2021 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-35. Terms and Conditions of Probation; Supervision

1. The court shall determine the terms and conditions of probation and may provide that the probationer shall:
   1. Avoid injurious and vicious habits;
   2. Avoid persons or places of disreputable or harmful character;
   3. Report to the officer as directed;
   4. Permit the officer to visit the probationer at the probationer's home or elsewhere;
   5. Work faithfully at suitable employment insofar as may be possible;
   6. Remain within a specified location; provided, however, that the court shall not banish a probationer to any area within this state:
      1. That does not consist of at least one entire judicial circuit as described by Code Section 15-6-1; or
      2. In which any service or program in which the probationer must participate as a condition of probation is not available;
   7. Make reparation or restitution to any aggrieved person for the damage or loss caused by the probationer's offense, in an amount to be determined by the court. Unless otherwise provided by law, no reparation or restitution to any aggrieved person for the damage or loss caused by the probationer's offense shall be made if the amount is in dispute unless the same has been adjudicated;
   8. Make reparation or restitution as reimbursement to a municipality or county for the payment for medical care furnished the person while incarcerated pursuant to the provisions of Article 3 of Chapter 4 of this title. No reparation or restitution to a local governmental unit for the provision of medical care shall be made if the amount is in dispute unless the same has been adjudicated;
   9. Repay the costs incurred by any municipality or county for wrongful actions by an inmate covered under the provisions of paragraph (1) of subsection (a) of Code Section 42-4-71;
   10. Support the probationer's legal dependents to the best of the probationer's ability;
   11. Violate no local, state, or federal laws and be of general good behavior;
   12. If permitted to move or travel to another state, agree to waive extradition from any jurisdiction where the probationer may be found and not contest any effort by any jurisdiction to return the probationer to this state;
   13. Submit to evaluations and testing relating to rehabilitation and participate in and successfully complete rehabilitative programming as directed by DCS;
   14. Wear a device capable of tracking the location of the probationer by means including electronic surveillance or global positioning satellite systems. DCS shall assess and collect fees from the probationer for such monitoring at levels set by regulation of the Board of Community Supervision;
   15. Complete a residential or nonresidential program for substance abuse or mental health treatment as indicated by a risk and needs assessment;
   16. Agree to the imposition of graduated sanctions when, in the discretion of the officer, the probationer's behavior warrants a graduated sanction; and
   17. Pay for the cost of drug screening. DCS shall assess and collect fees from the probationer for such screening at levels set by regulation of the Board of Community Supervision.
2. In determining the terms and conditions of probation for a probationer who has been convicted of a criminal offense against a victim who is a minor or dangerous sexual offense as those terms are defined in Code Section 42-1-12, the court may provide that the probationer shall be:
   1. Prohibited from entering or remaining present at a victim's school, place of employment, place of residence, or other specified place at times when a victim is present or from loitering in areas where minors congregate, child care facilities, churches, or schools as those terms are defined in Code Section 42-1-12;
   2. Required, either in person or through remote monitoring, to allow viewing and recording of the probationer's incoming and outgoing email, history of websites visited and content accessed, and other internet based communication;
   3. Required to have periodic unannounced inspections of the contents of the probationer's computer or any other device with internet access, including the retrieval and copying of all data from the computer or device and any internal or external storage or portable media and the removal of such information, computer, device, or medium; and
   4. Prohibited from seeking election to a local board of education.
3. The supervision provided for under subsection (b) of this Code section shall be conducted by an officer, law enforcement officer, or computer information technology specialist working under the supervision of an officer or law enforcement agency.

(Ga. L. 1956, p. 27, § 10; Ga. L. 1958, p. 15, § 11A; Ga. L. 1965, p. 413, § 3; Ga. L. 1992, p. 2125, § 4; Ga. L. 1992, p. 2942, § 2; Ga. L. 2004, p. 761, § 3; Ga. L. 2004, p. 775, § 4; Ga. L. 2006, p. 379, § 25/HB 1059; Ga. L. 2006, p. 425, § 1/HB 692; Ga. L. 2008, p. 810, § 5/SB 474; Ga. L. 2012, p. 899, § 7-8/HB 1176; Ga. L. 2013, p. 222, § 18/HB 349; Ga. L. 2015, p. 422, § 4-1/HB 310; Ga. L. 2021, p. 922, § 42/HB 497.)

