Does the Georgia Department of Corrections have to pay county jails for housing probationers who are awaiting transfer to a probation detention center or diversion center?

Plain-English summary

Georgia counties had been pushing the Department of Corrections to pay them for housing probationers who were waiting for space at a state probation detention center or diversion center. Under O.C.G.A. § 42-5-51(c), DOC must reimburse counties at least $7.50 per inmate per day for "felony inmates available for transfer" if DOC fails to pick them up within 15 days of receiving sentencing documents. The Commissioner asked whether that statute applied to probationers waiting for transfer. The AG said no. Georgia courts (Pitts, Penaherrera, McKinney) have consistently treated "incarceration" and "probation" as mutually exclusive. A defendant sentenced to a probation detention or diversion center is on probation, not serving a sentence of incarceration. Pre-transfer time in the local jail is not part of the probation sentence and does not count as incarceration either. The reimbursement statute by its terms applies only to "incarcerated" felony inmates, so it does not reach probationers awaiting transfer. (A footnote: the rule is different for probationers whose probation has been revoked and who are then ordered into a probation detention center as part of revocation; in that revocation scenario, the offender is being incarcerated and § 42-5-51(c) reimbursement applies.)

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

The Georgia Department of Corrections runs a network of state prison institutions, probation detention centers, and probation diversion centers. The probation detention and diversion centers are limited-confinement facilities used as conditions of probation under O.C.G.A. §§ 42-8-35.4 and 42-8-35.5. Defendants sentenced to these facilities are technically on probation, with the limited confinement as a condition of that probation.

The reimbursement statute, O.C.G.A. § 42-5-51(c), was designed to address the practical problem of state prison inmates sitting in county jails waiting to be picked up by DOC. Counties were absorbing the cost of holding state inmates, and the legislature created a $7.50/day floor reimbursement (subject to appropriations) for felony inmates not picked up within 15 days of DOC's receipt of sentencing documents. The statute's text is specific: it applies "for the cost of incarceration" of "felony inmates available for transfer."

The interpretive question turned on whether probationers waiting for a probation detention or diversion center slot were "incarcerated." The Court of Appeals had already drawn that line clearly. Pitts v. State, 206 Ga. App. 635 (1992), said incarceration "denotes a continuous period of confinement in a jail or penitentiary uninterrupted by periods of freedom," whereas probation "denotes a limitation of freedom short of requiring the service of a continuous and uninterrupted period of confinement." Penaherrera v. State, 211 Ga. App. 162 (1993), held that confinement in a probation detention or diversion center is an authorized term of probation, "not . . . incarceration." McKinney v. State, 240 Ga. App. 812 (1999), said the same about probation boot camps. Penaherrera also addressed the pre-transfer county-jail time directly, noting that the time spent initially in a county facility awaiting a place in a detention or diversion center "was not part of . . . [the] sentence and does not qualify as 'incarceration.'"

Stacking those holdings together, probationers awaiting transfer to a probation detention or diversion center fall outside the class of "incarcerated felony inmates" that § 42-5-51(c) reaches. DOC therefore has no statutory reimbursement obligation. The AG noted that DOC could and should still take reasonable steps to place probationers as soon as space opens, to minimize county costs as a matter of inter-agency cooperation.

The footnote carves out an important exception. When a probationer's probation is revoked under O.C.G.A. § 17-10-1(a)(3)(A) and the court orders the offender to serve part of the revoked sentence in a probation detention or diversion center, that confinement is no longer "probation"; it is incarceration following revocation. In that revocation scenario, the reimbursement obligations under § 42-5-51(c) apply to the extent the General Assembly has appropriated funds.

For county jails at the time

Counties holding probationers awaiting transfer to a probation detention or diversion center were not entitled to § 42-5-51(c) reimbursement from DOC. The cost stayed with the county. Counties holding revocation-incarcerated offenders awaiting transfer to a probation detention center could claim reimbursement.

For the Department of Corrections at the time

DOC's reimbursement obligation under § 42-5-51(c) was confirmed as limited to felony inmates serving incarceration sentences. The opinion recommended that DOC make reasonable efforts to expedite probation-center placements as a courtesy to counties, even without reimbursement.

For probationers and their attorneys at the time

The pre-transfer time spent in county jail was not part of the probation sentence and did not count toward time served. Penaherrera and McKinney had already established this. Defense counsel should not assume that pre-transfer county-jail time would be credited.

