detention at the prison was qualitatively different from the inmate's detention in the jail, and pretrial detention in a prison setting was authorized by O.C.G.A. §§ 42-6-1 to42-6-5. White v. Thompson, 299 Fed. Appx. 930 (11th Cir. 2008)(Unpublished).

Matters constituting "detainer."

- Defendant's admission in the defendant's brief that the district attorney filed a letter with the department of corrections stating there was an outstanding warrant for the defendant, and that the state intended to prosecute, substantially complied with the codal definition of a "detainer." Riley v. State, 180 Ga. App. 409, 349 S.E.2d 274 (1986).

Order of court not "detainer."

- Order issued by the trial court directing the Department of Offender Rehabilitation to produce the defendant for arraignment and trial on certain dates was not a detainer, and the defendant was not required to follow the procedure outlined in O.C.G.A. § 42-6-3 for ensuring the trial date after the defendant had filed a demand for speedy trial. Street v. State, 211 Ga. App. 230, 438 S.E.2d 693 (1993).

OPINIONS OF THE ATTORNEY GENERAL

This section is no more than a definition; it does not command the filing of a detainer nor any response on the part of the board. 1969 Op. Att'y Gen. No. 69-410.

Article not an ex post facto or retroactive law. 1969 Op. Att'y Gen. No. 69-95.

Primary purpose of this article is to aid the prisoner in rendering the prisoner's future more certain by allowing the prisoner to request disposition of outstanding charges against the prisoner while the prisoner is confined; such a purpose is inconsistent with an authorization to the Board of Offender Rehabilitation (Corrections) to hold the prisoner after the prisoner's sentence has expired. 1969 Op. Att'y Gen. No. 69-410.

Applicable to prisoners with appeals pending upon prior convictions.

- While Ga. L. 1968, p. 1110, § 1 (see now O.C.G.A. §§ 42-6-1 through42-6-6) does not specifically mention prisoners with appeals pending upon prior convictions, there is nothing in the statutes which would prohibit either a district attorney or a sheriff from writing the Board of Offender Rehabilitation (Corrections) that such a situation exists with reference to a prisoner, and from sending an arresting officer with a warrant to pick up the prisoner upon release. 1972 Op. Att'y Gen. No. U72-101 (rendered prior to 1982 amendment).

Detention after expiration of sentence.

- It was not contemplated that the board should have power to hold a prisoner after expiration of the prisoner's sentence. 1969 Op. Att'y Gen. No. 69-410.

Request for detention from county probation department.

- As officers and employees of county probation departments are not prosecuting officers of court, requests of county probation department for detention of an inmate on the inmate's release date cannot be treated as detainers. 1969 Op. Att'y Gen. No. 69-268.

Request for the retention of an inmate supported by warrant only does not constitute filing of a detainer. 1969 Op. Att'y Gen. No. 69-23.

Request for detention and return of inmate in Georgia prison system to county for service of sentence already imposed and to be served in county work camp (now county correctional institution) is not a detainer within the meaning of Ga. L. 1968, p. 1110, § 1 (see now O.C.G.A. §§ 42-6-1 through42-6-6); the same relates solely to requests for the detention of an inmate pending delivery for trial upon pending charges. 1968 Op. Att'y Gen. No. 68-502.

Recourse in lieu of detainer.

- Although the detainer procedure may be invoked by an accusation without a waiver of indictment by grand jury, this procedure will not authorize the Board of Offender Rehabilitation (Corrections) to hold a prisoner after the prisoner's sentence has expired; the district attorney can arrest the prisoner upon the prisoner's release and proceed against the prisoner as the district attorney would proceed against any other criminal defendant. 1969 Op. Att'y Gen. No. 69-410.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 129-131.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 133, 134.

42-6-2. When detainers to be accepted and filed by department.

The department shall accept and file only those detainers which meet the requirements of this article and which are filed in accordance with this article; provided, however, this article shall not apply to detainers filed by the authorities of the United States government or of any of the other several states or of any foreign state.

