(a) Whenever a plea is filed that a defendant in a criminal case is mentally incompetent to stand trial, it shall be the duty of the court to cause the issue of the defendant's mental competency to stand trial to be tried first by a special jury. If the special jury finds the defendant mentally incompetent to stand trial, the court shall retain jurisdiction over the defendant but shall transfer the defendant to the Department of Human Resources.

(b) Within 90 days after the Department of Human Resources has received actual custody of a person pursuant to subsection (a) of this Code section, the person shall be evaluated and a diagnosis made as to whether the person is presently mentally incompetent to stand trial and, if so, whether there is a substantial probability that the person will attain mental competency to stand trial in the foreseeable future. If the person is found to be mentally competent to stand trial, the department shall immediately report that finding and the reasons therefor to the committing court; and the person shall be returned to the court as provided for in subsection (e) of this Code section.

(c) If the person is found to be mentally incompetent to stand trial by the Department of Human Resources and there is not a substantial probability that the person will attain competency in the foreseeable future, the department shall report that finding and the reasons therefor to the committing court. If the person meets the criteria for civil commitment, he shall thereupon be civilly committed to a state institution pursuant to Chapter 3 or 4 of Title 37, whichever is applicable. If the person does not meet the criteria for civil commitment or if the person after having been committed becomes mentally competent to stand trial, the committing court shall be notified and the person shall be returned to the court as provided for in subsection (e) of this Code section.

(d) If the person is found to be mentally incompetent to stand trial but there is a substantial probability that the person will attain competency in the foreseeable future, by the end of the 90 day period, or at any prior time, the department shall report that finding and the reasons therefor to the committing court and shall retain custody over the person for the purpose of continued treatment for an additional period not to exceed nine months. If, by the end of the nine-month period or at any prior time if the person's condition warrants, the person is still found not to be competent to stand trial, irrespective of the probability of recovery in the foreseeable future, the department shall report that finding and the reasons therefor to the committing court. If the person meets the criteria for civil commitment, he shall thereupon be civilly committed to a state institution pursuant to Chapter 3 or 4 of Title 37, whichever is applicable. If the person does not meet the criteria for civil commitment or if the person after having been committed becomes mentally competent to stand trial, the committing court shall be notified and the person shall be returned to the court as provided for in subsection (e) of this Code section.

(e)(1) A person who is found by the Department of Human Resources to be mentally competent to stand trial shall be discharged into the custody of a law enforcement officer of the jurisdiction of the court which committed the person to the department unless the court has dismissed the charges which led to the commitment, in which case the person shall be discharged. In the event a law enforcement officer does not appear and take custody of the person within 20 days after notice to the appropriate law enforcement official in the jurisdiction of the committing court, the presiding judge of the committing court, and the prosecuting attorney for the court, the department shall itself return the person to one of the committing court's detention facilities; and the cost of returning the person shall be paid by the county in which the committing court is located. All notifications shall be sent by certified mail or statutory overnight delivery, return receipt requested. With the concurrence of the appropriate court and upon the recommendation of the attending physician, any person discharged as competent to stand trial may be held by the department instead of at the court's detention facilities whenever, in the attending physician's opinion, such detention in the court's facilities would be detrimental to the well-being of the person so committed. Such alternative detention shall continue only until the date of the person's trial.

(2) The physical custody of a person who is found by the Department of Human Resources to be mentally incompetent to stand trial and for whom there is no substantial probability that he or she will attain competency in the foreseeable future shall be returned to the committing court. The committing court shall retain custody of the person and may order an independent evaluation of the person by a court appointed licensed clinical psychologist or psychiatrist who shall report to the court in writing as to the current mental and emotional condition of the person. Then the court shall conduct a hearing at which the court shall hear evidence and consider all psychiatric and psychological reports submitted to the court and determine whether the state has proved by clear and convincing evidence that the person meets the criteria for involuntary civil commitment pursuant to Chapter 3 or Chapter 4 of Title 37, whichever is applicable. If the person is found to meet the criteria for involuntary civil commitment, the judge may issue an order committing the person to a state institution. If the person does not meet the criteria for involuntary civil commitment, the person shall be released subject to provisions of bond and other conditions set by the committing court. A person committed under the provisions of this paragraph may only be discharged from that commitment by order of the committing court in accordance with the procedures specified in paragraphs (1) through (3) of subsection (f) of Code Section 17-7-131 except that the burden of proof in such release hearing shall be on the state and if the committed person cannot afford a physician or licensed clinical psychologist of the person's choice, the person may petition the court and the court may order such cost be paid by the county. This paragraph applies to those persons:

(A) Accused of committing the following crimes:

(i) Murder;

(ii) Rape;

(iii) Aggravated sodomy;

(iv) Armed robbery; (v) Aggravated assault;

(vi) Hijacking of a motor vehicle or an aircraft;

(vii) Aggravated battery;

(viii) Aggravated sexual battery;

(ix) Aggravated child molestation; or

(x) Aggravated stalking;

(B) Who are an obvious threat to society as determined by the Department of Human Resources or the assigned judge; or

(C) Who have been convicted of or committed for three or more felonies.

(f) Any person returned to the court as provided in subsection (e) of this Code section shall again be entitled to file a special plea as provided for in this Code section.

(g) If a person is found to be mentally incompetent to stand trial, whether or not committed to a state institution under this Code section, the state may file at any time a motion for rehearing on the issue of the person's mental competency. The court shall grant said motion upon a showing by the state that there are reasonable grounds to believe that the person's mental condition has changed. If this motion is granted, the case shall proceed as provided in subsection (a) of this Code section.