The 2012 amendment, effective July 1, 2012, in subsection (a), deleted "and" at the end of paragraph (a)(12), substituted a semicolon for a period at the end of paragraph (a)(13), and added paragraphs (a)(14) through (a)(16); and, in subsection (b), deleted former paragraph (b)(2), which read: "Required to wear a device capable of tracking the location of the probationer by means including electronic surveillance or global positioning systems. The department shall assess and collect fees from the probationer for such monitoring at levels set by regulation by the department;", redesignated former paragraphs (b)(3) through (b)(5) as present paragraphs (b)(2) through (b)(4), respectively, and inserted a comma following "Internet access" in paragraph (b)(3). See Editor's notes for applicability.

The 2013 amendment, effective July 1, 2013, deleted "and" at the end of paragraph (a)(15); substituted "; and" for a period at the end of paragraph (a)(16); and added paragraph (a)(17). See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, substituted "officer" for "probation supervisor" in paragraphs (a)(3) and (a)(16); substituted "officer" for "supervisor" in paragraph (a)(4); substituted "this state" for "the state" in the introductory paragraph of (a)(6); substituted "DCS" for "the department" and "The department" in paragraphs (a)(13) and (a)(14); substituted "of the Board of Community Supervision" for "by the department" in paragraph (a)(14); in paragraph (a)(17), in the second sentence, substituted "DCS" for "The Department of Corrections" and substituted "Board of Community Supervision" for "Department of Corrections"; and substituted "an officer" for "a probation officer" twice in subsection (c). See Editor's notes for applicability.

The 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted "email" for "e-mail" in paragraph (b)(2); and substituted "internet" for "Internet" in paragraphs (b)(2) and (b)(3).

- Prohibition against possession of firearms by convicted felons, § 16-11-131.

Payment of fine as condition to probation for felony conviction, § 17-10-8.

- Pursuant to Code Section 28-9-5, in 1992, paragraph (8), as added by Ga. L. 1992, p. 2942, was redesignated as paragraph (b)(9) and the following paragraphs were redesignated accordingly, and "42-4-71" was substituted for "42-4-51" in present paragraph (b)(9).

- Ga. L. 2004, p. 761, § 1, not codified by the General Assembly, provides that: "The General Assembly finds that the safety of the public is a paramount concern and that prison and jail overcrowding and the high cost of incarceration demand a cost effective and innovative approach to protecting communities from dangerous offenders while at the same time providing alternatives to, or bridges to and from incarceration. Under appropriate conditions and limitations, electronic monitoring devices provide the criminal justice system with a tool that should be considered under proper circumstances. Electronic monitoring devices offer effective means to track individuals and may reduce criminal recidivism as well as provide the state with monetary savings since the cost of an electronic monitoring device is far less than the cost of incarcerating an individual and an individual may be able to pay for the device. The criminal penalties provided by this Act are designed to encourage the use of electronic monitoring devices while at the same time discourage interference with these devices."

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. 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."

- For article, "A Review of Georgia's Probation Laws," see 6 Ga. St. B.J. 255 (1970). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). 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). For note, "Limitations Upon Trial Court Discretion in Imposing Conditions of Probation," see 8 Ga. L. Rev. 466 (1974). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 310 (1992). For note, "'158-County Banishment' in Georgia: Constitutional Implications under the State Constitution and the Federal Right to Travel," see 36 Ga. L. Rev. 1083 (2002).

ANALYSIS

• General Consideration
• Probation Terms and Conditions
• Revocation of Probation

OPINIONS OF THE ATTORNEY GENERAL

Imposition of terms by board.

- Board or the board's agents may not place on a prisoner in connection with the prisoner's probation any terms or conditions not required of the prisoner by court order passed by the trial judge at the conclusion of the hearing held for the purpose of considering the prisoner's probation. 1958-59 Op. Att'y Gen. p. 223.

Board, acting through the director of probation (now commissioner of corrections) and probation officers, is without authority to require of probationers under the board's supervision the execution of any waiver of any right of extradition or otherwise, or to impose upon the probationers any condition not placed upon the probationers by the trial judge in the judge's probation order. 1958-59 Op. Att'y Gen. p. 223.

- Confidential screening for the HTLV-III/LAV virus in convicted prostitutes may be required: (1) as a health measure by the Department of Human Resources; or (2) as a condition of probation by the sentencing court. 1986 Op. Att'y Gen. No. 86-19.

- Superior court judge may impose payment of a fine as a term and condition of probation for a defendant being treated under Ga. L. 1968, p. 324, § 1 (see now O.C.G.A. § 42-8-60 et seq.). 1975 Op. Att'y Gen. No. U75-42.

- Supreme Court of this state has upheld a trial court's authority to impose banishment as a condition of probation. 1979 Op. Att'y Gen. No. U79-8.

- List of conditions of probation in this section is not exclusive. 1979 Op. Att'y Gen. No. U79-8.

- Probated sentence providing for specified community service as a condition of probation is permissible. 1979 Op. Att'y Gen. No. U79-8.

- Probationer can be required to pay by court order, as a condition of his/her probation, a reasonable amount toward the cost of maintaining insurance to protect probation supervisors from personal liability should probationers be injured while performing court-ordered community service. 1983 Op. Att'y Gen. No. 83-18.

- Probationer may be required to enter into covenant not to sue probation supervisors personally. A sentencing court may, in the court's discretion, require a probationer to enter into, as a condition of probation, a covenant not to sue probation supervisors in their personal capacity if the probationer is injured while performing court-ordered community service work. 1983 Op. Att'y Gen. No. 83-18.

- Probationer's agreement to pay supervision fee should be obtained at time of sentencing and should be recorded. But, regardless of whether the probationer agrees, the probationer can be required to pay the reasonable supervision fee as a condition of probation. 1981 Op. Att'y Gen. No. 81-100.

Statutory conditions in O.C.G.A. § 42-8-35 are not exclusive, and trial courts may, as a condition of probation, impose a probation supervision fee. 1985 Op. Att'y Gen. No. U85-4.

- Department of Offender Rehabilitation (Corrections) may not on its own initiative collect a supervision fee from probationers. 1981 Op. Att'y Gen. No. 81-100.

- Probation supervision fee collected pursuant to probation order of sentencing court does not have a statutory premise. Therefore, such a fee does not have to be paid into state treasury but, if permitted by probation order, could be retained by the Department of Offender Rehabilitation (Corrections). 1981 Op. Att'y Gen. No. 81-100.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 526-536.

- 24 C.J.S., Criminal Law, §§ 2144-2161.

- Power to impose sentence with direction that after defendant shall have served part of time he be placed on probation for the remainder of term, 147 A.L.R. 656.

Propriety of conditioning probation or suspended sentence on defendant's refraining from political activity, protest, or the like, 45 A.L.R.3d 1022.

What constitutes "good behavior" within statute or judicial order expressly conditioning suspension or sentence thereon, 58 A.L.R.3d 1156.

Propriety, in imposing sentence for original offense after revocation of probation, of considering acts because of which probation was revoked, 65 A.L.R.3d 1100.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim, 79 A.L.R.3d 976.

Validity of requirement that, as condition of probation, indigent defendant reimburse defense costs, 79 A.L.R.3d 1025.

Propriety of conditioning probation upon defendant's posting of bond guaranteeing compliance with terms of probation, 79 A.L.R.3d 1068.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

Propriety of conditioning probation on defendant's not associating with particular person, 99 A.L.R.3d 967.

Propriety of conditioning probation on defendant's serving part of probationary period in jail or prison, 6 A.L.R.4th 446.

Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 19 A.L.R.4th 1251.

Power of court to revoke probation for acts committed after imposition of sentence but prior to commencement of probation term, 22 A.L.R.4th 755.

Propriety of conditioning probation on defendant's not entering specified geographical area, 28 A.L.R.4th 725.

Propriety of conditioning probation on defendant's submission to polygraph or other lie detector testing, 86 A.L.R.4th 709.

Propriety of conditioning probation on defendant's submission to drug testing, 87 A.L.R.4th 929.

Propriety of conditioning parole on defendant's not entering specified geographical area, 54 A.L.R.5th 743.

Propriety of probation condition exposing defendant to public shame or ridicule, 65 A.L.R.5th 187.

Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 46 A.L.R.6th 241.

Propriety, in criminal case, of Federal District Court order restricting defendant's right to re-enter or stay in United States, 94 A.L.R. Fed. 619.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 92 A.L.R.6th 1.