SB132: SB132 Insanity and Mental Incapacity; hearing before a court orders an evaluation of the mental competency of an accused person to stand trial; require

25 LC 49 2357S Senate Bill 132 By: Senators Strickland of the 42nd, Kirkpatrick of the 32nd, Watson of the 1st, Jackson of the 41st and Anderson of the 43rd AS PASSED A BILL TO BE ENTITLED AN ACT To amend Part 2 of Article 6 of Chapter 7 of Title 17 of the Of ficial Code of Georgia1 Annotated, relating to insanity and mental incapacity, so as to require a hearing before a2 court orders an evaluation of the mental competency of an accused person to stand trial; to3 provide for the release of reports of such evaluations; to esta blish different procedures in4 cases where the subject has been accused only of one or more no nviolent misdemeanor5 offenses, including automatic dismissal in some cases, subject to exceptions; to provide for6 such different procedures and such exceptions; to amend Article 2 of Chapter 1 of Title 377 of the Official Code of Georgia Annotated, relating to powers and duties of the Department8 of Behavioral Health and Developmental Disabilities, so as to p rovide for the receipt of9 conviction data; to provide for related matters; to provide for an effective date and10 applicability; to repeal conflicting laws; and for other purposes.11 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:12 SECTION 1.13 Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Co de of Georgia Annotated,14 relating to insanity and mental incapacity, is amended by revising Code Section 17-7-129,15 S. B. 132 - 1 - 25 LC 49 2357S relating to mental capacity to stand trial and release of competency evaluation to prosecuting16 attorney, as follows:17 "17-7-129.18 (a) When information becomes known to the court sufficient to raise a bona fide doubt19 regarding the accused's mental competency to stand trial, the court has a duty, sua sponte,20 to inquire into the accused's mental competency to stand trial; provided, however, that if21 such information is made known to the court by the accused or the attorney for the accused,22 a hearing as provided for in paragraph (1) of subsection (b) of Code Section 17-7-130 shall23 be required. The court may order the Department of Behavioral Health and Developmental24 Disabilities to conduct an evaluation of the accused's competency. If the court determines25 that it is necessary to have a trial on the issue of competency , the court shall follow the26 procedures set forth in Code Section 17-7-130. The court's order shall set forth those facts27 which give rise to its bona fide doubt as to the accused's mental competency to stand trial. 28 The evaluation of the Department of Behavioral Health and Devel opmental Disabilities29 shall be submitted to the court, and the court shall submit such evaluation to the attorney30 for the accused or, if pro se, to the accused, but otherwise, t he report shall remain under31 seal.32 (b) If the court orders a competency evaluation and the accused serves notice of a special33 plea of mental incompetency to stand trial or raises the issue of insanity and the court34 orders a competency evaluation, the court shall release the competency evaluation to the35 attorney for the accused or, if pro se, to the accused, and to the prosecuting attorney. Such;36 provided, however, that such evaluation shall not be released to any other person absent a37 court order.38 (c) If the court determines that it is necessary to have a trial on the issue of competency,39 the court shall follow the procedures set forth in Code Section 17-7-130."40 S. B. 132 - 2 - 25 LC 49 2357S SECTION 2.41 Said part is further amended in Code Section 17-7-130, relating to proceedings upon a plea42 of mental incompetency to stand trial, by revising subsections (b) and (c) as follows:43 "(b)(1)(A) If an accused files a motion requesting a competency evaluation, the court44 shall hold a hearing to determine if there is sufficient information to raise a bona fide45 doubt regarding the accused's current mental competency to stan d trial. The46 prosecuting attorney may submit information regarding the accus ed's current mental47 competency to stand trial. Any evidence presented by the accused, may, upon request48 by the accused or the attorney for the accused, be ex parte and any evidence submitted49 by either party shall be filed under seal. The court may, upon cause shown at such50 hearing, order the department to conduct an evaluation by a physician o r licensed51 psychologist to determine the accused's mental competency to stand trial and, if such.52 (B) If the physician or licensed psychologist provided for in subparagraph (A) of this53 paragraph determines the accused to be mentally incompetent to stand tri al, the54 Department of Behavioral Health and Developmental Disabilities department, in its sole55 discretion, shall determine an appropriate treatment with the c apability to restore the56 accused to competency, which may include inpatient treatment in a secure facility57 designated by the department or a jail-based competency restoration program. If, and,58 if the accused is a child, the department shall be authorized to place such child in a59 secure facility designated by the department.60 (C) The department's evaluation made pursuant to subparagraph (A) of this paragraph61 shall be submitted to the court, and the court shall submit suc h evaluation to the62 attorney for the accused or, if pro se, to the accused, but otherwise,; provided, however,63 that the evaluation shall be under seal and shall not be released t o any other person64 absent a court order.65 (D) As used in this paragraph, the term 'jail-based competency re storation' means66 clinical services for competency restoration that are provided in jails to persons found67 S. B. 132 - 3 - 25 LC 49 2357S incompetent to stand trial pursuant to mutual agreements entered into between sheriffs68 and the department to offer such clinical services in jails.69 (2) If the accused files a special plea alleging that the accused is mentally incompetent70 to stand trial, it shall be the duty of the court to have a bench trial, unless the state or the71 accused demands a special jury trial, to determine the accused's competency to stand trial. 