Common questions

Q: Why is probation detention center confinement treated as probation rather than incarceration?
A: Because the legislature classified it that way in O.C.G.A. §§ 42-8-35.4 and 42-8-35.5, which describe the confinement as an authorized term of probation. Georgia courts have consistently honored this classification. Probation detention centers, diversion centers, and boot camps are limited-confinement programs structured as conditions of probation rather than as continuous custodial sentences.

Q: What if the probationer is held in county jail for months before transfer?
A: The opinion does not provide a remedy for excessive delay. The county absorbs the cost. The probationer may have a separate due-process or speedy-sentencing claim if delay becomes extreme, but that claim is not addressed in this opinion.

Q: Does § 42-5-51(c) apply if the probationer is also serving a separate, concurrent jail sentence?
A: The opinion does not address that fact pattern directly. Reimbursement would presumably depend on whether the underlying sentence being served is one of incarceration (yes, reimbursable if other criteria met) or probation (no).

Q: Does this opinion change how probation-detention-center commitment is sentenced?
A: No. The substantive sentencing rules under §§ 42-8-35.4 and 42-8-35.5 are unchanged. The opinion only addresses inter-agency reimbursement.

Background and statutory framework

The two-step structure for state inmate transfer is in §§ 42-5-50 and 42-5-51. Within 30 days of sentencing, the court clerk forwards documents to DOC. DOC then has 15 days to "assign" the inmate to an institution. Physical custody stays with the county jail until DOC actually picks the inmate up. § 42-5-51(c) creates the reimbursement obligation if DOC's pick-up is delayed beyond 15 days.

The structure is not designed for probationers. Probation detention and diversion center placements are part of a probation sentence. The probation-supervision system, not DOC's prison-operations system, manages the transfer scheduling. The county-jail bridge time exists in the gap between sentencing and the next available bed at the state probation facility.

The AG's reading hinges on Pitts's sharp definitional line: incarceration is continuous custodial confinement in a jail or penitentiary; probation is everything short of that, including limited-confinement programs structured as probation conditions. The reimbursement statute uses "incarcerated" as a term of art, which means it tracks the Pitts definition.

Citations and references

Statutes:
- O.C.G.A. § 17-10-1(a)(3)(A) (revocation to probation detention center)
- O.C.G.A. §§ 42-5-50, 42-5-51 (DOC sentence documents, inmate assignment, county reimbursement)
- O.C.G.A. §§ 42-8-35.4, 42-8-35.5 (probation detention and diversion centers)

Cases:
- Pitts v. State, 206 Ga. App. 635 (1992) (incarceration vs probation distinction)
- Penaherrera v. State, 211 Ga. App. 162 (1993) (probation detention center confinement is probation)
- McKinney v. State, 240 Ga. App. 812 (1999) (boot camp same)

Prior AG opinions:
- 1992 Op. Att'y Gen. U92-22 (state forfeitures cannot pay multi-agency narcotics squad executive director salary)

