2020 Georgia Code
Title 42 - Penal Institutions
Chapter 2 - Board and Department of Corrections
§ 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.
3. 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.
   2. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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).

- 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.

- 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."

- 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.

- 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).

- 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).

- 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).

- 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).

- 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 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).

- 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.

- 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 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.

- 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.

- 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.