72 Once a special plea has been filed, the court shall submit the department's evaluation to73 the prosecuting attorney.74 (c)(1) If the court finds the accused is mentally incompetent to stand trial, the court may75 order a department physician or licensed psychologist to evalua te and diagnose the76 accused as to whether there is a substantial probability that the accused will attain mental77 competency to stand trial in the foreseeable future. The court shall retain jurisdiction78 over the accused and shall transfer the accused to the physical custody of the department. 79 At its discretion, the court may allow the evaluation to be performed on the accused as80 an outpatient if the accused is charged with a nonviolent offense.81 (2) The Such evaluation provided for in paragraph (1) of this subsection shall be82 performed:83 (A) Except as provided in subparagraph (B) of this paragraph, within 90 days after the84 department has received actual custody of an accused or, in the case of an outpatient,85 a court order requiring evaluation of an accused. If the accus ed is a child, the86 department shall be authorized to place such child in a secure facility designated by the87 department; or88 (B) If the accused is charged only with one or more nonviolent misdemeanor offenses,89 within 45 days after the department has received actual custody of an accused or, in the90 case of an outpatient, a court order requiring evaluation of an accused; provided,91 however, that the provisions of this subparagraph shall not app ly to a misdemeanor92 charge of driving under the influence of drugs or alcohol in vi olation of Code93 Section 40-6-391 or a misdemeanor charge involving an act of domestic violence.94 S. B. 132 - 4 - 25 LC 49 2357S (3) If the evaluation provided for in paragraph (1) of this subsection shows:95 (1)(A) That the accused is mentally competent to stand trial, the de partment shall96 immediately report that determination and the reasons therefor to the court, and the97 court shall submit such determination to the attorney for the accused or, if pro se, to the98 accused and to the prosecuting attorney. The accused shall be returned to the court as99 provided for in subsection (d) of this Code section;100 (2)(B) That the accused is mentally incompetent to stand trial and t hat there is not a101 substantial probability that the accused will attain competency in the foreseeable future,102 the court shall follow the procedures set forth in subsection (e) of this Code section for103 civil commitment or release; or104 (3)(C) That the accused is mentally incompetent to stand trial but there is a substantial105 probability that the accused will attain competency in the foreseeable future:106 (i) Except as provided in division (ii) of this subparagraph, by the end of the 90 day107 period provided for in subparagraph (A) of paragraph (2) of this subsection, or at any108 prior time, the department shall report that finding and the re asons therefor to the109 court and shall retain custody over the accused for the purpose of continued treatment110 for an additional period not to exceed nine months; provided, h owever, that if the111 accused is charged with a misdemeanor offense or a nonviolent o ffense, the court112 shall retain jurisdiction over the accused but may, in its discretion, allow continued113 treatment to be done on an outpatient basis by the department. T h e and the114 department shall monitor the accused's outpatient treatment for the additional period115 not to exceed nine months; or116 (ii) If the accused is charged only with one or more nonviolen t misdemeanor117 offenses, by the end of the 45 day period provided for in subpa ragraph (B) of118 paragraph (2) of this subsection, or at any prior time, the department shall report that119 finding and the reasons therefor to the court and shall retain custody over the accused120 for the purpose of continued treatment for an additional period not to exceed 120121 S. B. 132 - 5 - 25 LC 49 2357S days; provided, however, that the court shall retain jurisdiction over the accused but122 may, in its discretion, allow continued treatment to be done on an outpatient basis by123 the department and the department shall monitor the accused's o utpatient treatment124 for the additional period not to exceed 120 days.125 (D)(i) If, by the end of the nine-month period provided for in divis ion (i) of126 subparagraph (C) of this paragraph or at any prior time the accused's condition127 warrants, the accused is still determined by the department phy sician or licensed128 psychologist to be mentally incompetent to stand trial, irrespective of the probability129 of recovery in the foreseeable future, the department shall report that finding and the130 reasons therefor to the court. The court shall then follow the procedures in131 subsection (e) of this Code section for civil commitment or release.132 (ii) If, by the end of the 120 day period provided for in divi sion (ii) of133 