Source

• Landing page: https://law.georgia.gov/opinions/2002-1

Original opinion text

You have requested my opinion whether the reimbursement provisions of O.C.G.A. § 42-5-51(c) require the Department of Corrections (hereinafter "Department") to reimburse counties that maintain physical custody of persons who are awaiting transfer to either a state probation detention center or probation diversion center. It is my opinion that the reimbursement provisions of O.C.G.A. § 42-5-51(c) are not applicable to probationers awaiting transfer to probation detention or diversion centers. In considering this issue, it is helpful to review the ministerial process that occurs after a convicted defendant has been sentenced to a period of incarceration. Within 30 days of an inmate's being sentenced to incarceration, the clerk of the sentencing court is to forward certain sentencing-related documents to the Commissioner of the Department. O.C.G.A. § 42-5-50(a). After receipt of these documents, the Commissioner has 15 days to "assign" the inmate to one of the Department's institutions. O.C.G.A. § 42-5-50(b). However, while assignment occurs within 15 days of receipt of the sentencing documents from the clerk, actual physical custody of the inmate will continue with the county or other local jail until the inmate is picked up by the Department. When the picking up of inmates sentenced to incarceration is delayed, the following relevant portions of O.C.G.A. § 42-5-51(c) are applicable regarding reimbursement to the county for the cost of the extended local incarceration: 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 will 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. The reimbursement provisions of this Code section shall only apply to payment for the incarceration of felony inmates available for transfer to the department. (Emphasis added.) Thus, by the express terms of the reimbursement statute, and depending upon the funds the General Assembly has appropriated for that purpose, the Department must reimburse a county at least $7.50 per inmate per day "for the cost of incarceration" of felony inmates available for transfer. For purposes of this opinion, I assume that the majority of persons going to these probation detention or diversion centers are felony probationers who have either been initially sentenced to probation detention or diversion centers or who are being sent there pursuant to a modification of a previously imposed probationary sentence. See O.C.G.A. §§ 42-8-35.4(a)1 ; 42-8-35.5(a)2 . An individual who has been sentenced to probation is not considered to be serving a sentence of incarceration. "Incarceration" and "probation" have been considered by the appellate courts of this state to be mutually exclusive concepts. Pitts v. State, 206 Ga. App. 635, 637, 426 S.E.2d 257 (1992). The Court of Appeals held that a sentence of "incarceration" denotes a continuous period of confinement in a jail or penitentiary uninterrupted by periods of freedom, whereas a sentence to be served on "probation" denotes a limitation of freedom short of requiring the service of a continuous and uninterrupted period of confinement in a jail or penitentiary. A defendant sentenced to serve a continuous and uninterrupted period of confinement in a jail or penitentiary is "incarcerated." A defendant sentenced to undergo other forms of confinement is on "probation." Id. Moreover, confinement within a probation detention center or a probation diversion center is a type of limited confinement and is an "authorized term[] of a sentence of probation." Penaherrera v. State, 211 Ga. App. 162, 163, 438 S.E.2d 661 (1993). "Georgia law thus authorizes a trial court to condition a defendant's probation on limited confinement in a detention or diversion center . . . . Such does not constitute incarceration, which refers to continuous and uninterrupted custody in a jail or penitentiary." Id. See also McKinney v. State, 240 Ga. App. 812, 814, 525 S.E.2d 395 (1999) (holding the same as to probation boot camps). Furthermore, "the time . . . spent initially in the [county facility] awaiting a place [in a detention or diversion center] was not part of . . . [the] sentence and does not qualify as "incarceration." Id. at n.1 (citing Penaherrera v. State, 211 Ga. App. at 164, which held "the fact that defendant was not transferred to the detention center until 27 or 28 days after sentencing does not invalidate the sentence or violate its terms."). Felony probationers who are merely awaiting transfer to probation detention and diversion centers are not serving sentences of incarceration. Thus, under Georgia law, such probationers are not included among the class of incarcerated persons to which O.C.G.A. § 42-5-51(c) applies.3 However, despite the inapplicability of that Code section to probationers, the Department can nevertheless take reasonable steps to place such probationers with the detention and diversion centers as soon as the requisite space becomes available so as to minimize the costs incurred by local jails. Therefore, it is my official opinion that the 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. Prepared by: J. JAYSON PHILLIPS Assistant Attorney General 1 O.C.G.A. § 42-8-35.4(a) states in relevant part as follows: "In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant . . . complete satisfactorily, as a condition of that probation, a program of confinement in a probation detention center. Probationers so sentenced will be required to serve a period of confinement as specified in the court order, which confinement period shall be computed from the date of initial confinement in the probation detention center." (Emphasis added.) 2 O.C.G.A. § 42-8-35.5(a) states in relevant part as follows: "In addition to any other terms and conditions of probation provided in this article, the trial judge may require that probationers . . . satisfactorily complete, as a condition of that probation, a program in a probation diversion center. Probationers so sentenced will be required to serve a period of confinement as specified in the court order, which confinement period shall be computed from the date of initial confinement in the diversion center." (Emphasis added.) 3 However, in answering this question it is also necessary to consider those situations where a convicted felon has had his or her probation revoked and thereafter is subsequently sentenced to a probation detention center or probation diversion center as a part of non-probationary incarceration. Pursuant to O.C.G.A. § 17-10-1(a)(3)(A): Any part of a sentence of probation revoked for a violation other than a subsequent commission of any felony, a violation of a special condition, or a misdemeanor offense involving physical violence resulting in bodily injury to an innocent victim which in the opinion of the trial court constitutes a danger to the community or a serious infraction occurring while the defendant is assigned to an alternative probation confinement facility shall be served in a probation detention center, probation boot camp, diversion center, weekend lock up, or confinement in a local jail or detention facility, or other community correctional alternatives available to the court or provided by the Department of Corrections. (Emphasis added.) In situations where a felon's probation has been revoked pursuant to the above Code section, he or she may be subsequently confined in a probation detention center or probation diversion center. Where such confinement has been ordered, the inmate is no longer serving probation, but rather is being "incarcerated." Thus, the reimbursement provisions of O.C.G.A. § 42-5-51(c) would be applicable to revoked felons awaiting transfer to the extent the General Assembly has appropriated funds for that purpose.