(Ga. L. 1968, p. 1110, § 1.)

JUDICIAL DECISIONS

Authority.

- Defendant's motion for bond was properly denied because a purported detainer did not meet the requirements in O.C.G.A. § 42-6-2, did not constitute arrest and confinement of the defendant, did not require the presentment of the charges to a grand jury within 90 days, and did not entitle the defendant to automatic bail under O.C.G.A. § 17-7-50. Denson v. State, 317 Ga. App. 456, 731 S.E.2d 130 (2012).

42-6-3. Time limit for trial; notice and request for final disposition; notification of inmate and interested parties; effect of escape by inmate.

  1. Whenever a person has entered upon a term of imprisonment in a penal institution under the jurisdiction of the department and whenever during the continuance of the term of imprisonment there is pending in any court in this state any untried indictment or accusation on the basis of which a detainer has been filed against such an inmate, he shall be brought to trial within two terms of court after he has caused to be delivered to the prosecuting officer and the clerk of the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request that a final disposition be made of the indictment or accusation; provided, however, that, for good cause shown in open court, the inmate or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the inmate shall be accompanied by a certificate of the department stating the term of commitment under which the inmate is being held, the computed expiration date of the commitment, and the time of parole eligibility of the inmate.
  2. The written notice and request for final disposition referred to in subsection (a) of this Code section shall be given or sent by the inmate to the commissioner who shall promptly forward it, together with the certificate referred to in subsection (a) of this Code section, to the appropriate prosecuting officer and court by registered or certified mail or statutory overnight delivery.
  3. Within 15 days, the warden, superintendent, or other official having physical custody of the inmate shall inform him of the source and furnish him with a copy of the contents of any detainer filed against him and shall also inform him of his right to make a request for a final disposition of the indictment or accusation upon which the detainer is based.
  4. Any request for final disposition of a pending indictment or accusation made by an inmate pursuant to subsection (a) of this Code section shall operate as a request for final disposition of all untried indictments or accusations on the basis of which detainers have been filed against the inmate from the county to whose prosecuting official the request for a final disposition is specifically directed. The commissioner shall promptly notify all interested prosecuting officers and courts in the several jurisdictions within the county to which the inmate's request for final disposition is being sent of the proceeding being initiated by the inmate. Notification sent pursuant to this subsection shall be accompanied by copies of the inmate's written notice and request and by the certificate. If trial is not had on any indictment or accusation upon which a detainer has been based within two terms of court after the receipt by the appropriate prosecuting officers and court of the inmate's request for final disposition, provided no continuance has been granted, all detainers based upon such pending indictments or accusations shall be stricken and dismissed from the records of the department.
  5. Escape from custody by an inmate subsequent to his execution of the request for a final disposition of any pending indictment or accusation shall automatically void the request for final disposition and the same shall be stricken and dismissed from the records of the department.

(Ga. L. 1968, p. 1110, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 2000, p. 1589, § 3.)

Cross references.

- Demand for trial generally, § 17-7-170 et seq.

JUDICIAL DECISIONS

Defendants serving time outside of state.

- This section has no application to a defendant who is serving in a penal institution outside of the state and not under the jurisdiction of the Board of Corrections. Butler v. State, 126 Ga. App. 22, 189 S.E.2d 870 (1972).

Speedy trial.

- When the defendant is not within the purview of subsection (a) of this section, nor does the record show compliance with when §§ 17-7-170,17-8-21, or17-8-33, the defendant is not denied the right to a speedy trial within the meaning of Ga. Const. 1983, Art. I, Sec. I, Para. XI or U.S. Const., Art. VI, when the defendant's trial is delayed after the defendant withdraws the defendan's guilty plea. Butler v. State, 126 Ga. App. 22, 189 S.E.2d 870 (1972).