subparagraph (C) of this paragraph or at any prior time the acc used's condition134 warrants, the accused is still determined by the department phy sician or licensed135 psychologist to be mentally incompetent to stand trial, irrespective of the probability136 of recovery in the foreseeable future, the charges against the accused shall be137 dismissed as a matter of law by the court and the accused shall be referred to a138 community service board unless otherwise ordered by the court for cause shown upon139 the hearing of a motion by the prosecuting attorney."140 SECTION 3.141 Article 2 of Chapter 1 of Title 37 of the Official Code of Geor gia Annotated, relating to142 powers and duties of the Department of Behavioral Health and Developmental Disabilities,143 is amended by revising Code Section 37-1-28, relating to conviction data, as follows:144 S. B. 132 - 6 - 25 LC 49 2357S "37-1-28.145 (a) As used in this Code section, the term 'conviction data' means a record of a finding or146 verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime,147 regardless of whether an appeal of the conviction has been sought.148 (b) The department may receive from any law enforcement agency conviction data that is149 relevant to a person whom the department or its contractors is considering as a final150 selectee for employment in a position the duties of which invol ve direct care, treatment,151 custodial responsibilities, or any combination thereof for its clients. The department may152 also receive conviction data which is relevant to a person whom the department or its153 contractors is considering as a final selectee for employment i n a position if, in the154 judgment of the employer, a final employment decision regarding the selectee can only be155 made by a review of conviction data in relation to the particular duties of the position and156 the security and safety of clients, the general public, or other employees.157 (c) The department may receive from any law enforcement agency conviction data which158 is relevant to a person whom the department or its contractors is considering as a final159 selectee for employment in a position if, in the judgment of th e employer, a final160 employment decision regarding the selectee can only be made by a review of conviction161 data in relation to the particular duties of the position and the security and safety of clients,162 the general public, or other employees.163 (c)(d) The department shall establish a uniform method of obtaining conviction data under164 subsection (a) of this Code section which shall be applicable t o the department and its165 contractors. Such uniform method shall require the submission to the Georgia Crime166 Information Center of fingerprints and the records search fee i n accordance with Code167 Section 35-3-35. Upon receipt thereof, the Georgia Crime Infor mation Center shall168 promptly transmit fingerprints to the Federal Bureau of Investigation for a search of bureau169 records and an appropriate report and shall promptly conduct a search of its own records170 and records to which it has access. After receiving the finger prints and fee, the Georgia171 S. B. 132 - 7 - 25 LC 49 2357S Crime Information Center shall notify the department in writing of any derogatory finding,172 including, but not limited to, any conviction data regarding the fingerprint records check173 or if there is no such finding.174 (d)(e) All conviction data received shall be for the exclusive purpo se of making175 employment decisions or decisions concerning individuals in the care of the department176 and shall be privileged and shall not be released or otherwise disclosed to any other person177 or agency. Immediately following the employment decisions or u pon receipt of the178 conviction data, all such conviction data collected by the department or its agent shall be179 maintained by the department or agent pursuant to laws regardin g and the rules or180 regulations of the Federal Bureau of Investigation and the Geor gia Crime Information181 Center, as is applicable. Penalties for the unauthorized relea se or disclosure of any182 conviction data shall be as prescribed pursuant to laws regarding and rules or regulations183 of the Federal Bureau of Investigation and the Georgia Crime In formation Center, as is184 applicable.185 (e)(f) The department may promulgate written rules and regulations t o implement the186 provisions of this Code section.187 (f)(g) The department shall be authorized to conduct a name or descriptor based check of188 any person's criminal history information, including arrest and conviction data, and other189 information from the Georgia Crime Information Center regarding any adult person who190 provides care or is in contact with persons under the care of t he department without the191 consent of such person and without fingerprint comparison to the fullest extent permissible192 by federal and state law.193 (g)(h) If the department is participating in the program described in subparagraph (a)(1)(F)194 of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of195 Investigation shall be authorized to retain fingerprints obtain ed pursuant to this Code196 section for such program and the department shall notify the individual whose fingerprints197 were taken of the parameters of such retention."198 S. B. 132 - 8 - 25 LC 49 2357S SECTION 4.199 This Act shall become effective on July 1, 2025, and shall appl y to any motions made or200 hearings or trials commenced on or after such date.201 SECTION 5.202 All laws and parts of laws in conflict with this Act are repealed.203 S. B. 132 - 9 -