Order issued by the trial court divesting the Department of Offender Rehabilitation to produce the defendant for arraignment and trial on certain dates was not a detainer and the defendant was not required to follow the procedure authorized in O.C.G.A. § 42-6-3 for ensuring the trial date after the defendant had filed a demand for speedy trial. Street v. State, 211 Ga. App. 230, 438 S.E.2d 693 (1993).

Trial requirement not actuated by demand for trial.

- When the defendant freely admitted to the trial court that the defendant made no demand for a speedy trial or disposition of the defendant's indictment to the appropriate authorities, the requirement that "an inmate . . . shall be brought to trial within two terms of court" was never actuated by a demand for trial. Riley v. State, 180 Ga. App. 409, 349 S.E.2d 274 (1986).

Sanction for violating subsection (a).

- Only sanction provided for the state's failure to comply with the requirements of subsection (a) of O.C.G.A. § 42-6-3 is that the detainers based upon pending indictments or accusations shall be stricken or dismissed. Quick v. State, 198 Ga. App. 353, 401 S.E.2d 758 (1991).

RESEARCH REFERENCES

ALR.

- What justifies escape or attempt to escape, or assistance in that regard, 70 A.L.R.2d 1430.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

42-6-4. Effect of failure to meet time limit for trial after delivery of inmate pursuant to Code Section 24-13-60.

If an inmate is not brought to trial upon a pending indictment or accusation within two terms of court after delivery of the inmate to the sheriff or a deputy sheriff pursuant to subsection (a) of Code Section 24-13-60, provided no continuance has been granted, all detainers based upon the pending indictments or accusations shall be stricken and dismissed from the records of the department.

(Ga. L. 1968, p. 1110, § 1; Ga. L. 2011, p. 99, § 62/HB 24.)

Cross references.

- Demand for trial generally, § 17-7-170 et seq.

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

42-6-5. Temporary custody of inmate requesting disposition of pending indictment or accusation.

  1. In response to the request of an inmate for final disposition of any pending indictment or accusation made pursuant to Code Section 42-6-3 or pursuant to an order of a court entered pursuant to subsection (a) of Code Section 24-13-60, the department shall offer to deliver temporary custody of the inmate to the sheriff or a deputy sheriff of the county in which the indictment or accusation is pending against the inmate. The judge of the court in which the proceedings are pending is authorized to and shall issue an ex parte order directed to the department requiring the delivery of the inmate to the sheriff or a deputy sheriff of the county in which the trial is to be held.
  2. The sheriff or a deputy sheriff of a county accepting temporary custody of an inmate shall present proper identification and a certified copy of the indictment or accusation upon which trial is to be had.
  3. If the sheriff or deputy sheriff fails or refuses to accept temporary custody of the inmate, detainers based upon indictments or accusations upon which trial has been sought shall be stricken and dismissed from the records of the department.
  4. The temporary custody referred to in this article shall be only for the purpose of permitting prosecution on the pending indictments or accusations which form the basis of the detainer or detainers filed against the inmate.
  5. At the earliest practicable time consonant with the purposes of this article, the inmate shall be returned by the sheriff or a deputy sheriff to the custody of the department.
  6. During the continuance of temporary custody or while the inmate is otherwise being made available for trial as required by this article, the sentence being served by the inmate shall continue to run and good time shall be earned by the inmate to the same extent that the law allows for any other inmate serving under the jurisdiction of the department.
  7. From the time that the sheriff or a deputy sheriff receives custody of an inmate pursuant to this article and until the inmate is returned to the physical custody of the department, the county to which the inmate is transported shall be responsible for the safekeeping of the inmate and shall pay all costs of transporting, caring for, keeping, and returning the inmate. Any habeas corpus action instituted by the inmate while in the custody of the sheriff shall be defended by the county attorney and the expenses of such litigation shall be paid by the county.

(Ga. L. 1968, p. 1110, § 1; Ga. L. 1969, p. 606, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 2011, p. 99, § 63/HB 24.)

Cross references.

- Demand for trial generally, § 17-7-170 et seq.

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev