Chapter 1
Governor

Part 1
General Provisions

8-1-101. Date governor's oath of office taken.

The governor shall take the oath of office on the first Saturday following the fourteenth day of January next following the governor's election, after the commencement of the organizational session of the general assembly as established by the Constitution of Tennessee, Article II, § 8.

Acts 1979, ch. 355, § 1.

Cross-References. Inauguration of governor, Tenn. Const., art. II, § 8.

Resignation, transmittal, § 8-48-103.

Law Reviews.

Be a Liar or You're Fired! First Amendment Protection for Public Employees Who Object to Their Employer's Criminal Demands, 66 Vand. L. Rev. 1541 (2013).

Constitutional Law — The First Amendment Retaliation Doctrine — A Public Employee's Rights Regarding Perceived Political Association Retaliation, 81 Tenn. L. Rev. 367 (2014).

8-1-102. Compensation.

The salary of the governor shall be the same as the chief justice of the supreme court payable, in equal monthly installments out of the state treasury on warrant, which compensation shall be in full for services as governor. The salary shall not include upkeep on the governor's residence or such necessary traveling expenses as the governor may incur on behalf of the state. No fees of any kind or character shall attach to the office of governor or in relation to the operation of the office.

Acts 1893, ch. 6, § 3; Shan., § 241; Code 1932, § 183; Acts 1945, ch. 1, § 1; 1949, ch. 1, § 1; C. Supp. 1950, § 183; Acts 1961, ch. 156, § 1; 1968, ch. 622, §§ 1, 2; 1972, ch. 526, § 3; T.C.A. (orig. ed.), § 8-101; Acts 1986, ch. 752, § 1; 2006, ch. 982, § 1.

Cross-References. Compensation of governor not to be increased or decreased during term of office, Tenn. Const., art. III, § 7.

Governor to receive compensation, Tenn. Const., art. III, § 7.

Attorney General Opinions. Adjusting the governor's salary to equal that of the chief justice would not violate Tenn. Const., art. III, § 7, OAG 07-138, 2007 Tenn. AG LEXIS 138 (9/25/07).

8-1-103. Private secretary.

There shall be a private secretary to the governor who shall be appointed by the governor and shall be a resident and citizen of Tennessee.

Acts 1893, ch. 134, § 1; Shan., § 239; Code 1932, § 181; T.C.A. (orig. ed.), § 8-102.

8-1-104. [Obsolete.]

Code Commission Notes.

This section (Acts 1893, ch. 134, § 2; Shan., § 240; mod. Code 1932, § 182; Acts 1937, ch. 33, § 29; impl. am. Acts 1937, ch. 107, § 2; mod. C. Supp. 1950, § 182; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 8-103), concerning the private secretary's salary, is deemed by the Code Commission to be obsolete.

8-1-105. Administrative assistants to governor.

The governor is empowered to appoint two (2) persons to be known as administrative assistants, to aid the governor in the performance of additional duties of the office. These administrative assistants shall hold office at the pleasure of the governor and perform such duties as may be delegated to them by executive order of the governor or otherwise. An administrative assistant may also be the head of a department of the state government; provided, that the administrative assistant's total salary shall be fixed commensurate with the services rendered.

Acts 1937, ch. 33, § 75a, as added by Acts 1939, ch. 11, § 43; C. Supp. 1950, § 255.87 (Williams, § 255.80a); T.C.A. (orig. ed.), § 4-342.

8-1-106. Contingent expenses of executive department.

The following contingent expenses of the executive department shall be a charge upon the state treasury:

  1. Such sums of money as may be necessary to defray the expenses attendant on exchanging laws and documents with the several states of the union;
  2. Such sums of money as may be necessary to provide stationery for the governor's and secretary's offices, and postage and expressage on public letters and documents;
  3. An amount to pay for cleaning the public arms of the state and keeping them in good serviceable order; and
  4. Such sums of money as may be requisite to defray the expenses of all messengers and messages which it may be necessary for the governor to dispatch.

Code 1858, § 191 (deriv. Acts 1811, ch. 85, §§ 1, 3; 1813, ch. 79, § 1; 1853-1854, ch. 266, § 1); Shan., § 238; mod. Code 1932, § 180; T.C.A. (orig. ed.), § 8-104.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

8-1-107. Succession to office.

Whenever a vacancy exists in the office of governor from death, resignation or other cause, creating a vacancy therein, and there is no speaker of the senate nor speaker of the house at such time, then and in that event the secretary of state shall become governor, and in case of the death or resignation of the secretary of state, then the comptroller of the treasury shall become governor.

Acts 1941, ch. 99, § 1; C. Supp. 1950, § 187.1; T.C.A. (orig. ed.), § 8-105.

Cross-References. Lieutenant governor, succession to office of governor, § 8-2-101.

Succession to office of governor, Tenn. Const., art. III, § 12.

8-1-108. Power to forbid starting of fires during drought — Violation.

  1. During periods of extreme drought in this state, or in any area of the state, the governor is hereby authorized and empowered to issue proclamations forbidding the starting of any open air and unconfined fire on or near woodlands where dangerous fire hazards exist during the period of such drought.
  2. If the governor issues a proclamation pursuant to this section, anyone igniting an open air or unconfined fire in violation of the proclamation commits a Class A misdemeanor.

Acts 1963, ch. 27, § 1; T.C.A., § 8-106; Acts 1988, ch. 653, § 1; 1989, ch. 591, §§ 1, 6.

Cross-References. Controlled burns, burning woods, § 68-102-146.

Leaving fire near woodland controlled, § 39-14-305.

Penalty for Class A misdemeanor, § 40-35-111.

Reckless burning, § 39-14-304.

Setting fire to land, § 39-14-303.

Setting fires at certain times without permit, § 39-14-306.

8-1-109. Governor to sign certain documents — Power of attorney for purpose of affixing governor's signature.

  1. The governor shall personally affix the governor's signature to bills, joint resolutions, executive orders or veto messages, and to reprieves, pardons and commutations.
    1. In the event the governor is physically incapacitated due to health or is out of the state on official business and is unable to sign those items enumerated in subsection (a), the governor may authorize a power of attorney to an individual for a specified period of time for the purpose of affixing the governor's signature to such items.
    2. If the governor is physically incapacitated due to health and unable to sign such items, the power of attorney shall be accompanied by a physician's affidavit that the governor is physically incapacitated due to health and is unable to personally sign such items.
    3. The power of attorney shall only be for the affixing of the governor's signature and not for the decision of approval or nonapproval of such items. It is the express intent of this section that the governor may delegate only the affixing of the governor's signature and not the decision of approval or nonapproval of such items.

Acts 1979, ch. 124, § 1; T.C.A., § 8-1-110.

8-1-110. Criminal justice agency statistics.

  1. Notwithstanding any other law to the contrary, the governor may designate an agency to coordinate the gathering, analysis and dissemination of state and local criminal justice agency statistics for the purpose of providing the governor, general assembly, and state and local criminal justice agencies with relevant and timely criminal justice data and information.
  2. As used in this section, “criminal justice agency” includes all state, county and municipal law enforcement agencies, the office of attorney general and reporter, the offices of the district attorneys general, the offices of municipal prosecutors, all state and local courts, all state, county and municipal correctional agencies, and all state and local agencies or entities charged by law with the responsibility of reviewing or monitoring any or all aspects of the criminal justice system.

Acts 1985 (1st Ex. Sess.), ch. 5, § 22.

Cross-References. Information from clerks, superintendents, and jailers, § 4-6-145.

8-1-111. Appointment of senior citizens and racial minorities to governing or advisory entities of the executive branch.

In appointing citizens to serve on boards, commissions, committees, and other governing or advisory entities of the executive branch of state government, the governor shall strive to ensure that at least one (1) such citizen serving on each such board, commission, committee, or other governing or advisory entity is sixty (60) years of age or older and that at least one (1) such citizen serving on each such board, commission, committee, or other governing or advisory entity is a member of a racial minority.

Acts 1988, ch. 1013, § 76.

Part 2
Transition Act Of 1970

8-1-201. Short title.

This part shall be known and may be cited as the “Transition Act of 1970.”

Acts 1970, ch. 439, § 1; T.C.A., § 8-109.

8-1-202. Governor-elect — Office facilities and staff.

The governor-elect, in order to facilitate the transition period between administrations, shall be provided, at the expense of the state, office space, appropriate furniture and three (3) secretaries in Nashville for the governor-elect and the members of the governor-elect's staff between the date of the election and the date on which the governor-elect assumes office.

Acts 1969, ch. 117, § 1; T.C.A., § 8-108.

8-1-203. Interim office space — Appointees of cabinet level rank.

Any state official of cabinet level rank appointed by a governor-elect between the date of election and the date on which the governor-elect assumes office shall, upon request of the governor-elect to the then incumbent governor, accompanied by notification of the appointment, be provided with suitable office space and equipment and secretarial help in or as near as possible to the administrative offices of the department or staff division which the person has been appointed to head. Only if no suitable space is available in existing state facilities shall space be secured and provided in other places.

Acts 1970, ch. 439, § 2; T.C.A., § 8-110.

8-1-204. Immediate past governor — Office space.

For a period of thirty (30) days following the inauguration of a governor who is not thereby serving a successive term in office, the immediate past governor shall be provided with suitable office space and equipment and one (1) secretary in Nashville, to enable such past governor to handle any correspondence or other personal matters not concluded at the time such past governor leaves office.

Acts 1970, ch. 439, § 3; T.C.A., § 8-111; Acts 1979, ch. 24, § 1.

Chapter 2
Lieutenant Governor

8-2-101. Office created — Succession to governorship.

There is hereby created the state office of lieutenant governor. The person holding the office of lieutenant governor shall be next in succession to the office of governor.

Acts 1951, ch. 49, § 1 (Williams, § 187.2); T.C.A. (orig. ed.), § 8-201.

Cross-References. Officers commissioned, § 8-18-106.

Succession to office of governor, Tenn. Const., art. III, § 12; § 8-1-107.

8-2-102. Speaker of senate to be lieutenant governor.

As provided by the Constitution of Tennessee, the speaker of the senate shall in all cases be the lieutenant governor and entitled to exercise the powers and duties appertaining to that office and to enjoy and use the title “Lieutenant Governor of the State of Tennessee.” The office of lieutenant governor provided for in this chapter shall constitute a separate office from that of speaker of the senate and any person holding such office shall do so until a successor is elected and qualified, such official being hereby declared to be a civil officer subject to the Constitution of Tennessee, Article VII, § 5 as to term of office.

Acts 1951, ch. 49, § 2 (Williams, § 187.3); 1965, ch. 351, § 1; T.C.A. (orig. ed.), § 8-202.

Chapter 3
Secretary of State

Part 1
General Provisions

8-3-101. Election — Term of office.

A secretary of state shall be elected by joint vote of the general assembly, and commissioned for a term of four (4) years.

Code 1858, §§ 194, 812 (deriv. Const. 1834, art. 3, § 17); Shan., §§ 242, 1136; Code 1932, §§ 188, 1903; T.C.A. (orig. ed.), § 8-301.

Cross-References. Appointment, duties of secretary of state, Tenn. Const., art. III, § 17.

Constitutional provisions, Tenn. Const., art. III, § 17.

Department of state, duties, § 4-3-2101.

Fees for services, title 8, ch. 21, part 2.

Impeachment, title 8, ch. 46.

Officers commissioned, § 8-18-106.

Salary, § 8-23-101.

Succession to governorship, § 8-1-107.

8-3-102. Complaint regarding annexation by municipality — Administrative hearing.

  1. If a dispute arises between an individual property owner and a municipality as to whether a property has been annexed by the municipality, the individual property owner or the municipality may file a complaint against the opposing party with the secretary of state to determine whether the person's property has been annexed by a municipality. The burden of proof shall be on the municipality to prove annexation of the subject property by a preponderance of the evidence.
  2. Within ten (10) days of the filing of the complaint, the secretary of state shall appoint an administrative judge from the administrative procedures division of the secretary of state's office who shall set an administrative hearing to be held under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, within ninety (90) days of the date of filing the complaint, unless for good cause shown that a later time is deemed necessary. Notwithstanding other law to the contrary, the secretary of state or the secretary of state's designee has the authority to render a final order following entry of an initial order by the administrative judge. Such order shall be appealable as provided by § 4-5-322.
  3. Once a complaint has been filed under subsection (a), the municipality shall file with the administrative procedures division within twenty (20) days of the filing of the complaint, all annexation ordinances of the municipality and all results of referendums on annexation held within the municipality that are specific to the annexation of the subject property.
  4. If the final order includes a finding that the subject property has not been annexed, any property taxes paid by the individual property owner to the municipality shall be reimbursed to the individual property owner, with interest.

Acts 2017, ch. 385, § 1.

Compiler's Notes. Former § 8-3-102 (Code 1895, § 195 (deriv. Acts 1796 (Mar.), ch. 2, § 1); Shan., § 243; Code 1932, § 189; T.C.A. (orig. ed.), § 8-302), concerning surety bonds of the secretary of state, was repealed by Acts 1980, ch. 887, § 9. For present law, see § 4-4-108.

Effective Dates. Acts 2017, ch. 385, § 2. May 18, 2017.

8-3-103. Oath of office.

The secretary of state shall also take an oath to support the Constitutions of Tennessee and of the United States, and an oath that such person will faithfully execute the duties of the office.

Code 1858, § 196 (deriv. Acts 1796 (Mar.), ch. 2, § 1); Shan., § 244; Code 1932, § 190; T.C.A. (orig. ed.), § 8-303.

Cross-References. Administration and filing of oath, §§ 8-18-1078-18-114.

8-3-104. Duties.

It is the duty of the secretary of state to:

  1. Keep the secretary of state's office at the seat of government;
  2. Keep a fair register of all the official acts and proceedings of the government;
  3. Lay the same, when required, and all papers, minutes, and vouchers relating thereto, before the general assembly at each session;
  4. Cause the original acts and resolutions of the general assembly, that are enrolled and filed in the secretary of state's office, to be bound together, and preserved in that form in such office;
  5. Make out and deliver to the printer, for publication, attested copies thereof as soon after receiving them as conveniently may be, and collate the printed copies with the originals; provided, that resolutions of the general assembly shall be published in accordance with title 12, chapters 5 and 6;
  6. Receive and safely keep all official bonds directed by law to be lodged in the secretary of state's office, record the same in books for that purpose, give attested copies thereof agreeably to law, and lay such bonds and such record before the general assembly when required;
  7. Issue a summons, under the secretary of state's hand and the seal of the state, to each public officer who is required by law to enter into bond payable to the state of Tennessee for the performance of official duty, and who has failed and neglected to forward the same, as required by law, commanding such officer to deposit such bond in the office of the secretary of state;
  8. Make out all commissions to be issued by the governor and, when signed by the governor but not before, affix to them the seal of the state;
  9. Affix the seal of the state to any other instrument or act when authorized by the governor, but not otherwise;
  10. Give to any person requiring the same, and paying lawful fees, an attested copy of any act, record, or paper in the secretary of state's office, except papers relating immediately to the executive department, and, in the governor's judgment, requiring secrecy;
  11. Examine and adjust any account presented against the secretary of state's office for freight, storage, and other necessary charges on books and documents transmitted from other states of the union for the use of this state, and certify the same to be just and true, as adjusted;
  12. Record in the secretary of state's office titles to the state;
  13. Preserve carefully in the secretary of state's office all copies of the records of the boundaries of civil districts forwarded to the secretary of state by the county clerks;
  14. Furnish the commissioner of revenue on the first day of each month a list of all new corporations that have been licensed or authorized to operate in this state during the preceding month; and
  15. Furnish the commissioner of revenue on the first day of each month a list of all corporations that have surrendered their charters or have ceased to do business in this state during the preceding month.

Code 1858, § 197 (deriv. Acts 1796 (Mar.), ch. 3, §§ 1-4, 6, 11; 1823, ch. 18, § 1; 1835-1836, ch. 1, § 6; 1841-1842, ch. 123, § 1; 1843-1844, ch. 135, § 1); Shan., § 245; Acts 1923, ch. 72, §§ 2, 3; Code 1932, § 191; Acts 1947, ch. 106, § 3; mod. C. Supp. 1950, § 191; impl. am. Acts 1959, ch. 9, § 14; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 8-304; Acts 1981, ch. 109, § 1.

Cross-References. Accounting for fees, §§ 8-22-1188-22-121.

Annual report, § 4-4-114.

Bonds of state and county officers, filing, §§ 8-19-101, 8-19-1168-19-119.

Borrowing money on the faith and credit of the state prohibited, § 9-1-102.

Deeds conveying surplus state park lands, attested by, § 11-3-109.

Department of state, duties, § 4-3-2101.

Distribution of publications, title 12, ch. 6.

Duties of secretary of state, Tenn. Const., art. III, § 17.

Election returns, comparison, § 2-8-110.

Housing authorities, application, filing and recording with, § 13-20-506.

Insurance companies, cancellation of charter upon failure to notify commissioner of revenue of death of insured, § 67-8-424.

Interest on taxes, licenses and fees, publication of rates, § 67-1-801.

Oaths to be filed, § 8-18-108.

Officers commissioned, § 8-18-106.

Private acts, duties, title 8, ch. 3, part 2.

Public calculation and comparison of votes, certificate of election, § 2-8-110.

Seal, providing for commissioner of financial institutions, § 45-1-112.

Watershed district petitions, action on, title 69, ch. 6.

Attorney General Opinions. Failure of bill to pass on three different days, OAG 98-0140, 1998 Tenn. AG LEXIS 140 (8/7/98).

Secretary of state's non-discretionary duty to publish laws, OAG 98-0140, 1998 Tenn. AG LEXIS 140 (8/7/98).

8-3-105. Office of assistant secretary — Appointment.

  1. There is created the office of assistant secretary of state who shall serve as secretary of state during any emergency when the regular secretary of state is disabled or disqualified from performing the duties of the office.
  2. If the general assembly is not in session when such emergency exists, the governor shall appoint such assistant secretary of state to serve until the general assembly convenes, at which time the general assembly shall elect the assistant in the event the emergency then continues. If the general assembly is in session when the emergency commences, the assistant secretary of state shall be elected by the joint vote of the general assembly.

Acts 1949, ch. 120, § 1; C. Supp. 1950, § 191.1; T.C.A. (orig. ed.), § 8-305.

8-3-106. Acting during emergency.

  1. In no event shall the person appointed as assistant secretary of state serve as such except during the existence of the emergency, and the governor shall determine when such emergency exists and when it terminates and shall so declare.
  2. The action of the governor in declaring the existence of an emergency shall be subject to review by writ of certiorari.

Acts 1949, ch. 120, §§ 1, 2; C. Supp. 1950, §§ 191.1, 191.2 (Williams, § 191.1); T.C.A. (orig. ed.), § 8-306.

8-3-107. Powers and duties of assistant secretary.

Such person appointed or elected as assistant secretary of state shall possess all the qualifications required of the secretary of state and shall file such bond as is required to be filed by the secretary of state under the statutes, and shall take the oath of office prescribed by statute for the secretary of state, and shall serve only during the continuance of the emergency as determined by the governor and shall be paid such compensation as the governor may fix, but in no event shall the compensation so fixed exceed that prescribed by law for the duly elected secretary of state.

Acts 1949, ch. 120, § 2; C. Supp. 1950, § 191.2 (Williams, § 191.1); T.C.A. (orig. ed.), § 8-307.

Cross-References. Oath of office, §§ 8-3-103, 8-18-1078-18-114.

8-3-108. Donations for publication of the Tennessee Blue Book.

  1. The secretary of state is authorized to accept donations from persons, political subdivisions, foundations, corporations, firms or any other business entity for the express purpose of publishing the Tennessee Blue Book. The secretary of state shall control all aspects of the publication and distribution of the book, including, but not limited to, complete editorial control, quantity published and distribution. No benefactor shall have authority to interfere with any aspect of development, publication, quantity published or distribution of the book.
  2. The secretary of state will determine the amount of money needed to publish the quantity desired and shall have the sole authority to select the benefactor or benefactors. The funds received shall be used for the publication and distribution of the book. Such funds shall not revert to the general fund but shall be carried forward to the next fiscal year and remain available to the secretary of state until expended for the publications and distribution of future editions. None of these funds shall be used for the payment of employees' salaries.
  3. Acknowledgement of the chosen benefactors shall be included in the preface of the book. An appropriate acknowledgement shall be given based on the generosity of the benefactor. Acknowledgement shall be in the form of a letter from the secretary of state acknowledging the gift in a separate listing in the preface of the book. Notwithstanding any law to the contrary, a benefactor shall have the first option of being chosen as the benefactor or benefactors of the next edition of the Tennessee Blue Book.
  4. The secretary of state shall maintain a list of all benefactors that shall include names, addresses and the amount of the benefactor's donation. Such a list shall be open and available to public inspection.

Acts 2003, ch. 355, § 55.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

Part 2
Ascertaining Action on Local or Private Acts

8-3-201. Private or local acts — Transmission to local body or agency for approval.

It is the duty of the secretary of state to send promptly by registered or certified mail, with return receipt requested, a certified copy of every act which requires a notification of the secretary of state pursuant to § 8-3-205 passed by the general assembly, which is private or local in form or effect, to the presiding officer of the body having jurisdiction to approve or disapprove the act if, in the effective date, the act provides for such action by the local legislative body, or to the chair of the county election commission if, in the effective date, the act provides for approval or disapproval in an election. The secretary of state, in a separate communication with each such act, shall call attention to the time limit for local action, either as provided in the act itself or as provided in § 8-3-202.

Acts 1957, ch. 379, § 1; impl. am. Acts 1972, ch. 740, § 7; impl. am. Acts 1978, ch. 754, § 8; T.C.A., § 8-308; Acts 2010, ch. 758, § 2.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Attorney General Opinions. Approval and reconsideration following ratification of a private act, OAG 94-132, 1994 Tenn. AG LEXIS 145 (11/8/94).

8-3-202. Certification of result of local action — Default deadline for action.

  1. If any act which requires a notification of the secretary of state pursuant to § 8-3-205 provides a deadline for local approval or disapproval, within thirty (30) days after approval or disapproval it shall be the duty of the presiding officer of the local legislative body or the chair of the county election commission, as the case may be, to certify to the secretary of state whether the act was approved or disapproved.(b)  If any act which requires a notification of the secretary of state pursuant to § 8-3-205 does not specify such a deadline, a failure to approve by December 1 of the year the act was passed shall render it null and void and of no effect whatsoever.

Acts 1957, ch. 379, § 2; impl. am. Acts 1972, ch. 740, § 7; impl. am. Acts 1978, ch. 754, § 8; T.C.A., § 8-309; Acts 1991, ch. 115, § 1; 2010, ch. 758, § 3.

Attorney General Opinions. Local adequate facilities and development taxes, constitutionality, OAG 96-088, 1996 Tenn. AG LEXIS 111 (7/16/96).

8-3-203. Secretary of state to ascertain result of local action on private or local act.

It is the duty of the secretary of state to ascertain whether local action has been taken on all acts which are private or local in form or effect which requires a notification of the secretary of state pursuant to § 8-3-205. When a certificate of local action taken has not been received within the time limit specified in such act, the secretary of state shall take steps to find out whether any action has been taken and to obtain the necessary certificate, including the sending of a courier to examine local records and to procure a certificate if all other measures fail.

Acts 1957, ch. 379, § 3; T.C.A., § 8-310; Acts 2010, ch. 758, § 4.

8-3-204. Local action on private or local act to be indicated in published acts.

The secretary of state shall indicate, in the published volumes of private acts, what action has been taken on every act which is private or local in form or effect which requires a notification of the secretary of state pursuant to § 8-3-205. If the deadline for local action, either as fixed in the act or by § 8-3-202, has passed with no action having been taken, the secretary of state shall so indicate in the published volumes. In no case shall such an act in the published volumes have appended thereto a statement that local action is unknown.

Acts 1957, ch. 379, § 4; T.C.A., § 8-311; Acts 2010, ch. 758, § 5.

8-3-205. Notification requirements of the secretary of state.

The notification requirements of the secretary of state pursuant to this part only apply to any act passed by the general assembly which:

  1. Does not amend the general law;
  2. Within the body of the act, names and specifically only applies to the named municipality or county; and
  3. In the effective date, pursuant to the Constitution of Tennessee, Article XI, § 9, requires a two-thirds (2/3) vote of the legislative body of the specifically named municipality or county to approve or disapprove the act, or requires approval or disapproval of the act in an election by a majority of those voting in the election in the municipality or county affected.

Acts 2010, ch. 758, § 1.

Chapter 4
Comptroller of the Treasury

Part 1
General Provisions

8-4-101. Election — Term of office.

There shall be a comptroller of the treasury, who shall be elected by joint vote of both houses of the general assembly, and hold such office for two (2) years, and until a successor shall be elected and qualified.

Code 1858, §§ 199, 812 (deriv. Acts 1835-1836, ch. 12, § 1); Shan., §§ 248, 1136; Code 1932, §§ 192, 1903; T.C.A. (orig. ed.), § 8-401.

Cross-References. Election and term, Tenn. Const., art. VII, § 3.

Impeachment, Tenn. Const., art. V, § 4; title 8, ch. 46.

Officers commissioned, § 8-18-106.

Salary, § 8-23-101.

Succession to governorship, § 8-1-107.

Law Reviews.

The Contempt Powers of Tennessee Courts (E. Michael Ellis), 37 Tenn. L. Rev. 538 (1971).

8-4-102. Examination of incumbent's accounts.

Previous to the convening of each biennial general assembly, the speaker of the senate and the speaker of the house jointly may contract for the services of an independent public accounting firm to audit or review the operations of the office of the comptroller of the treasury, or may call upon the director of the division of state audit to review with them a current audit of the comptroller of the treasury. The speakers may appoint a committee of the general assembly for the purpose of such review.

Code 1858, § 200 (deriv. Acts 1841-1842, ch. 93); Shan., § 249; Code 1932, § 193; Acts 1977, ch. 4, § 1; T.C.A. (orig. ed.), § 8-402.

8-4-103. [Repealed.]

Acts 2007, ch. 401, § 1; 2012, ch. 604, § 7; 2013, ch. 236, § 5; 2016, ch. 743, § 15; repealed by Acts 2017, ch. 12, § 1, effective March 24, 2017; 2017, ch. 94, § 24.

Compiler's Notes. Former § 8-4-103 (Code 1858, §§ 201, 202 (deriv. Acts 1835-1836, ch. 12, § 1; 1849-1850, ch. 103, § 3); Shan., §§ 250, 252; mod. Code 1932, §§ 194, 196; T.C.A. (orig. ed.), § 8-403) relating to surety bond of the comptroller was repealed by Acts 1980, ch. 887, § 9. For present law, see § 4-4-108.

Former § 8-4-103 concerned performance audit for energy conservation, production and security.

Acts 2017, ch. 94, § 24 purported to amend this section but it was previously repealed by Acts 2017, ch. 12, § 1, effective March 24, 2017.

8-4-104. Oath of office.

The comptroller of the treasury shall take an oath, before a judge of the circuit, chancery, appeals or supreme court, to support the Constitutions of Tennessee and of the United States, and an oath of office.

Code 1858, § 203 (deriv. Acts 1835-1836, ch. 12, § 1); Shan., § 253; Code 1932, § 197; T.C.A. (orig. ed.), § 8-404.

Cross-References. Administration and filing of oath, §§ 8-18-1078-18-114.

8-4-105. Location of office.

The office of the comptroller of the treasury shall be kept at the seat of government.

Code 1858, § 205 (deriv. Acts 1835-1836, ch. 12, § 2); Shan., § 255; Code 1932, § 199; T.C.A. (orig. ed.), § 8-405.

8-4-106. Seal.

The comptroller of the treasury shall keep a seal, with the motto, “The Seal of the Comptroller of Tennessee.”

Code 1858, § 206 (deriv. Acts 1835-1836, ch. 12, § 3); Shan., § 256; Code 1932, § 200; T.C.A. (orig. ed.), § 8-406.

8-4-107. Interest in transactions prohibited.

The comptroller of the treasury shall not have any financial interest in the transactions of any department, institution, office, or agency of the state government.

Acts 1937, ch. 33, § 75; 1939, ch. 11, § 42; C. Supp. 1950, § 255.75 (Williams, § 255.80); T.C.A. (orig. ed.), § 8-411; T.C.A., § 8-407.

8-4-108. Duties generally.

  1. The comptroller of the treasury shall perform all such services as may be required of the comptroller of the treasury by law or by resolution of the general assembly. The comptroller is authorized to provide such services to a county or other local government as may be requested by that entity and determined by the comptroller to be appropriate, and to charge that entity an administrative fee with respect thereto.(b)  This section shall not be construed either to extend or limit the authority of the division of property assessments with respect to taxpayer audits and reviews to the extent such authority exists under present law.

Code 1858, § 207 (deriv. Acts 1835-1836, ch. 12, §§ 4, 6-11, 13, 15, 16, 18, 19; 1835-1836, ch. 27, § 8; 1839-1840, ch. 160, §§ 2-9; 1841-1842, ch. 93; 1843-1844, ch. 69, § 1; 1843-1844, ch. 103, § 4; 1843-1844, ch. 136, § 2); Acts 1873, ch. 2, § 1; 1883, ch. 132, § 3; 1891 (1st Ex. Sess.), ch. 17, §§ 1, 2; 1899, ch. 395, § 1; 1907, ch. 541, § 5; 1907, ch. 602, § 77; Shan., § 257; impl. am. Acts 1923, ch. 109; mod. Code 1932, § 201; impl. am. Acts 1937, ch. 33, §§ 24, 29, 50, 51, 73; mod. C. Supp. 1950, § 201; modified; T.C.A. (orig. ed.), § 8-407; T.C.A., § 8-408; Acts 2001, ch. 63, § 1.

Cross-References. Accounting for fees, §§ 8-22-1188-22-121.

Accounting powers of department of finance and administration, § 4-3-1007.

Bond of sheriff, custody of copy, § 8-8-103.

Bonds of county officers and employees, custody, § 8-19-102.

Bonds of state and county officials, form, duty, §§ 8-19-101, 8-19-111, 8-19-1168-19-119.

Borrowing money on faith and credit of state prohibited, § 9-1-102.

Clerks of court bond, duty, § 8-19-203.

Demands on bonding companies by state agencies or employees, approval, § 8-19-502.

Department of audit, duties, title 4, ch. 3, part 3.

Determination of hospital per diem reimbursable cost of contracting hospitals, §§ 12-4-30112-4-307.

Distribution of court reports, § 8-6-207.

Investigation by comptroller of alleged irregularities or discrepancies involving state revenue or funds, §§ 8-4-207, 8-4-208.

Office of local government, duties, title 4, ch. 16.

Powers of comptroller, determination of liability for state taxes and fees, title 67, ch. 1, part 13.

Powers of department of revenue, § 4-3-1903.

Treasurer, misappropriation of funds, duty to collect, § 8-5-112.

NOTES TO DECISIONS

1. Authority of Comptroller.

The comptroller could only draw a warrant upon the treasury for such sums as may be found to be due from the state, and then was required to specify the statute or authority under which such warrant issued. Pickard v. Henderson, 83 Tenn. 430, 1885 Tenn. LEXIS 63 (1885).

The legislature could impose duties on the comptroller, such as membership of a funding board, and the sureties on the comptroller's bond could not contend that such duties were not contemplated. State v. Buchanan, 52 S.W. 480, 1898 Tenn. Ch. App. LEXIS 160 (1898).

The comptroller had no power to employ counsel to represent the state in the supreme court, and counsel so employed was not entitled to a lien upon the state's recovery for a fee, nor to be paid for such services out of the recovery or other funds belonging to the state. State v. Spurgeon, 99 Tenn. 659, 47 S.W. 235, 1897 Tenn. LEXIS 79 (1897); McHenderson v. Anderson County, 105 Tenn. 591, 59 S.W. 1016, 1900 Tenn. LEXIS 110 (1900).

A statute, fixing the salary of a state officer and directing it to be paid monthly upon warrant of the comptroller, constituted an appropriation payable out of the state treasury, and empowered the comptroller to draw the warrant therefor, under Tenn. Const., art. II, § 24 and this section. State ex rel. Noonan v. King, 108 Tenn. 271, 67 S.W. 812, 1901 Tenn. LEXIS 29 (1901).

Obsolete statutes that regulated the duties of the comptroller prior to 1870 could not be read into the Constitution nor into the statutes subsequently enacted in determining comptroller's authority. Dempster v. Wallace, 165 Tenn. 141, 53 S.W.2d 379, 1932 Tenn. LEXIS 27 (1932).

2. Comptroller's Records as Evidence.

The comptroller's report, or an authorized printed copy thereof, was only prima facie evidence of the facts of which it assumed to speak, and it was not conclusive as against the state in its action against a delinquent revenue collector to recover for failure to account and pay over the revenue collected. Dulaney v. Dunlap, 43 Tenn. 306, 1866 Tenn. LEXIS 56 (1866).

The comptroller's statement from the account to be kept by the comptroller was only prima facie evidence of the amount due from a delinquent revenue collector and the collector's sureties, but it was sufficient to entitle the state to a judgment for the amount stated, in the absence of other countervailing evidence. Anderson v. State, 55 Tenn. 13, 1873 Tenn. LEXIS 1 (1872); McLean v. State, 55 Tenn. 22, 1873 Tenn. LEXIS 3 (1873); Petitt v. State, 55 Tenn. 320, 1873 Tenn. LEXIS 5 (1873); Wood v. State, 55 Tenn. 329, 1873 Tenn. LEXIS 6 (1873).

8-4-109. Audits of governmental entities — Implementation and reports by agency heads.

    1. The comptroller of the treasury shall keep no accounts in the department of audit, but shall conduct a continuous post audit of the accounts, books, records, and other evidences of financial transactions kept in the department of revenue, the state treasurer's office, or in the other departments, institutions, offices and agencies of the state government.
    2. The comptroller of the treasury is hereby authorized to audit any books and records of any governmental entity created under and by virtue of the statutes of the state which handles public funds when such audit is deemed necessary or appropriate by the comptroller of the treasury. The comptroller of the treasury shall have the full cooperation of officials of the governmental entity in the performance of such audit or audits.
  1. When the comptroller of the treasury conducts an audit of the accounts, books, records, and other evidences of financial transactions of any department, agency, or institution of the state, it shall be the duty of the officer who is the administrative head of such department, agency, or institution to submit a corrective action plan to the comptroller of the treasury which addresses the actions taken, or to be taken, in response to each audit finding and related recommendations of the comptroller of the treasury relative to the effective and efficient management of such accounts, books, records, or other evidences of financial transactions. The corrective action plan shall provide the name or names of the contact person or persons responsible for the corrective action, the corrective action taken or planned, and the anticipated completion date. If the auditee does not agree with an audit finding or a related recommendation proposed by the office of the comptroller of the treasury, or believes corrective action is not required, the corrective action plan shall state the reasons and justifications for disagreement or belief. The corrective action plan shall be filed with the comptroller of the treasury no later than thirty (30) days after the issuance of the department, agency, or institution's audit report.
  2. It shall be the duty of the officer who is the administrative head of such department, agency, or institution to report to the comptroller of the treasury, in writing, the action that has been taken to implement the recommendations of the comptroller of the treasury, or to state the reasons and justifications for disagreement with the recommendations proposed by the office of the comptroller of the treasury, six (6) months after the issuance of the department, agency, or institution's audit report.
  3. In order to avoid repeat audit findings, the comptroller of the treasury shall at any time notify the chairs of the finance, ways and means, government operations, and fiscal review committees of the general assembly of any such department, agency, or institution's failure to timely implement such recommendations, to submit the report required by subsection (c), or to comply with its corrective action plan. Those committees may direct the department, agency, or institution to provide a written statement to the requesting committee explaining why full corrective action has not been taken. If a requesting committee determines that the written statement is not sufficient, that committee may require the department, agency, or institution to appear before the committee. If the committee determines that the department, agency, or institution has failed to take full corrective action for which there is no justifiable reason or has failed to comply with the committee's request, that committee shall take such steps as they deem necessary.

Acts 1937, ch. 33, § 73; 1939, ch. 11, § 41; C. Supp. 1950, § 255.73 (Williams, § 255.78); T.C.A. (orig. ed.), §§ 8-408, 8-422; impl. am. Acts 1959, ch. 9, § 14; Acts 1963, ch. 93, § 1; 1979, ch. 151, § 1; T.C.A., § 8-409; Acts 2017, ch. 20, §§ 1, 2.

Amendments. The 2017 amendment rewrote (b), which read, “When the comptroller of the treasury conducts an audit of the accounts, books, records, and other evidences of financial transactions of any department, agency, or institution of the state, it shall be the duty of the officer who is the administrative head of such department, agency, or institution to report to the comptroller of the treasury, in writing, the action that has been taken to implement the recommendations of the comptroller of the treasury relative to the effective and efficient management of such accounts, books, records, or other evidences of financial transactions, or to state the reasons and justifications for disagreement with the recommendations proposed by the office of the comptroller of the treasury. The time and procedure for filing such reports shall be prescribed by the comptroller of the treasury.”; rewrote (c) which read, “Upon the failure of such officer to timely implement such recommendations or to submit the report required by subsection (b), the comptroller of the treasury shall notify the chairs of the finance, ways and means committees of the general assembly, who shall review such failure to timely implement or report and shall take such steps as they deem necessary.”; and added (d).

Effective Dates. Acts 2017, ch. 20, § 3. March 24, 2017.

Cross-References. Summary of community grant agency violation notifications included within annual report, § 8-4-407.

8-4-110. Reports and recommendations.

  1. The comptroller of the treasury shall prepare and publish a report, setting forth the essential facts of the post audit provided for in § 8-4-109 in summary form after the close of each fiscal year.
  2. If the comptroller of the treasury finds, in the course of the audit, evidences of improper transactions, or of incompetence in keeping accounts or in handling funds, or of any other improper practice of financial administration, the comptroller of the treasury shall report the same to the governor immediately. If the comptroller of the treasury finds evidences of illegal transactions, the comptroller of the treasury shall forthwith report such transactions both to the governor and to the attorney general and reporter. All such evidences shall be included in the annual reports of the comptroller of the treasury, who has the discretion to make them public at any time during the fiscal year.
  3. The comptroller of the treasury shall supply the members of the general assembly, when in session, with copies of all annual reports, and shall make recommendations for the elimination of improper financial practices and for the general improvement of the financial administration of the state.
  4. In the discharge of these duties, the comptroller of the treasury shall exercise, as necessary, the authority granted the comptroller of the treasury elsewhere at law for performing investigations.

Acts 1937, ch. 33, § 73; C. Supp. 1950, § 255.73 (Williams, § 255.78); T.C.A. (orig. ed.), § 8-408; Acts 1963, ch. 94, § 1; T.C.A., § 8-410; Acts 1980, ch. 476, § 1.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Evidence, § 88.

8-4-111. Methods of accounting.

The comptroller of the treasury has the authority to require any and all departments, institutions, offices, and agencies of the state government to maintain their accounts, records, documents, vouchers, requisitions, payrolls, cancelled checks and coupons, and other evidences of financial transactions in such manner as to expedite the work of post auditing.

Acts 1937, ch. 33, § 74; C. Supp. 1950, § 255.74 (Williams, § 255.79); T.C.A. (orig. ed.), § 8-409; T.C.A., § 8-411.

8-4-112. [Repealed.]

Compiler's Notes. Former § 8-4-112 (Acts 1981, ch. 21, § 1), concerning the audit and payment of costs incurred in criminal cases, was repealed by Acts 1995, ch. 179, § 12, effective July 1, 1995.

8-4-113. Guidelines for compliance with Financial Integrity Act.

The comptroller of the treasury shall consult with the commissioner of finance and administration in the establishment of guidelines for the evaluation by agencies of their systems of accounting and administrative control as provided in the Financial Integrity Act of 1983, compiled in title 9, chapter 18.

Acts 1983, ch. 129, § 3.

8-4-114. Investigation of fraud relating to qualification for government set-aside program.

The comptroller of the treasury shall investigate any complaint brought to the attention of the comptroller of the treasury's office alleging a violation of § 39-14-137. If, as a result of such investigation, the comptroller of the treasury determines that probable cause exists to believe that a violation has occurred, then the comptroller of the treasury shall submit such investigatory findings to the appropriate prosecutorial authority.

Acts 1989, ch. 283, § 2; 1996, ch. 675, § 10.

8-4-115. Standardized procedures for booking of arrestees.

    1. The comptroller of the treasury, in consultation with the Tennessee bureau of investigation, the Tennessee Sheriff's Association, the Tennessee Association of Chiefs of Police, and the Tennessee corrections institute, developed standardized booking procedures which include:
      1. A photograph of the arrestee;
        1. A set of fingerprints. If fingerprints are maintained manually, the booking agency shall mail two (2) sets of properly completed fingerprint cards to the Tennessee bureau of investigation. If fingerprints are transmitted to the Tennessee bureau of investigation electronically, the booking agency shall maintain with the arrest report one (1) hard copy of the fingerprints along with an acknowledgement from the Tennessee bureau of investigation that a copy of the fingerprints have been received and accepted;
        2. (a)  When a person is arrested for a vehicular impairment offense, and fingerprints are maintained manually, the booking agency shall mail two (2) sets of properly completed fingerprint cards to the Tennessee bureau of investigation within five (5) business days of the person being booked for the offense;
          1. (ii)  (a)  When a person is arrested for a vehicular impairment offense, and fingerprints are maintained manually, the booking agency shall mail two (2) sets of properly completed fingerprint cards to the Tennessee bureau of investigation within five (5) business days of the person being booked for the offense;
          2. If fingerprints of a person arrested for a vehicular impairment offense are transmitted to the Tennessee bureau of investigation electronically, the fingerprints shall be transmitted within up to five (5) business days of booking;
          3. As used in this subdivision (a)(1)(B), “vehicular impairment offense” means the person is charged with a violation of § 39-13-106, § 39-13-115, § 39-13-213(a)(2), § 39-13-218, or § 55-10-401;
        1. Delivery to the appropriate local law enforcement agency of a completed judgment order containing the state control number, signed by a judge to be used by the local law enforcement agency for completion of an R-84 Disposition Card, except as provided in this subdivision (a)(1)(C). A local law enforcement agency shall provide a state control number printed on the R-84 Disposition Card and attached to the arresting document to the clerk within seven (7) business days of arrest so that the clerk or court can electronically submit final dispositions of criminal cases, including the state control number, to the Tennessee bureau of investigation. Unless otherwise authorized by the Tennessee bureau of investigation, all final dispositions shall be reported electronically. A formal disposition shall not be sent to the Tennessee bureau of investigation without the state control number or transaction control number being contained within the document;
        2. (a)  When a person is convicted of a vehicular impairment offense, the clerk shall deliver the judgment order signed by the judge to the appropriate law enforcement agency within seven (7) business days of the date the judge signs the order. Upon receiving the judgment order from the clerk, the appropriate law enforcement agency shall have seven (7) business days to complete an R-84 Disposition Card on the person convicted and send it to the Tennessee bureau of investigation for entry into the National Crime Information Center (NCIC);
          1. (ii)  (a)  When a person is convicted of a vehicular impairment offense, the clerk shall deliver the judgment order signed by the judge to the appropriate law enforcement agency within seven (7) business days of the date the judge signs the order. Upon receiving the judgment order from the clerk, the appropriate law enforcement agency shall have seven (7) business days to complete an R-84 Disposition Card on the person convicted and send it to the Tennessee bureau of investigation for entry into the National Crime Information Center (NCIC);
          2. If a person is convicted of a vehicular impairment offense, in a county where the clerk and the law enforcement agency have implemented an automated process for the electronic submission of final dispositions for criminal cases that is certified by the Tennessee bureau of investigation, the conviction containing the state control number shall be transmitted by the clerk to the Tennessee bureau of investigation within two (2) business days of the judgment order being signed by the judge. The Tennessee bureau of investigation shall immediately enter the conviction into the National Crime Information Center (NCIC);
          3. As used in this subdivision (a)(1)(C), “vehicular impairment offense” means the person was convicted of a violation of § 39-13-106, § 39-13-115, § 39-13-213(a)(2), § 39-13-218, or § 55-10-401;
      2. An arrest report; and
      3. Delivery to the appropriate court clerk office of a warrant or capias for offense containing the state control number assigned by the law enforcement agency upon the arrest of an individual to be recorded in the court information system of the court clerk office.
    2. Notwithstanding § 8-8-201 or § 38-3-122 to the contrary, it shall be the duty of the law enforcement agency responsible for maintaining the arrested person's booking records to take the fingerprints from such person as required by such sections.
    3. Where individuals are arrested multiple times for a violation of § 39-17-310, the offense of public intoxication, the arresting officer shall note on the arrest report that fingerprints are on file for this individual pursuant to § 38-3-122(a).
    4. Compliance with these standardized booking procedures shall be the basis for the comptroller of the treasury determining compliance with the fingerprinting requirements of §§ 8-8-201(a)(35) and 38-3-122. The Tennessee corrections institute and the law enforcement training academy shall train correctional personnel in municipal, county and metropolitan jurisdictions in the application of these standardized booking procedures.
  1. The respective county or municipal legislative body shall appropriate funds for the respective sheriff's office or police department, including funds for personnel and supplies which are sufficient to comply with this section.
    1. The comptroller of the treasury shall audit or cause to be audited under title 4, chapter 3, part 3 and title 6, chapter 56, part 1, on an annual basis the sheriff's office or police department to determine whether or not such law enforcement agency is in compliance with the requirements of this section. If the comptroller of the treasury determines that a particular sheriff's office or police department is not in compliance with §§ 8-8-201(a)(35), 38-3-122 and this section, the comptroller of the treasury, within thirty (30) days of such determination, shall notify such sheriff or police chief and the Tennessee peace officer standards and training commission of such noncompliance.
    2. Such sheriff or police chief shall show cause to the Tennessee peace officer standards and training commission within thirty (30) days of notification why such sheriff or police chief should not be found to be in noncompliance with the requirements of §§ 8-8-201(a)(35) and 38-3-122. If the appropriate sheriff or police chief does not respond or show good cause within thirty (30) days, the Tennessee peace officer standards and training commission shall forthwith decertify the appropriate sheriff or police chief and impound the supplement provided for such sheriff or police chief in § 38-8-111. The Tennessee peace officer standards and training commission shall notify the comptroller of the treasury and both the sheriff and county commission or the police chief and city council of such action.
    3. The burden shall be on such sheriff or police chief to demonstrate compliance to the Tennessee peace officer standards and training commission and if such sheriff or police chief is found to be in compliance with this section within sixty (60) days after decertification, the Tennessee peace officer standards and training commission shall rescind the decertification order and cause any salary supplement impounded to be returned to the appropriate sheriff or police chief except for one twelfth (1/12) of the annual supplement.
  2. In addition to any proceeding under chapter 47 of this title, the sheriff or police chief may be removed from office in accordance with this section. The comptroller of the treasury shall forward a copy of reports of noncompliance with this section by the sheriff or police chief to the district attorney general having jurisdiction and to the attorney general and reporter. The district attorney general and the attorney general and reporter shall each review the report and determine if there is sufficient cause for further investigation. If further investigation indicates willful misfeasance, malfeasance or nonfeasance by the sheriff or police chief, the district attorney general shall proceed pursuant to chapter 47 of this title, to remove the sheriff or police chief from office. This subsection (d) is effective for fingerprints taken or required to be taken on or after July 1, 1999.
  3. Prior to purchasing an electronic fingerprint imaging system, the sheriff or municipal police department shall obtain certification from the Tennessee bureau of investigation that such equipment is compatible with the Tennessee bureau of investigation's and the federal bureau of investigation's integrated automated fingerprint identification system.
  4. Subject to the approval of the general assembly, a portion of the funds derived from the additional privilege tax levied on all criminal cases instituted in this state as provided for in § 67-4-602(g), may be appropriated to the Tennessee bureau of investigation for the purchase, installation, maintenance, and line charges of electronic fingerprint imaging systems.
  5. Upon establishment of an automated system for final disposition reporting, clerks of the court shall submit final disposition reports containing the state control number electronically to the Tennessee bureau of investigation. Jurisdictions that submit final disposition reports electronically will cease the submission of R-84 Disposition Cards upon advisement from the Tennessee bureau of investigation. The submission of an electronic final disposition report containing the state control number shall have the same force and effect as the submission of the R-84 Disposition Card.
  6. Any automated court information system being used or developed on or after July 1, 2005, including, but not limited to, the Tennessee court information system (TnCIS) being designed pursuant to § 16-3-803(h), shall ensure that an electronic file of final disposition data, including the state control number, will be reported to the Tennessee bureau of investigation. The form, general content, time, and manner of submission of the electronic file of final disposition data, including the state control number, will comply with the rules prescribed by the Tennessee bureau of investigation.
  7. As used in this section, unless the context otherwise requires:
    1. “Final disposition” means a court document that reflects the outcome of a criminal case and shall include:
      1. The defendant's full name;
      2. The defendant's social security number;
      3. The defendant's date of birth;
      4. The defendant's sex;
      5. The defendant's race;
      6. The county of arrest;
      7. The class designation of the crime;
      8. The state control number;
      9. The date of arrest and date of offense;
      10. The date of disposition and date of sentence imposed;
      11. The criminal charge or charges convicted of;
      12. Any fines, court costs, and restitution;
      13. The case number and court number;
      14. Whether the defendant is sentenced to confinement in the Tennessee department of correction, a county jail, or workhouse;
      15. Whether the defendant was sentenced to supervised or unsupervised probation or to community correction; and
      16. Whether diversion was ordered;
    2. “Finger printing agency” means any entity approved by the Tennessee bureau of investigation responsible for the submission of fingerprint arrests in a Tennessee municipality or county; including a state or local law enforcement agency, sheriff's office, or police department; and
    3. “State control number” means a unique twelve (12) digit number generated and printed by a live scan device or automated fingerprint identification system (AFIS) for the purpose of identifying, tracking, or referencing a criminal transaction.

Acts 1997, ch. 502, § 4; 1998, ch. 994, §§ 1-5; 2003, ch. 90, § 2; 2004, ch. 869, §§ 1-5; 2008, ch. 701, §§ 1-5; 2016, ch. 718, §§ 1, 2; 2018, ch. 824, §§ 1-4.

Compiler's Notes. Acts 1997, ch. 502, § 1, provided:

“(a)  The General Assembly of the State of Tennessee is compelled to enact legislation for the safety of the general population of Tennessee and the United States.

“(b)  The General Assembly of the State of Tennessee as well as law enforcement agencies throughout the state recognize that most dangerous felons begin careers of crime by committing less serious offenses and subsequently committing more serious offenses over time.

“(c)  The General Assembly of the State of Tennessee as well as law enforcement agencies throughout the State recognize the extreme priority of fingerprinting dangerous felons who commit initial offenses as an integral part of the crime fighting process.

“(d)  The Tennessee Bureau of Investigation has made the General Assembly of the State of Tennessee aware that forty to fifty percent of felons are not properly fingerprinted by law enforcement agencies throughout the State.

“(e)  Spurned by the support of law enforcement agencies throughout the State, the General Assembly of the State of Tennessee is moved to take action to ensure that dangerous felons are adequately tracked within the system and prevented from damaging and further endangering the people.

“(f)  To prevent the non-detection of dangerous felons within the system and to provide an adequate and effective detection tool the General Assembly of the State of Tennessee finds it necessary to enact this section.”

Acts 2016, ch. 718, § 3 provided that the act shall take effect on July 1, 2016 and shall apply to all arrests and convictions for a vehicular impairment offense occurring on or after that date.

Acts 2018, ch. 824, § 5 provided that the act, which amended this section, shall apply to all arrests and convictions for offenses occurring on or after January 1, 2019.

Amendments. The 2016 amendment added (a)(1)(B)(ii) and (a)(1)(C)(ii) and redesignated former (a)(1)(B) as (a)(1)(B)(i) and (a)(1)(C) as (a)(1)(C)(i).

The 2018 amendment, effective January 1, 2019, rewrote (a)(1)(C)(i) which read: “Delivery to the appropriate local law enforcement agency of a completed judgment order signed by a judge to be used by the local law enforcement agency for completion of an R-84 Disposition Card, except as provided in this subdivision (a)(1)(C). A local law enforcement agency and a clerk of court can collaborate on an automated process for the electronic submission of final dispositions for criminal cases to the Tennessee bureau of investigation. After a law enforcement agency and a clerk of court have implemented an automated process for the electronic submission of final dispositions for criminal cases, and have had the process certified by the Tennessee bureau of investigation, all final dispositions shall be reported electronically. Upon implementation of an automated process for the electronic submission of final dispositions for criminal cases, the delivery to the local law enforcement agency of a completed judgment order signed by a judge to be used by the local law enforcement agency for completion of an R-84 Disposition Card, and the submission by the local law enforcement agency of a completed R-84 Disposition Card to the Tennessee bureau of investigation are no longer required;”; substituted “conviction containing the state control number shall be transmitted” for “conviction shall be transmitted” in (a)(1)(C)(ii)(b); in (g), inserted “the” following “clerks of” in the first sentence, inserted “containing the state control number” twice, and substituted “the” for “a” preceding the second occurrence of “R-84 Disposition Card”; in (h), inserted “, containing the state control number,” twice and deleted “and regulations” preceding “prescribed”; and added (i).

Effective Dates. Acts 2016, ch. 718, § 3. July 1, 2016.

Acts 2018, ch. 824, § 5. January 1, 2019.

Attorney General Opinions. Statutory mandate for local law enforcement to fingerprint, OAG 99-169, 1999 Tenn. AG LEXIS 139 (8/30/99).

Costs of fingerprinting arrestees, OAG 99-228, 1999 Tenn. AG LEXIS 228 (12/6/99).

Responsibility for FBI R-84 disposition report, OAG 00-056, 2000 Tenn. AG LEXIS 56 (3/31/00).

8-4-116. Authority of comptroller to audit.

  1. Entities contracting with the state or local governments to perform government services shall be subject to audit by the comptroller of the treasury to assure that public funds are expended in accordance with the public purpose for which they were contracted.
  2. Notwithstanding any other law or existing contract, the comptroller of the treasury is hereby authorized to conduct an audit of the records of any entity contracting with the state or local government entities created under and by virtue of the statutes of the state, if such contracting entity derives fifty percent (50%) or more of its gross revenue from such state or local entity or entities. All books, records, documents, and other evidence pertaining to the receipt, accounting for, use and/or expenditure of any public funds by any such contracting entity shall be available for examination by the comptroller of the treasury during normal business hours through on-site review. In the alternative, and in the comptroller's sole discretion, such records may be provided through the mail or other methods of data transmission. Such audits shall take place as often as necessary, and to the extent necessary, in the discretion of the comptroller of the treasury and in conformance with generally accepted auditing standards, to determine whether public funds received by the entity were properly accounted for and expended in accordance with the public purpose for which the entity was contracted. The comptroller of the treasury shall have such authority notwithstanding whether the contract is in the form of a fee-for-service contract, a vendor contract, a cost reimbursement contract, any combination of these types of contract, or any other form of contract.
  3. The comptroller of the treasury shall have the authority to determine whether a contracting entity is subject to audit pursuant to this section. The comptroller of the treasury shall give advance written notice of intent to audit to the contracting entity and its chief executive officer. If the contracting entity contends that it is not subject to audit, it shall, within five (5) business days of receipt of the notice, file with the comptroller of the treasury a written objection to the audit. Such objection shall be made under oath and accompanied by an income statement or such other statements or financial records as would, within the sound discretion of the comptroller of the treasury and consistent with generally accepted auditing standards, establish that the contracting entity is not subject to audit. The failure to file such an objection shall be deemed a waiver of any objection to the audit. Notwithstanding any other law to the contrary, any income statements or other financial documents filed with the objection shall become a part of the comptroller's confidential work papers and shall not be open or otherwise subject to public inspection.
  4. If a contracting entity, after having received notice of intent to audit, refuses to grant access to such books, records, documents, and other evidence of the contracting entity as may be necessary, in the judgment of the comptroller, to accomplish the audit, the comptroller of the treasury shall have the authority to make application to the chancery court of Davidson County for an order requiring the contracting entity to show cause why the entity is not subject to audit by the comptroller of the treasury. In the absence of such a showing by the contracting entity, the court shall grant a permanent or temporary injunction compelling the contracting entity, its officers, agents, and attorneys, to grant access to such books, records, documents, and other evidence to the comptroller of the treasury or the comptroller's duly appointed representatives. The chancery court shall have the authority to assess costs of enforcement, including reasonable attorneys' fees, against the contracting entity, its officers and agents, and any other person responsible for objecting to the audit or refusing access to such books, records, documents, and other evidence if the court finds that there were no substantial grounds for objecting to the audit or refusing access.
  5. The comptroller of the treasury has the authority to promulgate rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, consistent with this section for the purpose of ensuring the proper and orderly conduct of audits and other examinations of contracting entities within the meaning of this section.
  6. This section is not intended to abolish any authority now held by the comptroller of the treasury, and shall not be deemed to repeal by implication any existing law.

Acts 2000, ch. 960, § 1.

Compiler's Notes. Acts 2000, ch. 960, § 2 provided that this section is declared remedial in nature and to that end shall apply to all contracts in force when the section takes effect on June 21, 2000, and shall be retroactive to January 1, 1992.

Cross-References. Confidentiality of public records, § 10-7-504.

8-4-117. Determination of state and local expenditures for indigent care and available federal resources.

The comptroller of the treasury is directed to determine all state and local government expenditures for the care of indigent persons and all federal resources available to the state for the care of indigent persons.

Acts 2006, ch. 807, § 1.

Compiler's Notes. Acts 2006, ch. 807, § 1 provided that the comptroller shall report to the finance ways and means committees of the senate and the house of representatives by January 15, 2007, on procedures and techniques for capturing any federal funds available to Tennessee for indigent care. The comptroller shall also report on the likelihood of discontinuance or diminution of any federal funds for indigent care in Tennessee.

8-4-118. Authority of the comptroller of the treasury to obtain certain information from applicants applying for employment.

  1. The comptroller of the treasury may require all persons prior to employment with such office to:
    1. Agree to the release of all investigative records to the comptroller of the treasury for the purpose of verifying the accuracy of criminal violation information contained on an employment application; and
    2. Supply a fingerprint sample and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation. In addition, to the extent permitted by federal law, and at the discretion of the comptroller of the treasury, a check of such prints may be made against records maintained by the federal bureau of investigation.
  2. Any costs incurred by the Tennessee bureau of investigation or the federal bureau of investigation, as appropriate, in conducting such investigations of applicants shall be paid by the comptroller of the treasury.
  3. The comptroller of the treasury may establish the job titles or classifications to which the requirements of this section apply. Such classifications shall not supersede any mandatory fingerprint-based criminal history background requirements that may be applicable for any person who is seeking employment in a position in any program subject to licensure, approval or certification by any state agency.

Acts 2010, ch. 971, § 1.

Cross-References. Requirements prior to employment with county, § 5-1-126.

Requirements prior to employment with municipality, § 6-54-129.

Verification of criminal violation information, § 38-6-109.

8-4-119. Report to comptroller of treasury of government fraud.

  1. Any state agency having determined that a theft, forgery, credit card fraud or any other intentional act of unlawful or unauthorized taking, or abuse of public money, property, or services, or that other cash shortages have occurred in the state agency, shall report the information to the office of the comptroller of the treasury.
  2. The comptroller of the treasury, in consultation with the state agencies, shall have the authority to establish guidelines for such reports.
    1. Any state agency shall, within a reasonable amount of time, notify the comptroller of the treasury of any confirmed or suspected unauthorized acquisition of computerized data and any confirmed or suspected breach of a computer information system or related security system established to safeguard the data and computer information system.
    2. For purposes of subdivision (c)(1):
      1. “Breach” does not include individual occurrences of malware or spyware;
      2. “Computer information system” and “related security system” mean those computer information systems and security system infrastructures operated and administered by the state agency or an entity with which the state agency contracts for such operation and administration; and
      3. “Reasonable amount of time” means any amount of time that is reasonable under the particular circumstances, but shall not under any circumstances exceed five (5) working days.
  3. The information received pursuant to this section shall be confidential working papers of the comptroller of the treasury, and therefore, shall not be an open record pursuant to title 10, chapter 7.
  4. As used in this section “state agency” means each state board, commission, committee, department, office, or any other unit of state government.

Acts 2012, ch. 946, § 1; 2015, ch. 42, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Part 2
Hearings and Investigations

8-4-201. Power to require testimony and administer oaths.

The comptroller of the treasury, in performing any of the duties of office, has the power to require any person to testify under oath as to any matter which is a proper subject of inquiry by the comptroller of the treasury. The comptroller of the treasury is authorized to administer all necessary oaths.

Acts 1963, ch. 128, § 1; T.C.A. (orig. ed.), § 8-416; T.C.A., § 8-412.

Cross-References. Taking testimony authorized, determination of liability for state taxes and fees, § 67-1-1301.

8-4-202. Power to subpoena.

For these purposes, the comptroller of the treasury is empowered to issue subpoenas or subpoenas duces tecum to require attendance of persons and submission of documents, at specified times and places, to give testimony in the case or matter therein stated. The subpoena shall mention the names of the parties to the hearing and the party at whose instance the witness is called, and, if necessary, require the witness also to bring any books, documents, or other writing under the person's control which may be pertinent to the hearing.

Acts 1963, ch. 128, § 2; T.C.A. (orig. ed.), § 8-417; T.C.A., § 8-413.

Cross-References. Examination of books and records, summoning persons and records to appear and give testimony, determination of liability for state taxes and fees, § 67-1-1301.

8-4-203. Service of subpoena.

Service of such subpoena shall be had by a designated representative of the comptroller of the treasury handing a copy of the subpoena to such witness, or if the witness cannot be found, then leaving a copy of the subpoena at the usual place of residence of the witness. Such process shall run throughout the state.

Acts 1963, ch. 128, § 3; T.C.A. (orig. ed.), § 8-418; T.C.A., § 8-414.

8-4-204. Failure of witness to appear — Penalty.

Failure of any witness so subpoenaed to attend shall be certified by the comptroller of the treasury to the chancery court in whose judicial district such witness resides, and such chancery court shall exercise authority granted it by law in the treating of contempt of court matters, including those powers granted in §§ 29-9-10329-9-105; all to the end that the witness shall be compelled to appear at a time and place specified by the chancery court.

Acts 1963, ch. 128, § 4; T.C.A. (orig. ed.), § 8-419; T.C.A., § 8-415.

Cross-References. Failure of witness to appear, determination of liability to state for taxes and fees, § 67-1-1303.

Law Reviews.

The Contempt Powers of Tennessee Courts (E. Michael Ellis), 37 Tenn. L. Rev. 538 (1971).

8-4-205. Witness refusing to testify — Penalty.

Any witness who appears as ordered, but upon appearance refuses to testify on matters not privileged by law, shall be punished as prescribed in § 8-4-204.

Acts 1963, ch. 128, § 5; T.C.A. (orig. ed.), § 8-420; T.C.A., § 8-416.

Cross-References. Failure of witness to testify, determination of liability for state taxes and fees, § 67-1-1304.

Law Reviews.

The Contempt Powers of Tennessee Courts (E. Michael Ellis), 37 Tenn. L. Rev. 538 (1971).

8-4-206. Witness' traveling expenses — Reimbursement — Pay.

Any witness so subpoenaed shall be reimbursed necessary traveling expenses from such witness' home to the place of hearing and other necessary expenses as determined by the comptroller of the treasury. Those witnesses not employees of the state shall be paid at the rate of five dollars ($5.00) per day for each day or portion of a day in attendance at such hearing.

Acts 1963, ch. 128, § 6; T.C.A. (orig. ed.), § 8-421; T.C.A., § 8-417.

Cross-References. Compensation of witness, § 67-1-1305.

8-4-207. Investigations — Request of aid from other state agencies.

The comptroller of the treasury may, whenever deeming such aid necessary, request the aid of any and all agencies of the state in investigation of alleged irregularities or discrepancies involving state revenue or state funds.

Acts 1963, ch. 77, § 1; T.C.A. (orig. ed.), § 8-423; T.C.A., § 8-418.

8-4-208. Cooperation of state agencies in investigations.

Unless good and sufficient reason can be shown why the particular state agency should not render such aid, any request by the comptroller of the treasury shall be honored and the agency so requested shall give full aid, support and cooperation to the comptroller of the treasury in such investigation.

Acts 1963, ch. 77, § 2; T.C.A. (orig. ed.), § 8-424; T.C.A., § 8-419.

8-4-209. Investigation of allegation of felony involving private fund.

The comptroller of the treasury, in its discretion, may investigate an allegation of a felony that is classified as Class B or higher involving private funds if:

  1. The investigation is requested by the attorney general and reporter or the district attorney general of a judicial district;
  2. The investigation is in conjunction with an open investigation by the Tennessee bureau of investigation; and
  3. The comptroller of the treasury deems an investigation to be in the public interest.

Acts 2019, ch. 133, § 1.

Effective Dates. Acts 2019, ch. 133, § 2. April 9,  2019.

Cross-References. Penalties for Class A and B felonies, § 40-35-111.

Part 3
Disability of Comptroller of the Treasury — Assistant Comptroller of the Treasury

8-4-301. Vacancy in office.

If the comptroller of the treasury dies, resigns, or is, from any cause, disabled from performing the duties of office, the governor shall appoint some person well qualified to act in the comptroller of the treasury's stead, who shall take the same oaths, give the same bonds, in the same manner, be liable to the same penalties and receive the same salary and allowances as the regular comptroller of the treasury.

Code 1858, § 204 (deriv. Acts 1835-1836, ch. 12, § 22); Shan., § 254; Code 1932, § 198; T.C.A. (orig. ed.), § 8-412; T.C.A., § 8-420.

8-4-302. Assistant comptroller of the treasury — Appointment.

  1. There is created the office of assistant comptroller of the treasury who shall serve as such during any emergency when the regular comptroller of the treasury is disabled or disqualified from performing the duties of the office.
  2. If the general assembly is not in session when such emergency exists, the governor shall appoint such assistant comptroller of the treasury to serve until the general assembly convenes, at which time the general assembly shall elect the assistant comptroller of the treasury in the event the emergency then continues. If the general assembly is in session when the emergency commences, the assistant comptroller of the treasury shall be elected by the joint vote of the general assembly.

Acts 1949, ch. 119, § 1; C. Supp. 1950, § 213.1 (Williams, § 192.1); T.C.A. (orig. ed.), § 8-413; T.C.A., § 8-421.

8-4-303. Acting in emergency only.

  1. In no event shall the person so appointed as assistant comptroller of the treasury serve as such except during the existence of the emergency, and the governor shall determine when such emergency exists and when it terminates and shall so declare.
  2. The action of the governor in declaring the existence of an emergency shall be subject to review by writ of certiorari.

Acts 1949, ch. 119, § 1; C. Supp. 1950, § 213.1 (Williams, § 192.1); T.C.A. (orig. ed.), § 8-414; T.C.A., § 8-422.

8-4-304. Powers and duties of assistant comptroller of the treasury.

Such person appointed or elected as assistant comptroller of the treasury shall possess all the qualifications required of the comptroller of the treasury and shall file such bond as is required to be filed by the comptroller of the treasury under the statutes, and shall take the oath of office prescribed by statute for the comptroller of the treasury, and shall serve only during the continuance of the emergency as determined by the governor and shall be paid such compensation as the governor may fix, but in no event shall the compensation so fixed exceed that prescribed by law for the duly elected comptroller of the treasury.

Acts 1949, ch. 119, § 2; C. Supp. 1950, § 213.2 (Williams, § 192.1); T.C.A. (orig. ed.), § 8-415; T.C.A., § 8-423.

Cross-References. Oath of office, §§ 8-4-104, 8-18-1078-18-114.

Part 4
Advocacy for Honest and Appropriate Government Spending Act

8-4-401. Short title.

This part shall be known and may be cited as the “Advocacy for Honest and Appropriate Government Spending Act.”

Acts 2006, ch. 972, § 1.

Compiler's Notes. Former § 8-4-401 (Acts 1985, ch. 186, § 1), concerning the definitions of this part, was transferred to § 8-4-402 in 2006.

8-4-402. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Community grant” means federal funds made available to the state of Tennessee for administration and distribution pursuant to any of the following programs:
    1. The maternal and child health block grant program;
    2. The preventative health and services block grant program;
    3. The alcohol, drug abuse, and mental health block grant program;
    4. The social services block grant program;
    5. The community services block grant program; or
    6. The low income energy assistance program;
  2. “Community grant agency” means any private corporation that contracts with a state agency to receive one (1) or more community grants in consideration for rendering specified services to the public;
  3. “Hotline” means a method or system created or established to accept any telephonic or electronic form of communication that is communicated to the office of the comptroller of the treasury, for the purposes of providing governmental employees and citizens of Tennessee a means to report or provide information relating to alleged fraud, abuse, or wrongdoing;
  4. “Local agency” means any county, municipality, branch or agency of a county or municipality, public utility, utility district, entity created pursuant to any interlocal agreement, or any other political subdivision thereof; and
  5. “State agency” means each state board, commission, committee, department, office, or any other unit of state government.

Acts 1985, ch. 186, § 1; T.C.A. § 8-4-401; Acts 2006, ch. 972, § 2; 2010, ch. 784, § 1; 2012, ch. 548, § 1.

Compiler's Notes. Former § 8-4-402 (Acts 1985, ch. 186, § 2), concerning the display of a sign concerning the toll-free hotline, was transferred to § 8-4-404 in 2006.

Cross-References. Advances to social service contractors, title 71, ch. 1, part 2.

Energy assistance, title 71, ch. 5, part 4.

Medical assistance, title 71, ch. 5, part 1.

8-4-403. Toll-free telephonic and web-based hotline.

The office of the comptroller of the treasury shall establish, maintain, and publicize a toll-free telephonic and web-based hotline for the purpose of receiving allegations of fraud, waste, or abuse of public funds.

Acts 2006, ch. 972, § 2; 2012, ch. 548, § 2.

Compiler's Notes. Former § 8-4-403 (Acts 1985, ch. 186, § 3), concerning the review and record of calls, investigations, and reports, was transferred to § 8-4-406 in 2006.

8-4-404. Display of sign concerning toll-free hotline.

  1. Throughout the period in which a state agency or community grant agency receives public funds, the entity shall display in a prominent place, a sign at least eleven inches (11") in height and seventeen inches (17") in width stating:

    NOTICE:THIS AGENCY IS A RECIPIENT OF TAXPAYER FUNDING. IF YOU OBSERVE AN AGENCY DIRECTOR OR EMPLOYEE ENGAGING IN ANY ACTIVITY WHICH YOU CONSIDER TO BE ILLEGAL, IMPROPER, OR WASTEFUL, PLEASE CALL THE STATE COMPTROLLER'S TOLL-FREE HOTLINE:

    1-800-232-5454

  2. No state agency or community grant agency shall edit the written text of such notice.

Acts 1985, ch. 186, § 2; T.C.A. § 8-4-402; Acts 2006, ch. 972, § 2; 2010, ch. 784, § 2.

Compiler's Notes. Former § 8-4-404 (Acts 1985, ch. 186, § 4), concerning confidentiality of information and an annual summary of calls, was transferred to § 8-4-407 in 2006.

8-4-405. Educating citizens and public employees on reporting allegations of fraud, waste or abuse of public funds and the responsibility of comptroller to review allegations.

Through press releases, public service announcements, or other appropriate public information activities, the office of the comptroller of the treasury shall attempt to educate both private citizens and public employees of the availability of a mechanism to report, and the responsibilities of the office of the comptroller of the treasury to review, allegations of fraud, waste, or abuse of public funds.

Acts 2006, ch. 972, § 2.

Code Commission Notes.

Former § 8-4-405 (Acts 1985, ch. 186, § 5), concerning program evaluation, was deemed by the Code Commission to be obsolete.

8-4-406. Review and record of notifications — Investigations — Reports.

  1. The office of the comptroller of the treasury shall review all notifications received through the hotline pursuant to this part and shall maintain a record of each meritorious notification involving an activity related to state agency or community grant supported services. The information received through the notifications shall be investigated by the office of the comptroller of the treasury or may be referred by the office of the comptroller of the treasury to the appropriate program or investigative agency.
  2. Upon receiving the information relating to a notification, a state agency, local agency or community grant agency shall undertake adequate and appropriate measures to investigate and remedy any illegal, improper, or wasteful activity noted in the information. The state agency, local agency or community grant agency shall submit a written report to the office of the comptroller of the treasury, outlining the findings of the investigating entity's investigation, as well as any remedial action undertaken. A copy of the report shall be retained by the state agency, local agency or community grant agency, and if involving a community grant agency, the report shall be appropriately considered prior to the state entering into any other contractual relationship with the community grant agency. The detailed information received and generated shall be considered confidential in the same manner as if such investigation has been conducted by the office of the comptroller of the treasury pursuant to § 8-4-407.

Acts 1985, ch. 186, § 3; T.C.A. § 8-4-403; Acts 2006, ch. 972, § 2; 2010, ch. 784, § 3; 2012, ch. 548, §§ 3, 4.

Compiler's Notes. Former § 8-4-406, concerning procurement and distribution of hotline signs, was transferred to § 8-4-408 in 2006.

Cross-References. Confidentiality of public records, § 10-7-504.

8-4-407. Confidentiality of information — Annual summary of notifications.

  1. The detailed information received and generated pursuant to this part shall be considered confidential working papers of the comptroller of the treasury and is therefore not an open record pursuant to title 10, chapter 7.
  2. Each year the office of the comptroller of the treasury shall include within the annual report required by § 8-4-110, a summary of the notifications received during the year pursuant to this part. The summary shall indicate the number of notifications, the general nature of the activities reported, the state agencies and community grant agencies affected, and, if appropriate, any remedial action taken or proposed, including the total amount of public funds recovered, and any criminal or civil actions initiated or completed as a result of an allegation received by the office of the comptroller of the treasury under this part.

Acts 1985, ch. 186, § 4; T.C.A. § 8-4-404; Acts 2006, ch. 972, § 2; 2012, ch. 548, § 5.

Compiler's Notes. Former § 8-4-407 (Acts 1985, ch. 186, §§ 7, 8; 1989, ch. 591, § 113), concerning agency violations and providing false information, was transferred to § 8-4-409 in 2006.

Cross-References. Confidentiality of public records, § 10-7-504.

8-4-408. Procurement and distribution of hotline signs.

The office of the comptroller of the treasury shall procure uniform signs, printed in accordance with § 8-4-404, which shall be available, upon request, for distribution without cost to each state agency and community grant agency.

Acts 1985, ch. 186, § 6; T.C.A. § 8-4-406; Acts 2006, ch. 972, § 2.

8-4-409. Providing false information — Good faith allegation — Application to state agencies and local government employees — Retaliation.

  1. Any person who knowingly provides false information pursuant to this part commits a Class C misdemeanor.
  2. Any person making an allegation in good faith pursuant to this part is immune from civil or criminal liability for making the allegation, even if the allegation proves to be false.
  3. Section 8-50-116 shall apply to all state agency and local government employees. In addition, no government employee shall suffer any of the prohibited retaliatory actions specified in § 8-50-116 for reporting to, or cooperating with, the office of the comptroller of the treasury or other investigating entity. Any person who knowingly and willingly retaliates or takes adverse action of any kind against any person for reporting alleged wrongdoing pursuant to this part, commits a Class A misdemeanor.

Acts 1985, ch. 186, §§ 7, 8; 1989, ch. 591, § 113; T.C.A. § 8-4-407; Acts 2006, ch. 972, § 2.

Cross-References. Penalties for Class A and Class C misdemeanors, § 40-35-111.

Part 5
Local Government Instances of Fraud Reporting Act

8-4-501. Short title.

This part shall be known and may be cited as the “Local Government Instances of Fraud Reporting Act.”

Acts 2007, ch. 206, § 2.

8-4-502. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Public entity” means any branch or agency of a county, municipality, public utility, utility district, entity created pursuant to any interlocal agreement, or any other political subdivision thereof;
  2. “Public official” means a person elected or appointed to any office of a public entity;
  3. “Reasonable amount of time” means any amount of time that is reasonable under the particular circumstances, but shall not under any circumstances exceed five (5) working days; and
  4. “Unlawful conduct” means theft, forgery, credit or debit card fraud, or any other act of unlawful taking, waste, or abuse of, or official misconduct, as defined in § 39-16-402, involving public money, property, or services.

Acts 2007, ch. 206, § 3; 2010, ch. 784, § 5; 2018, ch. 540, § 1.

Amendments. The 2018 amendment substituted “credit or debit card fraud” for “credit card fraud” in the definition of “unlawful conduct”.

Effective Dates. Acts 2018, ch. 540, § 4. March 5, 2018.

8-4-503. Reporting unlawful conduct — Method of making report.

  1. A public official with knowledge based upon available information that reasonably causes the public official to believe that unlawful conduct has occurred shall report the information in a reasonable amount of time to the office of the comptroller of the treasury.
  2. A certified public accountant or firm conducting an audit, investigation, or other engagement under a contract with the comptroller of the treasury, or with a public entity that requires approval by the comptroller of the treasury, shall promptly report any reasonable suspicion of unlawful conduct to the office of the comptroller of the treasury.
  3. The comptroller of the treasury may prescribe the method of making the report.

Acts 2007, ch. 206, § 4; 2010, ch. 784, § 6; 2018, ch. 540, § 2.

Amendments. The 2018 amendment added present (b) and redesignated former (b) as present (c); and, in (c), substituted “may prescribe” for “shall have the power to prescribe” and substituted “the report” for “the reports” at the end.

Effective Dates. Acts 2018, ch. 540, § 4. March 5, 2018.

8-4-504. Good faith immunity.

  1. If acting in good faith, a public official, or a certified public accountant or firm, makes a report, as required by § 8-4-503, the person or firm shall not be liable in any civil or criminal action that is based solely upon:
    1. The person's or firm's decision to report what the person or firm believed to be unlawful conduct;
    2. The person's or firm's belief that reporting the unlawful conduct was required by law or by contract; or
    3. The fact that a report of unlawful conduct was made.
  2. No immunity conferred pursuant to subsection (a) shall attach if the person or firm reporting the unlawful conduct:
    1. Participated in or benefited from the unlawful conduct; or
    2. Knowingly provides false information pursuant to this part.

Acts 2007, ch. 206, § 5; 2018, ch. 540, § 3.

Amendments. The 2018 amendment in (a), in the introductory paragraph, inserted “, or a certified public accountant or firm,” and substituted “person or firm” for “person”, substituted “The person's or firm's” for “The person's” at the beginning of (1) and (2), inserted “or firm” in (1), and added “or by contract” at the end of (2); and rewrote (b) which read: “No immunity conferred pursuant to subsection (a) shall attach if the person reporting the unlawful conduct participated in or benefited from the conduct.”

Effective Dates. Acts 2018, ch. 540, § 4. March 5, 2018.

8-4-505. Confidentiality.

The detailed information received and generated pursuant to this part shall be considered confidential working papers of the comptroller of the treasury and is therefore not an open record pursuant to title 10, chapter 7.

Acts 2007, ch. 206, § 6.

Cross-References. Confidentiality of public records, § 10-7-504.

Part 6
Office of Open Records Counsel

8-4-601. Creation.

  1. There is created the office of open records counsel to answer questions and provide information to public officials and the public regarding public records. The role of the office shall also include collecting data on open meetings law inquiries and problems and providing educational outreach on the open records laws, compiled in title 10, chapter 7, and the open meetings laws, compiled in chapter 44 of this title.
  2. The office of open records counsel shall answer questions and issue informal advisory opinions as expeditiously as possible to any person, including local government officials, members of the public and the media. State officials shall continue to consult with the office of the attorney general and reporter for such opinions. Any opinion issued by the office of open records counsel shall be posted on the office's web site.
  3. The office of open records counsel is authorized to informally mediate and assist with the resolution of issues concerning the open records laws, compiled in title 10, chapter 7.

Acts 2008, ch. 1179, § 6.

Attorney General Opinions. A records custodian of municipal public records is required to respond to a public records request.  If a records custodian denies a request for public records or otherwise fails to timely respond to the request in accordance with the statutory procedures, the Tennessee citizen making the request may bring an action pursuant to T.C.A. § 10-7-505 in chancery or circuit court for the county in which the records are situated for judicial review of the denial of access to the requested records. A member of the public may also consult with the Office of Open Records Counsel, who has the authority to answer questions, to issue informal advisory opinions, and to informally mediate and assist with the resolution of issues concerning the open records laws. OAG 16-47, 2016 Tenn. AG LEXIS 46 (12/22/2016).

8-4-602. Advisory committee — Membership.

  1. There is created an advisory committee on open government to provide guidance and advice for the office of open records counsel.
    1. The advisory committee shall consist of fourteen (14) members to be appointed for a term of four (4) years; provided, that the five (5) members listed in subdivisions (b)(1)(A)-(E) shall be appointed for an initial term of four (4) years and the five (5) members listed in subdivisions (b)(1)(F)-(J) shall be appointed for an initial term of two (2) years. The members listed in subdivisions (b)(1)(K), (L), (M) and (N) shall be appointed for an initial term of four (4) years. The advisory committee shall be made up of one (1) member from each of the following groups who will be appointed by the comptroller of the treasury from a list of three (3) nominees submitted from each group:
      1. One (1) member from the Tennessee Coalition for Open Government;
      2. One (1) member from the Tennessee Press Association;
      3. One (1) member from the Tennessee Municipal League;
      4. One (1) member from either the Tennessee County Services Association or the County Officials Association of Tennessee;
      5. One (1) member from the Tennessee School Boards Association;
      6. One (1) member from Common Cause;
      7. One (1) member from the League of Women Voters;
      8. One (1) member from public hospitals submitted by the Tennessee Hospital Association;
      9. One (1) member from the Tennessee Association of Broadcasters;
      10. One (1) member representing the board of regents or the University of Tennessee;
      11. One (1) member from the Tennessee Association of Chiefs of Police;
      12. One (1) member from the Tennessee Sheriffs' Association;
      13. One (1) member from the Society of Professional Journalists; and
      14. One (1) member from the American Association of Retired People.
    2. The advisory committee shall also consist of the chair of the state and local government committee of the senate and the state government committee of the house of representatives and the attorney general and reporter or the attorney general and reporter's designee.
  2. The nonlegislative members shall not receive compensation for serving on the committee but shall be reimbursed for attendance at meetings in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.

Acts 2008, ch. 1179, § 6; 2010, ch. 1148, §§ 1-3; 2013, ch. 236, § 65.

8-4-603. Open meetings laws — Review of proposed legislation — Report.

    1. The advisory committee shall, with the guidance of the office of open records counsel, hold meetings to review and provide written comments, if requested, on any proposed legislation regarding the open meetings laws, compiled in chapter 44 of this title, and the open records laws, compiled in title 10, chapter 7.
      1. The advisory committee shall select two (2) co-chairs from among its membership.
      2. One (1) co-chair selected under subdivision (a)(2)(A) shall represent the interests of advisory committee members appointed under § 8-4-602(b)(1)(C)-(E), (H), and (J)-(L); and one (1) co-chair selected shall represent the interests of members appointed under § 8-4-602(b)(1)(A), (B), (F), (G), (I), (M), and (N).
        1. The advisory committee shall meet at least once during each calendar year, with the date for such meeting to be set by joint agreement of the co-chairs.
        2. The co-chairs of the committee:
          1. May, by joint agreement, call additional meetings at any time; and
          2. Shall, upon the request of a majority of the members, call additional meetings.
    2. All meetings of the advisory committee shall be open to the public, pursuant to § 8-44-102.
    1. The office of open records counsel and the advisory committee shall separately provide a detailed report of their activities to the governor, the speaker of the senate, the speaker of the house of representatives, the chair of the state and local government committee of the senate, the chair of the local government committee of the house of representatives, and the chair of the state government committee of the house of representatives by March 1 of each year.
    2. The advisory committee shall provide reports on open records and open meetings laws and issues as requested by the governor or any committee of the general assembly.
  1. Any written comments or reports provided by the advisory committee shall require unanimous consent of the co-chairs.

Acts 2008, ch. 1179, § 6; 2018, ch. 897, § 1.

Amendments. The 2018 amendment rewrote the section which read: “(a)  The advisory committee, with the guidance and assistance of the office of open records counsel, may review and provide written comments on any proposed legislation regarding the open meetings laws, compiled in chapter 44 of this title, and the open records laws, compiled in title 10, chapter 7.“(b)  The office of open records counsel and the advisory committee shall provide a report to the general assembly and to the governor by March 1 of each year.”

Effective Dates. Acts 2018, ch. 897, § 2. May 3, 2018.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

8-4-604. Office of open records counsel — Duties — Schedule of reasonable charges — Policies and guidelines.

  1. The office of open records counsel shall establish:
      1. A schedule of reasonable charges that a records custodian may use as a guideline to charge a citizen requesting copies of public records pursuant to title 10, chapter 7, part 5. In establishing the schedule, the office of open records counsel shall consider:
        1. Such factors as the size, by population, of the county or municipality, the complexity of the request, the number of man hours involved in retrieving the documents, redacting confidential information from the documents and any other costs involved in preparing the documents for duplication, the costs of duplication, the costs of mailing the documents if the requestor is not returning to retrieve the requested documents, and any other costs that the office of open records counsel deems appropriate to include in the charge; and
        2. The principles presented by the study committee created by Acts 2006, ch. 887:
          1. That state policies and guidelines shall reflect the policy that providing information to the public is an essential function of a representative government and an integral part of the routine duties and responsibilities of public officers and employees;
          2. That excessive fees and other rules shall not be used to hinder access to nonexempt public information;
          3. That, in accordance with § 10-7-503(a)(7)(A), no charge shall be assessed to view a public record unless otherwise required by law;
          4. That the requestor be given the option of receiving information in any format in which it is maintained by the agency, including electronic format consistent with title 10, chapter 7, part 1; and
          5. That when large-volume requests are involved, information shall be provided in the most efficient and cost-effective manner, including but not limited to permitting the requestor to provide copying equipment or an electronic scanner;
      2. The schedule established pursuant to subdivision (a)(1)(A) shall be revised at least annually;
    1. A separate policy related to reasonable charges that a records custodian may charge for frequent and multiple requests for public records;
    2. A safe harbor policy for a records custodian who adheres to the policies and guidelines established by the office of open records counsel; and
    3. A model best practices and public records policy for use by a records custodian in compliance with § 10-7-503.
  2. The office of open records counsel shall make the policies and guidelines available on the Internet.
  3. The policies and guidelines shall not be deemed to be rules under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  4. Before establishing any version of a policy or guideline authorized or required by this section, the office of open records counsel shall provide a proposed draft to the advisory committee on open government for comment. The advisory committee on open government may meet and provide written comments on the draft to the office of open records counsel.

Acts 2008, ch. 1179, § 6; 2016, ch. 722, §§ 7, 8.

Amendments. The 2016 amendment added (a)(4) and added (d).

Effective Dates. Acts 2016, ch. 722, § 9. July 1, 2016.

Cross-References. Confidentiality of public records, § 10-7-504.

NOTES TO DECISIONS

1. Reasonable Fees.

Dismissal of defendant's petition for access to public records under T.C.A. § 10-7-505 was proper as appellee responded to his request, the fees charged for processing the documents were reasonable under T.C.A. §§ 8-4-604 and 10-7-503, and he received the records he requested. Lance v. York, 359 S.W.3d 197, 2011 Tenn. App. LEXIS 251 (Tenn. Ct. App. May 13, 2011), rehearing denied, 359 S.W.3d 197, 2011 Tenn. App. LEXIS 378 (Tenn. Ct. App. July 1, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 976 (Tenn. Oct. 18, 2011).

2. Costs.

Because the seven-day time limit in T.C.A. § 10-7-503(a)(2)(B) was not triggered when the records requested by an inmate were available for inspection, and because the costs requested by the custodian did not exceed the amounts allowable under T.C.A. §§ 8-4-604(a)(1)(A) and 10-7-503(a)(7)(C), the inmate was not entitled to a rehearing. Lance v. York, 359 S.W.3d 197, 2011 Tenn. App. LEXIS 378 (Tenn. Ct. App. July 1, 2011).

Imposition of an impermissible condition on a record's availability constitutes a denial of a request for that record under the Tennessee Public Records Act; insisting on an up-front fee is an illegitimate barrier to access when the records requestor is merely seeking to inspect available public records. Taylor v. Town of Lynnville, — S.W.3d —, 2017 Tenn. App. LEXIS 469 (Tenn. Ct. App. July 13, 2017).

Part 7
Small Business Advocate

8-4-701. “Small business” defined.

For purposes of this part, “small business” means a business entity, including its affiliates, that employs fifty (50) or fewer full-time employees.

Acts 2010, ch. 1129, § 2.

8-4-702. Advocate within the office of the comptroller of the treasury — Authority — Choice of advocate.

  1. There shall be a small business advocate within the office of the comptroller of the treasury to answer questions and provide information to residents of this state who are starting a small business or who already own a small business.
  2. The small business advocate is authorized to informally mediate and assist with the resolution of issues concerning small business owners and state departments and agencies.
  3. The small business advocate shall be chosen by the comptroller of the treasury from existing personnel within the comptroller's office and the comptroller shall implement this part without using additional resources.

Acts 2010, ch. 1129, § 3.

8-4-703. Contact person within each department and agency with regulatory authority.

  1. Each department and agency in state government that has any regulatory authority over business activity shall appoint a person from existing executive service personnel who shall serve as a contact person for the small business advocate when the advocate has an issue or question concerning the department or agency. The contact person is responsible for communicating with the small business advocate when problems or issues from small business owners arise in the person's department or agency. The contact person shall notify the small business advocate when the issue or problem is resolved.
  2. The department or agency shall notify the small business advocate who the contact person is within sixty (60) days of July 1, 2010. At any time a department or agency changes the contact person, the department or agency shall notify the small business advocate within seven (7) business days of the change.

Acts 2010, ch. 1129, § 4.

8-4-704. Duties of advocate.

The small business advocate shall:

  1. Work with each state agency and department with regulatory authority over businesses to ensure that small business owners who receive or are subject to an audit, on-site inspection, compliance assistance effort, or other enforcement-related communication or contact by agency or department personnel are provided with a means to communicate or comment on the enforcement activity conducted by such personnel;
  2. Establish means to receive comments from small business owners regarding actions by agency or department employees conducting compliance or enforcement activities;
  3. Establish means to refer comments from small business owners received pursuant to subdivision (2) to the contact person of the affected agency or department in the appropriate circumstances and to maintain the confidentiality of the identity of the person making such comments; and
  4. Rate agencies on the extent to which they notify small business owners about the existence of the small business advocate.

Acts 2010, ch. 1129, § 5.

Cross-References. Confidentiality of public records, § 10-7-504.

8-4-705. Annual report to general assembly on enforcement activities.

The small business advocate shall report annually to the commerce and labor committee of the senate and the commerce committee of the house of representatives regarding evaluating the enforcement activities of department and agency personnel, including a rating of the responsiveness to small business owners' concerns.

Acts 2010, ch. 1129, § 6; 2013, ch. 236, § 12; 2019, ch. 345, § 13.

Amendments. The 2019 amendment substituted “commerce” for “business and utilities” preceding “committee of the house”.

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

8-4-706. Annual report on advocate's activities, findings and recommendations.

The small business advocate shall annually prepare a report on the advocate's activities, findings and recommendations to the governor, members of the general assembly and to the heads of affected state departments and agencies. Prior to publishing the report, the small business advocate shall provide any affected department or agency with an opportunity to comment on draft reports and include the department's or agency's comments in the final version of the report.

Acts 2010, ch. 1129, § 7.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

8-4-707. Publication of contact information.

The contact information for the small business advocate shall be published on the comptroller of the treasury's web site. The web site shall also include the names of all contact persons for each state department and agency as provided in § 8-4-703.

Acts 2010, ch. 1129, § 8.

Chapter 5
State Treasurer

Part 1
General Provisions

8-5-101. Election — Term of office.

There shall be a state treasurer, who shall be elected by the joint vote of both houses of the general assembly, and shall hold office for the term of two (2) years, and until a successor is elected and qualified.

Code 1858, §§ 222, 812 (deriv. Acts 1835-1836, ch. 27, §§ 1, 13); Shan., §§ 270, 1136; Code 1932, §§ 214, 1903; modified; T.C.A. (orig. ed.), § 8-501.

Cross-References. Election and term, Tenn. Const., art. VII, § 3.

Impeachment, title 8, ch. 46.

Officers commissioned, § 8-18-106.

Salary, § 8-23-101.

8-5-102. Audit of incumbent's accounts.

Previous to the convening of each biennial general assembly, the speaker of the senate and the speaker of the house of representatives may call upon the comptroller of the treasury to submit and review with them a current audit of the office of the treasurer. The speakers may appoint a committee of the general assembly for the purpose of such review.

Code 1858, § 223 (deriv. Acts 1841-1842, ch. 93); Shan., § 271; Code 1932, § 215; Acts 1977, ch. 4, § 2; T.C.A. (orig. ed.), § 8-502.

Cross-References. Accounting for fees, §§ 8-22-1188-22-121.

8-5-103. [Repealed.]

Compiler's Notes. Former § 8-5-103 (Code 1858, §§ 224, 225 (deriv. Acts 1835-1836, ch. 27, § 1; 1847-1848, ch. 59, § 2; 1847-1848, ch. 117); Shan., §§ 272, 273; Code 1932, §§ 216, 217; T.C.A. (orig. ed.), § 8-503), concerning the surety bond of the treasurer, was repealed by Acts 1980, ch. 887, § 9. For present law, see § 4-4-108.

8-5-104. Oath of office.

The state treasurer shall take an oath before a judge of the supreme, appeals, or circuit court, or a chancellor, to support the Constitutions of Tennessee and of the United States, and faithfully to execute the duties of the office.

Code 1858, § 226 (deriv. Acts 1835-1836, ch. 27, § 1); Shan., § 274; Code 1932, § 218; T.C.A. (orig. ed.), § 8-504.

Cross-References. Administration and filing of oath, §§ 8-18-1078-18-114.

8-5-105. Office — Duties.

The state treasurer shall keep office in the room assigned to the state treasurer in the capitol, and shall perform all the duties appertaining thereto by law, or which may be required of the state treasurer by resolution of the general assembly.

Code 1858, § 228 (deriv. Acts 1835-1836, ch. 27, § 2); Shan., § 276; Code 1932, § 220; T.C.A. (orig. ed.), § 8-505.

Cross-References. Absentees' fund maintained by, reimbursement upon claim by appearing absentee, § 30-3-113.

Accounting for fees, §§ 8-22-1188-22-121.

Borrowing money upon the faith and credit of state prohibited, § 9-1-102.

Department of treasury, duties, § 4-3-2401.

Funding board, member of, § 9-9-101.

Report to governor, annual, § 4-4-114.

8-5-106. Accounts of receipts and disbursements.

The state treasurer shall keep in a book or books, under distinct heads, true, faithful, and just accounts of all the money received from time to time by virtue of such office, and also of all such sums of money as the state treasurer shall pay out of the treasury on warrants received.

Code 1858, § 237 (deriv. Acts 1835-1836, ch. 27, § 5); Shan., § 289; Code 1932, § 245; T.C.A. (orig. ed.), § 8-506.

Cross-References. Accounting for fees, §§ 8-22-1188-22-121.

8-5-107. General ledger.

The state treasurer shall keep a general ledger of accounts, into which the state treasurer shall post all of the receipts and disbursements of the office, arranging the receipts and disbursements under the appropriate accounts. The state treasurer shall open in the ledger a general account of receipts and disbursements, which shall be reconciled currently with the general ledger maintained by the commissioner of finance and administration, in the accounts section, as of the last day of each month of the fiscal year.

Code 1858, § 238 (deriv. Acts 1835-1836, ch. 27, § 12); Shan., § 290; Code 1932, § 246; mod. C. Supp. 1950, § 246; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1975, ch. 138, § 1; T.C.A. (orig. ed.), § 8-507.

8-5-108. Accounts with banks.

The state treasurer shall keep accounts in the books of the office with the individual banks in which the public revenue or money is deposited, with such balances being reconciled to the individual bank statement balances on a monthly basis, showing the amount in the bank to the credit of the state at the end of each month.

Code 1858, § 239 (deriv. Acts 1835-1836, ch. 27, § 12); Shan., § 291; Code 1932, § 247; Acts 1975, ch. 138, § 2; T.C.A. (orig. ed.), § 8-508.

Cross-References. State depositories, title 9, ch. 4.

8-5-109. General account.

The state treasurer shall, moreover, keep a general account, which shall be reconciled to balances maintained by the commissioner of finance and administration, in the accounts section, and with the individual banks in which the public revenue or money is deposited on a monthly basis, showing the balance in the treasury at the end of each month.

Code 1858, § 240 (deriv. Acts 1835-1836, ch. 27, § 12); Shan., § 292; Code 1932, § 248; Acts 1975, ch. 138, § 3; T.C.A. (orig. ed.), § 8-509.

8-5-110. Custodian of collateral.

  1. The state treasurer is designated as the custodian of all negotiable instruments deposited as collateral with the state or any department thereof, and shall be exclusively responsible for their safekeeping.
  2. It is the duty of each department head or other person in the state government, having in possession collateral of the type above mentioned, to turn the same over to the state treasurer and to receive from the state treasurer an itemized receipt therefor. As additional collateral shall come into the hands of the department head or other person, the same procedure shall be followed.
  3. Such collateral submitted to the state treasurer in the form of securities shall be fully registered as to principal and interest in such manner as to identify the state and the appropriate agency or department as holder of such collateral and to also identify the individual or concern placing such collateral.
  4. The state treasurer shall make an annual report to the department head of collateral held on behalf of such department.
  5. The official bond of the state treasurer shall be security for any losses resulting under this section.

Acts 1941, ch. 157, § 1; C. Supp. 1950, § 252.1; T.C.A. (orig. ed.), § 8-510; Acts 1980, ch. 447, § 1; 1985, ch. 118, § 1; 1990, ch. 702, § 1; 1997, ch. 217, § 2.

8-5-111. Biennial statement.

The state treasurer shall exhibit to the governor, at least ten (10) days before the meeting of the general assembly, an exact statement of the balance in the state treasury to the credit of the state, with a summary of the receipts and payments of the state treasury during the two (2) preceding years.

Code 1858, § 242 (deriv. Acts 1835-1836, ch. 27, § 9); Acts 1873, ch. 2, § 2; Shan., § 293a; Code 1932, § 250; T.C.A. (orig. ed.), § 8-512.

8-5-112. Misappropriation of funds.

If the state treasurer diverts, misapplies, or fails to pay over any money paid, or which by law is required to be paid, into the state treasury, contrary to law, the state treasurer shall forfeit the office and be incapable of holding any office of trust or profit whatsoever in this state. The state treasurer shall, moreover, be liable to pay double the value of any sum so misapplied, to be recovered, for the use of the state, by motion of the comptroller of the treasury or the comptroller of the treasury's attorney, in any court of record in the state.

Code 1858, § 244 (deriv. Acts 1835-1836, ch. 27, § 7); Shan., § 294; Code 1932, § 251; T.C.A. (orig. ed.), § 8-513.

Part 2
Disability of State Treasurer—Additional State Treasurer

8-5-201. Vacancy in office.

Whenever the office of state treasurer becomes vacant, by death, resignation, or otherwise, during the recess of the general assembly, the governor shall immediately fill it by appointing some person qualified to discharge its duties. The person appointed shall, before entering upon the duties of the office, enter into bond, with such sureties as shall be approved by the governor, in the penalty of one hundred thousand dollars ($100,000), and shall take the same oath, perform all the duties, be liable to the same penalties and receive the same compensation as the state treasurer appointed by the general assembly.

Code 1858, § 227 (deriv. Acts 1835-1836, ch. 27, § 8); Shan., § 275; Code 1932, § 219; T.C.A. (orig. ed.), § 8-514.

8-5-202. Additional state treasurer during emergency — Appointment.

  1. There is created the additional office of state treasurer to serve during any emergency when the regular state treasurer is incapacitated or disabled because of illness, or other cause, and therefore cannot perform the duties of the office.
    1. If the general assembly is not in session when such disability or incapacity on the part of the regular state treasurer occurs, the governor shall appoint a person as state treasurer, charged with the duty of performing the regular duties of the office. Such person shall serve during the emergency or until the time the general assembly shall convene and elect a person to fill the office for the continuance of the emergency.
    2. If the general assembly is in session when the regular state treasurer becomes incapacitated or disabled and therefore cannot perform the duties of the office, then the general assembly shall elect the additional state treasurer to serve during the existence of the emergency.

Acts 1949, ch. 128, § 1; C. Supp. 1950, § 219.1 (Williams, § 214.1); T.C.A. (orig. ed.), § 8-515.

8-5-203. Powers and duties of additional state treasurer — Determination of emergency.

  1. The person so appointed or elected shall possess all of the qualifications now required by statute for the regular state treasurer, and compensation for such person shall be fixed by the governor, but in no event shall the compensation so paid exceed that prescribed by law for the duly elected state treasurer.
  2. The person so appointed or elected as additional state treasurer shall execute such bond or bonds as shall be required by the governor and as are now required by statute and shall take and subscribe to the oath required by statute.
    1. The decision of the governor as to the existence of an emergency caused by the incapacity or disability of the regular state treasurer shall be final and the governor shall determine when the emergency is ended.
    2. The action of the governor, in determining the existence of an emergency, shall be subject to review by writ of certiorari.

Acts 1949, ch. 128, § 1; C. Supp. 1950, § 219.1 (Williams, § 214.1); T.C.A. (orig. ed.), § 8-516.

Cross-References. Oath of office, §§ 8-5-104, 8-18-1078-18-114.

Chapter 6
Attorney General and Reporter—Legal Department

Part 1
General Provisions

8-6-101. Appointment and qualification — Term of office.

The attorney general and reporter for the state is appointed by the judges of the supreme court. The term of office is eight (8) years. A certificate of appointment, signed by all the judges, shall be entered upon the minutes of the court at the first session thereafter at Knoxville, Nashville, and Jackson, respectively. The attorney general and reporter shall qualify and perform the duties of the office as required by law, and subject to the penalties imposed by law.

Acts 1870, ch. 24, § 7; Shan., § 392; Code 1932, § 642; T.C.A. (orig. ed.), § 8-601.

Cross-References. Appointment and term, Tenn. Const., art. VI, § 5.

Impeachment, title 8, ch. 46.

Oath of office, §§ 8-18-1078-18-114.

Officers commissioned, § 8-18-106.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, §§ 1-3.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191 (1978).

8-6-102. Legal department — Offices.

There is created a legal department of the state, of which the attorney general and reporter shall be the executive head, and who, with assistants, shall constitute such department. The department shall maintain offices at Nashville, which shall be furnished and provided by the state under the supervision of the department of finance and administration.

Acts 1929, ch. 22, § 1; Code 1932, § 9950; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 8-602.

Cross-References. State system of personnel administration, title 8, ch. 30.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 2.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191 (1978).

Collateral References.

Validity, under state law, of creation of office of independent special prosecutor. 84 A.L.R.3d 29.

8-6-103. Assistants and other personnel.

The attorney general and reporter, consistent with budgetary limitations, is authorized to appoint such assistants and other personnel as the attorney general and reporter may deem necessary to perform the duties of the office. All assistants and other personnel shall hold office during the pleasure of the attorney general and reporter and shall have such titles and perform such duties as may be assigned to them by the attorney general and reporter. All assistants shall take an oath to discharge the duties imposed. The attorney general and reporter shall submit a report of any increase and decrease in the number of assistants to the general assembly on July 1 of each year for the prior fiscal year ending June 30.

Acts 1929, ch. 22, § 2; Code 1932, § 9951; Acts 1965, ch. 130, § 1; 1967, ch. 275, § 1; 1971, ch. 276, §§ 1, 2; 1977, ch. 149, § 1; 1979, ch. 422, § 1; T.C.A. (orig. ed.), § 8-603.

Cross-References. Oath of office, §§ 8-18-1078-18-114.

Representation of agencies, § 8-6-301.

State system of personnel administration, title 8, ch. 30.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 6.10.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 8.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191 (1978).

8-6-104. Salaries.

The attorney general and reporter shall receive the same salary as an associate justice of the supreme court. The compensation of the attorney general and reporter's several assistants shall be such as may be fixed by the attorney general and reporter within the limits of the appropriation to that department. All such salaries shall be payable in equal monthly installments out of the state treasury upon the warrants of the commissioner of finance and administration.

Acts 1929, ch. 22, § 3; Code 1932, § 9952; impl. am. Acts 1937, ch. 33, §§ 24, 29; Acts 1957, ch. 25, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1972, ch. 526, § 4; 1973, ch. 333, § 1; T.C.A. (orig. ed.), § 8-604.

Compiler's Notes. Acts 2003, ch. 355, § 63 provided that, notwithstanding this section or any other law to the contrary, the salary of the attorney general and reporter during the fiscal year 2003-2004 shall be the same as during the fiscal year 2002-2003. There shall be no cost of living or other adjustment to such salary during fiscal year 2003-2004.

Cross-References. Salary of associate justice of Supreme Court, § 8-23-103.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, §§ 11, 12.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191 (1978).

8-6-105. Expenses.

The attorney general and reporter and all of the assistants shall be paid their necessary expenses incurred on business for the state, in like manner as their compensation, when there have been filed with the commissioner of finance and administration an itemized statement certified by the officer incurring the expenses. This statement, in case of assistants, shall be approved by the attorney general and reporter.

Acts 1929, ch. 22, § 4; Code 1932, § 9953; impl. am. Acts 1937, ch. 33, §§ 24, 29; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 8-605.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

8-6-106. Employment of additional counsel.

  1. In all cases where the interest of the state requires, in the judgment of the governor and attorney general and reporter, additional counsel to the attorney general and reporter or district attorney general, the governor shall employ such counsel, who shall be paid such compensation for services as the governor, secretary of state, and attorney general and reporter may deem just, the same to be paid out of any money in the treasury not otherwise appropriated, upon the certificate of such officers certifying the amount to the commissioner of finance and administration.
  2. Notwithstanding this section or any other law to the contrary, the attorney general and reporter or district attorney general shall inform the governor of, and consideration shall be given to, whether the person or firm to be employed as additional counsel:
    1. To defend the state in any action is then serving as counsel for a party in any action by that party against the state and whether the action, if adjudicated in that party's favor, is likely to result in an increase in state expenditures; or
    2. To prosecute any action on behalf of the state is then serving as counsel in defense of any action against the state.

Acts 1865, ch. 23, §§ 1, 2; Shan., § 5759; Code 1932, § 9958; impl. am. Acts 1937, ch. 33, §§ 24, 29; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 8-606; Acts 2004, ch. 723, § 1.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Acts 2004, ch. 723, § 2 provided that nothing in the act shall be construed to rescind, impair or affect any contracts in effect on June 30, 2004, and shall only apply to contracts entered into, or renewed, on or after July 1, 2004.

Attorney General Opinions. A community service agency may only retain private counsel through the statutory procedure and may not do so independently, OAG 00-113, 2000 Tenn. AG LEXIS 115 (6/20/00).

NOTES TO DECISIONS

1. Employment of Counsel by Comptroller.

The comptroller had no power to employ counsel to assist the attorney general in the state's civil litigation in the supreme court. State v. Spurgeon, 99 Tenn. 659, 47 S.W. 235, 1897 Tenn. LEXIS 79 (1897).

2. Conflict of Interest.

The use of a private attorney in a criminal case may present ethical dilemmas, including conflict of interest; therefore, the private attorney must comply with the standards and ethical responsibilities for a public prosecutor and must not merely seek convictions but also pursue justice. State v. Culbreath, 30 S.W.3d 309, 2000 Tenn. LEXIS 588 (Tenn. 2000).

Attorney who was privately compensated by a special interest group and thus owed a duty or loyalty to that group had an actual conflict of interest while serving in the role of public prosecutor; consequently, preceedings were inherently improper and the entire prosecution of the case was tainted well before the charges were presented to the grand jury and dismissal of the indictments was the appropriate remedy to redress the constitutional error. State v. Culbreath, 30 S.W.3d 309, 2000 Tenn. LEXIS 588 (Tenn. 2000).

Collateral References.

Validity, under state law, of appointment of special prosecutor where regular prosecutor is charged with, or being investigated for, criminal or impeachable offense. 84 A.L.R.3d 115.

8-6-107. Restrictions — Misdemeanors in office.

The attorney general and reporter and assistants shall be under the disabilities, restrictions, and disqualifications of district attorneys general and shall be subject to be proceeded against for misdemeanors in office in the same manner that the judges of the courts are proceeded against. Nothing in this section or in any other law prohibits the voluntary provision of pro bono legal services through an organized program of pro bono legal services that receives funding pursuant to § 16-3-808 and that provides professional liability insurance for losses sustained by clients of lawyers participating in the program.

Code 1858, § 3950 (deriv. Acts 1835-1836, ch. 51, § 2); Shan., § 5754; mod. Code 1932, § 9954; T.C.A. (orig. ed.), § 8-607; Acts 2009, ch. 7, § 1.

Cross-References. Restrictions on district attorneys general, § 8-7-104.

Collateral References.

Constitutionality and construction of statute prohibiting public attorney from engaging in private practice. 82 A.L.R.2d 774, 6 A.L.R.3d 562.

Validity, under state law, of appointment of special prosecutor where regular prosecutor is charged with, or being investigated for, criminal or impeachable offense. 84 A.L.R.3d 115.

8-6-108. Criminal defense in lower courts.

It is a Class C misdemeanor for the attorney general and reporter or any assistant to take or receive a fee for defending any supposed offender in the inferior courts.

Code 1858, § 3951 (deriv. Acts 1835-1836, ch. 51, § 2); Shan., § 5755; mod. Code 1932, § 9955; T.C.A. (orig. ed.), § 8-608; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

8-6-109. Duties.

  1. The attorney general and reporter has and shall exercise all duties vested in the office by the Constitution of Tennessee and all duties and authority pertaining to the office of the attorney general and reporter under the statutory law. The attorney general and reporter is authorized to utilize and refer to the common law in cases in which the state is a party.
  2. In addition to the duties described in subsection (a), the attorney general and reporter, or assistants acting at the attorney general and reporter's discretion, has the following duties:
    1. The trial and direction of all civil litigated matters and administrative proceedings in which the state or any officer, department, agency, board, commission or instrumentality of the state may be interested;
    2. To attend to all business of the state, both civil and criminal in the court of appeals, the court of criminal appeals and the supreme court;
    3. To attend to all legal business connected with the management of the state treasury, or debts due and owing to the state, or debts and liabilities claimed against the treasury of the state, or suits brought against the comptroller of the treasury before any court where such litigation may be pending;
    4. To attend to any other legal duty which the comptroller of the treasury and the state treasurer may require the attorney general and reporter or such assistants to perform, connected with the state treasury;
    5. To give the governor, secretary of state, state treasurer, comptroller of the treasury, members of the general assembly and other state officials, when called upon, any legal advice required in the discharge of their official duties;
    6. To give the governor, secretary of state, state treasurer, comptroller of the treasury, members of the general assembly and other state officials, when called upon, written legal opinions on all matters submitted by them in the discharge of their official duties. Written opinions issued pursuant hereto shall be made available for public inspection. It is the legislative intent that when a request for a written legal opinion is from a member of the general assembly and concerns pending legislation, such request shall be replied to as expeditiously as possible;
    7. To report the decisions of the court of appeals, the court of criminal appeals and the supreme court of Tennessee in the manner prescribed by law;
    8. To examine and certify all bills of cost in the appellate courts of the state in which the state of Tennessee is interested before they are ordered to be paid by the state;
    9. To defend the constitutionality and validity of all legislation of statewide applicability, except as provided in subdivision (b)(10), enacted by the general assembly, except in those instances where the attorney general and reporter is of the opinion that such legislation is not constitutional, in which event the attorney general and reporter shall so certify to the speaker of each house of the general assembly;
    10. To exercise discretion to defend the constitutionality and validity of all private acts and general laws of local application enacted by the general assembly and of administrative rules or regulations of this state. However, a sufficient adversary relationship must exist before the discretion not to defend the constitutionality of all legislation of local application may be exercised. If such discretion not to defend is exercised, such decision shall be certified to the speaker of each house of the general assembly, in the same manner as provided in subdivision (b)(9);
    11. To notify the director of the fiscal review committee of any lawsuit filed in state or federal court, in which the state is a named party and the attorney general and reporter or assistants are representing the state, which contains as part of the pleadings an allegation which would raise an issue:
      1. Of insufficient funding of a law as enacted or amended, including any regulation authorized by such act; or
      2. That the implementation by a department, agency, or governmental entity of a law as enacted or amended, including any regulation authorized by such act, was accomplished in a manner which resulted in insufficient funding; which lawsuit, if adjudicated in the plaintiff's favor, would result in a mandated increase in state expenditures;
    12. To confer with the speaker of each house of the general assembly upon notification by the director of the fiscal review committee under § 3-7-109;
    13. To defend local education agencies and/or their present or past superintendents, board members, teachers, or nonprofessional staff members, hereinafter referred to as employees, upon the formal request in writing of any such employee in any case involving a claim of injury or damage alleged to have been proximately caused by acts or omissions of such employees within their scope of employment with the local education agency in detecting, managing or removing asbestos from any building or structure owned or controlled by the local education agency when the local education agency has complied with the United States environmental protection agency regulations relative to asbestos in schools. In the event that the attorney general and reporter determines that the best interest of the state or employee requires private counsel, the employee shall be notified, and shall have the right to file for reimbursement of defense cost in accordance with chapter 42 of this title in the same manner as state employees;
    14. To bring suit upon behalf of the state, local government units or local education agencies to recover public funds from entities financed by the funds and their directors or officers when the funds through the improper actions of the directors or officers have been used for unauthorized purposes, misapplied or misappropriated; and
    15. To attend to any other duty which may devolve upon, or be imposed upon, the attorney general and reporter by law.
  3. Notwithstanding § 8-6-106 to the contrary, in all cases in which the attorney general and reporter has certified to the speaker of each house of the general assembly the decision not to defend the constitutionality and validity of any law pursuant to subsection (b), the speakers, acting jointly, may employ legal counsel to defend the constitutionality of such law. Such counsel shall be paid such compensation for their services as the speakers may deem just; the same to be paid out of any money in the state treasury not otherwise appropriated, upon the certification of the speakers to the commissioner of finance and administration.
  4. The attorney general and reporter, or assistants acting at the attorney general and reporter's discretion, shall notify the director of the office of legal services or the director's designee and the director of the fiscal review committee of any lawsuit filed in state or federal court, in which the state is a named party and the attorney general and reporter or assistants are representing the state, and in which the adjudication could result in a significant increase in state expenditures, in a decision on a policy issue which may result in a significant increase in state expenditures, or in a decision which may affect the bond rating of the state.
  5. Notwithstanding § 8-6-106, or other law to the contrary, in all cases within subsection (d), the speaker of the senate and the speaker of the house of representatives, acting jointly, may employ legal counsel to advise them; provided, that the attorney general and reporter shall remain the state's sole representative in federal and state court proceedings. Such counsel shall be paid such compensation for services rendered as the speakers may approve and such compensation shall be paid out of any money in the state treasury not otherwise appropriated, upon the certification of the speakers to the commissioner of finance and administration.

Code 1858, § 3952 (deriv. Acts 1835-1836, ch. 51, § 1); Acts 1870-1871, ch. 3, § 1; 1871, ch. 99, § 2; Shan., § 5756; mod. Code 1932, § 9956; Acts 1977, ch. 149, §§ 2-4; 1978, ch. 890, § 3; 1979, ch. 422, § 2; T.C.A. (orig. ed.), § 8-609; Acts 1981, ch. 287, § 1; 1982, ch. 602, § 1; 1986, ch. 728, § 2; 1986, ch. 772, § 2; 2006, ch. 923, § 5.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Attorney general authorized to institute criminal proceedings in cases involving conspiracy to restrain trade or fix prices in state contracts, § 47-25-103.

Attorney general to assist various state legal, legislative, and information systems offices, § 3-10-105.

Bond of state and county officers, approval of form, § 8-19-101.

Code commission, member, § 1-1-101.

District attorneys general conference, ex officio member and legal advisor, § 8-7-301.

Division of consumer affairs to cooperate with, § 47-18-5002.

Election returns, comparison, § 2-8-110.

Employment of counsel for protection of territory, § 4-1-102.

Immunity of local education agency employees from asbestos-related liability, § 29-20-109.

Peace officer standards and training commission, member, § 38-8-102.

Public welfare department, assistance, § 71-1-109.

Rules and regulations, effective dates and approval, §§ 4-5-207, 4-5-211.

Vital statistics law, enforcement of provisions, § 68-3-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 6.10.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, §§ 3, 6.

Law Reviews.

Criminal Contempt, Jury Trial, Private Prosecutors & Child Support, (Clarke Lee Shaw), 34 Tenn. B.J. 22 (1998).

Remedies other than the Tennessee Uniform Administrative Procedures Act “Contested Case” Approach to Dealing with State and Local Governmental Action (John Beasley), 13 Mem. St. U.L. Rev. 619 (1984).

Special Ethical Duties for Attorneys Who Hold Public Positions (W.J. Michael Cody), 23 Mem. St. U.L. Rev. 453 (1993).

Attorney General Opinions. Only the office of the attorney general may initiate civil litigation for a community service agency; the office of the attorney general must represent, supervise, and direct all other litigation involving a community service agency, unless this duty, at the discretion of the attorney general, and with the commissioner's concurrence, is expressly delegated to a department of children's services staff attorney with written authorization, OAG 00-113, 2000 Tenn. AG LEXIS 115 (6/20/00).

NOTES TO DECISIONS

1. Collection of State Debts.

When the state was to be bound by proceedings to collect taxes by suits at law or in equity, or other debts due the state, it had to appear by the attorney general. State ex rel. Collier v. Enloe, 121 Tenn. 347, 117 S.W. 223, 1908 Tenn. LEXIS 24 (1909).

2. Attacks on Constitutionality of Statutes.

In proceeding for a declaratory judgment to determine constitutionality of Public Acts 1949, ch. 49, providing for special election on calling of constitutional convention, which act had been publicly declared unconstitutional by the attorney general, the latter and the comptroller were necessary parties, since act required spending of public funds. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 1949 Tenn. LEXIS 411 (1949).

The attorney general was a proper defendant in an attack on the constitutional validity of Tennessee's barratry statute. American Civil Liberties Union v. Tennessee, 496 F. Supp. 218, 1980 U.S. Dist. LEXIS 9326 (M.D. Tenn. 1980).

3. —Authority of Attorney General to Challenge Constitutionality of Statute.

The state attorney general and district attorneys general have authority within circumscribed limits to challenge constitutionality of statute directly conflicting with or impliedly repealing another statute upon which the prosecution relies in the execution of its legal duties. State v. Chastain, 871 S.W.2d 661, 1994 Tenn. LEXIS 26 (Tenn. 1994).

4. —Award of Attorney's Fees.

In successful suit against state attorney general for declaration that state barratry statute was unconstitutional, attorney's fees were not unjust and indeed the attorney general's intervention in support of the barratry statute in a state court action, together with the fact that the attorney general could have elected under subdivision (b)(9) of this section not to defend the statute in the instant case, constituted special circumstances such as would particularly compel an award. American Civil Liberties Union v. Tennessee, 502 F. Supp. 388, 1980 U.S. Dist. LEXIS 9532 (M.D. Tenn. 1980).

5. Representing Judge in Civil Suit.

Public policy and the various duties handled by the attorney general properly include representing a criminal court judge in a civil suit for damages arising from alleged false imprisonment. Heath v. Cornelius, 511 S.W.2d 683, 1974 Tenn. LEXIS 496 (Tenn. 1974).

6. Attorney General Opinions.

State legislator's request for an opinion as to the constitutionality of extradition for a misdemeanor was not protected by privilege in a federal criminal prosecution of the legislator. United States v. Gillock, 445 U.S. 360, 100 S. Ct. 1185, 63 L. Ed. 2d 454, 1980 U.S. LEXIS 92 (1980).

7. Relation to District Attorneys General.

The general assembly has given the district attorney general the power to prosecute criminal cases at the trial level, whereas the state attorney general has been given the full right, power and exclusive authority to prosecute criminal cases and/or pursue other remedies that may be attendant to such cases in the appellate courts, and thus the state attorney general was fully authorized to propose a motion to dismiss the state's appeal in a criminal matter despite objection of district attorney general. State v. Simmons, 610 S.W.2d 141, 1980 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1980).

8. Defense of Public Officers.

The general assembly has vested the attorney general with a broad discretion to decide when the attorney general may lend the assistance of the attorney general's office to defend public officers. State ex rel. Inman v. Brock, 622 S.W.2d 36, 1981 Tenn. LEXIS 441 (Tenn. 1981), cert. denied, Inman v. Brock, 454 U.S. 941, 102 S. Ct. 477, 70 L. Ed. 2d 249, 1981 U.S. LEXIS 4116 (1981).

Collateral References.

Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment. 79 A.L.R.3d 882.

8-6-110. Appearance in federal courts.

The attorney general and reporter shall attend in person, or by assistant, and prosecute or defend, as the case may be, any and all suits, civil or criminal, in the supreme court of the United States, in the United States court of appeals for the judicial circuit of the United States comprising the state of Tennessee, or in any of the district courts of the United States held in the state of Tennessee, in which suit or suits the state may be a party, or in which the state has or may have interests of a pecuniary nature.

Acts 1877, ch. 5, § 1; Shan., § 5757; Code 1932, § 9957; modified; T.C.A. (orig. ed.), § 8-610.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191 (1978).

NOTES TO DECISIONS

1. Attorney's Fees.

Where state attorney general was not immune from original declaratory action to adjudicate the constitutionality of Tennessee's barratry statute, the attorney general could not reassert this alleged immunity as the basis of a new argument against the imposition of attorney's fees under 42 U.S.C. § 1988. American Civil Liberties Union v. Tennessee, 502 F. Supp. 388, 1980 U.S. Dist. LEXIS 9532 (M.D. Tenn. 1980).

In successful suit against state attorney general for declaration that state barratry statute was unconstitutional, attorney's fees were not unjust and indeed the attorney general's intervention in support of the barratry statute in a state court action, together with the fact that the attorney general could have elected under T.C.A. § 8-6-109(b)(9) not to defend the statute in the instant case, constituted special circumstances such as would particularly compel an award. American Civil Liberties Union v. Tennessee, 502 F. Supp. 388, 1980 U.S. Dist. LEXIS 9532 (M.D. Tenn. 1980).

8-6-111. Special personnel for expedition of post-conviction proceedings in capital cases.

The attorney general and reporter is authorized to employ, reassign, or contract with individuals utilizing special funds appropriated solely for the purpose of providing prompt and fair adjudication of post-conviction proceedings in capital sentence cases, including authority to assign the additional personnel the duties of personnel reassigned to the post-conviction cases. In no event shall the employment, contract, or expenditures under this authority extend beyond a two-year period.

Acts 1993, ch. 472, § 1.

Cross-References. Appropriation of funds, § 16-3-806.

8-6-112. Criminal prosecution of judge, chancellor, or judicial elected official.

  1. The attorney general and reporter has the authority to conduct an investigation and has the authority to initiate the criminal prosecution of any judge, chancellor or judicial elected official and/or district attorney general whenever:
    1. The attorney general and reporter receives information sufficient to constitute probable cause to investigate whether any official may have violated any state criminal law; and
    2. A decision to prosecute the official by the district attorney general of the district in which the offense occurred or in which a portion of the offense occurred may result in a personal, financial or political conflict of interest.
  2. If the attorney general and reporter initiates a criminal prosecution pursuant to the authority of this section, such attorney general and reporter, or a deputy or assistant attorney general, shall have the authority to exercise all of the powers and perform all of the duties before any court or grand jury with respect to such prosecution that the appropriate district attorney general would otherwise be authorized or required by law to exercise or perform.
  3. If the attorney general and reporter initiates a criminal prosecution pursuant to this section, the appropriate district attorney general shall fully cooperate with the attorney general and reporter and participate in the prosecution, unless the subject of such prosecution, to the extent requested or approved by the attorney general and reporter.
  4. If the attorney general and reporter concludes that an investigation or prosecution should be initiated pursuant to this section, the attorney general and reporter may, after giving notice to the executive director of the district attorneys general conference, request appointment as district attorney general pro tem by an appropriate court pursuant to § 8-7-106(a). The application shall be considered by the court in camera. The executive director may appear before the court to be heard on the request for appointment. The notice to the executive director, the application for appointment, and the proceedings on the application shall be confidential.
  5. The attorney general and reporter is hereby authorized to request the director of the Tennessee bureau of investigation to furnish such assistance as may be required by the attorney general and reporter in the performance of the attorney general and reporter's duties under this section. The Tennessee bureau of investigation is authorized to provide to the attorney general and reporter such assistance as the attorney general and reporter may request pursuant to this section.

Acts 1998, ch. 1061, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

NOTES TO DECISIONS

1. Signature Requirements.

Notary must personally witness a signature. In re Estate of Harris, — S.W.3d —, 2018 Tenn. App. LEXIS 714 (Tenn. Ct. App. Dec. 10, 2018).

Part 2
Reports and Opinions

8-6-201. Delivery of supreme court opinions — Time of publication.

The clerks of the supreme court shall have the opinions of the supreme court enrolled within ten (10) days after their delivery by the court, and shall then deliver to the attorney general and reporter the original opinion for publication. Reports of the opinions shall be published within sixty (60) days from the time sufficient material is furnished the reporter to complete a volume.

Acts 1881, ch. 4, § 4; Shan., § 5765; Code 1932, § 9963; T.C.A. (orig. ed.), § 8-611.

8-6-202. Opinions to be reported.

  1. It is the duty of the attorney general and reporter to report any written opinion of the supreme court that may be pronounced by the court, or any judge thereof, in which any other points of law are decided than such as are settled in some previously reported decisions, and all the opinions the court may direct the attorney general and reporter to report. Additionally, the attorney general and reporter may report and distribute the opinions of the office of the attorney general and reporter, or such other significant legal matters as may be deemed appropriate.
  2. All opinions handed down by the supreme court are required to be officially published in the official reports. This subsection (b) shall not affect appeals from any state boards or commissions, including the Tennessee public utility commission, appeals involving revenue matters and/or taxes, and appeals where the only grounds for a new trial were that there was no evidence to support the verdict and/or that the verdict of the jury was contrary to the weight and preponderance of the evidence.
  3. All opinions handed down by the court of appeals are required to be published in the official reports where certiorari is denied by the supreme court. This subsection (c) shall not affect appeals from any state boards or commissions, including the Tennessee public utility commission, appeals involving revenue matters and/or taxes, and appeals where the only grounds for a new trial were that there was no evidence to support the verdict and/or that the verdict of the jury was contrary to the weight and preponderance of the evidence.

Acts 1871, ch. 99, § 1; Shan., § 5761; Code 1932, § 9959; Acts 1971, ch. 276, § 3; 1977, ch. 361, §§ 1, 2; T.C.A. (orig. ed.), § 8-612; Acts 1995, ch. 305, § 88; 2017, ch. 94, § 25.

Amendments. The 2017 amendment substituted “Tennessee public utility commission” for “Tennessee regulatory authority” in (b) and (c).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Law Reviews.

Tennessee Rules of Citation (Lewis L. Laska), 12 Mem. St. U.L. Rev. 547 (1982).

8-6-203. Preparation of reports.

The attorney general and reporter shall prepare the case, and the opinion so pronounced thereon, with proper syllabi of the points therein. In the report of each case shall be given the name of the judge or chancellor who made the decision in the court below, and the place of the decision; also, the name of the judge pronouncing the same in the supreme court. A brief synopsis of the statement of facts shall also be made, if the same is not sufficiently stated in the body of the opinion. It is the further duty of the attorney general and reporter to prepare a correct index for each volume.

Acts 1871, ch. 99, § 1; 1872 (Ex. Sess.), ch. 10, § 1; Shan., § 5762; mod. Code 1932, § 9960; T.C.A. (orig. ed.), § 8-613.

8-6-204. Printing of reports — Copyright.

The attorney general and reporter has the right to select a printer, and has the exclusive control of the publication and binding of all reports. After five (5) years from the publication of each report, the copyright of the same shall revert to the state of Tennessee.

Acts 1881, ch. 4, § 2; Shan., § 5763; Code 1932, § 9961; T.C.A. (orig. ed.), § 8-614.

8-6-205. Opinions of attorney general — Publication — Distribution.

  1. The attorney general and reporter shall cause to be printed and bound, in a form deemed appropriate, official opinions of that office. Opinions shall be printed annually.
  2. The attorney general and reporter is authorized to examine all such past opinions and omit from the publication any opinion which has, as a result of a holding by a court of competent jurisdiction, or by a change in the law by the general assembly, become obsolete or no longer of authoritative value.
  3. Such opinions, as prepared under the above authority, shall be published in such quantity as the attorney general and reporter determines necessary to supply such publications to all state colleges and universities, the library and archives for interchange, members of the general assembly upon request and the various state departments and agencies, all of which will be furnished without cost, and a sufficient number to be sold to the public generally at a price to include necessary costs above the actual cost of publication.

Acts 1881, ch. 4, § 5; Shan., § 5766; Code 1932, § 9964; Acts 1965, ch. 130, § 2; 1971, ch. 276, § 4; T.C.A. (orig. ed.), § 8-615.

8-6-206. Reports — Number printed — Distribution.

The attorney general and reporter shall have printed and bound, at the expense of the state to be paid for upon the warrant of the commissioner of finance and administration, a sufficient number of volumes of any of the reports required to be distributed under this part, the same to be furnished at not more than cost plus necessary expenses. These reports as published shall be furnished upon request to members of the general assembly and departments of state government, without cost.

Acts 1881, ch. 4, § 3; Shan., § 5764; Acts 1925, ch. 68, § 1; Code 1932, § 9962; Acts 1935, ch. 181, § 4; C. Supp. 1950, § 9962; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1965, ch. 130, § 3; 1971, ch. 276, § 5; T.C.A. (orig. ed.), § 8-616.

8-6-207. Distribution of state-owned reports.

  1. The comptroller of the treasury shall furnish each judge and chancellor and each circuit, chancery, criminal and common law court with a copy of each volume of such reports, gratis, and shall, in like manner, deposit with the secretary of state twenty-five (25) copies of each volume, to remain in that office subject to the direction of the general assembly, and shall also deliver to the state librarian copies requested, to be exchanged with departments and libraries of the United States, and of the several states and territories, and the librarian shall immediately distribute the same at the expense of the state.
  2. The comptroller of the treasury shall also deliver, gratis, to the order of the University of Tennessee thirty (30) copies of each volume for its use, and for exchanges.

Acts 1871, ch. 99, § 5; impl. am. Acts 1879, ch. 31, § 8; Shan., § 5767; mod. Code 1932, § 9965; Acts 1935, ch. 181, § 5; C. Supp. 1950, § 9965; T.C.A. (orig. ed.), § 8-617.

Part 3
Coordination with Other State Agencies and Attorneys

8-6-301. Representation of state departments and agencies — Supervision of investigations — Office of legal services exempted.

  1. The attorney general and reporter, either in person or by assistant, shall represent all offices, departments, agencies, boards, commissions or instrumentalities of the state now in existence or which may hereafter be created. All legal services required by such offices, departments, agencies, boards, commissions or instrumentalities of the state shall be rendered by, or under the direction of, the attorney general and reporter. This section shall not prevent the various offices, departments, agencies, boards, commissions or instrumentalities of the state from employing other attorneys, working solely under the supervision and at the direction of the agency, for the purpose of conducting investigations, advising, consulting, and assisting the office, department, agency, board, commission or instrumentality in the administration of its duties.
  2. The attorney general and reporter shall direct and supervise all investigations and litigation necessary to the administration of the duties of the various offices, departments, agencies, boards, commissions or instrumentalities of the state, and no such entities shall institute any civil proceeding except through the attorney general and reporter.
  3. Legal services provided by the office of legal services for the general assembly under title 3, chapter 12, and attorneys employed by such office are exempt from this section. The attorney general and reporter shall not represent such office before the general assembly or any committee thereof, nor shall direct or supervise such office or attorneys employed by such office.

Acts 1951, ch. 20, § 1 (Williams, § 642.8); modified; 1961, ch. 56, § 1; 1979, ch. 422, § 3; T.C.A. (orig. ed.), § 8-623.

Law Reviews.

Remedies other than the Tennessee Uniform Administrative Procedures Act “Contested Case” Approach to Dealing with State and Local Governmental Action (John Beasley), 13 Mem. St. U.L. Rev. 619 (1984).

Attorney General Opinions. Assignment of staff attorneys, OAG 97-001, 2000 Tenn. AG LEXIS 115 (1/6/97).

Staff attorneys for the department of children's services may represent community service agencies to the extent deemed necessary and appropriate by the commissioner of the department of children's services, even on matters which do not entail normal department functions, OAG 00-113, 2000 Tenn. AG LEXIS 115 (6/20/00).

Only the office of the attorney general may initiate civil litigation for a community service agency; the office of the attorney general must represent, supervise, and direct all other litigation involving a community service agency, unless this duty, at the discretion of the attorney general, and with the commissioner's concurrence, is expressly delegated to a department of children's services staff attorney with written authorization, OAG 00-113, 2000 Tenn. AG LEXIS 115  (6/20/00).

8-6-302. Permission for department or agency attorneys to represent state.

The attorney general and reporter, exercising discretion and with the concurrence of the head of the executive agency involved, may permit, by express written authorization, staff attorneys employed by the various departments, agencies, boards, commissions or instrumentalities of the state to appear and represent the state in a certain case or certain classes of cases under the direction and control of the attorney general and reporter.

Acts 1951, ch. 20, § 3 (Williams, § 642.8); T.C.A. (orig. ed.), § 8-625; Acts 1979, ch. 422, § 4; T.C.A. (orig. ed.), § 8-624.

8-6-303. Actions instituted by district attorneys general excepted.

This part is not to be construed as requiring the attorney general and reporter to approve of, participate in, or supervise actions instituted by the various district attorneys general pursuant to law.

Acts 1979, ch. 422, § 5; T.C.A., § 8-625.

Part 4
Investigative Authority

8-6-401. Authority to give oaths and require testimony.

The attorney general and reporter, in performing the duties of such office where the state  is a party litigant, or there is reasonable cause to indicate it will be a party litigant, is hereby empowered to require any person to testify under oath as to any matter which is a proper subject of inquiry by the attorney general and reporter. The attorney general and reporter, or a designee, is authorized to administer all necessary oaths.

Acts 1976, ch. 646, § 1; T.C.A., § 8-630.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 6.10, 23.10.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 4.

Law Reviews.

Conversions of Nonprofit Hospitals to For-Profit Status: The Tennessee Experience, 28 U. Mem. L. Rev. 1077 (1998).

The Pre-Hearing Stage of Contested Cases under the Tennessee Uniform Administrative Procedures Act (L. Harold Levinson), 13 Mem. St. U.L. Rev. 465 (1984).

NOTES TO DECISIONS

1. Constitutionality.

The civil investigative demand statutes contained in this part are not violative of due process and equal protection provisions of the state and federal constitutions because the advantages, if any, conferred upon the state by having the statutory right to precomplaint discovery is minimal and is negated upon commencement of an adjudicatory proceeding by the fact that the state's adversary then has full discovery rights. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

There was no merit in a contention that the civil investigative demand denied parties due process by requiring them to divulge privileged and protected matters and to forfeit rights to judicial review because T.C.A. § 8-6-407 provides for the confidentiality of documents turned over to the attorney general pursuant to a civil investigative demand and, where contested, the production of documents cannot be compelled by the attorney general without the approval of the chancellor. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

The compulsory taking of testimony and production of documents under demand statutes contained in this part, are not violative of Tenn. Const., art. I, § 7 or U.S. Const., amend. 4, because they do not authorize an immediate intrusion into a protected zone of privacy, but rather authorize the taking of testimony and production of documents at a time subsequent to service of the demand with provision for a judicial determination of the reasonableness of the subpoena demand prior to enforcement of the demand by compulsory compliance or sanctions. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

2. Delegation of Power.

The power granted by the civil investigative demand statute is of a quasi-judicial nature which should not be delegated absent express authority to do so. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

The general assembly did not intend the general grant of authority to deputies and assistants under T.C.A. § 8-6-103 to control actions under this part. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

The power that rests in the hands of the person authorized to issue a civil investigative demand and its potential for abuse if not used properly demands that the civil investigative demand be issued only by the person named in the statute, the attorney general, and not the multitude of deputies and assistants employed by the attorney general in the performance of the duties of the attorney general's office. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

3. Enforcement of Antitrust Laws.

The duty to investigate possible antitrust violations has not been delegated to any other individual or agency of state government. It logically follows that the statutorily created responsibility imposed on the attorney general, in T.C.A. § 47-25-104, to enforce the antitrust laws includes the authority to investigate possible violations of this part. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

4. Construction.

Statute allows the use of civil investigative demands (CIDs) where the state is a party litigant, as well as when there is reasonable cause to indicate it will be a party litigant; because a CID can be used when the State is in litigation, there is no statutory reason a pre-litigation CID would not continue to be effective after litigation is filed, and there is no statutory reason the same CID would not remain effective if the litigation was nonsuited. State Ex Rel. Slatery v. Chevron Corp., 578 S.W.3d 924, 2018 Tenn. App. LEXIS 739 (Tenn. Ct. App. Dec. 18, 2018), appeal denied, State ex rel. Slatery v. Chevron Corp., 578 S.W.3d 924, 2019 Tenn. LEXIS 231 (Tenn. May 20, 2019).

5. Protective Order.

Because the chancery court misapplied the law, the court erred by granting a protective order on the basis that the filing of the litigation cut off the use of the civil investigative demands. State Ex Rel. Slatery v. Chevron Corp., 578 S.W.3d 924, 2018 Tenn. App. LEXIS 739 (Tenn. Ct. App. Dec. 18, 2018), appeal denied, State ex rel. Slatery v. Chevron Corp., 578 S.W.3d 924, 2019 Tenn. LEXIS 231 (Tenn. May 20, 2019).

8-6-402. Investigative demands for production of documents and testimony.

  1. For these purposes, the attorney general and reporter is empowered to issue civil investigative demands to require the attendance of witnesses or the submission of documents, or both, at specified times and places, to give testimony in the case or matter therein stated. The demand shall mention the parties to the inquiry and the party at whose instance the witness is called, and, if necessary, require the witness also to bring any books, documents, or other writings, records or tangible objects under the witness' control, which may be pertinent to the inquiry.
  2. No witness called to testify or to produce records, books, documents, writings or other tangible objects under §§ 8-6-401 — 8-6-406 shall be required to testify in any county other than the witness' county of residence or the county where the records or tangible objects are found under the witness' control.

Acts 1976, ch. 646, § 2; T.C.A., § 8-631.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 4.

Law Reviews.

The Civil Investigative Demand: A Constitutional Analysis and Model Proposal, 33 Vand. L. Rev. 1451 (1980).

NOTES TO DECISIONS

1. Delegation of Power.

The power granted by the civil investigative demand statute is of a quasi-judicial nature which should not be delegated absent express authority to do so. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

The general assembly did not intend the general grant of authority to deputies and assistants under § 8-6-103 to control actions under this part. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

The power that rests in the hands of the person authorized to issue civil investigative demand, and its potential for abuse if not used properly, demands that the civil investigative demand be issued only by the person named in the statute, the attorney general, and not the multitude of deputies and assistants employed by the attorney general in the performance of the duties of the attorney general's office. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

2. Specification Required.

T.C.A. § 8-6-402 makes explicit the requirement of specification implied under due process principles. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

There is a due process right to refuse unreasonable and irrelevant investigative demands. To exercise this right, the recipient of a civil investigative demand issued pursuant to this part must be sufficiently informed of the conduct under investigation to allow a determination of the reasonableness and relevancy of demands for inspection. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

8-6-403. Service of investigative demand.

Service of such civil investigative demand shall be had by a designated representative of the attorney general and reporter handing a copy of the demand to such witness or, if the witness cannot be found, then by leaving a copy of the demand at the residence or usual place of business of the witness. Such process shall run throughout the state, but shall not require any witness to testify in any county other than the witness' county of residence or the county where records or tangible objects demanded are found under the witness' control.

Acts 1976, ch. 646, § 3; T.C.A., § 8-632.

8-6-404. Failure to comply with investigative demand.

Failure of any witness to comply with the terms of a civil investigative demand shall be certified to the chancery court of the judicial district in which the witness resides, and such chancery court shall exercise the authority granted it by law in the treating of contempt of court matters, including, but not limited to, those powers granted in §§ 29-9-10329-9-105; all to the end that the witness shall be compelled to appear to give testimony at the time and place specified by the chancery court.

Acts 1976, ch. 646, § 4; T.C.A., § 8-633.

Law Reviews.

The Civil Investigative Demand: A Constitutional Analysis and Model Proposal, 33 Vand. L. Rev. 1451 (1980).

NOTES TO DECISIONS

1. Judicial Review.

If the subpoenaed party is of the opinion the requests contained in the demand are unreasonable, the party can refuse to comply with the demand and raise the issue as a defense to any action brought by the attorney general and reporter to enforce compliance. Such a system of judicial review after a civil investigative demand is issued has been sanctioned. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

Judicial review of an administrative decision upholding a request for patient records in a medical license proceeding provides the same sort of judicial review that T.C.A. § 8-6-404 provides for civil investigative demands issued by the attorney general and reporter; accordingly, State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412, provides no support for the trial court's conclusion that T.C.A. § 63-1-117(a)(3) is unconstitutional. McNiel v. Cooper, 241 S.W.3d 886, 2007 Tenn. App. LEXIS 241 (Tenn. Ct. App. Mar. 30, 2007).

8-6-405. Penalty for failure to testify when served with investigative demand.

Any witness who appears as directed by the civil investigative demand, but upon appearance refuses to testify on matters not privileged by law, shall be punished as prescribed in § 8-6-404.

Acts 1976, ch. 646, § 5; T.C.A., § 8-634.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 3.

NOTES TO DECISIONS

1. Privilege Against Self-Incrimination.

The privilege against self-incrimination necessarily limits statutory procedures, whether or not such limitation is included in the statute, and a judicial procedure under which the subpoenaed party can invoke the privilege is provided in T.C.A. § 8-6-405. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

8-6-406. Witness fees and mileage on investigative demands.

Any witness served with a civil investigative demand shall be paid fees and mileage on the same basis as authorized to be paid witnesses in the courts of this state.

Acts 1976, ch. 646, § 6; T.C.A., § 8-635.

Cross-References. Witnesses, per diem and mileage, title 24, ch. 4.

8-6-407. Confidentiality of writings, records or tangible objects obtained by attorney general.

All testimony, books, documents, or other writings, records or tangible objects obtained by the attorney general and reporter pursuant to §§ 8-6-401 and 8-6-402 shall be confidential and shall not be publicly divulged by the office of the attorney general and reporter except in the discharge of the duties of the office or in legal proceedings in which the state is a party.

Acts 1978, ch. 890, § 1; T.C.A., § 8-863.

Cross-References. Confidentiality of public records, § 10-7-504.

8-6-408. Authority of attorney general investigator to act as district attorney criminal investigator.

  1. Upon consent of the district attorney general, the attorney general and reporter may designate any full-time salaried attorney general investigator who meets the qualifications of § 38-8-106 and the training requirements of § 38-8-107(a), to act with the same authority as a district attorney criminal investigator when on active duty in connection with criminal matters for which the attorney general and reporter has jurisdiction as provided by law.
  2. Any investigator so designated shall, while on such active duty in the affected jurisdiction, have the same authority as is provided by law for any full-time criminal investigator employed by the district attorney general.
  3. The authority conferred by this section shall be in addition to any authority otherwise conferred by law upon the attorney general and reporter.

Acts 2004, ch. 546, § 1.

Chapter 7
District Attorneys General

Part 1
General Provisions

8-7-101. Districts.

Each judicial district shall constitute a district attorney general's district.

Code 1858, § 124 (deriv. Acts 1835-1836, ch. 28, § 1); Shan., § 220; mod. Code 1932, § 160; Acts 1963, ch. 334, § 1; 1965, ch. 301, §§ 1, 2; T.C.A. (orig. ed.), § 8-701; Acts 1984, ch. 931, § 16.

Cross-References. District attorneys general, assistant district attorneys general and criminal investigators, §§ 16-2-506, 16-2-508.

Impeachment, title 8, ch. 46.

Judicial districts generally, title 16, ch. 2, part 5.

Oath of office, §§ 8-18-1078-18-114.

State system of personnel administration, title 8, ch. 30.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 1.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

NOTES TO DECISIONS

1. In General.

The constitution does not restrain the legislature in any sense from the enactment of laws prescribing or affecting the duties performed by, or imposing restraints upon, the district attorneys general in the state, in the procedure for the preparation of indictments or presentments. State v. Taylor, 653 S.W.2d 757, 1983 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1983).

2. Delegation of Duties.

In title 8, ch. 7, there is no requirement or mandate that the district attorney general must personally perform any of the duties relegated to the attorney general by the constitution or the general assembly. To the contrary, by implication and directly, the statutes carry the connotation that an assistant district attorney general may act in the stead of the attorney general in whatever capacity the attorney general is called upon to serve. State v. Taylor, 653 S.W.2d 757, 1983 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1983).

Collateral References.

Validity, under state law, of creation of office of independent special prosecutor. 84 A.L.R.3d 29.

8-7-102. Election.

The district attorneys general for the judicial districts are elected by the qualified voters of the districts respectively.

Code 1858, § 317 (deriv. Acts 1835-1836, ch. 28, § 1); Shan., § 393; Code 1932, § 643; T.C.A. (orig. ed.), § 8-702.

Cross-References. Constitutional provisions, Tenn. Const., art. VI, § 5.

Election contests, title 2, ch. 17.

Election, qualifications, and term of office of district attorney general, Tenn. Const., art. VI, § 5.

Election, time for holding, § 2-3-202.

Oath of office, §§ 8-18-1078-18-114.

Treasurer of state required to bring action to recover abandoned personal property under unclaimed property law, § 66-29-130.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 6.1.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 2.

NOTES TO DECISIONS

1. Judicial Notice of Name of District Attorney.

The court took judicial knowledge of the name of the individual who was the district attorney, or proper officer to prefer indictments, and when it appeared that the district attorney intended to sign an indictment officially, the court would disregard the omission of any official designation, or the adding of an improper one. Greenfield v. State, 66 Tenn. 18, 1872 Tenn. LEXIS 442 (1872); State v. Myers, 85 Tenn. 203, 5 S.W. 377, 1886 Tenn. LEXIS 30 (1886).

8-7-103. Duties.

Each district attorney general:

  1. Shall prosecute in the courts of the district all violations of the state criminal statutes and perform all prosecutorial functions attendant thereto, including prosecuting cases in a municipal court where the municipality provides sufficient personnel to the district attorney general for that purpose;
  2. Shall prosecute in the federal court all criminal cases removed from a state court in the district to any inferior court;
  3. May cooperate and assist, upon the request or direction of the attorney general and reporter, in the bringing, prosecution, defense, preparation, and trial of all cases in the circuit and chancery courts in which the attorney general and reporter is required to appear for the protection of the state or the public interest;
  4. Shall give an opinion, without charge, whenever called upon by any county officer in the district, upon a question of criminal law relating to the duties of the county officer's office;
  5. Shall submit to the office of executive director for the district attorneys general conference within ninety (90) days after the end of each fiscal year, a written report specifying:
    1. Each source from which funds were received by the office of the district attorney general during the fiscal year;
    2. The amount of funds received from each source; and
    3. The disposition of such funds;
  6. Shall have discretion in the performance of duties and responsibilities in the allocation of resources available to such district attorney general, any other law notwithstanding; and
  7. Shall have authority to delegate the foregoing duties and responsibilities to an assistant district attorney general.

Code 1858, § 3961 (deriv. Acts 1823, ch. 13, § 2; 1829, ch. 43, § 1; 1833, ch. 43, § 1; 1835-1836, ch. 15, § 21; 1835-1836, ch. 28, §§ 1, 3; 1839-1840, ch. 160, § 5; 1841-1842, ch. 59, §§ 2, 3; 1841-1842, ch. 129, §§ 1, 4; 1841-1842, ch. 147, § 2; 1843-1844, ch. 103, §§ 2, 4; 1843-1844, ch. 215, § 3; 1847-1848, ch. 129, § 1; 1849-1850, ch. 247, § 3; 1851-1852, ch. 167, §§ 1, 2; 1853-1854, ch. 115, § 2); impl. am. Acts 1875, ch. 91; Acts 1899, ch. 271, §§ 1, 2; Shan., § 5768; mod. Code 1932, § 9966; modified; impl. am. Acts 1937, ch. 33, § 50; impl. am. Acts 1959, ch. 9, § 14; impl. am. Acts 1963, ch. 10, § 1; impl. am. Acts 1978, ch. 934, § 22; Acts 1979, ch. 226, § 23; 1979, ch. 318, § 23; T.C.A. (orig. ed.), § 8-702; impl. am. Acts 1979, ch. 68, § 3; Acts 1988, ch. 913, § 1; 1990, ch. 974, § 4; 1996, ch. 996, § 2; 1998, ch. 1080, § 3.

Cross-References. Disposition of incentive payments, prohibition against agency use of payments for social and recreational purposes, § 36-5-107.

Escheated property, duties, §§ 31-6-104, 31-6-108, 31-6-111.

Executive director of district attorneys general conference authorized as fiscal officer, § 8-7-602.

Highways, prosecution of suits for damage, § 55-7-106.

Liability for neglect of duty, § 40-4-116.

Medicine, prosecutions for unlawful practice, § 63-6-213.

Osteopathic violations, prosecutions, § 63-9-110.

Register, failure to comply with entry requirements, duty to prosecute, § 8-13-117.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 6.1, 22.32.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, §§ 3, 4, 6, 7; 22 Tenn. Juris., Sheriffs, § 15.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

Disciplinary Board Opinions.

Representation of criminal defendants by part-time assistant district attorneys who prosecute state criminal matters in the municipal courts is ethically inappropriate. Formal Ethics Opinion 2002-F-146 (3/08/02).

Attorney General Opinions. Liability of state, district attorney general and special prosecutor, OAG 99-173, 1999 Tenn. AG LEXIS 135 (9/7/99).

General sessions judge's legal authority, OAG 00-001, 2000 Tenn. AG LEXIS 4 (1/4/00).

Representation of the state in criminal and juvenile proceedings in general sessions courts, OAG 00-042, 2000 Tenn. AG LEXIS 42 (3/13/00).

A district attorney general only has the responsibility of prosecuting state criminal actions in municipal courts where the municipality has provided sufficient personnel to the district attorney general for that purpose, OAG 01-120, 2001 Tenn. AG LEXIS 111 (7/31/01).

No entity or individual other than a district attorney general may prosecute state criminal actions in a municipal court vested with concurrent general sessions jurisdiction, OAG 01-120, 2001 Tenn. AG LEXIS 111 (7/31/01).

Prosecutorial discretion as to traffic offenses, OAG 07-073, 2007 Tenn. AG LEXIS 71 (5/17/07).

A district attorney general has no authority to represent a petitioner seeking a protective order. State statutes and local ordinances do not authorize a public defender to represent an individual defending against a petition for an order of protection; however, the ordinances governing the Shelby County's Public Defender's Office do not prohibit the Shelby County Public Defender from doing so. OAG 16-06, 2016 Tenn. AG LEXIS 4 (2/10/2016).

The conflict-preemption principles that are well established in Tennessee’s jurisprudence prevent a municipality from enacting and enforcing an ordinance that allows a police officer to issue a municipal citation that carries a civil penalty of fifty dollars or community service for the offense of possession of one-half ounce or less of marijuana. Such an ordinance conflicts with the provisions of the Drug Control Act and with the prosecutorial discretion and responsibilities of the district attorneys general in enforcing the Act. OAG 16-40, 2016 Tenn. AG LEXIS 40 (11/16/2016).

NOTES TO DECISIONS

1. Scope of Subdivision (1).

Subdivision (1) referred only to criminal prosecutions. Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199, 1920 Tenn. LEXIS 36 (1920). See Hand v. State, 23 Tenn. 475, 1844 Tenn. LEXIS 142 (1844).

2. Signing Indictments.

An assistant of a district attorney, appointed under special act, could not sign an indictment except in the presence and by consent or direction of the assistant's principal, since if the act were construed to authorize a general delegation of the functions of the office to an assistant, or to invest the assistant with power to perform other than clerical duties, it would be unconstitutional. State v. Amos, 101 Tenn. 350, 47 S.W. 410, 1898 Tenn. LEXIS 72 (1898).

Defendant's contention that the search warrant was void on the ground that it was not signed by the District Attorney General pursuant to T.C.A. § 39-17-1007 was rejected, despite the fact that § 39-17-1007 did not contain language specifically approving the delegation of authority by the District Attorneys General to the Assistant District Attorneys General, because the District Attorney General possessed the authority to delegate his duties under this section. State v. Doria, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 622 (Tenn. Aug. 17, 2016), overruled in part, State v. Miller, 575 S.W.3d 807, 2019 Tenn. LEXIS 216 (Tenn. May 22, 2019).

3. Compensation.

District attorneys were not entitled to additional compensation for prosecution of actions against delinquent collectors of taxes. McHenderson v. Anderson County, 105 Tenn. 591, 59 S.W. 1016, 1900 Tenn. LEXIS 110 (1900).

4. Appellate Proceedings.

The general assembly has given the district attorney general the power to prosecute criminal cases at the trial level, whereas the state attorney general has been given the full right, power and exclusive authority to prosecute criminal cases and/or pursue other remedies that may be attendant to such cases in the appellate courts, and thus the state attorney general was fully authorized to propose motion to dismiss the state's appeal in a criminal matter despite objection of district attorney general. State v. Simmons, 610 S.W.2d 141, 1980 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. 1980).

5. Constitutional Challenges.

The state attorney general and district attorneys general have authority within circumscribed limits to challenge constitutionality of statute directly conflicting with or impliedly repealing another statute upon which the prosecution relies in the execution of its legal duties. State v. Chastain, 871 S.W.2d 661, 1994 Tenn. LEXIS 26 (Tenn. 1994).

District attorney general must notify the state attorney general before challenging the constitutionality of a state statute. State v. Chastain, 871 S.W.2d 661, 1994 Tenn. LEXIS 26 (Tenn. 1994).

6. Contempt Proceedings.

District attorney generals have no mandatory statutory duty to prosecute criminal contempts and the trial court did not err by appointing a private attorney. Black v. Blount, 938 S.W.2d 394, 1996 Tenn. LEXIS 807 (Tenn. 1996).

7. Discretion.

Although the prosecutor's authority is not absolute, so long as the prosecutor has probable cause to believe that the accused committed an offense, the decision whether to prosecute, and what charge to bring generally rests entirely within the discretion of the prosecution. State v. Spradlin, 12 S.W.3d 432, 2000 Tenn. LEXIS 54 (Tenn. 2000).

The prosecution's discretion to seek a warrant, presentment, information or indictment is extremely broad and subject only to certain constitutional restraints. State v. Culbreath, 30 S.W.3d 309, 2000 Tenn. LEXIS 588 (Tenn. 2000).

The decision whether to prosecute rests entirely within the discretion of the district attorney general. Wilson v. Todd, 178 F. Supp. 2d 925, 2001 U.S. Dist. LEXIS 21325 (W.D. Tenn. 2001), aff'd, 53 Fed. Appx. 744, 2002 U.S. App. LEXIS 25778 (2002).

Even if the State chose to pursue the case of the victim's friend first against defendant and then the victim's case because the lack of a special relationship in the first case increased the likelihood of consecutive sentencing in the instant case, it was a proper exercise of prosecutorial discretion. State v. Klein, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Sept. 6, 2017).

8. Granting Immunity.

A district attorney general has the sole duty, authority, and discretion to prosecute criminal matters in the state of Tennessee; police officers are without authority to bind the district attorney to an agreement not to prosecute. State v. Spradlin, 12 S.W.3d 432, 2000 Tenn. LEXIS 54 (Tenn. 2000).

9. Investigation.

Trial court did not abuse its discretion in denying defendant's motion to disqualify the prosecuting attorney because the actions of the Assistant District Attorney General in the investigation of the case, including the interrogation of defendant following his arrest, were a part of his sworn and required duties as an Assistant District Attorney General; the statements defendant made were voluntarily given, and defendant was not in the custody of the State at the time of the interviews. State v. Askew, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1048 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 350 (Tenn. May 6, 2016).

Collateral References.

Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment. 79 A.L.R.3d 882.

Power of assistant or deputy prosecuting or district attorney to prosecute information in own name. 80 A.L.R.2d 1067.

Power or duty of prosecuting attorney to proceed with prosecution after change of venue. 60 A.L.R.2d 864.

Prosecution for criminal offenses, duty and discretion of district or prosecuting attorney as regards. 155 A.L.R. 10.

Taxes, power of district attorney to remit, release or compromise. 28 A.L.R.2d 1425.

8-7-104. Practice of law prohibited.

District attorneys general are prohibited from engaging in the practice of law.

Acts 1947, ch. 140, § 2; mod. C. Supp. 1950, § 9969 (Williams, § 9969.1); T.C.A. (orig. ed.), § 8-704.

Attorney General Opinions. Mediation does not involve the practice of law, OAG 06-079, 2006 Tenn. AG LEXIS 88 (4/27/06).

A district attorney general has no authority to represent a petitioner seeking a protective order. State statutes and local ordinances do not authorize a public defender to represent an individual defending against a petition for an order of protection; however, the ordinances governing the Shelby County's Public Defender's Office do not prohibit the Shelby County Public Defender from doing so. OAG 16-06, 2016 Tenn. AG LEXIS 4 (2/10/2016).

Collateral References.

Constitutionality and construction of statute prohibiting a prosecuting attorney from engaging in the private practice of law. 82 A.L.R.2d 774, 6 A.L.R.3d 562.

Disqualification of prosecuting attorney in state criminal case on account of relationship with accused. 42 A.L.R.5th 581.

Propriety and prejudicial effect of counsel's representing defendant in criminal case notwithstanding counsel's representation or former representation of prosecution witness. 27 A.L.R.3d 1431.

8-7-105. Salary.

  1. On July 1, 1990, the salary for district attorneys general shall be sixty-eight thousand dollars ($68,000) per annum. On July 1, 1991, the base salary for district attorneys general shall be seventy-four thousand one hundred dollars ($74,100) per annum. On September 1, 2006, the salary for district attorneys general shall be one hundred twenty-four thousand nine hundred dollars ($124,900). On March 1, 2018, the base salary for district attorneys general shall be one hundred fifty-six thousand twenty-four dollars ($156,024) and shall be adjusted on July 1 to reflect the average percentage pay increase provided for state employees by the general appropriations act.
  2. On September 1, 2006, and on July 1 for each subsequent year, the base salary fixed in subsection (a) shall be adjusted to reflect the average percentage pay increase provided for state employees by the general appropriations act.
  3. For the sole purpose of calculating the salaries payable to assistant district attorneys general under § 8-7-201, the annual compensation of a district attorney general shall be as follows:
    1. For full-time assistant district attorneys general through the end of the final fiscal year in which they are eligible for step increases, the salary provided by law for district attorneys general for the 1982-1983 fiscal year;
    2. Effective July 1, 1990, for full-time assistant district attorneys general no longer eligible for step increases, a base salary equal to the salary provided by law for district attorneys general for the 1989-1990 fiscal year, adjusted on July 1, 1990, by the percentage set out in subsection (b); and
    3. Effective July 1, 1991, for full-time assistant district attorneys general no longer eligible for step increases, but having less than twelve (12) years of credited service as an assistant district attorney general or district attorney general in this state, a base salary equal to the salary provided by law for district attorneys general for the 1989-1990 fiscal year, adjusted as set out in subdivision (c)(2), and further adjusted on July 1, 1991, and on each succeeding July 1, by the percentage set out in subsection (b).
  4. For purposes of this chapter, in computing annual salary increases that are tied to salary increases appropriated to state employees, it is the intention of the general assembly that the increases are to be based solely on the specific percentage increase granted by the general appropriations act to all general state employees. Adjustments to annual salary increases as provided for in this chapter that are tied to salary increases of state employees are not to be adjusted on the basis of any class compensation efforts, class compression efforts, or any other method of salary adjustments.

Acts 1897, ch. 41, § 1; 1917, ch. 132, § 1; Shan., § 5771; Acts 1925, ch. 12, § 1; Code 1932, § 9969; impl. am. Acts 1937, ch. 33, §§ 24, 29; Acts 1947, ch. 140, §§ 1, 3; mod. C. Supp. 1950, § 9969 (Williams, § 9969.1); Acts 1955, ch. 206, §§ 1, 2; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1963, ch. 154, § 1; 1967, ch. 145, § 1; 1971, ch. 236, § 1; 1972, ch. 526, § 5; T.C.A. (orig. ed.), § 8-705; Acts 1981, ch. 469, § 1; 1982, ch. 851, § 1; 1986, ch. 849, § 1; 1988, ch. 720, § 1; 1990, ch. 1032, § 1; 1993, ch. 344, § 1; 2006, ch. 987, §§ 3, 6; 2007, ch. 361, § 2; 2018, ch. 899, § 5.

Code Commission Notes.

According to information provided by the executive director of the district attorneys general conference, effective January 3, 1993, the base salary for a district attorney general is $77,064 per annum.

Effective July 1, 1994, the base salary of a district attorney general is $83,384.52, and the base salary of a topped-out assistant district attorney is $61,051.68.

Effective July 1, 1996, the base salary of a district attorney general is $87,612.00, and the base salary of a topped-out assistant district attorney is $64,140.00.

As of July 1, 2000, the annual salary of a district attorney general is $94,344.

As of July 1, 2001, the annual salary of a district attorney general is $96,708.

A 3.0% salary increase becomes effective January 1, 2003.

As of July 1, 2005, the annual salary of a district attorney general is $105,684.

Amendments. The 2018 amendment added the last sentence in (a).

Effective Dates. Acts 2018, ch. 899, § 7. May 3, 2018.

Cross-References. Salaries and salary adjustments, § 8-23-101.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 12.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

8-7-106. District attorney general pro tem — Attorney acting for district attorney general.

  1. If the district attorney general fails to attend the circuit or criminal court, or is disqualified from acting, or if there is a vacancy in the office, the court shall appoint some other attorney to supply such district attorney general's place temporarily. The acts of such district attorney general pro tem shall be as valid as if done by the regular officer, and the district attorney general pro tem shall be entitled to the same privileges and emoluments.
  2. Notwithstanding subsection (a), the district attorney general may:
    1. Upon the consent of the district attorney general of any other judicial district, specially appoint another district attorney general, or an assistant to that district attorney general, to conduct specific criminal proceedings, including grand jury proceedings, which the district attorney general is authorized by law to conduct in that district;
    2. Upon the consent of the executive director of the district attorneys general conference, specially appoint the executive director or an assistant to the executive director to conduct specific criminal proceedings, including grand jury proceedings, which the district attorney general is authorized by law to conduct in that district;
    3. Upon the consent of the chief executive officer of any governmental agency, appoint a licensed attorney employed by that agency to conduct specific criminal proceedings, including grand jury proceedings, which the district attorney general is authorized by law to conduct in that district;
    4. Upon the consent of the attorney general and reporter, specially appoint the attorney general and reporter, or an assistant to the attorney general and reporter, to conduct specific criminal proceedings, including grand jury proceedings, which the district attorney general is authorized by law to conduct in that district; provided, that no prosecution for an offense against the person as set forth in title 39, chapter 13 may be undertaken by the attorney general and reporter unless such prosecution arises out of, is related to, or affects an investigation, prosecution, or other proceeding which the attorney general and reporter is otherwise authorized to conduct, by cross-designation or otherwise; and
    5. Upon the written request of the attorney general and reporter, personally or through one (1) of the attorney general and reporter's assistant attorneys general, participate in the trial and direction of a specific proceeding, criminal or civil, which the attorney general and reporter is authorized by law to conduct.
  3. The acts of an attorney acting for the district attorney general or the attorney general and reporter pursuant to subsection (b) shall be valid as if done by the regular officer, and there shall be no requirement that the regular officer be disqualified from acting or that there be a vacancy in the office. Nor shall the regular officer be compelled to attend court proceedings in the matters in which an attorney is acting for the regular officer pursuant to subsection (b); provided, that the regular officer may be in attendance, and participate, if such a regular officer so desires.
  4. Subsections (b) and (c) are not intended to abolish any authority now held by the district attorneys general, and shall not be deemed to repeal by implication any existing law.

Code 1858, §§ 3962, 3963 (deriv. Acts 1835-1836, ch. 28, § 2); Shan., §§ 5769, 5770; mod. Code 1932, §§ 9967, 9968; T.C.A. (orig. ed.), § 8-706; Acts 1991, ch. 342, §§ 1, 2; 1993, ch. 292, § 1; 1996, ch. 996, § 2.

Compiler's Notes. Acts 1993, ch. 292, § 2 provided that the amendment by that act was not intended to abolish any authority then held by the district attorneys general or attorney general and reporter, and was not to be deemed to repeal by implication any existing law.

Cross-References. Contested elections, appointment of temporary district attorney general, § 17-2-119.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 6.2.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 9.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

Attorney General Opinions. Representation of the state in criminal and juvenile proceedings in general sessions courts, OAG 00-042, 2000 Tenn. AG LEXIS 42 (3/13/00).

Salary of a district attorney general pro tem, OAG 07-093, 2007 Tenn. AG LEXIS 93 (6/12/07).

NOTES TO DECISIONS

1. Construction with State Constitution.

This section amplified the constitutional provision (Tenn. Const., art. VI, § 5) empowering the court to appoint an attorney general pro tem in certain cases. Turner v. State, 89 Tenn. 547, 15 S.W. 838, 1890 Tenn. LEXIS 78 (1891).

In mentioning only the circuit or criminal court, this section is more restrictive than Tenn. Const., art. VI, § 5, but the constitution takes preference over the statute; thus, an attorney general pro tem may properly be appointed in the chancery or other trial court as well as in the circuit or criminal court, so long as the attorney general has an official duty to appear in such chancery or other trial court. Goddard v. Sevier County, 623 S.W.2d 917, 1981 Tenn. LEXIS 501 (Tenn. 1981).

This section allowing a district attorney general to specially appoint the attorney general and reporter to conduct specific criminal proceedings did not violate Tenn. Const. art. VI, § 5 because this section did not impede the inherent discretion and responsibilities of the office of district attorney general or the power of trial courts to appoint district attorneys general pro tempore. State v. Finch, 465 S.W.3d 584, 2013 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Nov. 22, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 548 (Tenn. June 24, 2014).

2. Grounds for Appointment.

The power to appoint a district attorney pro tem was delegated to the courts where: (1) There was a vacancy in the office, not filled by the appointment of the governor; and (2) The incumbent could not attend, or failed or refused to attend or to prosecute. Douglass v. State, 14 Tenn. 524, 14 Tenn. 525, 1834 Tenn. LEXIS 137 (1834); Wilson v. State, 16 Tenn. 509, 1835 Tenn. LEXIS 116 (1835); Pippin v. State, 34 Tenn. 43, 1854 Tenn. LEXIS 10 (1854), questioned, Turner v. State, 89 Tenn. 547, 15 S.W. 838, 1890 Tenn. LEXIS 78 (1891).

If district attorney appeared at court but failed to prosecute, the criminal court was authorized by provisions of Tenn. Const., art. VI, § 5, to appoint district attorney pro tempore though provisions of this section did not provide for appointment due to failure to prosecute. Moreland v. State, 168 Tenn. 145, 76 S.W.2d 319, 1934 Tenn. LEXIS 32 (1934).

Attorney general and reporter was properly appointed to prosecute the case because the order appointing a district attorney general pro tempore and the district attorney general's recusal were vacated. State v. Finch, 465 S.W.3d 584, 2013 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Nov. 22, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 548 (Tenn. June 24, 2014).

3. Judicial Notice.

Judicial notice was taken of the governor's appointment of district attorney pro tem and also of who was the state's district attorney of any particular circuit or district. State v. Evans, 27 Tenn. 110, 1847 Tenn. LEXIS 54 (1847); Major v. State, 34 Tenn. 11, 1854 Tenn. LEXIS 3 (1854).

The court took judicial notice of the proper officer to sign the indictment whether the officer added the officer's official designation or not as it was sufficient that the officer intended the signature to be official. State v. Myers, 85 Tenn. 203, 5 S.W. 377, 1886 Tenn. LEXIS 30 (1886).

4. Oath.

The record need not show that the district attorney pro tem took the oath prescribed. Staggs v. State, 22 Tenn. 372, 1842 Tenn. LEXIS 103 (1842).

5. Signature.

The transcript of record, on appeal of a criminal case, should show that one who signed as district attorney general pro tem was, in fact, appointed as such. Anderson v. State, 50 Tenn. 86 (1871).

An indictment signed and sent by a duly appointed district attorney pro tempore was valid. Harris v. State, 100 Tenn. 287, 45 S.W. 438, 1897 Tenn. LEXIS 114 (1897).

6. Habeas Corpus Proceedings.

An issue as to whether the criminal court judge exceeded the judge's authority in appointing an attorney of the county to act temporarily as district attorney, when the district attorney was present in court, on the ground that the district attorney was refusing to act in a case, could not be determined in a habeas corpus proceeding in the circuit court for discharge of the relators on the ground that the indictments signed by the district attorney appointed pro tem were void. Moreland v. State, 168 Tenn. 145, 76 S.W.2d 319, 1934 Tenn. LEXIS 32 (1934).

7. Compensation.

Absent any court decision or statute providing that the county shall be responsible for the compensation of a district attorney general pro tem, when appointed pursuant to Tenn. Const., art. VI, § 5, and T.C.A. § 8-7-106, the county is not liable for such compensation but the state is. Goddard v. Sevier County, 623 S.W.2d 917, 1981 Tenn. LEXIS 501 (Tenn. 1981).

8. Powers.

A district attorney general pro tem's power in an appointed case is equivalent to the regular district attorney general's power, with virtually unbridled discretion in making the determination of whether to prosecute. Quillen v. Crockett, 928 S.W.2d 47, 1995 Tenn. Crim. App. LEXIS 946 (Tenn. Crim. App. 1995).

Collateral References.

Validity, under state law, of appointment of special prosecutor where regular prosecutor is charged with, or being investigated for, criminal or impeachable offense. 84 A.L.R.3d 115.

Validity, under state law, of creation of office of independent special prosecutor. 84 A.L.R.3d 29.

8-7-107. Filling of vacancy.

A vacancy in the office of district attorney general shall be filled by the voters of the district at the next biennial election more than thirty (30) days after the happening of the vacancy. The election shall be ordered by the governor by issuing proper writs of election to the county election commissions throughout the district, notice being given for one (1) month by publication in one (1) or more newspapers in the district. In the meantime, the governor shall appoint a suitable person to fill the office temporarily until the election takes place.

Code 1858, §§ 318, 319 (deriv. Acts 1853-1854, ch. 32, §§ 6, 7); impl. am. Acts 1907, ch. 436; Shan., §§ 394, 395; Code 1932, §§ 644, 645; impl. am. Acts 1972, ch. 740, § 7; T.C.A. (orig. ed.), § 8-707.

Cross-References. Election to fill vacancy, Tenn. Const., art. VII, § 5; § 8-18-104.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, 2; 10 Tenn. Juris., Elections, § 2.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

NOTES TO DECISIONS

1. Failure to Follow Statutory Provisions — Effect.

The requirements of this section that the election be ordered by the governor and that one month's notice be given of same by publication were not conditions precedent to the holding of a valid election. Hanover v. Boyd, 173 Tenn. 426, 121 S.W.2d 120, 1938 Tenn. LEXIS 24 (1938).

Where a vacancy in the office of district attorney general occurred more than 30 days before the next biennial election and was a matter of public knowledge and where the election of such district attorney general was otherwise regular and the number of votes cast indicated that there was a full expression therein by the people, such election could not be set aside because of failure of the governor to issue a writ of election and cause one month's publication thereof to be made. Hanover v. Boyd, 173 Tenn. 426, 121 S.W.2d 120, 1938 Tenn. LEXIS 24 (1938).

2. Finding When Vacancy Occurred.

Where a vacancy in the office of district attorney general was caused by death and the fact and time of the death were known and conceded, the governor was without discretion in determining when the vacancy occurred. Hanover v. Boyd, 173 Tenn. 426, 121 S.W.2d 120, 1938 Tenn. LEXIS 24 (1938).

3. Thirty-day Calculation.

Where district attorney general died on July 4 and the next biennial election was held August 4, such death occurred “more than 30 days” prior to the election. Hanover v. Boyd, 173 Tenn. 426, 121 S.W.2d 120, 1938 Tenn. LEXIS 24 (1938).

4. Appointment of Pro Tem to be Shown on Appellate Transcript.

The transcript of record, on appeal of a criminal case, should show that one who signed as attorney general pro tem was, in fact, appointed as such. Anderson v. State, 50 Tenn. 86 (1871).

8-7-108. [Repealed.]

Compiler's Notes. Former § 8-7-108 (Acts 1983, ch. 208, § 1), concerning notification to crime victims when plea bargain arrangements are made, was repealed by Acts 1986, ch. 909, § 13. For current similar provisions, see T.C.A. § 40-38-103.

8-7-109. Sex crime prosecution units — Support personnel — Training.

    1. There is hereby created a sex crime prosecution unit, the duties of which shall include, but not be limited to, child sexual abuse cases, which unit shall include two (2) assistant district attorneys general, and one (1) secretary-file clerk.
    2. It is the intent of the general assembly, in the enactment of Acts 1985, ch. 478, to encourage the establishment of a sex crime prosecution unit, the duties of which shall include, but not be limited to, child sexual abuse cases, in the office of the district attorney general for the twentieth judicial district as a pilot project, and subsequently, in 1986, to establish the necessary number of units throughout the state.
  1. There are hereby created two (2) additional assistant district attorney general positions for the twentieth judicial district, who shall be appointed by the district attorney general for the twentieth judicial district, shall serve at the pleasure of such official, and shall perform such duties as are assigned to them by the district attorney general. The assistant district attorneys general herein authorized shall be licensed attorneys and residents of the judicial district. The compensation for the assistant district attorneys general shall be as provided by law for assistant district attorneys general.
  2. There is hereby created an additional secretary-file clerk position for the twentieth judicial district who shall be appointed by the district attorney general for the twentieth judicial district, shall serve at the pleasure of such official, and shall perform such duties as are assigned to such secretary-file clerk by the district attorney general. The secretary-file clerk shall furnish the speakers of the senate and the house of representatives with quarterly reports containing statistical data required by the speakers, and other information deemed appropriate by the district attorney general pertaining to reports, investigations and prosecution of the sex crimes prosecution unit. The compensation for the secretary-file clerk shall be as provided by law for secretary-file clerk.
  3. The district attorney general for the twentieth judicial district shall authorize and direct the assistant district attorneys of the child sex crime prosecution unit of the twentieth judicial district to receive training at seminars conducted by appropriate agencies and associations within the United States, upon approval by the executive director of the Tennessee district attorneys general conference, in the investigation and prosecution of child sexual abuse cases. The Tennessee district attorneys general conference shall fund such attendance within existing state guidelines.

Acts 1985, ch. 478, § 44; 1996, ch. 996, § 2.

Code Commission Notes.

Acts 1985, ch. 478, § 44, also provided: “There is hereby appropriated the sum of sixty-five thousand, four hundred seventy-seven dollars ($65,477) for the purpose of funding the child sex crime prosecution unit created by this section.”

Compiler's Notes. For codification of Acts 1985, ch. 478, see Session Law Disposition Tables in Volume 13.

8-7-110. Assignment of law enforcement officers to drug task forces — Officers' powers, duties and immunities.

  1. Any law enforcement officer or assistant district attorney general or district attorney general criminal investigator assigned to or hired by a judicial district or multi-judicial district task force relating to the investigation and prosecution of drug and violent crime cases shall have the same rights, powers, duties and immunities in every jurisdiction within the judicial district as such officer has within the officer's own jurisdiction. Such assignment shall be made in writing by the chief law enforcement official of the assigning jurisdiction, including, but not limited to, sheriff offices, police departments, task forces, state law enforcement agencies and district attorneys general offices, and shall not become effective until approved by the board of directors or governing or advisory board of the task force and/or the district attorneys general of the judicial district. Any law enforcement officer employed by or assigned to a judicial district drug task force pursuant to this section must meet the minimum certification requirements of the peace officers standards and training commission; provided, however, that such officer employed by a judicial district drug task force shall not be entitled to receive a police pay supplement for that certification. The director of a judicial district drug task force shall have the authority to commission personnel assigned to or hired by the task force with the approval of the district attorney general.
  2. Any law enforcement officer or assistant district attorney general or district attorney general criminal investigator assigned to or hired by a judicial district or multi-judicial district task force relating to the investigation and prosecution of drug and violent crime cases shall have the same rights, powers, duties, and immunities statewide as such officer has within the officer's own judicial district or multi-judicial district; provided, that investigations conducted outside the officer's jurisdiction originated within the officer's own jurisdiction and is immediately necessary to an ongoing investigation; or by working in cooperation with another judicial district or multi-judicial district task force or law enforcement agency; or where there exists a mutual aid agreement between the judicial districts or multi-judicial district task forces approved by each district attorney general.
  3. Notwithstanding any other law to the contrary concerning members of judicial district task forces relating to the investigation and prosecution of alleged drug violations, if a claim or suit should be filed against an individual and it is proven that:
    1. At the time of the alleged incident the individual was a member of such task force who was properly certified to the board of claims pursuant to § 8-42-101(3)(C); and
    2. The alleged liability arose out of the individual's activities as a task force member;

      then it shall be conclusively deemed that the individual was not an employee, agent or servant of a local government but was a volunteer to the state.

  4. To the extent any conflict exists concerning liability or jurisdiction of the members of any judicial district task force relating to the investigation and prosecution of, but not limited to, drug and violent crime cases between this section and any mutual aid or interlocal agreement entered into by a task force, this section takes precedence over any such agreement.

Acts 1988, ch. 913, § 2; 1989, ch. 63, §§ 2, 3, 5; 1998, ch. 841, §§ 1-5; 2004, ch. 908, § 1; 2005, ch. 258, §§ 1, 2.

Cross-References. Employment and training of police officers, tit. 38, ch. 8.

Peace officer standards and training commission, § 38-8-102.

Attorney General Opinions. Law enforcement officers employed by judicial district task forces.  OAG 10-28, 2010 Tenn. AG LEXIS 23 (3/8/10).

Scope of enforcement authority of judicial district task force members.  OAG 12-10, 2012 Tenn. AG LEXIS 8 (1/20/12).

NOTES TO DECISIONS

1. Injunctive Relief Sought.

In a 42 U.S.C. § 1983 case in which an arrestee sued a drug task force member and a county sheriff and they moved for a partial judgment on the pleadings, arguing that the complaint was barred against them in their official capacities under the eleventh amendment, the doctrine from the Ex Parte Young  decision applied because at least some of the relief sought was prospective in nature, i.e., relief that would merely compel their compliance with federal law in the future, it was sufficient to invoke the Ex Parte Young  fiction. Perez v. Wade, 652 F. Supp. 2d 901,  2009 U.S. Dist. LEXIS 87946 (W.D. Tenn. Aug. 19, 2009).

8-7-111. Special personnel for expedition of post-conviction proceedings in capital cases.

The district attorney general is authorized to employ, reassign, or contract with individuals utilizing special funds appropriated solely for the purpose of providing prompt and fair adjudication of post-conviction proceedings in capital sentence cases, including authority to assign the additional personnel the duties of personnel reassigned to the post-conviction cases. In no event shall the employment, contract, or expenditures under this authority extend beyond a two-year period.

Acts 1993, ch. 472, § 2.

Cross-References. Appropriation of funds, § 16-3-806.

8-7-112. Authorization to prosecute county ordinance violations.

District attorneys general with responsibility for prosecuting offenses in counties with populations of less than five hundred thousand (500,000), according to the 1990 federal census or any subsequent federal census, and with a charter form of government pursuant to title 5, chapter 1, part 2, also are authorized to contract or enter into an agreement with such counties for the prosecution of violations of the ordinances of such counties.

Acts 1995, ch. 475, § 2.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Part 2
Criminal Investigators and Assistant District Attorneys General—Compensation

8-7-201. Salaries of criminal investigators and assistant district attorneys general.

    1. All criminal investigators hired prior to July 1, 1994, shall be compensated according to the following schedule:

      Entry level $34,128

      after five (5) years 35,832

      after ten (10) years 37,536

      after fourteen (14) years 37,824

      after sixteen (16) years 39,924

      after eighteen (18) years 42,024

      after twenty (20) years 44,124

    2. Investigators compensated in the salary schedule in subdivision (a)(1) shall be classified as simply criminal investigators until reaching the five-year level, senior criminal investigators after reaching the five-year level, and chief criminal investigators after reaching the ten-year level.
    3. On July 1, 1997, and each subsequent July 1, the salary levels for criminal investigators in subdivision (a)(1) shall be increased by such percentage amount as shall be fixed by the general assembly in the General Appropriations Act. For the purpose of budget preparation, it shall be presumed that such percentage amount shall be the same as that received by other state employees.
    4. Notwithstanding subdivisions (a)(1) and (2), if a district attorney general having a vacant criminal investigator position appoints a licensed attorney to that position and designates that person to serve as an assistant district attorney general, the appointee may, on the recommendation of the hiring district attorney general and with the approval of the executive committee of the Tennessee district attorneys general conference, be compensated as an assistant district attorney general as provided for in subsections (d) and (e).
  1. Certain Assistant District Attorneys General.
    1. All assistant district attorneys general shall receive from the state a salary of twenty-five thousand dollars ($25,000) per annum, payable out of the state treasury upon the warrant of the commissioner of finance and administration.
    2. Any and each assistant district attorney general who shall file with the commissioner of finance and administration a signed and sworn affidavit of intent approved by the district attorney general of the district, stating that such assistant district attorney general will devote full time to the duties as such assistant district attorney general and will not actively engage in the practice of law in any of the civil courts of the state of Tennessee or any other state, unless such practice involves the official duties of the office of attorney general or district attorney general, shall be designated, for the purposes of this section, a full-time assistant district attorney general and shall receive from the state an amount per annum equal to fifty-five percent (55%) of the annual compensation of a district attorney general, payable monthly out of the treasury of the state upon the warrant of the commissioner of finance and administration.
    3. Nothing in this section shall be construed as prohibiting any assistant district attorney general from concluding any litigation which such assistant district attorney general had pending prior to appointment as a full-time assistant district attorney general.
    4. Notwithstanding the foregoing language, in furtherance of the goal of developing a corps of capable and experienced full-time prosecuting attorneys throughout the state, and thus enhancing the state's ability to cope with recent increases in crime and criminal activity in the state, each full-time assistant district attorney general who has served or has received credit for serving one (1) or more years as a full-time assistant district attorney general shall receive from the state a salary according to the schedule hereinafter set out, payable monthly out of the treasury of the state upon warrant of the commissioner of finance and administration:
      1. After one (1) year's service  an amount per annum equal to sixty percent (60%) of the annual compensation of a district attorney general;
      2. After two (2) years' service  an amount per annum equal to sixty-five percent (65%) of the annual compensation of a district attorney general;
      3. After three (3) years' service  an amount per annum equal to seventy percent (70%) of the annual compensation of a district attorney general;
      4. After four (4) years' service  an amount per annum equal to seventy-five percent (75%) of the annual compensation of a district attorney general;
      5. After five (5) years' service  an amount per annum equal to eighty percent (80%) of the annual compensation of a district attorney general;
      6. After six (6) years' service  an amount per annum equal to eighty-five percent (85%) of the annual compensation of a district attorney general;
    5. Compensation computed pursuant to the salary schedule in subdivision (b)(4) shall be recomputed on July 1 of each year, beginning July 1, 1973, to allow for the adjustments in the compensation of district attorneys general as provided in § 8-23-101; provided, that no salary or level of compensation for a district attorney general or a full-time assistant district attorney general, once set, shall be reduced by reason of any subsequent adjustment pursuant to § 8-23-101.
    6. In computing the number of years' service pursuant to the salary schedule in subdivision (b)(4), any full-time assistant district attorney general who has previous experience as an assistant district attorney general or as a district attorney general and signs the affidavit mentioned in subdivision (b)(2) shall receive credit for one (1) year's service for each two (2) year's part-time experience.
    7. In computing the number of years' service pursuant to the salary schedule in subdivision (b)(4):
      1. Any assistant district attorney general who has previous experience as an assistant state attorney general or as a district attorney general shall receive full credit for such experience;
      2. Any assistant district attorney general who has been employed in full-time service on the staff of a district attorney general as an attorney representing the state before the courts of the state since July 1, 1969, irrespective of the title or position held and irrespective of the source of funds from which such attorney was compensated, shall receive full credit for such experience;
      3. Any assistant district attorney general who has previous experience as a law clerk with the supreme court of the state, or service in the field of criminal law with the United States department of justice, or service in the field of criminal law as a special agent or a criminal investigator employed by the state or a district attorney general, shall receive full credit for such experience;
      4. Any assistant district attorney general, who has previous experience as a commissioned officer, working as a military attorney in the field of criminal law while on full-time active duty in the judge advocate general's corps of any of the armed services of the United States, shall receive full credit for such period of active duty military criminal law experience as supported by sworn affidavit;
      5. Any assistant district attorney general who has previous experience as counsel with the public service commission, the Tennessee public utility commission, or the Tennessee regulatory authority shall receive full credit for such experience;
      6. Any assistant district attorney general who has previous experience with the Tennessee toxicology laboratory and/or the Tennessee crime laboratory shall receive full credit for such experience; and
      7. Any assistant district attorney general who has previous experience as a full-time salaried law enforcement officer shall receive full credit for such experience.
    1. Compensation computed pursuant to the salary schedule shall be recomputed on July 1 of each year to allow for any adjustments in the compensation of district attorneys general.
    2. In computing the number of years of service under the salary scale applicable to full-time assistants employed after June 30, 1980, credit may be given for an assistant's prior experience as a licensed attorney, full-time, salaried law enforcement officer or criminal investigator for such district attorney general. Such credit shall be given only upon the recommendation of the district attorney general making the appointment and the approval of the executive committee of the district attorneys general conference, and may be for any period of time up to, but not exceeding, the assistant's experience as a licensed attorney or criminal investigator.
  2. Certain Assistant District Attorneys General Employed After January 1, 1989.  Notwithstanding the foregoing language, any assistant district attorney general employed after January 1, 1989, who shall file the affidavit provided for in subdivision (b)(2) shall be compensated as provided for in subsection (c), except for the substitution of the following salary scale for that in subsection (c):
    1. Less than one (1) year of satisfactory service  an amount per annum equal to fifty percent (50%) of the annual compensation of a district attorney general;
    2. After one (1) year of satisfactory service  an amount per annum equal to fifty-five percent (55%) of the annual compensation of a district attorney general;
    3. After two (2) years of satisfactory service  an amount per annum equal to sixty percent (60%) of the annual compensation of a district attorney general;
    4. After three (3) years of satisfactory service   an amount per annum equal to sixty-five percent (65%) of the annual compensation of a district attorney general;
    5. After four (4) years of satisfactory service   an amount per annum equal to seventy percent (70%) of the annual compensation of a district attorney general;
    6. After five (5) years of satisfactory service   an amount per annum equal to seventy-five percent (75%) of the annual compensation of a district attorney general;
    7. After six (6) years of satisfactory service   an amount per annum equal to eighty percent (80%) of the annual compensation of a district attorney general;
    8. After seven (7) years of satisfactory service   an amount per annum equal to eighty-five percent (85%) of the annual compensation of a district attorney general;
    1. Notwithstanding the foregoing, on and after July 1, 1991, any full-time assistant district attorney no longer eligible for step increases under this section who has at least twelve (12) years of credited service as an assistant district attorney general in Tennessee shall be compensated according to the following schedule of such credited service:
      1. At least twelve (12) years, but less than sixteen (16) years, an amount per annum equal to eighty percent (80%) of the credited annual compensation of a district attorney general in effect on July 1, 2006;
      2. At least sixteen (16) years, but less than twenty (20) years, an amount per annum equal to eighty-two and one-half percent (82.5%) of the credited annual compensation of a district attorney general in effect on July 1, 2006; or
      3. Twenty (20) or more years, eighty-five percent (85%) of the credited annual compensation of a district attorney general in effect on July 1, 2006.
    2. Compensation computed pursuant to the above schedule shall be recomputed annually, based on the salary of the district attorney general on July 1, 2006, and adjusted annually to reflect the average percentage pay increase provided for state employees by the general appropriations act. For purposes of this subsection (e), in computing annual salary increases that are tied to salary increases appropriated to state employees, it is the intention of the general assembly that the increases are to be based solely on the specific percentage increase granted by the general appropriations act to all general state employees. Adjustments to annual salary increases as provided for in this subsection (e) that are tied to salary increases of state employees are not to be adjusted on the basis of any class compensation efforts, class compression efforts, or any other method of salary adjustments.
    3. On July 1, 2006, and annually on each succeeding July 1, the executive director of the district attorneys general conference shall reclassify into the salary schedule set forth in § 8-7-226 any employee who was hired prior to July 1, 1994, and has more than twenty (20) years of credited service as an assistant district attorney general.
  3. In computing the number of years' service pursuant to this section, a criminal investigator or an assistant district attorney general shall receive full credit for experience in serving as a full-time member of any board or commission of the state which administers the laws relative to corrections and paroles and supervises investigations pursuant to such laws and whose members are appointed by the governor.
  4. Implementation of salary increases pursuant to the pay schedules prescribed in this section shall be suspended for the fiscal years beginning July 1, 2003, and ending June 30, 2004, and beginning July 1, 2009, and ending June 30, 2010. In the fiscal years beginning July 1, 2004, and July 1, 2010, and in subsequent fiscal years, salary increases pursuant to pay schedules prescribed in this section shall not include time of service between July 1, 2003, and June 30, 2004, nor between July 1, 2009, and June 30, 2010.
  5. The salary increases prescribed in subsections (b)-(e) and suspended by subsection (g) for the period July 1, 2003, through June 30, 2004, and the period July 1, 2009, through June 30, 2010, are reinstated effective July 1, 2019. For purposes of determining the appropriate salary classification pursuant to this section, credible service for the time period of July 1, 2003, through June 30, 2004, and the time period of July 1, 2009, through June 30, 2010, is included.

Acts 1957, ch. 184, § 1; impl. am. Acts 1959, ch. 9, § 3; Acts 1959, ch. 98, § 1; impl. am. Acts 1961, ch. 97, § 3; Acts 1963, ch. 252, §§ 1, 2; 1967, ch. 147, § 1; 1970, ch. 470, §§ 1, 2; 1971, ch. 240, § 1; 1972, ch. 544, § 1; 1972, ch. 657, § 1; 1973, ch. 47, § 1; 1974, ch. 553, § 1; 1974, ch. 584, § 1; 1974, ch. 689, § 1; 1974, ch. 691, § 1; 1974, ch. 728, § 1; 1976, ch. 744, § 1; 1977, ch. 156, § 1; T.C.A., § 8-708; Acts 1980, ch. 890, §§ 1, 2; 1981, ch. 52, §§ 1-3; 1981, ch. 480, §§ 1, 2; 1982, ch. 851, §§ 2, 3; 1986, ch. 515, § 1; 1989, ch. 166, § 1; 1990, ch. 652, § 1; 1990, ch. 892, § 1; 1990, ch. 1032, § 2; 1992, ch. 959, §§ 1, 2; 1995, ch. 305, § 89; 1997, ch. 282, § 1; 2003, ch. 355, § 3; 2006, ch. 832, § 1; 2006, ch. 987, §§ 2, 4, 5; 2007, ch. 361, § 3; 2009, ch. 531, § 21; 2017, ch. 94, § 26.; 2019, ch. 202, § 2.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Amendments. The 2017 amendment substituted “the public service commission, the Tennessee public utility commission, or” for “the public service commission and/or”in (b)(7)(E).

The 2019 amendment added (h).

Effective Dates. Acts 2017, ch. 94, § 83. April 4, 2017.

Acts 2019, ch. 202, § 4.  July 1, 2019.

Cross-References. Compensation of assistant district attorneys general, § 8-7-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 18.84.

Tennessee Jurisprudence, 3 Tenn. Juris., Attorney General, § 13.

Attorney General Opinions. Assistant district attorney general is state employee, OAG 98-077, 1998 Tenn. AG LEXIS 77 (4/6/98).

District attorney general is department head of local office employees, OAG 98-098, 1998 Tenn. AG LEXIS 98 (5/21/98).

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

NOTES TO DECISIONS

1. Duties of Assistants.

Full-time assistants were intended to be the alter ego of the district attorney general and to serve in whatever capacity the district attorney finds it necessary to utilize their services in carrying out the district attorney's duties. State v. Taylor, 653 S.W.2d 757, 1983 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1983).

8-7-202. Traveling expenses of assistant district attorneys general and criminal investigators.

  1. The several assistant district attorneys general and/or criminal investigators in all districts shall be reimbursed from funds appropriated to the office of the district attorney general in the district in which they are employed for the necessary traveling expenses incurred while upon official business as prescribed under the comprehensive travel regulations for employees of the state; provided, that reimbursement to such officials for necessary traveling expenses incurred while on official business within the county of their residence shall be limited to reimbursement of mileage expense; and provided further, that any subsequent changes in the amounts or types of reimbursable expenses as prescribed under the comprehensive travel regulations then shall apply automatically, and without further action, to the several assistant district attorneys general and/or criminal investigators at such times as changes become effective as to employees of the state.
  2. All expense accounts submitted by any assistant district attorney general or criminal investigator shall be submitted upon forms provided and prescribed by the judicial cost accountant. In addition thereto, such expense accounts shall be submitted during the month following the month in which the expense was incurred, and all such expense accounts must be verified by such assistant or criminal investigator and the same shall likewise be first approved by the district attorney general of the judicial district. If any person fails to comply with this section, this expense account shall be disallowed and the same shall not be paid.

Acts 1957, ch. 184, § 2; 1959, ch. 98, § 2; 1961, ch. 121, § 1; 1965, ch. 235, § 1; 1970, ch. 346, § 1; 1978, ch. 879, § 1; T.C.A., § 8-709; Acts 2012, ch. 611, § 1.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Cross-References. Rules and regulations as to traveling expenses, § 4-3-1008.

Victim-witness coordinator, certain judicial districts, authority, § 8-7-206.

Attorney General Opinions. On-call employee's residence as official station for travel expense purposes, OAG 98-098, 1998 Tenn. AG LEXIS 98 (5/21/98).

District attorney general is department head of local office employees, OAG 98-098, 1998 Tenn. AG LEXIS 98 (5/21/98).

8-7-203. Calculation of mileage for assistant district attorneys general and criminal investigators.

Traveling expenses under this part shall be calculated on the basis of a maximum of seven cents (7¢) per mile each way necessarily traveled on official business.

Acts 1957, ch. 184, § 3; 1961, ch. 120, § 2; T.C.A., § 8-710.

8-7-204. Reimbursement of assistant district attorneys general and criminal investigators.

Any person seeking reimbursement for official expenses under this part shall file with the commissioner of finance and administration, or other official with whom the commissioner's duties may be placed by law, a sworn itemized statement for the amounts necessarily expended by such person in the discharge of such official duties, as granted in this part, and upon the receipt of such verified statement, such commissioner shall issue a warrant in the reimbursement of such expenses, payable out of the state treasury.

Acts 1957, ch. 184, § 4; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A., § 8-711.

8-7-205. County payments to assistant district attorneys general and criminal investigators unaffected.

This part shall not affect any salaries and compensation paid by any county to the several assistant district attorneys general and/or criminal investigators, nor any laws authorizing such salaries and compensation.

Acts 1957, ch. 184, § 5; T.C.A., § 8-712.

Attorney General Opinions. District attorneys general: employment litigation, OAG 99-186, 1999 Tenn. AG LEXIS 212 (9/17/99).

8-7-206. Victim-witness coordinator.

  1. There is created in each judicial district the position of victim-witness coordinator to be appointed by the district attorney general. The duties of the victim-witness coordinator shall include:
    1. After the return of an indictment or presentment, advising victims of their rights under title 40, chapter 38, part 1;
    2. After the return of an indictment or presentment, keeping victims and witnesses informed of court dates and actions affecting their cases, including evidentiary hearings, trial dates, and sentencing hearings as provided for in § 40-38-111;
    3. After the return of an indictment or presentment, assisting victims and witnesses to better understand the way the criminal justice system works, including the procedure and basis for continuances of cases and the procedure involved in the plea bargaining process;
    4. After the return of an indictment or presentment, assisting victims to become more involved in the processes which affect the perpetrator of the crime, such as the plea bargaining process, including presentence reports and the sentencing hearing itself;
    5. Assisting in obtaining restitution to victims of crime directly from the perpetrator of the crime when possible; and
    6. Assisting eligible victims in obtaining benefits from the criminal injuries compensation program.
  2. There are created, in ten (10) judicial districts to be designated by the executive director of the Tennessee district attorneys general conference, the positions of assistant victim-witness coordinator.

Acts 1986, ch. 880, § 2; 1998, ch. 1049, § 3; 2001, ch. 47, § 1; 2006, ch. 988, § 1.

Cross-References. Criminal injuries compensation fund, § 40-24-107.

Victims bill of rights, title 40, ch. 38.

Victims of crime assistance fund, § 9-4-205.

Victims of drunk drivers compensation fund, § 40-24-107.

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

8-7-207 — 8-7-224. [Reserved.]

Sections 8-7-225 — 8-7-235 shall be known as the “Assistant District Attorneys General and Criminal Investigators Compensation Act of 1994.”

Acts 1994, ch. 704, § 1.

8-7-226. Salaries of assistant district attorneys general.

  1. All assistant district attorneys general hired after July 1, 1994, or reclassified pursuant to § 8-7-201(e)(3), shall be compensated according to the following pay schedule:

    Entry level  $    49,080

    after one (1) year 52,164

    after two (2) years 55,248

    after three (3) years 58,344

    after four (4) years 61,452

    after five (5) years 64,512

    after six (6) years 67,596

    after seven (7) years 70,704

    after eight (8) years 73,812

    after nine (9) years 76,872

    after ten (10) years 79,968

    after eleven (11) years 83,052

    after twelve (12) years 86,100

    after thirteen (13) years 89,184

    after fourteen (14) years 92,256

    after fifteen (15) years 95,328

    after sixteen (16) years 98,424

    after seventeen (17) years 101,220

    after eighteen (18) years 103,932

    after nineteen (19) years 106,548

    after twenty (20) years 109,020

    after twenty-one (21) years 112,620

    after twenty-two (22) years 116,316

    after twenty-three (23) years 120,144

    after twenty-four (24) years 124,392

    after twenty-five (25) years 128,616

  2. Implementation of salary increases pursuant to the pay schedule prescribed in subsection (a) shall be suspended for the fiscal years beginning July 1, 2003, and ending June 30, 2004, and beginning July 1, 2009, and ending June 30, 2010. In the fiscal years beginning July 1, 2004, and July 1, 2010, and in subsequent fiscal years, salary increases pursuant to the pay schedule prescribed in subsection (a) shall not include time of service between July 1, 2003, and June 30, 2004, nor between July 1, 2009, and June 30, 2010.
  3. The salary increase provided by subsection (a), and suspended by subsection (b) for the period July 1, 2003, through June 30, 2004, is reinstated effective July 1, 2017. For purposes of determining the appropriate salary classification for assistant district attorneys, credible service for the time period of July 1, 2003, through June 30, 2004, is included.
  4. The salary increase provided by subsection (a), and suspended by subsection (b) for the period July 1, 2009, through June 30, 2010, is reinstated effective July 1, 2019. For purposes of determining the appropriate salary classification for assistant district attorneys, credible service for the time period of July 1, 2009, through June 30, 2010, is included.

Acts 1994, ch. 704, § 2; 2003, ch. 355, § 4; 2004, ch. 922, § 1; 2006, ch. 987, § 1; 2009, ch. 531, § 22; 2017, ch. 461, § 6; 2018, ch. 899, § 1; 2019, ch. 202, § 1.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Amendments. The 2017 amendment added (c).

The 2018 amendment rewrote the pay schedule in (a).

The 2019 amendment added (d).

Effective Dates. Acts 2017, ch. 461, § 12. July 1, 2017.

Acts 2018, ch. 899, § 7. May 3, 2018.

Acts 2019, ch. 202, § 4.  July 1, 2019.

8-7-227. Prior service credits for assistant district attorneys general.

The executive director of the Tennessee district attorneys general conference shall certify the entry level of compensation awarded to assistant district attorneys general based on prior service credits. Assistant district attorneys general shall be entitled to prior service credits as follows:

  1. Any assistant district attorney general who has prior experience as an assistant district attorney, a district attorney general, a criminal investigator for the district attorneys general, a United States attorney, an assistant United States attorney, an assistant attorney general representing the state in criminal litigation, an elected judge of a court with criminal jurisdiction, an attorney that served as a law clerk for an appellate or trial judge of a court with criminal jurisdiction, a district public defender, an assistant district public defender, or one who as a commissioned officer worked as a military attorney in the field of criminal prosecution while on full-time active duty in the judge advocate general's corps of any of the armed services of the United States, shall be eligible to receive year-for-year credit upon the recommendation of the hiring district attorney general, and subject to the approval of the executive committee of the Tennessee district attorneys general conference.
  2. The executive director of the Tennessee district attorneys general conference may certify prior service credits for prior practice of law but not exceeding the assistant's experience as a licensed practicing attorney and, in no case, shall year-for-year credit exceed twelve (12) years.

Acts 1994, ch. 704, § 3; 1996, ch. 740, § 1; 1996, ch. 996, § 2; 1998, ch. 731, § 1; 2007, ch. 565, §§ 1, 3.

8-7-228. Annual salary increases for assistant district attorneys general.

On July 1, 1995, and each subsequent July 1, the salary levels for assistant district attorneys general shall be increased by such percentage amount as shall be fixed by the general assembly in the general appropriations act. For the purpose of budget preparation, it shall be presumed that such percentage amount shall be the same as that received by other state employees.

Acts 1994, ch. 704, § 4.

8-7-229. Assistant district attorneys general employed on July 1, 1994.

Sections 8-7-225 — 8-7-235 shall have no effect or application to the classification for future employment purposes or compensation or benefits of district attorneys general or assistant district attorneys general serving or employed in such capacity on June 1, 1994, whether compensated by the state of Tennessee or by local government.

Acts 1994, ch. 704, § 5; 1999, ch. 460, § 1.

Compiler's Notes. Acts 1999, ch. 460, § 2 provided that any costs associated with implementing the provisions of this section shall be paid for with funds that have been appropriated to the district attorneys general conference.

8-7-230. Salaries of criminal investigators.

  1. All criminal investigators hired after July 1, 1994, shall be compensated according to the following pay schedule:

    Entry level $ 33,852

    after two (2) years  36,924

    after four (4) years  39,972

    after six (6) years  43,032

    after eight (8) years  46,164

    after ten (10) years  49,188

    after twelve (12) years  52,320

    after fourteen (14) years  55,332

    after sixteen (16) years  58,428

    after eighteen (18) years  61,512

    after twenty (20) years  64,584

  2. Implementation of salary increases pursuant to the pay schedule prescribed in subsection (a) shall be suspended for the fiscal years beginning July 1, 2003, and ending June 30, 2004, and beginning July 1, 2009, and ending June 30, 2010. In the fiscal years beginning July 1, 2004, and July 1, 2010, and in subsequent fiscal years, salary increases pursuant to the pay schedule prescribed in subsection (a) shall not include time of service between July 1, 2003, and June 30, 2004, nor between July 1, 2009, and June 30, 2010.

Acts 1994, ch. 704, § 6; 2003, ch. 355, § 5; 2009, ch. 531, § 23; 2018, ch. 899, § 4.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Amendments. The 2018 amendment rewrote the criminal investigator pay schedule in (a).

Effective Dates. Acts 2018, ch. 899, § 7. May 3, 2018.

8-7-231. Prior service credits for criminal investigators.

  1. The executive director of the Tennessee district attorneys general conference shall certify the entry level of compensation awarded to criminal investigators of the district attorneys general based on prior service credits. Criminal investigators for the district attorneys general shall be entitled to prior service credits as follows:
    1. Any criminal investigator for the district attorney general who has prior experience as a criminal investigator for the district attorneys general or for the district public defenders shall be eligible to receive year-for-year credit upon the recommendation of the hiring district attorney general and subject to the approval of the executive committee of the Tennessee district attorneys general conference;
    2. The executive director of the Tennessee district attorneys general conference may certify prior service credits for prior law enforcement experience and post-secondary education degrees obtained and in no case shall year-for-year credit exceed twelve (12) years.
  2. As used in subsection (a), prior law enforcement experience includes full-time employment with a law enforcement agency during which the employee performed duties typically performed by law enforcement personnel, including exercising arrest powers. An employment record from the law enforcement agency shall be used to establish such law enforcement experience.

Acts 1994, ch. 704, § 7; 1996, ch. 996, § 2; 2007, ch. 565, § 2; 2008, ch. 980, § 1; 2013, ch. 68, § 2.

8-7-232. Salary increases for criminal investigators.

On July 1, 1995, and each subsequent July 1, the salary levels for criminal investigators shall be increased by such percentage amount as shall be fixed by the general assembly in the general appropriations act. For the purpose of budget preparation, it shall be presumed that such percentage amount shall be the same as that received by other state employees.

Acts 1994, ch. 704, § 8.

8-7-233. Criminal investigators employed on July 1, 1994.

Sections 8-7-225 — 8-7-235 shall have no effect or application to the compensation or benefits of criminal investigators employed prior to July 1, 1994.

Acts 1994, ch. 704, § 9.

8-7-234. Attorneys serving as criminal investigators.

Notwithstanding §§ 8-7-230 and 8-7-231, if a district attorney general having a vacant criminal investigator position appoints a licensed attorney to that position and designates that person to serve as an assistant district attorney general, the appointee may, on the recommendation of the hiring district attorney general and with the approval of the executive committee of the Tennessee district attorneys general conference, be compensated as an assistant district attorney general as provided for in § 8-7-227.

Acts 1994, ch. 704, § 10.

8-7-235. Attorneys employed as criminal investigators on July 1, 1994.

No salary or level of compensation shall be reduced by §§ 8-7-2258-7-235 for any assistant district attorney general who is employed in the position of criminal investigator for the district attorneys general on July 1, 1994.

Acts 1994, ch. 704, § 11.

8-7-236. Computation of annual salary increases appropriated to state employees.

For purposes of this chapter, in computing annual salary increases that are tied to salary increases appropriated to state employees, it is the intention of the general assembly that the increases are to be based solely on the specific percentage increase granted by the general appropriations act to all general state employees. Adjustments to annual salary increases as provided for in this chapter that are tied to salary increases of state employees are not to be adjusted on the basis of any class compensation efforts, class compression efforts, or any other method of salary adjustments.

Acts 2007, ch. 361, § 1.

Part 3
District Attorneys General Conference

8-7-301. District attorneys general conference created.

There is hereby created a district attorneys general conference for the state of Tennessee, whose membership shall consist of all district attorneys general of the state whose salaries are paid in whole or in part out of the state treasury. The attorney general and reporter shall be an ex officio member of the conference and act as its legal advisor. The director of the Tennessee bureau of investigation shall also be an ex officio member of the conference.

Acts 1961, ch. 301, § 1; T.C.A., § 8-713; Acts 1980, ch. 850, § 2; impl. am. Acts 1980, ch. 636, § 13.

Cross-References. Representatives of district attorneys general conference as ex officio members of child sexual abuse task force, § 37-1-603.

Uniform application for pretrial diversion, § 40-15-107.

8-7-302. Meetings of conference — Matters to be considered — Purpose.

The conference shall meet annually and at other times as herein provided for the consideration of any and all matters pertaining to the discharge of the official duties and obligations of the several members, to the end that there shall be a more prompt and efficient administration of justice in the courts of this state.

Acts 1961, ch. 301, § 2; T.C.A., § 8-714.

8-7-303. Consideration of more effective suppression of crime — Committees for drafting proposed legislation.

It is the duty of the conference to give consideration to the enactment of such laws and rules of procedure as in its judgment may be necessary to suppress crime more effectively, and thus promote peace and good order in the state. To this end, a committee of its members shall be appointed to draft suitable legislation and submit its recommendations to the general assembly.

Acts 1961, ch. 301, § 3; T.C.A., § 8-715.

8-7-304. Calling of meetings — Notice — Election of officers.

The president of the conference may call meetings at will, upon at least ten (10) days' written notice to members, and shall call at least one (1) meeting annually, the annual meeting to be at the same time as that held by the judicial conference of this state. The district attorneys general conference shall elect annually a president, vice president, secretary and such other officers as may become necessary.

Acts 1961, ch. 301, § 4; T.C.A., § 8-716.

Cross-References. Judicial conference, meetings, § 17-3-104.

8-7-305. Duty of members to attend meetings.

It is the official duty of each member of the conference to attend its meetings unless otherwise officially engaged, or for other good and sufficient reasons.

Acts 1961, ch. 301, § 5; T.C.A., § 8-717.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

8-7-306. Reimbursement for expenses.

Every member whose salary is paid in whole or in part by the state shall be entitled to have expenses paid for such attendance. Such expenses shall be paid upon the verified statement of such expenses by the district attorney general incurring the same and shall be paid from the general fund.

Acts 1961, ch. 301, § 6; T.C.A., § 8-718.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

8-7-307. Office of executive director of the district attorneys general conference created — Purpose.

There is created the office of executive director of the district attorneys general conference. The purpose of this office shall be to assist in improving the administration of justice in Tennessee by coordinating the prosecutive efforts of the various district attorneys general and by performing the duties and exercising the powers herein conferred.

Acts 1972, ch. 551, §§ 1, 9; 1975, ch. 302, § 1; 1976, ch. 621, § 1; T.C.A., § 8-719; Acts 1996, ch. 996, § 1.

Attorney General Opinions. Functions of executive director respecting employees of local district attorneys general, OAG 98-098, 1998 Tenn. AG LEXIS 98 (5/21/98).

8-7-308. Election of executive director — Terms — Removal — Vacancy — Salary.

  1. The executive director of the district attorneys general conference shall be elected by a simple majority of the membership of the district attorneys general conference for a term of four (4) years. The election of the executive director shall be held at the annual meeting of the conference which immediately precedes July 1 of years in which presidential elections are held.
  2. The term of office of the executive director shall begin on July 1 following election and shall extend through June 30 of the next year in which a presidential election shall be held.
  3. The executive director shall, however, be subject to removal from office by vote of a majority of the conference membership at any meeting of the conference held during the executive director's term of office. Upon removal from office of the executive director, or upon a vacancy in the office otherwise occurring during a meeting of the conference, the conference shall elect by vote of a majority of its membership a person to fill the unexpired term of office. Should a vacancy in the office of executive director occur at any other time, the executive committee of the conference shall appoint a person to the office of executive director to serve until the next meeting of the conference, at which time the conference shall, by vote of a majority of its members, elect a person to fill the unexpired term of office of the executive director.
  4. The executive director shall receive a salary equal to that fixed by law for a district attorney general.

Acts 1972, ch. 551, § 2; 1976, ch. 621, § 2; 1978, ch. 801, § 1; T.C.A., § 8-720; Acts 1996, ch. 996, § 2.

8-7-309. Functions of executive director.

  1. The executive director of the district attorneys general conference shall:
    1. Work under the supervision and direction of the executive committee of the district attorneys general conference;
    2. Assist the district attorneys general throughout the state in coordinating the efforts of the district attorneys general against criminal activity in the state. Such assistance includes, but is not limited to:
      1. Obtaining, preparation and supplementing of indexes to the unreported decisions of the court of criminal appeals and the supreme court of Tennessee relating to criminal matters;
      2. Preparation of a basic prosecutors manual and educational materials; and
      3. Preparation and distribution of uniform indictment forms, search warrant forms, interrogation warning forms, and other appropriate forms;
    3. Initiate conference calls between district attorneys general and coordinate efforts of district attorneys general investigating cases and crimes crossing district lines;
    4. Serve in a liaison capacity between the various branches of state government and the divisions thereof, including, but not limited to, the courts, the general assembly, the executive department and the office of attorney general and reporter;
    5. Administer the accounts of the judicial branch of government which relate to the offices of the district attorneys general, and shall prepare, approve and submit budget estimates and appropriations necessary for the maintenance and operation of the offices of district attorneys general and make recommendations with respect to such offices; and
    6. Draw and approve all requisitions for the payment of public moneys appropriated for the maintenance and operation of the state judicial branch of government which relate to the offices of the district attorneys general, and shall audit claims and prepare vouchers for presentation to the department of finance and administration, including payroll warrants, expense warrants, and warrants covering the necessary costs of supplies, materials and other obligations by the various offices with respect to which the executive director shall exercise fiscal responsibility.
  2. The executive director has authority, within budgetary limitations, to provide the district attorneys general with minimum law libraries, the nature and extent of which shall be determined in every instance by the executive director on the basis of need. All books thus furnished shall remain the property of the state, and shall be returned to the custody of the executive director by each district attorney general upon the retirement or expiration of the official duties of each such officer.
  3. All functions performed by the executive director which involve expenditures of state funds shall be subject to the same auditing procedures by the commissioner of finance and administration and the comptroller of the treasury as required in connection with the expenditure of all other state funds.

Acts 1972, ch. 551, § 3; T.C.A., § 8-721; Acts 1996, ch. 996, § 2.

Attorney General Opinions. Functions of executive director respecting employees of local district attorneys general, OAG 98-098 (5/21/98).

Salary of a district attorney general pro tem, OAG 07-093 (6/12/07).

8-7-310. Duties of executive director.

The executive director of the district attorneys general conference shall attend to such duties as may be assigned by the district attorneys general conference or the executive committee of such conference.

Acts 1972, ch. 551, § 4; T.C.A., § 8-722; Acts 1996, ch. 996, § 2; 2019, ch. 420, § 2.

Amendments. The 2019 amendment substituted “shall attend to such duties” for “shall serve as a member of the judicial council and shall attend to such other duties”.

Effective Dates. Acts 2019, ch. 420, § 27. May 21, 2019.

8-7-311. Appointment of budget officer, director and clerical personnel — Compensation — Practice of law prohibited — Employment of attorney.

  1. The executive director of the district attorneys general conference shall, subject to the approval of the duly elected officers of the district attorneys general conference, appoint a budget officer and a director and such other assistants and clerical personnel as are necessary to enable the executive director to perform the duties of the executive director's office.
  2. Compensation for other assistants and clerical personnel shall be fixed by the executive director with the approval of the executive committee of the district attorneys general conference.
    1. During their terms of office or employment, neither the executive director nor any full-time assistant or employee shall directly or indirectly engage in the practice of law in any of the courts in this state.
    2. If the executive director employs an attorney as a part-time employee, such employee shall not engage in the defense of criminal cases if such employee's duties will, at the time of employment, involve or in the future may involve:
      1. Substantial interaction with district attorneys general, their assistants, or other employees of the executive director; or
      2. The prosecution of criminal cases either as a part-time assistant district attorney general or a district attorney general pro tempore.

Acts 1972, ch. 551, § 5; 1976, ch. 621, § 3; T.C.A., § 8-723; Acts 1992, ch. 858, §§ 1, 2; 1996, ch. 996, § 2.

Collateral References.

Constitutionality and construction of statute prohibiting a prosecuting attorney from engaging in the private practice of law. 6 A.L.R.3d 562.

8-7-312. Office facilities.

The executive director of the district attorneys general conference shall be provided with suitable office space in the supreme court building, or other convenient and suitable office space, and with all office equipment and supplies necessary to perform the duties of the office.

Acts 1972, ch. 551, § 6; T.C.A., § 8-724; Acts 1996, ch. 996, § 2.

8-7-313. Executive director — Retirement.

The executive director of the district attorneys general conference shall be a member of the attorneys general retirement system of Tennessee, provided for by Acts 1953, ch. 81, as amended, or the consolidated retirement system of Tennessee, provided for by chapters 34-37 and 39 of this title and for such purpose shall be an “attorney general” as defined in § 8-34-101.

Acts 1972, ch. 551, § 7; impl. am. Acts 1972, ch. 814, §§ 1, 11, 18; T.C.A., § 8-725; Acts 1996, ch. 996, § 2.

Compiler's Notes. Acts 1953, ch. 81, as amended, which is referred to in this section, was repealed. See Appendix No. 2 to this volume.

8-7-314. [Obsolete.]

Code Commission Notes.

This section (Acts 1972, ch. 551, § 8; T.C.A., § 8-726), concerning the transfer of powers, duties and authority from the executive secretary to the supreme court, is deemed by the Code Commission to be obsolete.

8-7-315. Budget submitted to general assembly.

Each year's budget for the operation of the office of executive director of the district attorneys general conference shall be submitted to the judiciary committee of the house of representatives and the senate judiciary committee prior to approval of the budget by the general assembly.

Acts 1976, ch. 621, § 4; T.C.A., § 8-728; Acts 1996, ch. 996, § 2; 2013, ch. 236, § 40; 2019, ch. 345, § 14.

Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” following “submitted to the”.

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Part 4
Private Co-Counsel for Crime Victims

8-7-401. Employment of private counsel by crime victim — Participation as co-counsel in prosecution of crime.

  1. A victim of crime or the family members of a victim of crime may employ private legal counsel to act as co-counsel with the district attorney general or the district attorney general's deputies in trying cases, with the extent of participation of such privately employed counsel being at the discretion of the district attorney general. The district attorney general or a deputy shall make the final and concluding argument. The privately retained counsel shall immediately inform the district attorney general of such counsel's employment.
    1. No private legal counsel employed as a special prosecutor pursuant to subsection (a) is permitted to participate in any criminal hearing, trial or other proceeding unless the defendant or defendants have been notified and the court has conducted a hearing on such employment as provided in subdivision (b)(2).
    2. At such hearing, the defendant or defendants have the right to be present and to raise and preserve any objections to the employment of such special prosecutor as provided by law. The court shall examine the private counsel to be employed and shall make a specific finding as to whether such person is or is not qualified under the law to serve as special prosecutor and as to whether such person has or does not have a conflict of interest as provided by law.
    3. Any allegations of prosecutorial misconduct or other defects in the trial committed or caused by the special prosecutor shall be raised and disposed of at the time a motion for new trial is made by the defendant.

Acts 1978, ch. 883, § 1; T.C.A., § 8-729; Acts 1995, ch. 475, § 3.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 6.3.

NOTES TO DECISIONS

1. Constitutionality.

The practice of permitting a privately retained prosecutor to assist a district attorney general, or the district attorney's assistant, does not violate the U.S. Const., amend. 14 or Tenn. Const., art. I, § 8; consequently, T.C.A. § 8-7-401 is constitutional. State v. Bennett, 798 S.W.2d 783, 1990 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 372 (Tenn. Oct. 15, 1990), cert. denied, Bennett v. Tennessee, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98, 1991 U.S. LEXIS 2747 (1991).

The application of T.C.A. § 8-7-401 did not result in a deprivation of a constitutional right of defendant where private prosecutors did not engage in prosecutorial misconduct, the record did not reflect that private prosecutors represented the family of the victim in a civil case arising out of the occurrence which gave rise to the criminal prosecution, the proceeding was not a contempt proceeding arising out of a civil prosecution, and where the district attorney general maintained control over the prosecution. State v. Bennett, 798 S.W.2d 783, 1990 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 372 (Tenn. Oct. 15, 1990), cert. denied, Bennett v. Tennessee, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98, 1991 U.S. LEXIS 2747 (1991).

Participation in the criminal trial by special prosecutors who represented the victim in a civil matter arising from the same incident was a violation of defendant's due process right under the federal and state constitutions. State v. Eldridge, 951 S.W.2d 775, 1997 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. 1997).

2. In General.

There is no requirement that a district attorney general show cause for participation of a special prosecutor in a criminal prosecution. State v. Voltz, 626 S.W.2d 291, 1981 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. 1981).

3. Argument Before Jury.

T.C.A. § 8-7-401 does not preclude the special prosecutor from arguing before the jury. State v. Voltz, 626 S.W.2d 291, 1981 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. 1981).

T.C.A. § 8-7-401 does not prohibit a private prosecutor from making the opening argument to the jury; only the rebuttal, or last argument, must be made by the district attorney general or the district attorney's assistant. State v. Bennett, 798 S.W.2d 783, 1990 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 372 (Tenn. Oct. 15, 1990), cert. denied, Bennett v. Tennessee, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98, 1991 U.S. LEXIS 2747 (1991).

Part 5
Assistance to Grand Juries

8-7-501. Attendance of district attorney general at grand jury.

Whenever required by the grand jury, the district attorney general or a designated assistant may attend before that body for the purpose of assisting in its inquiries, which assistance may include the examination of witnesses and the giving of legal advice as to any matters cognizable by that body; provided, that the district attorney general or the designated assistant shall not be present when the question is taken upon the finding of an indictment; and provided further, that the foreman of any grand jury shall be prohibited from communicating to the district attorney general or any other person the way in which any grand juror voted on any question before such body.

Acts 1981, ch. 419, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 6.1, 9.27.

Attorney General Opinions. Applicability to district attorney general, OAG 90-69, 1990 Tenn. AG LEXIS 69 (6/13/90).

NOTES TO DECISIONS

1. Preparation of Presentment.

Trial court erred in dismissing a presentment on the grounds that the district attorney general did not personally prepare the presentment, nor supervise an assistant district attorney general in its preparation. State v. Taylor, 653 S.W.2d 757, 1983 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1983).

2. Presence of Other Individuals When the Question Is Taken.

Presence of a non-participating, newly appointed grand jury foreman who was attempting to become familiar with the operation of a grand jury during their proceedings does not violate the prohibition against the presence of the district attorney general or any other officer. State v. Farmer, 927 S.W.2d 582, 1996 Tenn. Crim. App. LEXIS 5 (Tenn. Crim. App. 1996).

8-7-502. Jurisdiction over misconduct.

It is the legislative intent that any misconduct by a district attorney general before the grand jury shall be subject to the jurisdiction of the board of professional responsibility established by Supreme Court Rule 9.

Acts 1981, ch. 419, § 2.

8-7-503. Judge's instruction to grand jury.

It is the duty of the judge who instructs the grand jury to charge the jurors as to this part so that they will be fully informed of the fact that the district attorney general may attend before such body only upon the grand jury's request.

Acts 1981, ch. 419, § 3.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 9.15.

Part 6
District Attorneys General Fiscal Affairs Act

8-7-601. Short title.

This part shall be known as the “District Attorneys General Fiscal Affairs Act.”

Acts 1986, ch. 766, § 1.

8-7-602. Fiscal officer.

  1. Whereas, the various district attorneys general for the state of Tennessee are entitled to receive and do receive funding from various state, federal and local governmental sources, and private donors, and an orderly system for receiving and disbursing same is necessary, the district attorneys general are hereby authorized and empowered to designate the executive director of the district attorneys general conference as fiscal officer for the judicial district served by a district attorney general. The executive director is authorized and empowered to receive and disburse funds so received for any lawful purpose not inconsistent with this part.
    1. The executive director is hereby designated as fiscal officer for the receipt and disbursement of all funds distributed pursuant to § 36-5-107 and related federal matching funds when the office of the district attorney general is the agency actually participating in the child support collection program as provided by federal law.
    2. Any unspent incentive funds being held by counties for the benefit of the offices of district attorneys general as of April 30, 1990, shall be transferred to the executive director.

Acts 1986, ch. 766, § 2; 1990, ch. 974, § 1; 1996, ch. 996, § 2.

Cross-References. Disposition of incentive payments, prohibition against agency use of payments for social and recreational purposes, § 36-5-107.

Duties of district attorney general, § 8-7-103.

8-7-603. Disbursement of funds.

Such funds shall be disbursed by the executive director of the district attorneys general conference upon proper request being submitted by the respective district attorneys general specifying the purpose of the disbursement and that the same is lawful and proper and not inconsistent with the terms upon which the funding was received.

Acts 1986, ch. 766, § 3; 1996, ch. 996, § 2.

8-7-604. Authorized use of funds.

Such funding shall be used solely for the purpose of carrying out the duties and responsibilities of the office of district attorney general, and the orderly management and operation of same, and not to supplement the pay of any district attorney general.

Acts 1986, ch. 766, § 4.

8-7-605. Use of funds to defray costs.

The office of executive director of the district attorneys general conference may receive a portion of the funds to be set by the executive director to defray the cost of receiving and disbursing same.

Acts 1986, ch. 766, § 5; 1996, ch. 996, § 2.

8-7-606. Records — Audit.

The office of executive director of the district attorneys general conference shall maintain records of all receipts, disbursements, requests for disbursements and the purpose of same, and the records shall be subject to an annual audit by the office of comptroller of the treasury.

Acts 1986, ch. 766, § 6; 1996, ch. 996, § 2.

8-7-225. Short title.

Chapter 8
Sheriffs

Part 1
Appointment—Vacancy

8-8-101. Prohibited from practice of law or serving as member of general assembly while sheriff.

No person shall engage in the practice of law or serve as a member of the general assembly while serving as sheriff.

Code 1858, § 357 (deriv. Acts 1777 (Nov.), ch. 8, § 4); Shan., § 446; Code 1932, § 693; T.C.A. (orig. ed.), § 8-801; Acts 2009, ch. 56, § 1.

Cross-References. Accounting for fees, title 8, ch. 22.

Appearing in court as attorney or counsel for any party prohibited, § 8-8-205.

Compensation for ex officio services, § 8-24-111.

Elected during regular August election, § 2-3-202.

Election contests, title 2, ch. 17.

Election of sheriff, Tenn. Const., art. VII, § 1.

Permitting escape, § 39-16-607.

Process, refusal or omission to execute, § 39-16-402.

Salary, title 8, ch. 24.

Special license plates for sheriffs, § 55-4-222.

Textbooks. Tennessee Jurisprudence, 22 Tenn. Juris., Sheriffs, § 6.

Law Reviews.

Procedure and Evidence — 1959 Tennessee Survey, 12 Vand. L. Rev. 1281 (1959).

NOTES TO DECISIONS

1. “Full-Time.”

Trial court did not err in voiding an election for the office of county sheriff because a candidate was not qualified as a candidate for the office since he did not have the requisite three-years of “full-time” experience; the candidate's employment with a police department could not be classified as “full-time” experience because his primary source of income was derived from his employment as the director of emergency medical services for the county. Bivens v. White, — S.W.3d —, 2015 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 18 (Tenn. Jan. 14, 2016).

Collateral References.

Construction and effect of constitutional or statutory provision disqualifying one for public office because of previous tenure of office. 59 A.L.R.2d 716.

Power to appoint sheriff for term commencing at or after expiration of term of appointing officer or body. 75 A.L.R.2d 1277.

8-8-102. Qualifications for office — Affidavits — Training — Challenge to candidate's qualifications — Fraudulent challenge.

  1. After May 30, 1997, to qualify for election or appointment to the office of sheriff a person shall:
    1. Be a citizen of the United States;
    2. Be at least twenty-five (25) years of age prior to the date of qualifying for election;
    3. Be a qualified voter of the county and a resident of the county for one (1) full year prior to the date of the qualifying deadline for running as a candidate for sheriff;
    4. Have obtained a high school diploma or its equivalent in educational training as recognized by the Tennessee state board of education;
    5. Not have been convicted of or pleaded guilty to or entered a plea of nolo contendere to any misdemeanor crime of domestic violence or any felony charge or violation of any federal or state laws or city ordinances relating to force, violence, theft, dishonesty, gambling, liquor or controlled substances;
    6. Be fingerprinted and have the Tennessee bureau of investigation (TBI) make a search of local, state and federal fingerprint files for any criminal record. Fingerprints are to be taken under the direction of TBI. It shall be the responsibility of TBI to forward all criminal history results to the peace officer standards and training (POST) commission for evaluation of qualifications;
    7. Not have been released, separated or discharged from the armed forces of the United States with a dishonorable or bad conduct discharge, or as a consequence of conviction at court martial for either state or federal offenses;
    8. Have been certified by a Tennessee licensed health care provider qualified in the psychiatric or psychological field as being free from any impairment, as set forth in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association at the time of the examination, that would, in the professional judgment of the examiner, affect the applicant's ability to perform an essential function of the job, with or without a reasonable accommodation;
      1. Except as provided in subdivision (a)(9)(B), have at least three (3) years of full-time experience as a POST commission certified law enforcement officer in the previous ten (10) years or at least three (3) years of full-time experience as a state or federal certified law enforcement officer with training equivalent to that required by the POST commission in the previous ten (10) years; provided, that any person holding the office of sheriff on May 30, 2011, shall be deemed to have met the requirements of this subdivision (a)(9).
      2. Subdivision (a)(9)(A) shall not apply in any county having a metropolitan form of government where the sheriff does not have full law enforcement powers; and
    9. Not have been convicted of or pleaded guilty to or entered a plea of nolo contendere to any felony charge or violation of any federal or state laws relating to controlled substance analogues.
    1. Any person seeking the office of sheriff shall file with the POST commission, at least fourteen (14) days prior to the qualifying deadline, the following:
      1. An affidavit sworn to and signed by the candidate affirming that the candidate meets the requirements of this section; and
      2. A confirmation of psychological evaluation form certified by the psychologist/psychiatrist providing psychological evaluation as provided for in subdivision (a)(8) for the purposes of sheriff candidacy qualification. The form shall be developed by the POST commission and shall include the examining psychologist's/psychiatrist's license number and state of licensure. The form shall clearly state in bold face type directly above the signature line that a person who, with intent to deceive, makes any false statement on such application commits the offense of perjury pursuant to § 39-16-702. The form shall be made available by the POST commission upon request by any candidate for the office of sheriff.
    2. If such affidavit and form are not filed with the POST commission by the fourteenth day prior to the qualifying deadline for the office of sheriff, such candidate's name shall not be placed on the ballot. The POST commission shall have the authority to verify the validity of such affidavit and form.
      1. The POST commission shall verify peace officer standards and training certification of any person seeking the office of sheriff to the extent subdivision (a)(9) requires such person to have such certification. If the person does not have such certification on the date the person files the affidavit seeking to qualify as a candidate for the office of sheriff, the POST commission shall certify whether the person has the three (3) years of full-time experience as a POST commission certified law enforcement officer and whether the certification is current. If the candidate does not have a current certification, or if the person has the law enforcement experience as a state or federal law enforcement officer pursuant to subdivision (a)(9), then such candidate shall certify with the county election commission by the withdrawal deadline their exemption pursuant to subdivision (a)(9).
      2. The original notarized verification form from the POST commission shall be filed by the POST commission with the county election commission by the withdrawal deadline.
      3. If the POST commission or the candidate, as appropriate, has not certified to the county election commission by the withdrawal deadline a person seeking to qualify as a candidate for the office of sheriff as meeting the qualifications as provided for in this section, such person's name shall not appear on the ballot.
      4. In the event that a person seeks election to the office of sheriff by the county legislative body to fill a vacancy in office, such verification must be filed with the county clerk prior to the election.
    1. Every person who is elected or appointed to the office of sheriff after May 30, 1997, shall, annually during the sheriff's term of office, complete forty (40) hours of in-service training appropriate for the rank and responsibilities of a sheriff. The training shall be approved by the POST commission. Any sheriff who does not fulfill the obligations of this annual in-service training shall lose the power of arrest.
    2. Every person who is elected to the office of sheriff after August 1, 2006, in a regular August general election for a four-year term, and is a first term sheriff, regardless of the person's previous law enforcement experience, must successfully complete the newly elected sheriffs' school prior to September 1 immediately following the person's election, and thereafter must successfully complete forty (40) hours of annual in-service training appropriate for the rank and responsibilities of a sheriff pursuant to subdivision (c)(1). The newly elected sheriffs' school shall be taught at the Tennessee law enforcement academy during the month of August, only in the years that elections for sheriffs are held. The curriculum shall be developed by the Tennessee law enforcement training academy in cooperation with the Tennessee Sheriffs' Association and must be approved by the POST commission. Any usual and customary cost associated with attending the newly elected sheriffs' school shall be paid by the county. Any such sheriff who does not fulfill the obligations of this training course shall lose the power of arrest. No fees collected for the sheriffs' school shall inure to the benefit of the Tennessee Sheriffs' Association.
  2. A person may challenge whether a candidate has the required qualifications for sheriff, as identified in subsection (a); provided, that the challenge is filed in writing with the POST commission no later than twelve o'clock (12:00) noon prevailing time on the third day after the qualifying deadline, as determined under § 2-5-101(a).
  3. If a candidate's qualifications are challenged pursuant to subsection (d), the POST commission shall:
    1. Notify the candidate of the challenge;
    2. Review and verify the candidate's required qualifications, identified in subsection (a);
    3. Review and verify the candidate's affidavit and psychological evaluation form, in accordance with subsection (b); and
    4. If the POST commission determines the candidate does not possess the required qualifications for sheriff:
      1. Disqualify the candidate;
      2. Notify the candidate and county election commission of its determination no later than twelve o'clock (12:00) noon prevailing time on the seventh day after the qualifying deadline, as determined under § 2-5-101(a); and
      3. Request that the county election commission:
        1. Not print the candidate's name on any ballot; and
        2. Remove the candidate's name from any printed ballot.
    1. It is an offense for a person to intentionally file a fraudulent challenge under subsection (d).
    2. A violation of subdivision (f)(1) is a Class A misdemeanor punishable by fine only.

Code 1858, § 358 (deriv. Acts 1777 (Nov.), ch. 8, § 3); Shan., § 447; Code 1932, § 694; T.C.A. (orig. ed.), § 8-802; Acts 1993, ch. 373, § 2; 1994, ch. 941, § 1; 1997, ch. 338, §§ 1, 2; 2000, ch. 742, §§ 1, 2; 2001, ch. 360, § 1; 2001, ch. 413, § 15; 2006, ch. 948, § 1; 2011, ch. 370, § 1; 2012, ch. 848, § 5; 2013, ch. 137, § 1; 2015, ch. 508, § 1.

Cross-References. Bargain or sale in regard to office, penalty, § 39-16-105.

Employment and training of police officers, tit. 38, ch. 8.

Peace officer standards and training commission, § 38-8-102.

Penalty for Class A misdemeanor, § 40-35-111.

Vacancies in office, Tenn. Const., art. VII, § 2.

Attorney General Opinions. Meaning of “honorable discharge,” OAG 94-047, 1994 Tenn. AG LEXIS 47 (4/5/94).

Mental health certificate, OAG 94-108, 1994 Tenn. AG LEXIS 112 (9/20/94).

High school diploma requirement not satisfied by correspondence school diploma, OAG 98-071, 1998 Tenn. AG LEXIS 71 (3/26/98).

It is within the discretion of the peace officer standards and training commission to accept proof of admission to, or a diploma from, a fully accredited state college or university as sufficient to fulfill the requirement that an applicant for a position as a sheriff or police officer have a high school diploma or its equivalent, OAG 01-124, 2001 Tenn. AG LEXIS 115 (8/7/01).

A candidate for the office of sheriff must have been certified by a qualified professional in the psychiatric or psychological fields to be free of all apparent mental disorder as described in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM III) or its successor, of the American Psychiatric Association, OAG 02-009, 2002 Tenn. AG LEXIS 3 (1/9/02).

The statute does not specify when a psychological examination of a candidate for sheriff must be performed; however, the candidate must submit the certification on the form specified by the Tennessee Peace Officer Standards and Training Commission (the “POST Commission”), and the POST Commission cannot accept a form that does not meet the requirements specified in the statute; the individual signing the form must be able to certify that the representations the form includes are accurate as of the date the individual signs the form, and whether that individual may rely on an earlier examination or must perform an additional examination is a matter for that individual's professional judgment, in accordance with current professional standards, OAG 02-009, 2002 Tenn. AG LEXIS 3 (1/9/02).

A successful write-in candidate for the office of sheriff must still comply with the requirements of T.C.A. § 8-8-102 in order to qualify to have such candidate's name placed on the ballot for the general election; thus, a candidate must file the sworn and signed affidavit and confirmation of psychological evaluation form required by T.C.A. § 8-8-102 with the POST commission at some date prior to the general election held on the first Thursday in August, and what that date would be would depend upon the individual facts and circumstances, OAG 02-058, 2002 Tenn. AG LEXIS 59 (5/3/02).

Restoration of citizenship rights will not make a person eligible for employment as a police officer or for election or appointment as a sheriff, OAG 06-045, 2006 Tenn. AG LEXIS 45 (3/10/06).

Sheriff elected for second term of office and effect of failure to meet training requirements of T.C.A. § 8-8-102(a)(9). OAG 11-64, 2011 Tenn. AG LEXIS 66 (9/1/11).

T.C.A. § 8-8-102(a)(3) imposes two requirements on potential candidates who seek to qualify for election or appointment to the office of sheriff.  First, the candidate must be a “qualified voter of the county,” which requires the candidate to satisfy the qualifications in T.C.A. § 2-2-102, but does not require the candidate to be registered to vote.  Second, the candidate must have been a “resident of the county for one (1) full year” prior to the qualification deadline. OAG 17-36, 2017 Tenn. AD LEXIS 36 (8/30/2017).

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 8-8-102, requiring a sheriff to obtain certification from the Tennessee Peace Officer Standards and Training Commission (POST) to receive a pay supplement or qualify to run for a second term in office, was not an unconstitutional delegation of legislative authority because: (1) It made sense that an agency such as POST be given discretionary authority with respect to subjects requiring flexibility and expertise to keep up with changing needs, especially in areas having to do with public safety; and (2) It was not an unconstitutional delegation of legislative authority for the general assembly to essentially provide in the statute that sheriffs were to meet the current professional standards for peace officers as determined by POST. Boyce v. Tenn. Peace Officer Stds. & Training Comm'n, 354 S.W.3d 737, 2011 Tenn. App. LEXIS 55 (Tenn. Ct. App. Feb. 10, 2011), appeal denied, Boyce v. Tenn. Peace Officers Stds. & Training Comm'n, — S.W.3d —, 2011 Tenn. LEXIS 568 (Tenn. May 25, 2011).

2. Laches.

Trial court did not abuse its discretion by failing applying the doctrine of laches to bar an election contest because it was reasonable for an opposing candidate to pursue relief through the Tennessee Peace Officers Standards and Training Commission; the opposing candidate filed the election contest within the was notified of the investigation and interviewed concerning his qualifications. Bivens v. White, — S.W.3d —, 2015 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 18 (Tenn. Jan. 14, 2016).

3. Qualifications.

Statute tasks the Tennessee Peace Officers Standards and Training Commission with establishing uniform standards for the employment and training of police officers, including preemployment qualifications and requirements for officer certification, however, the General Assembly determines the qualifications for the office of sheriff; accordingly, the General Assembly's definition of “full-time” controls the issue. Bivens v. White, — S.W.3d —, 2015 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 18 (Tenn. Jan. 14, 2016).

Trial court did not err in voiding an election for the office of county sheriff because a candidate was not qualified as a candidate for the office since he did not have the requisite three-years of “full-time” experience; the candidate's employment with the a police department could not be classified as “full-time” experience because his primary source of income was derived from his employment as the director of emergency medical services for the county. Bivens v. White, — S.W.3d —, 2015 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 18 (Tenn. Jan. 14, 2016).

Trial court was authorized to void the election for the office of county sheriff because ballots intended for the opposing candidate were not illegally rejected, but rather, the other candidate was disqualified since he did not have the requisite experience; the opposing candidate did not allege any illegality in the manner and form of the election or the way in which the votes were tabulated. Bivens v. White, — S.W.3d —, 2015 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 18 (Tenn. Jan. 14, 2016).

4. Right to Contest.

Trial court did not abuse its discretion by failing applying the doctrine of laches to bar an election contest because it was reasonable for an opposing candidate to pursue relief through the Tennessee Peace Officers Standards and Training Commission; the opposing candidate filed the election contest within the was notified of the investigation and interviewed concerning his qualifications. Bivens v. White, — S.W.3d —, 2015 Tenn. App. LEXIS 738 (Tenn. Ct. App. Sept. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 18 (Tenn. Jan. 14, 2016).

8-8-103. Surety bond.

The sheriff, before entering on the duties of that office, shall enter into an official bond prepared in accordance with chapter 19 of this title, in a penalty of not less than one hundred thousand dollars ($100,000), or in a greater sum as the county legislative body may determine, payable to the state, and conditioned well and truly to execute and make due return of all process directed to the sheriff, and to pay all fees and sums of money received by the sheriff, or levied by virtue of any process, into the proper office or to the person entitled, and faithfully to execute the office of sheriff and perform its duties and functions during such person's continuance therein. This bond shall be acknowledged before the county legislative body, in open session, approved by it, recorded upon the minutes, and recorded in the office of the county register of deeds and transmitted to the office of the county clerk for safekeeping.

Code 1858, §§ 354, 355 (deriv. Acts 1777 (Nov.), ch. 8, § 2; 1839-1840, ch. 63, §§ 1, 5); Shan., §§ 443, 444; Code 1932, §§ 690, 691; Acts 1977, ch. 270, § 2; T.C.A. (orig. ed.), § 8-803; impl. am. Acts 1978, ch. 934, §§ 7, 36; Acts 1998, ch. 677, § 6; 2013, ch. 315, § 8.

Compiler's Notes. Acts 2013, ch. 315, § 31 provided that the act, which amended this section, shall apply to the renewal or obtaining an official bond for any bonding after April 29, 2013.

Cross-References. Clerk's recording fee, § 8-21-701.

Deputies' wrongdoings, nonliability for, § 8-8-301.

New or additional bond or sureties, § 8-19-402.

Textbooks. Tennessee Jurisprudence, 22 Tenn. Juris., Sheriffs, §§ 6, 12, 20.

8-8-104. Oath of office.

The sheriff shall, besides the oaths prescribed for public officers, take an oath that the sheriff has not promised or given, nor will give, any fee, gift, gratuity, or reward for the office or for aid in procuring such office, that the sheriff will not take any fee, gift, or bribe, or gratuity for returning any person as a juror or for making any false return of any process, and that the sheriff will faithfully execute the office of sheriff to the best of such sheriff's knowledge and ability agreeably to law.

Code 1858, § 356 (deriv. Acts 1777 (Nov.), ch. 8, § 2); Shan., § 445; Code 1932, § 692; T.C.A. (orig. ed.), § 8-804.

Cross-References. Oath of office, §§ 8-18-1078-18-114.

NOTES TO DECISIONS

1. Prerequisites to Beginning of Term.

Enjoyment of the office did not begin until the sheriff qualified by executing the bond and taking the oath prescribed; and where the sheriff died before entering upon the term, there was no vacancy in the term because of such death, since the sheriff never was an incumbent; and the person in possession of the office held over until a successor was both elected and qualified. State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257, 1914 Tenn. LEXIS 95 (1915).

8-8-105. Replacement of sureties.

The county legislative body shall demand new sureties from the sheriff from time to time if the old sureties die, remove from the county, become insolvent, or otherwise unable to pay, as it, in its discretion, may judge necessary. A failure on the part of the sheriff to comply with such requirement within thirty (30) days shall vacate the office.

Code 1858, §§ 372, 373 (deriv. Acts 1839-1840, ch. 63, § 4); Shan., §§ 462, 463; mod. Code 1932, §§ 709, 710; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-805.

8-8-106. Temporary appointment by county legislative body.

If a vacancy occurs in the office of sheriff, the vacancy shall be filled as provided for in § 5-1-104(b).

Code 1858, § 374 (deriv. Acts 1839-1840, ch. 63, § 4); Shan., § 464; Code 1932, § 711; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-806; Acts 1981, ch. 318, § 4.

Cross-References. Filling vacancy, Tenn. Const., art. VII, § 2.

Temporary discharge of duties, § 8-8-107.

Time of election by people, § 2-3-202.

NOTES TO DECISIONS

1. Temporary Appointee — Tenure.

Defendant appointed by county court (now county legislative body) to office of sheriff upon resignation of regular sheriff was not entitled to hold over when successor sheriff elected at next general election died before the successor could enter upon duties, since relator appointed by county court to succeed deceased sheriff was entitled to office. State ex rel. Kenner v. Spears, 53 S.W. 247, 1899 Tenn. Ch. App. LEXIS 73 (1899).

2. Void Election.

T.C.A. § 8-8-106 and §§ 8-8-107, 8-48-101, 8-48-106 did not contemplate that the person declared “elected” in a void election should continue in office for any period of time after the circuit court declared the election void, and that decision became final or was upheld on appeal, and such person declared elected at the void election could not hold over. Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844, 1963 Tenn. LEXIS 340 (1963).

Collateral References.

Power to appoint sheriff for term commencing at or after expiration of term of appointing officer or body. 75 A.L.R.2d 1277.

8-8-107. Vacancy in office — Temporary discharge of sheriff's duties.

In the event that the office of sheriff becomes vacant due to death, resignation, incapacity, or other causes, the duties of the office shall be temporarily discharged by the chief deputy, or administrative assistant or other highest ranking member of the sheriff's office, until the sheriff is able to reassume the office or until the county legislative body appoints a successor as provided for in § 5-1-104(b).

Code 1932, § 1906; Acts 1977, ch. 492, § 1; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-807; Acts 1981, ch. 318, § 5.

Cross-References. Constable acting for sheriff or coroner, § 8-10-113.

Election of sheriff at August general election preceding commencement of term, § 2-3-202.

Filling vacancy, Tenn. Const., art. VII, § 2; § 8-8-106.

NOTES TO DECISIONS

1. Void Election.

T.C.A. § 8-8-107 and §§ 8-8-106, 8-48-101, 8-48-106, did not contemplate that the person declared “elected” in a void election should continue in office for any period of time after the circuit court declared the election void and that decision became final or was upheld on appeal, and such person declared elected at the void election could not hold over. Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844, 1963 Tenn. LEXIS 340 (1963).

8-8-108. Deputies acting during vacancy — Appointment of persons to serve process — Legislative adoption of service of process alternatives.

    1. In case of a vacancy in the office of sheriff, the deputies, or other authorized process servers except in counties specified in subdivision (a)(2), shall execute legal process in their hands as if the sheriff had continued in office, and shall be liable under law as in other cases.
    2. The provisions of subdivision (a)(1) relative to other authorized process servers shall not apply in the counties having a population of:

      not less than  nor more than

      41,800 41,900

      85,725 85,825

      143,900 144,000

      287,000 288,000

      according to the 1980 federal census or any subsequent census.

    1. The judge of a court of record or a general sessions judge may, upon petition filed by five (5) attorneys practicing before the court that they are unable to obtain reasonably prompt service of process from the court, appoint a person of legal age to serve any process or other papers, original or final, issued by the court, or do any act therein which the sheriff by law might do in any cause, except that such person shall not be authorized to serve process requiring the arrest of any person.
    2. Such appointment shall be made in writing under the hand of the judge and filed with the clerk of the court.
    3. The person so appointed shall have the same power conferred upon such person and proceed in the same manner prescribed by law for the sheriff in the performance of like duties.
    4. The fees payable to such person shall be the same as those paid to the sheriff by virtue of the law in that behalf for like service, and limited as deputy sheriff fees are limited. However, in any county having a population of seven hundred seventy thousand (770,000) or more, according to the 1980 federal census or any subsequent federal census, such fees shall not be counted as court costs, but shall be awarded by the court as a part of the judgment.
    5. Such judge shall require the person so appointed, before acting, to give bond to the state for the benefit of the people of the state in the penal sum of five thousand dollars ($5,000) with such surety or sureties as such judge may approve, conditioned for the faithful performance and execution by such person of such person's duties and for the payment of all moneys that may come into such person's hands by virtue of such appointment. In any county having a population of seven hundred seventy thousand (770,000) or more, according to the 1980 federal census or any subsequent federal census, the person so appointed shall be required to give bond to the state for the benefit of the state in a penal sum of fifteen thousand dollars ($15,000) with such surety or sureties as the judge may approve, conditioned for the faithful performance and execution by such person of such person's duties and for the payment of all moneys that may come into such person's hands by virtue of such appointment.
    6. All process or papers served by the person appointed as provided in this subsection (b) shall be evidenced by the affidavit of such person making such service.
    7. Every person appointed as provided in this subsection (b) shall be liable in all respects to the law as respecting sheriffs so far as same may be applicable.
    8. In any county having a population of seven hundred seventy thousand (770,000) or more, according to the 1980 federal census or any subsequent federal census:
      1. The collection of fees for such private process service shall be solely the responsibility of the person serving the process;
      2. The judges of the courts of general sessions shall promulgate rules of court to govern the application of this subsection (b) in their county; and
      3. These rules established by the court shall include, but not be limited to, a requirement that the process server shall have a computer capability approved by the general sessions court clerk.
    9. In counties having a home rule charter form of government and where private process servers are appointed in general sessions court, the maximum fees allowed shall be established by an ordinance of the county board of commissioners. This subdivision (b)(9) shall not be in effect unless ratified by a two-thirds (2/3) vote of the board of commissioners of any such home rule county.
    1. A person to serve process shall be appointed upon the petition of five (5) attorneys practicing before the general sessions court requesting appointment of persons to serve process. Such petition shall be filed with the county clerk and shall attest to the fact that the attorneys are unable to obtain reasonable, prompt service from the general sessions court. A person requesting appointment to serve process must file a petition with the county clerk requesting such appointment. A person appointed to serve process must be of legal age and be qualified to serve any process or other papers issued by the general sessions court or to do any act which the sheriff might do in serving process, except that such person shall not be authorized to serve process requiring the arrest of any person. The county clerk shall approve the petition to allow a person to serve process after a background check by the Tennessee bureau of investigation and the county sheriff's office has been completed. The county clerk shall administer an oath to the petitioner to uphold the laws of this state and the constitutions of the United States and Tennessee. A petitioner shall pay a fee not to exceed one hundred dollars ($100) to the county clerk for the cost of the background checks.
    2. Such appointment shall be made in writing under the hand of the county clerk.
    3. The person so appointed shall have the same power conferred upon such person and proceed in the same manner prescribed by law for the sheriff in the performance of like duties.
    4. The fees payable to the person appointed to serve process shall be counted as court costs.
    5. The person so appointed shall be required to give bond to the state for the benefit of the state in a penal sum of fifteen thousand dollars ($15,000) with such surety or sureties as the county clerk may approve, conditioned for the faithful performance and execution by such person of that person's duties and for the payment of all moneys that may come into that person's hands by virtue of such appointment.
    6. All process or papers served by the person appointed as provided in this subsection (c) shall be evidenced by the affidavit of such person making such service.
    7. Every person appointed as provided in this subsection (c) is liable in all respects to the law as respecting sheriffs so far as it may be applicable.
      1. The collection of fees for such private process service is solely the responsibility of the person serving the process;
      2. The county clerk has the power to suspend any person appointed to serve process who has violated the state or city laws governing the laws pertaining to civil process; and
      3. The process server shall have computer capability approved by the general sessions court clerk.
    8. The maximum fees allowed pursuant to this subsection (c) shall be established by ordinance of the county legislative body of any county to which this subsection (c) applies. This subdivision (c)(9) shall not be in effect unless ratified by a two-thirds (2/3) vote of the legislative body of any county to which this subsection (c) applies.
    9. Notwithstanding subsection (b), this subsection (c) applies only to counties with a charter form of government with a population in excess of eight hundred thousand (800,000), according to the 1990 federal census or any subsequent federal census, and only upon the adoption of this subsection (c) by a two-thirds (2/3) vote of the legislative body of any county to which it applies.
    1. Notwithstanding the language of subsections (b) and (c) to the contrary, any county may adopt, by a two-thirds (2/3) vote of its legislative body, either subsection (b) or (c) to govern the service of process in courts of general sessions in such county.
    2. Upon the adoption of either subsection by the county legislative body, the presiding officer of such body shall certify such adoption to the secretary of state and shall specify the subsection such county adopted. Upon receiving such certification, the secretary of state shall notify the presiding general sessions court judge of the county or the county clerk, whichever is appropriate, of such county's adoption of the appropriate subsection.

Code 1858, § 370; Shan., § 460; Code 1932, § 707; Acts 1968, ch. 530, §§ 1-3; T.C.A. (orig. ed.), § 8-809; Acts 1987, ch. 338, §§ 1, 3-5; 1989, ch. 97, § 1; 1989, ch. 415, §§ 1-4; 1990, ch. 710, § 1; 1991, ch. 352, § 1; 1993, ch. 426, § 1; 1994, ch. 991, §§ 2, 3.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Appointment of special deputies, § 8-8-212.

Constable acting for sheriff or coroner, § 8-10-113.

Employment of deputies, title 8, ch. 20.

Fees of sheriff, title 8, ch. 21, part 9.

Judges and chancellors, appointment of receivers, § 17-1-205.

Judges and chancellors, extraordinary process, § 17-1-204.

Oath of office, § 8-18-112.

Temporary discharge of duties, § 8-8-107.

Wrongdoing of deputy, action against county authorized, §§ 8-8-302, 8-8-303.

Wrongdoing of deputy, sheriff not liable, § 8-8-301.

Law Reviews.

Recent Developments in Tennessee and Federal Procedure (Donald F. Paine), 36 Tenn. L. Rev. 276 (1969).

Attorney General Opinions. Appointment of private process servers, OAG 96-142, 1996 Tenn. AG LEXIS 162 (11/26/96).

Private process servers in general sessions court, OAG 99-115, 1999 Tenn. AG LEXIS 115 (5/14/99).

Private process servers appointed under T.C.A. § 8-8-108 may continue to serve any process or other papers issued by the general sessions court, including a garnishment or levy of execution, or do any act that the sheriff might do in serving process, except that a private process server may not serve process requiring the arrest of any person, OAG 02-079, 2002 Tenn. AG LEXIS 87 (7/15/02).

Authority of process servers appointed under T.C.A. § 8-8-108(b) and (c), OAG 03-078, 2003 Tenn. AG LEXIS 95 (6/20/03).

Collateral References.

Civil liability of sheriff charged with keeping jail or prison for act of deputy causing death or injury of prisoner. 14 A.L.R.2d 353, 41 A.L.R.3d 1021.

Power to appoint sheriff for term commencing at or after expiration of term of appointing officer or body. 75 A.L.R.2d 1277.

Part 2
Powers and Duties

8-8-201. Duties of office.

  1. It is the sheriff's duty to:
    1. Execute and return, according to law, the process and orders of the courts of record of this state, and of officers of competent authority, with due diligence, when delivered to the sheriff for that purpose;
      1. Except as provided in subdivision (a)(2)(B), attend upon all the courts held in the county when in session; cause the courthouse or courtroom to be kept in order for the accommodation of the courts; furnish them with fire and water; and obey the lawful orders and directions of the court;
        1. In any municipality having a metropolitan form of government and a population of over four hundred fifty thousand (450,000), according to the 1990 federal census or any subsequent federal census, the trial judges shall, within the annual budget appropriation, appoint persons to serve as court officers for the respective courts, such persons to serve at the will of, and under the direction and supervision of the appointing judge. The officers shall be paid in accordance with the general pay plan of such a municipality;
        2. It is the duty of such court officers to maintain order during sessions of the court, to serve process as ordered and to perform such other duties as may be prescribed by the judge. The court officers shall, while acting in the performance of their duties, possess and exercise police powers to the same extent as that granted to members of the metropolitan police department;
    2. Take charge and custody of the jail of the sheriff's county, and of the prisoners therein; receive those lawfully committed, and keep them personally, or by deputies or jailer, until discharged by law; be constantly at the jail, or have someone there, with the keys to liberate the prisoners in case of fire; provided, that if two (2) or more counties enter into an interlocal agreement providing for a jail to serve the counties which are parties to the agreement, the sheriff of any county which is party to such agreement shall not take charge and custody of the jail shared by the agreeing counties unless the interlocal agreement so provides, nor shall the sheriff have charge of the prisoners lawfully committed to such a jail unless so provided by the interlocal agreement;
    3. Mark on all process delivered to the sheriff to be executed, the day on which the sheriff received the same;
      1. Execute all writs and other process legally issued and directed to the sheriff, within the county, and make due return thereof, either personally or by a lawful deputy or, in civil lawsuits only, by a lawfully appointed civil process server except in counties specified in subdivision (a)(5)(B);
      2. The provisions of subdivision (a)(5)(A), relative to other authorized process servers, do not apply in the counties having a population of:

        not less than  nor more than

        41,800 41,900

        85,725 85,825

        143,900 144,000

        287,000 288,000

        according to the 1980 federal census or any subsequent census;

    4. Execute every notice to take depositions, delivered to the sheriff, for any party residing in the county, by delivering a copy thereof to such party in due time; mark on the original notice the time of delivering such copy, and return the same to the clerk of the court in which the suit is pending;
    5. Serve, in due time, any delinquent officer or principal debtor with a copy of any notice of motion delivered to the sheriff to be served on such officer or debtor, and return the original notice in due time to the clerk of the court in which the motion is to be made, with the sheriff's endorsement of service;
    6. Go to the house or place of abode of every defendant against whom the sheriff has process, before returning on the same that the defendant is not to be found;
    7. Specify in the return in what county in the state the defendant resides, when the defendant is a known inhabitant of any other county than that of the sheriff to which the process is directed;
    8. Use, in the execution of process, a degree of diligence exceeding that which a prudent person employs in such person's own affairs;
    9. Give a receipt, if required by the party, for executions delivered to the sheriff;
    10. Receive nothing but money, or, unless otherwise instructed, current convertible bank notes, in satisfaction of any writ of execution delivered to the sheriff;
    11. Levy every writ of execution first on the defendant's goods and chattels, if there are any;
    12. Levy the same upon lands to the amount of the whole debt, or so much of the debt as may exceed the value of the goods and chattels, if there are not, to the best of the sheriff's knowledge, goods and chattels sufficient to answer the plaintiff's demand;
    13. Exhaust the property of a principal before selling the property of a surety, as provided in § 26-3-105;
    14. Take from a defendant, on whose personal property the sheriff has levied an execution, a delivery bond, if requested, with surety, for double the amount of the execution, payable to the plaintiff, conditioned for the delivery of the property at the day and place of sale;
    15. Levy such execution, if the bond be forfeited, upon so much of the property of the defendant, if to be found, as shall be sufficient to satisfy it; and, if there be a deficit, then upon the surety's property, sufficient to satisfy so much of the debt as the property not delivered was valued at;
    16. Summon a jury to ascertain the value of the undelivered property of the principal, if the value is not set forth in the delivery bond;
    17. Return the execution, and the bond with it, to the tribunal from which it issued, if satisfaction of the execution cannot be had before the return day;
    18. Have personal property that the sheriff sells under execution present at the time of sale, unless the defendant agrees that it may be sold without being present;
    19. Describe land levied upon by execution or attachment, so as to identify it and distinguish it from other lands;
    20. Serve the defendant in possession of land with twenty (20) days' notice of the levy, and of the time and place of sale;
    21. Advertise the sale of any land levied on by execution, as prescribed in §§ 35-5-101 — 35-5-104;
    22. Pay the expenses of such advertisement out of the proceeds of the sale;
    23. Return every execution which is delivered to the sheriff, on or before the day of return mentioned therein, with a sufficient response endorsed thereon or attached to it;
    24. Pay to the party entitled to the same, or to the party's agent or attorney, on demand, any moneys collected by the sheriff on any execution from a court of record;
    25. Return with such execution any money collected on such execution;
    26. Make out, if required by the defendant, on levying any debt, damages, or costs by virtue of an execution, a bill of fees due in the case, and set down, under the bill, a true copy of the clerk's and other endorsed fees separately and distinctly, and give a receipt for the same to the defendant in the execution;
    27. Endorse on the execution the amount of the sheriff's own fees taken on the same, to be entered by the clerk on the execution docket;
    28. Pay to the party entitled thereto, or to the party's agent or attorney, any money collected by the sheriff, by virtue of an execution from a judge of the court of general sessions, on or before the return day of the execution;
    29. Pay to the party entitled to receive the same, or to the party's agent or attorney, any money collected by the sheriff upon any debt or demand delivered to the sheriff for collection, whether the sheriff collects or receives the money before or after the issuance of any summons, or before or after the rendition of a judgment or the issuance of an execution;
    30. Return every execution issued by any judge of the court of general sessions and delivered to the sheriff, with a sufficient response thereon, within thirty (30) days after the issuance of the same, either to the judge who issued it, or to the judge having possession of that judge's papers;
    31. Perform such other duties as are, or may be, imposed by law;
    32. Enforce the ordinances of a municipality; provided, that the municipality has expressed by ordinance its intent to have the sheriff enforce its ordinances, and that the municipality has filed a certified copy of its ordinances with the sheriff and the general sessions court of the county;
      1. Take or cause to be taken a full set of fingerprints of each person arrested whether by warrant or capias for an offense which results in such person's incarceration in a jail facility or the person's posting of a bond to avoid incarceration. If fingerprints are maintained manually, two (2) full sets of fingerprints shall be obtained and sent to the Tennessee bureau of investigation. If fingerprints are maintained electronically, a set of fingerprints shall be transmitted to the Tennessee bureau of investigation. Upon receipt of the fingerprints, the Tennessee bureau of investigation shall retain one (1) set of the fingerprints as provided in § 38-6-103, and shall send one (1) set of the fingerprints to the federal bureau of investigation;
      2. A person who is issued a citation pursuant to § 40-7-118 or § 40-7-120 shall not, for purposes of this section, be considered to have been arrested and the agency issuing the citation shall not be required to take the fingerprints of such person; and
    33. Promptly turn over and transfer custody of any inmate sentenced to the department of correction who is being housed in such sheriff's local jail awaiting transfer when called upon to do so by a state official pursuant to § 40-35-212 or § 41-8-106.
    1. In addition to the duties set forth in subsection (a), the sheriff shall perform the duties set forth in the following sections: 2-17-106, 5-7-108, 6-55-201, 7-51-1105, 7-51-1107, 7-51-1111, 7-86-105, 8-4-115, 8-7-110, 8-22-110, 8-26-108, 11-24-112, 16-2-505, 16-15-715, 16-15-901, 18-1-206, 20-2-103, 20-2-111, 22-2-307, 22-2-310, 26-1-402, 26-2-216, 26-2-405, 26-2-406, 26-5-116, 29-16-111, 29-17-706, 29-18-115, 33-3-611, 33-5-409, 33-6-406, 33-6-407, 33-6-610, 33-6-611, 33-6-615, 33-6-901, 37-1-213, 37-1-310, 37-1-403, 37-1-405, 37-1-603, 37-1-605, 37-1-607, 37-5-205, 38-1-106, 38-3-102, 38-3-108, 38-3-122, 38-7-106, 38-7-108, 38-7-116 [repealed], 38-8-102, 38-8-111, 38-10-102, 38-11-204, 39-14-149, 39-17-420, 39-17-429, 39-17-714, 39-17-1315, 39-17-1317, 39-17-1351, 39-17-1361, 40-6-105, 40-6-210, 40-6-212, 40-6-215, 40-7-120, 40-9-103, 40-9-124, 40-9-127, 40-10-105, 40-10-106, 40-11-106, 40-11-135, 40-11-147, 40-11-207, 40-11-211, 40-11-212, 40-13-301, 40-20-117, 40-23-103, 40-23-113, 40-23-116, 40-25-111, 40-25-135, 40-28-107, 40-30-110, 40-33-102, 40-33-104, 40-33-105, 40-33-107, 40-35-307, 40-36-201, 40-38-103, 41-1-604, 41-4-143, 41-7-105, 41-8-105, 41-11-105, 41-11-110, 41-21-308, 41-21-909, 41-22-301, 41-22-303, 41-22-307, 47-13-104, 47-25-404, 49-6-3007, 49-6-3203, 53-11-451, 54-11-105, 54-14-106, 55-10-402, 55-10-410, 55-10-420, 57-3-410, 57-5-202, 57-9-101, 57-9-102, 57-9-103, 57-9-104, 57-9-106, 57-9-107, 57-9-108, 57-9-110, 57-9-111, 57-9-115, 57-9-118, 60-1-205, 62-35-131, 63-3-126, 63-5-124, 63-8-120, 63-9-110, 63-16-115, 63-17-219, 63-25-110, 65-6-133, 66-19-206, 66-19-208, 66-19-209, 66-23-111, 67-1-1202, 67-1-1203, 67-4-110, 67-4-215, 67-4-603, 67-4-1017,  67-5-2006, 68-29-136, 68-102-145, 68-120-401, 68-140-522, 70-4-106, 70-6-201, and 71-6-208.
    2. The sheriff shall perform such other duties as are, or may be, imposed by law or custom.

Code 1858, §§ 360, 4093 (deriv. Acts 1777 (Nov.), ch. 8, §§ 5, 7, 10; 1794, ch. 1, §§ 9, 23; 1799, ch. 14, § 1; 1801, ch. 13, § 1; 1803, ch. 18, § 2; 1817, ch. 199, §§ 5, 6; 1827, ch. 35, § 4; 1829, ch. 71, § 1; 1831, ch. 25, §§ 1, 2; 1835-1836, ch. 17, §§ 4, 5; 1835-1836, ch. 19, § 6; 1837-1838, ch. 190, § 1; 1841-1842, ch. 37; 1843-1844, ch. 32, § 1; 1845-1846, ch. 22; 1849-1850, ch. 120, § 1); Acts 1897, ch. 66, § 1; Shan., §§ 449, 5906; mod. Code 1932, §§ 696, 10106; modified; Acts 1973, ch. 88, § 1; 1973, ch. 355, § 1; impl. am. Acts 1979, ch. 68, §§ 2, 3; T.C.A. (orig. ed.), § 8-810; Acts 1981, ch. 289, § 2; 1982, ch. 930, § 1; 1986, ch. 698, § 2; 1987, ch. 338, §§ 2, 3-5; 1994, ch. 728, § 1; 1995, ch. 462, §§ 1, 2; 1997, ch. 502, § 2; 1999, ch. 190, § 2; 2004, ch. 438, § 1; 2004, ch. 669, §§ 1, 2; 2005, ch. 174, § 1; 2008, ch. 701, § 6; 2008, ch. 1159, § 3; 2013, ch. 154, § 29; 2019, ch. 118, § 1; 2019, ch. 509, § 2.

Code Commission Notes.

Acts 1986, ch. 698, § 5, provided: “All existing agreements between municipalities and county sheriffs, courts of general sessions, and governing bodies of counties for the enforcement of municipal ordinances are ratified and validated.”

Compiler's Notes. Section 29-17-606, referred to in this section was transferred to § 29-17-706 in 2006 by Acts 2006, ch. 863, effective July 1, 2006.

Former § 38-7-116, referred to in this section, was repealed by Acts 2008, ch. 969, § 22, effective July 1, 2008.

Section 41-8-117, referred to in this section, was transferred to § 41-4-143 in 2006 by the code commission.

For tables of population of Tennessee municipalities, and for U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Amendments. The 2019 amendment by ch. 118, deleted “67-5-1333,” from the listing of sections in (b)(1).

The 2019 amendment by ch. 509, deleted “70-3-113,” from the listing of sections in (b)(1).

Effective Dates. Acts 2019, ch. 118, § 5. April 9,  2019.

Acts 2019, ch. 509, § 3. July 1, 2019.

Cross-References. Custody of jail, § 41-4-101.

Fee authorized for waiting in court, § 8-21-901.

Interlocal agreements for joint operation of jails, § 41-4-141.

Interlocal agreements for joint operation of workhouses, § 41-2-151.

Precept or process directed to constable in county with metropolitan government, delivery to and service by sheriff, § 8-10-111.

Service of process, appointment of constable, to execute, § 8-10-111.

Service of process by employee of party prohibited, §§ 8-8-216, 8-8-217.

Service of process, counties with metropolitan government, § 8-10-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 23.13, 24.32.

Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 20, 32; 20 Tenn. Juris., Pardon and Parole, § 7 ; 21 Tenn. Juris., Prisons and Prisoners, § 6; 22 Tenn. Juris., Sheriffs, §§ 6, 14, 15, 18.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 804(a).5.

Law Reviews.

Torts — Hurd v. Woolfork: The Public Duty Doctrine in Tennessee, 28 U. Mem. L. Rev. 1279 (1998).

Attorney General Opinions. Sheriff's authority to serve process for general sessions courts, OAG 94-146, 1994 Tenn. AG LEXIS 175 (12/29/94).

Courthouse security, OAG 97-117, 1997 Tenn. AG LEXIS 150 (9/02/97).

County jail inspectors, OAG 99-153, 1999 Tenn. AG LEXIS 155 (8/16/99).

A county jail must accept all arrested persons and may not refuse to take custody of an arrestee; however, a jail may make arrangements for medical treatment or transfer a prisoner to the nearest jail sufficient to care for the prisoner's medical needs if it cannot do so and may have the prisoner transferred to the nearest sufficient jail if it is over its approved capacity, OAG 02-015, 2002 Tenn. AG LEXIS 16 (2/6/02).

A bailiff or court officer may not be appointed as a judicial commissioner, OAG 03-136, 2003 Tenn. AG LEXIS 152 (10/13/03).

Sheriff has the duty to appoint court officers for general sessions courts, except in municipalities having a metropolitan form of government and a population of more than 450,000, OAG 05-026, 2005 Tenn. AG LEXIS 26 (3/21/05).

Requirement of an indemnity bond by a sheriff for the execution of a writ of possession, OAG 07-129, 2007 Tenn AG LEXIS 129 (8/27/07).

Appointment of court officer authorized to carry weapon in courtrooms; required training, qualifications, etc. OAG 10-77, 2010 Tenn. AG LEXIS 83 (6/1/10).

POST certification of bailiffs and court officers. OAG 10-107, 2010 Tenn. AG LEXIS 113 (10/28/10)

Sheriff's disregard of chancery court order. OAG 10-120, 2010 Tenn. AG LEXIS 126 (12/30/10) .

NOTES TO DECISIONS

1. In General.

The office of sheriff is a most ancient one, and it carries with it, in this country, all of its common-law duties and powers, except as modified by statute. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916), petition for rehearing dismissed, State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

Under the law of England the sheriff was the bailiff of the king and as such the custodian of the king's property, which included stolen goods, but this rule has never prevailed in the United States where stolen property belongs to the owner, who has the right to seize it, and there is no basis for imposing this duty upon the sheriff. State use of Rosser v. Freeman, 166 Tenn. 296, 61 S.W.2d 459, 1933 Tenn. LEXIS 95 (1933).

Sheriff is a constitutional officer so that such office could not be abolished except by amendment of the constitution; however, the sheriff's powers and duties were prescribed by statute and could properly be transferred. Metropolitan Government of Nashville & Davidson County v. Poe, 215 Tenn. 53, 383 S.W.2d 265, 1964 Tenn. LEXIS 538 (1964), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

Under authority granted consolidated city and county governments by title 7, chs. 1, 2 and §§ 7-3-201, 7-3-2037-3-304 providing for consolidation of functions, metropolitan charter could properly provide for transfer of criminal law enforcement from sheriff to metropolitan police department and for giving sheriff charge of urban jail as well as county jail. Metropolitan Government of Nashville & Davidson County v. Poe, 215 Tenn. 53, 383 S.W.2d 265, 1964 Tenn. LEXIS 538 (1964), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

Under metropolitan charter for Nashville and Davidson county, established pursuant to title 7, chs. 1, 2 and §§ 7-3-201, 7-3-2037-3-304, sheriff was a metropolitan officer and bound by functional, budgetary and purchasing provisions of the charter and its personnel and civil service provisions, except that the sheriff was entitled to appoint such deputies and other employees under § 8-20-101 as necessary to carry on the sheriff's duties under this section; and superintendent of workhouse was subject to appointment by the sheriff at will. Metropolitan Government of Nashville & Davidson County v. Poe, 215 Tenn. 53, 383 S.W.2d 265, 1964 Tenn. LEXIS 538 (1964), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

When acting in a law enforcement capacity, a sheriff acts as a county official under Tennessee law. Spurlock v. Sumner County, 42 S.W.3d 75, 2001 Tenn. LEXIS 359 (Tenn. 2001).

2. Process Comprehended by Statute.

The language of the statute included every description of process which by law could come into the hands of the sheriff to be executed. Harman v. Childress, 11 Tenn. 326, 11 Tenn. 327, 1832 Tenn. LEXIS 54 (1832).

3. Attendance at Court.

It was the duty of the sheriff of a county to wait on the general sessions court for the county. Taylor v. Wilson County, 188 Tenn. 39, 216 S.W.2d 717, 1949 Tenn. LEXIS 312 (1949).

4. Jailer.

5. —Custody of Jail.

The sheriff, by virtue of office, was the jailer, and was entitled to the custody of the jail. Felts v. Memphis, 39 Tenn. 650, 1859 Tenn. LEXIS 296 (1859); State ex rel. Hays v. Cummins, 99 Tenn. 667, 42 S.W. 880, 1897 Tenn. LEXIS 80 (1897); State ex rel. Bolt v. Drummond, 128 Tenn. 271, 160 S.W. 1082, 1913 Tenn. LEXIS 47 (1913); Metropolitan Government of Nashville & Davidson County v. Poe, 215 Tenn. 53, 383 S.W.2d 265, 1964 Tenn. LEXIS 538 (1964), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

Sheriff, as person having ultimate responsibility for conduct of county workhouse, was entitled to discharge superintendent of county workhouse appointed by the sheriff, at will. Metropolitan Government of Nashville & Davidson County v. Poe, 215 Tenn. 53, 383 S.W.2d 265, 1964 Tenn. LEXIS 538 (1964), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

Tennessee law appears to place direct responsibility on a sheriff for the operations of the jail. Madewell v. Garmon, 484 F. Supp. 823, 1980 U.S. Dist. LEXIS 10270 (E.D. Tenn. 1980).

6. —Custody of Prisoners.

The sheriff was a constitutional officer, and could not, by legislative enactment, be deprived of a substantial part of the sheriff's rights and authority, which existed at the time the Constitution was adopted. An act requiring the sheriff or jailer, whose jail has been declared a workhouse, to deliver up the jail and “all prisoners” therein to the workhouse superintendent, was void so far as it deprived the sheriff of the custody of prisoners other than the workhouse prisoners, because destructive of the functions, duties and prerogatives incident to the constitutional office of sheriff. State ex rel. Hays v. Cummins, 99 Tenn. 667, 42 S.W. 880, 1897 Tenn. LEXIS 80 (1897); Collier v. Montgomery County, 103 Tenn. 705, 54 S.W. 989, 1899 Tenn. LEXIS 149 (1899).

7. —Cost of Keeping Prisoners.

Costs of keeping prisoners, sentenced to the workhouse, in the county jail pending their transfer to the workhouse could not be added to the costs of their conviction, and they could not be required to work out the same, but the sheriff was entitled to recover the cost of boarding such prisoners and the turnkey's fee from the county. Knox County v. Fox, 107 Tenn. 724, 65 S.W. 404, 1901 Tenn. LEXIS 124 (1901).

8. Return of Process.

Under T.C.A. § 8-8-201(a)(1), a county sheriff has the statutory duty to execute and return, according to law, the process and orders of its courts of record and of officers of competent authority, with due diligence, when delivered to the sheriff for that purpose. This authority extends to execute writs within the county, T.C.A. § 8-8-201(a)(5), and any legal liability arising out of a deputy sheriff's performance of his duties is legally attributable to the county. T.C.A. § 8-8-302. Buchanan v. Williams, 434 F. Supp. 2d 521, 2006 U.S. Dist. LEXIS 41234 (M.D. Tenn. 2006).

9. —“Return” Defined.

The “return” was not simply bringing the paper into court and delivering it into the hands of the clerk. To execute and return process was to make “due return” thereof, which meant the bringing of the process into court, with such endorsements on it as the law required. Whether the endorsement was true or false, it was a “due return,” if it was such as the law required; but it was not a “due return” if the endorsement, whether true or false, was not authorized by law. Harman v. Childress, 11 Tenn. 326, 11 Tenn. 327, 1832 Tenn. LEXIS 54 (1832); Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858).

The return of an officer was the written statement of what the officer had done under the process in the officer's hands. Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881).

10. —Sufficiency.

The return of an execution was the statement by the sheriff, certified to the court, under sanction of oath and official responsibility, of what the sheriff had done touching the execution of the writ. This was the only method known to the law by which the return of the process, or the proceedings thereon, could be made to appear to the court. The return must be complete in itself, embracing every matter required to be stated. To be “sufficient,” within the meaning of the statute, the return must show, upon its face, either that the command of the writ had been fully complied with, or, if not, the existence of such a state of facts as without fault or negligence on the part of the sheriff prevented a compliance therewith. Union Bank v. Barnes, 29 Tenn. 244, 1849 Tenn. LEXIS 57 (1849); McCrory v. Chaffin, 31 Tenn. 307, 1851 Tenn. LEXIS 73 (1851); Eaken & Co. v. Boyd, 37 Tenn. 204, 1857 Tenn. LEXIS 107 (1857), criticized, Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); Wingfield v. Crosby, 45 Tenn. 241, 1867 Tenn. LEXIS 124 (1867); Warder v. Millard, 76 Tenn. 581, 1881 Tenn. LEXIS 49 (1881); Hutton v. Campbell, 78 Tenn. 170, 1882 Tenn. LEXIS 160 (1882).

11. —As Record.

Return made on a writ, which writ had been restored to the office whence it originated, as required by law, became a record. Nichol v. Ridley, 13 Tenn. 62, 13 Tenn. 63, 1833 Tenn. LEXIS 107 (1833); Hutton v. Campbell, 78 Tenn. 170, 1882 Tenn. LEXIS 160 (1882).

12. —Collateral Attack.

The sheriff's return as a general rule could not be collaterally attacked by the parties to the suit, but the sheriff's return excusing the sheriff for not selling property levied on could be shown by a surety in the execution to be false in a proceeding to supersede and quash an alias execution upon the ground that a former execution had been levied on sufficient personal property of the principal debtor to satisfy the judgment. Hutton v. Campbell, 78 Tenn. 170, 1882 Tenn. LEXIS 160 (1882).

13. —Service of Summons.

Where deputy serving a personal summons called at residence of defendant several times but never found the defendant home and made no inquiry as to where the defendant could be found, a return “after diligent search and inquiry not found,” and attachment issued pursuant to such return, was void, and trial court erred in not dismissing defendant's plea in abatement where evidence showed that defendant was at home every evening and in the defendant's place of business every day, and had no notice until the defendant saw publication notice in the paper. Willshire v. Frees, 184 Tenn. 523, 201 S.W.2d 675, 1947 Tenn. LEXIS 406 (1947).

14. —Diligent Search.

The officer failed to comply with this requirement when the officer held the summons only two or three hours, and returned it “not to be found in my county,” when the officer was reliably informed that the defendant had gone away, but would be back in a day or two. Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

Return “after diligent search and inquiry defendant not found” in the county was a representation that defendant was a resident of the county but was evading process. Willshire v. Frees, 184 Tenn. 523, 201 S.W.2d 675, 1947 Tenn. LEXIS 406 (1947).

15. Money on Execution.

The payment of nothing but money could be allowed. Crutchfield v. Robins, Tingley & Co., 24 Tenn. 15, 1844 Tenn. LEXIS 3 (1844).

16. Levy on Goods and Chattels.

Subdivision (13) (now subdivision (a)(13)) was directory and for the benefit of defendant in the execution. Trigg v. McDonald, 21 Tenn. 386, 1841 Tenn. LEXIS 22 (1841).

17. Exhaustion of Principal's Property.

Under an execution issued on a judgment against the principal and the principal's surety as such, the collecting officer, in making the money, was compelled to exhaust the property of the principal before selling that of the surety. Gillespie v. Darwin, 53 Tenn. 21, 1871 Tenn. LEXIS 312 (1871).

18. Sheriff's Deed.

A deed executed by sheriff on an execution against owner out of possession passed good title though another claimed land by adverse possession. Park's Lessee v. Larkin, 1 Tenn. 101, 1805 Tenn. LEXIS 3 (1799).

19. Payment of Money to Party Entitled.

Subdivision (26) (now subdivision (a)(26)) applied to all cases where money was in the hands of the sheriff which had not been paid to party entitled to receive it. Nelson v. Williams, 5 Tenn. 161, 1817 Tenn. LEXIS 80 (1817).

20. Return of General Sessions Execution.

Subdivision (32) (now subdivision (a)(32)) does not mean a calendar month, and is not equivalent thereto, except when such month happens to contain 30 days. The officer's mistake in construing the 30 days to mean a calendar month does not excuse the officer's failure to make return within the 30 days. Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

An execution must have been returned in 30 days with sufficient response thereon to the judge issuing it or it was of no avail. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

Where an officer holding an execution had made the officer's return thereof, the execution then became functus officio, and its proper place was then with the warrant and other papers in the magistrate's office, where it would serve to show what steps had been taken on the judgment, and upon which an alias execution could be issued. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

Where on the day execution was issued the officer summoned the garnishee, without attempting to find personal property of the debtor but would have found no personal property if the officer had looked, made sufficient response on the back of the execution but did not return it to the judge and then again summoned the garnishee by use of the same execution within the 30-day limit and again made response and this time returned it to the judge, the second garnishment was valid. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

21. Liability of Sheriff.

Liability of sheriff must be based on more than the right to control employees, and civil rights liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the sheriff encouraged the specific incident of misconduct or in some other way directly participated in it, and at a minimum, a plaintiff must show that a sheriff at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of an offending subordinate. Brock v. Warren County, 713 F. Supp. 238, 1989 U.S. Dist. LEXIS 5027 (E.D. Tenn. 1989).

The public duty doctrine of governmental immunity, which shields a public employee from liability for injuries caused by breach of a public duty owed to the public at large, barred plaintiffs' actions against the sheriff where the action was based on a theory of negligence that the sheriff failed to promptly and properly process a warrant, because a sheriff's duty to keep the peace includes the execution of arrest warrants, and such is a public duty which is not owed to any individual in particular. Hurd by & Through Hurd v. Woolfork, 959 S.W.2d 578, 1997 Tenn. App. LEXIS 314 (Tenn. Ct. App. 1997).

A county sheriff has final decision-making authority concerning the county prison and is a “policy maker” whose decisions may give rise to a federal cause of action under 42 U.S.C. § 1983. Belk v. Obion County, 7 S.W.3d 34, 1999 Tenn. App. LEXIS 299 (Tenn. Ct. App. 1999), overruled in part, Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 2001 Tenn. LEXIS 756 (Tenn. 2001).

22. Limitations on Service of Process.

Even though a sheriff and deputy were legally on property to serve civil process, nothing in law justified the sheriff's proceeding down a lane behind the residence for over 100 yards to serve the process even if the sheriff believed the person was “hiding” from service. State v. Harris, 919 S.W.2d 619, 1995 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. 1995).

23. Immigration Enforcement.

Memorandum of Agreement (MOA) between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, Tennessee, by and through the Davidson County Sheriff's Office, did not violate the Charter of Nashville and Davidson County because the sheriff had authority under the Charter to perform the duties enumerated in the MOA; while Nashville and Davidson County, Tenn., City Charter § 16.05 made the police chief the principal conservator of the peace, it did not expressly prohibit the sheriff from engaging in all activities that could conceivably be considered law enforcement, and the language of the Charter clearly contemplated that the principal conservator of the peace was not the only conservator of the peace. Renteria-Villegas v. Metro. Gov't, 382 S.W.3d 318, 2012 Tenn. LEXIS 734 (Tenn. Oct. 4, 2012).

24. Public Duty Doctrine.

Duties of the sheriff and deputy at issue in this case were the duty to execute and return court process and to receive those lawfully committed to the jail until discharged, and these are duties owed to the public at large; the allegations of the citizen's complaint brought the actions of the officers within the public duty doctrine of governmental immunity. Luna v. White Cnty., — S.W.3d —, 2015 Tenn. App. LEXIS 525 (Tenn. Ct. App. June 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 876 (Tenn. Oct. 15, 2015).

Collateral References.

Civil liability of prison or jail authorities for self-inflicted injury or death of prisoner. 79 A.L.R.3d 1210.

Custom or usage as affecting performance of sheriff's duties. 65 A.L.R. 815.

Liability of municipality or other governmental unit for failure to provide police protection. 90 A.L.R.5th 273.

Prohibition as means of controlling sheriff. 159 A.L.R. 627, 159 A.L.R. 627.

Propriety of accepting check or promissory note in satisfaction of bid at execution or judicial sale had for cash. 86 A.L.R.2d 292.

Taxes, power of sheriff to remit, release or compromise. 99 A.L.R. 1068, 28 A.L.R.2d 1425.

8-8-202. Advance fees on process from other counties.

No sheriff or constable shall be compelled to execute any subpoena or original summons in civil cases coming from any county other than the one in which such sheriff or constable is an officer, unless the fees allowed such sheriff or constable by law for the service of such process, if demanded, are paid in advance.

Acts 1870-1871, ch. 74, § 1; Shan., § 6405; mod. Code 1932, § 10709; T.C.A. (orig. ed.), § 8-811.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 804(a).5.

8-8-203. Payment of collections by collecting officers.

The sheriff and every other collecting officer shall pay all penalties, fines, forfeitures, amercements, and other sums of money collected by the sheriff or such other officer, or that ought to be collected, for the use of a county, into the hands of the clerk of the court or magistrate from whom the sheriff or such other officer received the execution under which the sheriff or such other officer made, or ought to have made, the collection, on or before the return day of such execution.

Code 1858, § 518; Shan., § 657; Code 1932, § 1056; T.C.A. (orig. ed.), § 8-812.

8-8-204. Judgment on motion for failure to pay over.

If the sheriff or officer fails to do so, the clerk or magistrate shall furnish the district attorney general with the records, executions, and such other information as may be in the clerk or magistrate's possession, to show the liability of the officer, and the district attorney general shall move for judgment, in the name of the county, against the sheriff or officer and the sheriff's or officer's sureties for the moneys by the sheriff or officer collected, or that ought to have been collected, for the use of the county. Upon judgment, when obtained, the clerk or judge shall issue execution, and enforce satisfaction of such execution.

Code 1858, § 519; Shan., § 658; Code 1932, § 1057; impl. am. Acts 1979, ch. 68, §§ 2, 3; T.C.A. (orig. ed.), § 8-813.

Cross-References. Judgment before justice on motion for misfeasance in office, § 16-15-733.

Motion for summary judgment against sheriff, §§ 25-3-10125-3-105.

Summary judgment for sheriff, §§ 25-3-11425-3-116.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477 (1978).

8-8-205. Acting as attorney or security prohibited — Attorney as deputy.

  1. No sheriff or deputy sheriff shall appear in any court as attorney or counsel for any party, nor become security for any party in any civil suit or criminal proceeding.
  2. Notwithstanding any other law to the contrary, the sheriff shall be permitted to appoint a duly licensed attorney as a special deputy sheriff, reserve deputy sheriff, or as a deputy sheriff.

Code 1858, § 363; Shan., § 453; Code 1932, § 700; T.C.A. (orig. ed.), § 8-814; Acts 1988, ch. 734, § 1.

Cross-References. Attorney not obligated to act as sheriff, § 8-8-101.

Practice of law prohibited, § 23-3-103.

Collateral References.

Validity, construction and application of regulation regarding outside employment or occupation of government officers. 62 A.L.R.5th 671.

8-8-206. Purchase at own sale prohibited.

No sheriff or deputy sheriff shall become the purchaser, either directly or indirectly, of any property by such sheriff or deputy exposed to sale under any process of law, and every such purchase shall be absolutely void.

Code 1858, § 364 (deriv. Acts 1805, ch. 31); Shan., § 454; Code 1932, § 701; T.C.A. (orig. ed.), § 8-815.

Cross-References. Officer purchasing at own sale, misdemeanor, § 39-16-405.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 35.

Attorney General Opinions. Purchase of confiscated items by law enforcement officers, OAG 99-105 (5/10/99).

NOTES TO DECISIONS

1. Concealed Interest in Sale.

Where the purchaser of land at a sheriff's sale was in partnership with the sheriff in such purchase, the title was absolutely void; and where such purchaser so deriving title through a sheriff's sale in which the purchaser and the sheriff were partners, concealing this fact, sold the property, the vendee, upon learning that the sheriff was interested, was allowed to avoid the sale. Johnson v. Pryor, 6 Tenn. 243, 1814 Tenn. LEXIS 46 (1814); Merriman v. Norman, 56 Tenn. 269, 1872 Tenn. LEXIS 140 (1872).

2. Bidding for Third Party.

Officer could not bid at the officer's own execution sale, though the bidding was not for the officer's benefit, but expressly for a third party. Chambers v. State, 22 Tenn. 237, 1842 Tenn. LEXIS 79 (1842).

8-8-207. Disobedience of process.

A sheriff's disobedience of the command of any process is a contempt of the court from which it issued, and may be punished accordingly; and such sheriff is further liable to the action of the party aggrieved.

Code 1858, § 361 (deriv. Acts 1777 (Nov.), ch. 8, § 5); Shan., § 451; Code 1932, § 698; T.C.A. (orig. ed.), § 8-816.

Cross-References. Contempt of court, title 29, ch. 9.

Service of process by employee of party prohibited, §§ 8-8-216, 8-8-217.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.13.

Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 2.

Law Reviews.

Torts — Hurd v. Woolfork: The Public Duty Doctrine in Tennessee, 28 U. Mem. L. Rev. 1279 (1998).

Attorney General Opinions. Sheriff's disregard of chancery court order.  OAG 10-120, 2010 Tenn. AG LEXIS 126 (12/30/10).

NOTES TO DECISIONS

1. Liability.

The special duty exception to the public duty doctrine of governmental immunity did not apply in action against sheriff for failing to execute arrest warrant, even though T.C.A. § 8-8-207 specifically provides for a cause of action against the sheriff by imposing liability against the sheriff for failure to obey the command of any process, because the plaintiffs were not members of the particular class of individuals referred to in T.C.A. § 8-8-207; specifically, the plaintiffs did not qualify as aggrieved parties for purposes of T.C.A. § 8-8-207 because they were not parties to the underlying action for which the arrest warrant was issued. Hurd by & Through Hurd v. Woolfork, 959 S.W.2d 578, 1997 Tenn. App. LEXIS 314 (Tenn. Ct. App. 1997).

8-8-208. Service at residence of defendant.

No sheriff shall return upon any writ that the person upon whom it is to be served is not to be found in the county, unless such sheriff has actually been at the place of abode of such person.

Code 1858, § 365 (deriv. Acts 1777 (Nov.), ch. 8, § 5); Shan., § 455; Code 1932, § 702; T.C.A. (orig. ed.), § 8-817.

Cross-References. Duties of sheriff, § 8-8-201.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 2.

Law Reviews.

Pleadings, Motions and Pre-Trial Procedure (Roy Leon Masengale), 4 Mem. St. U.L. Rev. 219 (1973).

8-8-209. Return as to residence in another county.

Where such person is a known inhabitant of another county, the sheriff shall return the truth of the case.

Code 1858, § 366 (deriv. Acts 1777 (Nov.), ch. 8, § 5); Shan., § 456; Code 1932, § 703; T.C.A. (orig. ed.), § 8-818.

8-8-210. Bill of fees.

On levying an execution for money, the sheriff, if required, shall make out a bill of the sheriff's own and all other fees endorsed thereon, giving the items separately and distinctly, and give a receipt therefor to the party paying them, under a penalty of one hundred twenty-five dollars ($125) to any person who will sue for such amount.

Code 1858, § 367 (deriv. Acts 1777 (Nov.), ch. 8, § 7); Shan., § 457; mod. Code 1932, § 704; T.C.A. (orig. ed.), § 8-819.

8-8-211. Penalty for allowing prisoner to be taken from jail and put to death by violence.

Any sheriff who, either negligently or willfully, or by want of proper diligence, firmness, and promptness in the use of all the powers with which the sheriff is vested by law, allows a prisoner to be taken from the jail of the sheriff's county, or to be taken from the sheriff's custody, and put to death by violence, commits a Class A misdemeanor in office, and, upon indictment therefor and conviction thereof, shall be fined at the discretion of the court, and shall also, by the judgment of the court, forfeit the office, and be declared forever incapable of holding any office of trust or profit in this state.

Acts 1881, ch. 45, § 1; Shan., § 450; Code 1932, § 697; T.C.A. (orig. ed.), § 8-820; Acts 1989, ch. 591, §§ 1, 6.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Indictment of sheriff without prosecutor, § 40-13-104.

NOTES TO DECISIONS

1. Contempt of United States Supreme Court.

Sheriff was guilty of contempt of United States Supreme Court by failing to take proper precautions to guard a prisoner convicted of rape after the supreme court had granted a stay of execution, and where the sheriff allowed a mob to break into the jail guarded only by one jailer and to lynch the prisoner even though the mob had once before attempted to lynch the prisoner before conviction. United States v. Shipp, 214 U.S. 386, 29 S. Ct. 637, 53 L. Ed. 1041, 1909 U.S. LEXIS 1926 (1909).

8-8-212. Special deputies — Exchange of law enforcement officers.

  1. The sheriff may appoint as many special deputies as the sheriff may think proper, on urgent occasions, or when required for particular purposes.
  2. The sheriff may appoint as many private special deputies as qualify for appointment pursuant to § 38-8-118.
    1. The sheriff is also authorized to enter into agreements with other law enforcement agencies, including, but not limited to, other county sheriff departments, for the exchange of law enforcement officers when required for a particular purpose. Such exchanged officers shall be covered by liability insurance by the agency of their regular employment or by the agency to which such officers are being assigned. Responding officers under such agreements may be deputized by the requesting sheriff without making application to the court; provided, that such exchanged officers shall serve in such capacity only for the time necessary to complete the particular purpose for which the exchange was made.
    2. The law enforcement officers exchanged under this subsection (c) shall not be deemed to be special deputies, and § 8-8-303 shall in no way be applicable to such law enforcement officers while serving in the capacity for the particular purpose for which the exchange was made.

Acts 1870, ch. 8, § 1; impl. am. Acts 1907, ch. 436; Shan., § 448; Code 1932, § 695; mod. C. Supp. 1950, § 695; T.C.A. (orig. ed.), § 8-821; Acts 1983, ch. 117, § 1; 2006, ch. 862, § 3.

Compiler's Notes. Section 1 of Acts 1975, ch. 4 amended this section only as it applies to Hawkins and Sullivan Counties.

Cross-References. Deputies in certain counties, § 8-8-108.

Employment of deputies, title 8, ch. 20.

Oath of office, § 8-18-112.

Surety bond or liability insurance, § 8-8-303.

Vacancy in office of sheriff, duties of deputy, § 8-8-108.

Wrongdoing by special deputy, liability for, § 8-8-303.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 33; 22 Tenn. Juris., Sheriffs, § 10.

Attorney General Opinions. Court officers as special deputies, OAG 99-167 (8/26/99).

NOTES TO DECISIONS

1. Power to Deputize.

The owner of a judgment, though not the plaintiff in the suit, could not act as special deputy sheriff in respect to the execution issued on such judgment, and a levy and sale by virtue of such execution, under a special deputation by the sheriff, was void, and communicated no title to the purchaser. Riner v. Stacy, 27 Tenn. 288, 1847 Tenn. LEXIS 77 (1847); Stewart v. Magness, 42 Tenn. 310, 1865 Tenn. LEXIS 65 (1865); Avery & Bumam v. Warren, 59 Tenn. 559, 1873 Tenn. LEXIS 111 (1873).

This section gives the sheriff the right, when in the sheriff's judgment it was necessary, to appoint a special deputy for any particular occasion. General Truck Sales, Inc. v. Simmons, 208 Tenn. 51, 343 S.W.2d 884, 1961 Tenn. LEXIS 393 (1961).

2. Form of Deputation.

Where the special deputation written on an execution, as well as the signature of the sheriff thereto, was in the special deputy's own handwriting, it was presumed, the contrary not being affirmatively shown, that the sheriff recognized and confirmed the deputation, especially in a controversy between third persons. Tyler v. Dunton, 1 Cooper's Tenn. Ch. 361 (1873).

3. Nature of Office.

A deputy sheriff held office at the will of the sheriff, whether the appointment was general or for a definite period. Reves v. State, 79 Tenn. 124, 1883 Tenn. LEXIS 23 (1883).

A special deputy sheriff appointed for one year to preserve the peace and prevent infractions of the law, and to make arrests and deliver all prisoners to the county jail, was a civil officer. Reves v. State, 79 Tenn. 124, 1883 Tenn. LEXIS 23 (1883).

A general deputy, as distinguished from a special deputy assigned to a special case or transaction, was an officer in the sense of the law. State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326, 1905 Tenn. LEXIS 67 (1905).

4. Powers of Deputy Sheriff.

A special as well as a general deputy executing a capias could take bail for the appearance of the accused arrested by the deputy, where the sheriff had that power. State v. Kizer, 36 Tenn. 563, 1857 Tenn. LEXIS 55 (1857); Reves v. State, 79 Tenn. 124, 1883 Tenn. LEXIS 23 (1883).

A special deputy in a particular case had all the powers of a regular deputy in that case. Reves v. State, 79 Tenn. 124, 1883 Tenn. LEXIS 23 (1883).

A salaried policeman and law officer of a municipal corporation, who had been appointed deputy sheriff with authority to summon witnesses only on behalf of the city in its litigation, could execute such process under the sheriff's deputation, but deputy was entitled to no fees as deputy sheriff for the services of subpoenas for witnesses, either as against the city or the opposite party. It was the duty of such officer to investigate the facts and ascertain the circumstances and find witnesses in all suits in which the city was a party, and it would be against public policy to allow such compensation. Lewis v. Mayor, etc., of Nashville, 101 Tenn. 659, 49 S.W. 749, 1898 Tenn. LEXIS 117 (1899).

Collateral References.

Additional deputies provided for during term of sheriff whose deputies were to be paid by the public, are they to be paid by officer or public. 26 A.L.R. 1309.

Civil liability of sheriff charged with keeping jail or prison for act of deputy causing death or injury of prisoner. 14 A.L.R.2d 353, 41 A.L.R.3d 1021.

Liability of police officer for injuries or death of third person resulting from operation of motor vehicle by subordinate. 15 A.L.R.3d 1189.

8-8-213. Conservator of peace — Summoning posse.

  1. The sheriff and the sheriff's deputies are conservators of the peace, and it is the sheriff's duty to suppress all affrays, riots, routs, unlawful assemblies, insurrections, or other breaches of the peace, detect and prevent crime, arrest any person lawfully, execute process of law, and patrol the roads of the county.
  2. The sheriff shall furnish the necessary deputies to carry out the duties set forth in subsection (a), and, if necessary, may summon to the sheriff's aid as many of the inhabitants of the county as the sheriff thinks proper.

Code 1858, § 362; Shan., § 452; Code 1932, § 699; T.C.A. (orig. ed.), § 8-822; Acts 2005, ch. 142, § 1.

Cross-References. Conservator of peace, § 38-3-102.

Collateral References.

Peace officer's liability for death or personal injuries caused by intentional force in arresting misdemeanant. 83 A.L.R.3d 238.

Right of police officer to use deadly force in attempting to arrest fleeing felon. 83 A.L.R.3d 174.

8-8-214. Delivery of papers and property to successor.

The sheriff, when going out of office, shall deliver to the successor all books and papers pertaining to the office, and all property attached and levied on and in the sheriff's hands, unless authorized by law to retain the same, and all prisoners in the jail, and take a receipt therefor, which receipt will be an indemnity to the retiring officer.

Code 1858, § 368; Shan., § 458; Code 1932, § 705; T.C.A. (orig. ed.), § 8-823.

Cross-References. Delivery of jail and prisoners to successor, § 41-4-102.

8-8-215. Closing of unsettled business.

The sheriff is allowed two (2) years from the time of going out of office to close unsettled business, with all the power and subject to all the limitations and restrictions of the actual sheriff.

Code 1858, § 369 (deriv. Acts 1811, ch. 49, § 1); Shan., § 459; Code 1932, § 706; T.C.A. (orig. ed.), § 8-824.

Textbooks. Tennessee Jurisprudence, Tenn. Juris., Executions, § 33.

NOTES TO DECISIONS

1. Unexecuted Process.

The sheriff's power after going out of office was confined to unfinished business, and did not extend to the execution of process not yet commenced. The sheriff could not execute a fieri facias after the expiration of the term of office, unless the sheriff had levied it before. Todd v. Jackson, 22 Tenn. 398, 1842 Tenn. LEXIS 108 (1842); Fondrin v. Planters' Bank, 26 Tenn. 447, 1846 Tenn. LEXIS 153 (1846); State use of Nolin v. Parchmen, 40 Tenn. 609, 1859 Tenn. LEXIS 180 (1859); Haynes v. Bridge, Townley & Co., 41 Tenn. 32, 1860 Tenn. LEXIS 7 (1860).

2. Unlevied Execution.

Where the outgoing sheriff had not levied an execution at the expiration of the sheriff's term and returnable afterwards, the sheriff had no power to execute the same after the expiration of the sheriff's term, and it was the sheriff's duty to deliver it to the sheriff's successor. This rule applies to all unexecuted process. A failure to execute and return such execution or other process, or deliver it to the sheriff's successor, was not a breach of the sheriff's bond, and did not render the sheriff's sureties liable. Sherrell v. Goodrum, 22 Tenn. 419, 1842 Tenn. LEXIS 116 (1842); Fondrin v. Planters' Bank, 26 Tenn. 447, 1846 Tenn. LEXIS 153 (1846); State use of Nolin v. Parchmen, 40 Tenn. 609, 1859 Tenn. LEXIS 180 (1859); Haynes v. Bridge, Townley & Co., 41 Tenn. 32, 1860 Tenn. LEXIS 7 (1860).

The sheriff's sureties were not liable for the sheriff's failure to deliver an unlevied execution to the sheriff's successor but the sheriff was liable individually in an action on the case for failure. State use of Nolin v. Parchmen, 40 Tenn. 609, 1859 Tenn. LEXIS 180 (1859).

3. Sale After Expiration of Term.

Where the sheriff had levied an execution on personal property and had not sold it before the expiration of the sheriff's term of office, the sheriff had to sell it afterwards and make return in the same manner as if the sheriff's office had continued, and a failure to do so rendered the sheriff and the sheriff's sureties liable, and they were not discharged from liability by the sheriff's delivery of the writ and goods to the sheriff's successor. Evans v. Barnes, 32 Tenn. 292, 1852 Tenn. LEXIS 67 (1852); Campbell v. Cobb, 34 Tenn. 18, 1854 Tenn. LEXIS 4 (1854); Testaman v. Holt, 2 Shan. 375 (1877). See Overton v. Perkins, 18 Tenn. 328, 1837 Tenn. LEXIS 29 (1837).

A sale of land by a sheriff after the expiration of the sheriff's term, under a venditioni exponas issued upon a levy made by the sheriff while in office, was void. Bank of Tennessee v. Beatty, 35 Tenn. 305, 1855 Tenn. LEXIS 60 (1855).

4. Effect of Section on Prior Law.

This section was not intended to change the settled law as to the power of an outgoing sheriff to execute process. Haynes v. Bridge, Townley & Co., 41 Tenn. 32, 1860 Tenn. LEXIS 7 (1860).

8-8-216. Service of process or other paper by employee of party prohibited — Penalty.

  1. It is unlawful for any sheriff, deputy sheriff or constable to serve any summons, writ, process or other proceeding in any civil action when such officer is a salaried or commissioned employee of any party to the action or suit wherein any such summons, writ, process or other proceeding has been issued.
  2. A violation of this section is a Class C misdemeanor.

Acts 1959, ch. 237, §§ 1, 2; T.C.A., § 8-825; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Attorney General Opinions. Constables as collections agents, OAG 97-043, 1997 Tenn. AG LEXIS 42 (4/7/97).

8-8-217. Service in violation of § 8-8-216 void.

Any summons, writ, process or other proceeding in a civil action which was served in violation of § 8-8-216 is void.

Acts 1959, ch. 237, § 3; T.C.A., § 8-826.

8-8-218. Retention of service weapon upon retirement or disability — Approval by legislative body of county.

  1. Upon completion of honorable service by a full-time sheriff or deputy sheriff, the sheriff or deputy sheriff, upon retirement, may retain the sheriff's or deputy sheriff's service weapon in recognition of many years of good and faithful service. A sheriff or deputy sheriff who retires on disability retirement may also retain the service weapon.
  2. Subsection (a) shall have no effect unless it is approved by a two-thirds (2/3) vote of the legislative body of any county to which it may apply.

Acts 2016, ch. 652, § 1.

Code Commission Notes.

This section (Acts 1959, ch. 237, § 5; T.C.A., § 8-827), concerning process issued prior to March 20, 1959, is deemed by the Code Commission to be obsolete.

Effective Dates. Acts 2016, ch. 652, § 2. July 1, 2016.

8-8-219. Patrol cars — Color schemes — Markings — Unmarked cars.

  1. White patrol cars which have a green stripe running horizontally along the upper portion of each side may be used exclusively for county sheriffs' patrol cars, and this color scheme shall not be used by any other law enforcement official or agency. When adopted for use by a county sheriff's department, the stripe design as well as other emblems and lettering shall conform to the official uniform markings adopted by the Tennessee Sheriffs' Association and on file with the executive director of the Tennessee Sheriffs' Association. These uniform markings may be used exclusively for county sheriffs' patrol cars and shall not be used by any other law enforcement official or agency.
  2. Nothing in this section shall prohibit a county sheriff's department from operating unmarked cars for undercover or other purposes.

Acts 1976, ch. 557, §§ 1-3; T.C.A., § 8-835.

8-8-220. Civil actions — Sheriff may appoint persons to serve process.

In any civil action when the service of process is attempted to be served and is subsequently returned unserved, the sheriff of any county may appoint a person, who is a citizen of this state and who is of legal age, to serve such service of process within the prescribed limitations on service of process. Such appointment shall be made in writing and shall be filed with the court in such civil action. A person appointed to serve process as provided above shall be paid the appropriate fees, make an appropriate bond, assume such liability as the law requires, and file an affidavit with the court in such civil action indicating service of process was served, as is provided for appointments made under § 8-8-108.

Acts 1980, ch. 674, § 1.

8-8-221. Sheriffs to regulate incarcerations in county jails and to register persons acting as law enforcement officers.

  1. The sheriff of each county shall establish regulations governing the acceptance of persons, other than state prisoners, for incarceration in the county jail. Except for state prisoners held in the county jail, no person shall be incarcerated in the county jail without the approval of the sheriff, or the sheriff's designee, subject to approval of the court having criminal jurisdiction over the sheriff's jurisdiction, as provided by regulation.
  2. Except for duly commissioned state and municipal law enforcement officers, no person shall go armed for law enforcement purposes, carry or display a badge or other card or device purporting to identify that person as an officer of the law, wear any uniform or distinctive clothing purporting to identify that person as an officer of law, or mark any motor vehicle so as to identify it as a law enforcement vehicle, or its driver as a law enforcement officer, without registering each and any of these acts with the sheriff of the county in which such acts take place, and complying with reasonable regulations established by the sheriff to properly and consistently identify all persons in that county exercising law enforcement powers.
  3. This section applies only to counties having a population of not less than nine thousand (9,000) nor more than nine thousand, one hundred (9,100), according to the 1970 federal census or any subsequent federal census, and to counties having a population of not less than seven hundred seventy thousand (770,000) nor more than seven hundred eighty thousand (780,000), according to the 1980 federal census or any subsequent federal census.

Acts 1980, ch. 917, §§ 2-5; 1988, ch. 791, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Part 3
Liability for Wrongs of Deputies

8-8-301. Liability for wrongs of deputies — Limitation.

  1. No sheriff, whether elected or appointed, nor any surety on the sheriff's bonds, shall be liable for any wrongs, injuries, losses, damages or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by the sheriff, whether the deputy is acting by virtue of office, under color of office or otherwise.
  2. As used in this section and § 8-8-302, “deputy” includes a jailer appointed by a sheriff pursuant to § 41-4-101.

Acts 1972, ch. 800, § 1; T.C.A., § 8-832; Acts 2017, ch. 261, § 1.

Compiler's Notes. Acts 2017, ch. 261, § 2 provided that the act, which amended this section, shall apply to acts and failures to act on or after May 2, 2017.

Amendments. The 2017 amendment added (b).

Effective Dates. Acts 2017, ch. 261, § 2. May 2, 2017.

Cross-References. Liability for acts of jailer, § 41-4-101.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 560.

Tennessee Jurisprudence, 22 Tenn. Juris., Sheriffs, §§ 12, 13, 21, 23, 27, 30.

Law Reviews.

“Official” Explanation: Defining “Official Capacity” and Related “Color of Office” Phrases in Bribery and Extortion Law (Steven J. Mulroy), 38 U. Mem. L. Rev. 587 (2008).

Policing the Police: Clarifying the Test for Holding the Government Liable Under 42 U.S.C. § 1983 and the State-Created Danger Theory, 54 Vand. L. Rev. 165 (2001).

NOTES TO DECISIONS

1. Constitutionality.

This section is not void for vagueness. Grundy County v. Dyer, 546 S.W.2d 577, 1977 Tenn. LEXIS 517 (Tenn. 1977), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

2. Construction with Other Statutes.

This section, which is in irreconcilable conflict with § 8-19-301, is a subsequent and specific act and therefore controls. Grundy County v. Dyer, 546 S.W.2d 577, 1977 Tenn. LEXIS 517 (Tenn. 1977), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

Since the enactment of this section, the remedy provided by § 25-3-101 is no longer available against a sheriff for the act or failure to act of a deputy to whom the sheriff has entrusted the service and return of an execution directed to the sheriff. Rogers v. Anderson, 580 S.W.2d 782, 1979 Tenn. LEXIS 430 (Tenn. 1979).

The Tennessee Governmental Tort Liability Act, title 29, ch. 20, does not supersede title 8, ch. 8, part 3, which provides a waiver of immunity to suit against a county to recover damages caused by wrongful conduct of a sheriff's deputy. Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987), overruled in part, Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 2001 Tenn. LEXIS 756 (Tenn. 2001), overruled, Swanson v. Knox County, — S.W.3d —, 2007 Tenn. App. LEXIS 714 (Tenn. Ct. App. Nov. 20, 2007).

Generally, no inconsistency exists between the scope of the remedies provided by the Governmental Tort Liability Act, title 29, ch. 20, for certain unintentional torts and that of title 8, ch. 8, part 3 for the official misconduct of deputies, except to the extent that these latter statutes could extend to actions for negligence. Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987), overruled in part, Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 2001 Tenn. LEXIS 756 (Tenn. 2001), overruled, Swanson v. Knox County, — S.W.3d —, 2007 Tenn. App. LEXIS 714 (Tenn. Ct. App. Nov. 20, 2007); Doe v. Sullivan County, 956 F.2d 545, 1992 U.S. App. LEXIS 1685 (6th Cir. Tenn. 1992), cert. denied, 506 U.S. 864, 113 S. Ct. 187, 121 L. Ed. 2d 131, 1992 U.S. LEXIS 5302 (1992).

The general provisions of the Governmental Tort Liability Act, title 29, ch. 20, do not supersede the specific provisions of title 8, ch. 8, part 3 as they relate to misconduct of sheriff's deputies, except to the extent that this part could extend to actions for negligence under T.C.A. § 29-20-205. Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987), overruled in part, Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 2001 Tenn. LEXIS 756 (Tenn. 2001), overruled, Swanson v. Knox County, — S.W.3d —, 2007 Tenn. App. LEXIS 714 (Tenn. Ct. App. Nov. 20, 2007).

Actions for the non-negligent misconduct of deputies do not arise pursuant to T.C.A. § 29-20-104(b), and may therefore be covered by title 8, ch. 8, part 3 in the appropriate cases. Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987), overruled in part, Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 2001 Tenn. LEXIS 756 (Tenn. 2001), overruled, Swanson v. Knox County, — S.W.3d —, 2007 Tenn. App. LEXIS 714 (Tenn. Ct. App. Nov. 20, 2007).

Sheriff and county enjoyed absolute immunity in an action charging the sheriff with negligence in issuing a permit to carry a weapon to a special deputy; the Tennessee Governmental Tort Liability Act, title 29, ch. 20, limits actions that arise under title 8, ch. 8, part 3 to non-negligent causes of action. Hensley v. Fowler, 920 S.W.2d 649, 1995 Tenn. App. LEXIS 628 (Tenn. Ct. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. App. LEXIS 816 (Tenn. Ct. App. Nov. 29, 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 289 (Tenn. 1996).

3. Liability for Deputies' Acts.

Under the provisions of this section the sheriff was not liable under the doctrine of respondeat superior to a citizen shot by a deputy sheriff in the line of duty. Fults v. Pearsall, 408 F. Supp. 1164, 1975 U.S. Dist. LEXIS 13568 (E.D. Tenn. 1975).

Where a deputy sheriff undertook the service and return of the execution in a case, the deputy's failure to make return within the time required by statute was a “failure to act” for which the sheriff and the sheriff's surety are absolved of liability by this section. Rogers v. Anderson, 580 S.W.2d 782, 1979 Tenn. LEXIS 430 (Tenn. 1979).

4. Personal Liability.

T.C.A. § 8-8-301 completely absolves the sheriff and the sheriff's surety of liability for damages caused by the sheriff's deputies whether grounded upon their acts or failures to act; however, the sheriff would not be absolved of liability for damages caused by the sheriff's own personal acts or failure to act with respect to duties which the sheriff assumes personally to perform. Rogers v. Anderson, 580 S.W.2d 782, 1979 Tenn. LEXIS 430 (Tenn. 1979).

In a wrongful death action brought by the estate of a deceased inmate against a sheriff and others, a district court dismissed, with prejudice, the estate's claim under T.C.A. § 8-8-103, which provides that a sheriff shall enter into an official bond faithfully to execute the office of sheriff, and T.C.A. § 8-8-301, which sets out the obligations of the principal and the surety, because neither statute creates private causes of action against a sheriff. Ramirez-Rosales v. Matheny, — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 100887 (E.D. Tenn. Sept. 6, 2011).

5. Liability in Civil Rights Action.

This section does not immunize sheriff and the sheriff's surety against acts of the former's deputies which violate Civil Rights Act of 1871. Moore v. Buckles, 404 F. Supp. 1382, 1975 U.S. Dist. LEXIS 15077 (E.D. Tenn. 1975).

In order for a Tennessee sheriff to be liable in a civil rights action, the sheriff must have been involved personally in the unconstitutional conduct. An action brought under the provisions of 42 U.S.C. § 1983 will not lie against police supervisory officers for failure to prevent police misconduct, absent a showing of direct responsibility for the improper action. Madewell v. Garmon, 484 F. Supp. 823, 1980 U.S. Dist. LEXIS 10270 (E.D. Tenn. 1980).

Collateral References.

Civil liability of sheriff charged with keeping jail or prison for act of deputy causing death or injury of prisoner. 14 A.L.R.2d 353, 41 A.L.R.3d 1021.

8-8-302. Suits against counties for wrongs of deputies.

Anyone incurring any wrong, injury, loss, damage or expense resulting from any act or failure to act on the part of any deputy appointed by the sheriff may bring suit against the county in which the sheriff serves; provided, that the deputy is, at the time of such occurrence, acting by virtue of or under color of the office.

Acts 1972, ch. 800, § 2; T.C.A., § 8-833.

NOTES TO DECISIONS

1. Constitutionality.

This section is not void for vagueness. Grundy County v. Dyer, 546 S.W.2d 577, 1977 Tenn. LEXIS 517 (Tenn. 1977), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

2. Applicability.

Actions for the non-negligent misconduct of deputies do not arise pursuant to § 29-20-104(b), and may therefore be covered by this part in the appropriate cases. Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987), overruled in part, Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 2001 Tenn. LEXIS 756 (Tenn. 2001), overruled, Swanson v. Knox County, — S.W.3d —, 2007 Tenn. App. LEXIS 714 (Tenn. Ct. App. Nov. 20, 2007); Doe v. Sullivan County, 956 F.2d 545, 1992 U.S. App. LEXIS 1685 (6th Cir. Tenn. 1992), cert. denied, 506 U.S. 864, 113 S. Ct. 187, 121 L. Ed. 2d 131, 1992 U.S. LEXIS 5302 (1992).

In an action arising from a deputy sheriff's fatal wounding of a mentally disturbed person, issues as to whether county could be liable for actions of the deputy precluded summary judgment for the county. Thompson v. Williamson County, 965 F. Supp. 1026, 1997 U.S. Dist. LEXIS 7491 (M.D. Tenn. 1997), aff'd, 219 F.3d 555, 2000 FED App. 233P, 2000 U.S. App. LEXIS 16679 (6th Cir. Tenn. 2000).

The conduct of a deputy sheriff in chasing fleeing motorist does not rise to the level of non-negligent conduct under Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (1987). Erwin v. Rose, 980 S.W.2d 203, 1998 Tenn. App. LEXIS 252 (Tenn. Ct. App. 1998), review or rehearing denied, 1998 Tenn. App. LEXIS 311 (Tenn. Ct. App. May 6, 1998).

Under T.C.A. § 8-8-201(a)(1), a county sheriff has the statutory duty to execute and return, according to law, the process and orders of its courts of record and of officers of competent authority, with due diligence, when delivered to the sheriff for that purpose. This authority extends to execute writs within the county, T.C.A. § 8-8-201(a)(5), and any legal liability arising out of a deputy sheriff's performance of his duties is legally attributable to the county. T.C.A. § 8-8-302. Buchanan v. Williams, 434 F. Supp. 2d 521, 2006 U.S. Dist. LEXIS 41234 (M.D. Tenn. 2006).

3. Venue.

In actions for misconduct of deputies, the common-law rule fixing venue exclusively in the situs of the defendant county applies instead of the general venue provisions of § 20-4-101. O'Neal v. De Kalb County, 531 S.W.2d 296, 1975 Tenn. LEXIS 550 (Tenn. 1975).

4. Effect of Federal Court Judgment.

Where judgment was obtained against a deputy in federal court, suit may be brought against the county on that judgment only where the county had full opportunity in the federal proceeding to litigate liability and damages. Grundy County v. Dyer, 546 S.W.2d 577, 1977 Tenn. LEXIS 517 (Tenn. 1977), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

5. Derivative Liability.

This section did not change the general law that superiors may be sued for derivative liability without joinder of the actual wrongdoer. The rule was simply made applicable to counties. McGee v. County of Wilson, 574 S.W.2d 744, 1978 Tenn. App. LEXIS 318 (Tenn. Ct. App. 1978).

Plaintiffs have the right to proceed against the county even after it has released the actual, active, guilty wrongdoer. McGee v. County of Wilson, 574 S.W.2d 744, 1978 Tenn. App. LEXIS 318 (Tenn. Ct. App. 1978).

6. Proof of Employee Status Not Required.

Determination of existence of an employer-employee relationship as a matter of fact depends upon proof of existence of the necessary indicia of relationship. However, this is not determinative in an action under this section, because such relationship has been imposed by law to the extent of liability of the county for the acts of the deputy sheriff. McGee v. County of Wilson, 574 S.W.2d 744, 1978 Tenn. App. LEXIS 318 (Tenn. Ct. App. 1978).

7. Discretionary Function Immunity.

A county, the county sheriff and the sheriff's employees, including deputies and jailers, are protected by a discretionary function immunity. Willis v. Barksdale, 625 F. Supp. 411, 1985 U.S. Dist. LEXIS 12938 (W.D. Tenn. 1985).

8. Acting by Virtue of or Under Color of Office.

Where officer's deposition stated that: (1) The officer was off-duty and not wearing a gun but it was in the officer's automobile; (2) When the deceased asked for a ride the officer decided to show the deceased the gun to scare the deceased and cause the deceased to stop begging for a ride; and (3) After showing the gun, the officer lowered it inside the auto where it discharged a bullet which passed through the door and struck the deceased, the shooting was not by virtue of or under color of the office of deputy sheriff. Corder v. Metropolitan Gov't of Nashville, 852 S.W.2d 910, 1992 Tenn. App. LEXIS 1016 (Tenn. Ct. App. 1992).

Deputy was still acting by virtue of or under color of office under T.C.A. § 8-8-302, which provided a remedy for official misconduct of a deputy, when the deputy assaulted a citizen after following up on an emergency response to the citizen's home; acting by virtue of or under color of office was not limited to authorized duties. Currie v. Haywood County, — S.W.3d —, 2011 Tenn. App. LEXIS 116 (Tenn. Ct. App. Mar. 10, 2011).

9. Liability Not Found.

Neither the government nor its officials were liable for conduct of an employee solely because such conduct was willful and reckless. Corder v. Metropolitan Gov't of Nashville, 852 S.W.2d 910, 1992 Tenn. App. LEXIS 1016 (Tenn. Ct. App. 1992).

T.C.A. § 8-8-302 provided no additional recovery where the jury had already determined plaintiffs'  damages for false arrest and imprisonment under Tennessee law; plaintiffs had already recovered for the harm inflicted by their wrongful arrest under state law. Wilson v. Morgan, 477 F.3d 326, 2007 FED App. 50P, 2007 U.S. App. LEXIS 2141 (6th Cir. Tenn. 2007).

Deputy and sheriff were entitled to qualified immunity, as a mittimus was issued to bring someone with the same name as the citizen to a jail and hold her without bond, the deputy was merely executing a facially valid bench warrant, and the sheriff did nothing to effect the issuance of the mittimus and had no interactions with the citizen, who was later informed she was the wrong person and released; since the deputy and sheriff were entitled to qualified immunity, there was no liability to be imputed to the county. Luna v. White Cnty., — S.W.3d —, 2015 Tenn. App. LEXIS 525 (Tenn. Ct. App. June 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 876 (Tenn. Oct. 15, 2015).

9.5 Immunity.

Trial court properly dismissed the arrestee's claim under T.C.A. § 8-8-302 because “deputy” as used in § 8-8-302 at the time of the incident at issue did not include jailers, the alleged bad actors were jailers or corrections officers, and therefore § 8-8-302 did not remove the county's immunity for the arrestee's claim. Merolla v. Wilson Cty., — S.W.3d —, 2019 Tenn. App. LEXIS 213 (Tenn. Ct. App. May 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 482 (Tenn. Sept. 18, 2019).

Collateral References.

Liability of municipal corporation for shooting of bystander by law-enforcement officer attempting to enforce law. 76 A.L.R.3d 1176.

Liability of municipality or other governmental unit for failure to provide police protection. 90 A.L.R.5th 273.

8-8-303. Waiver of governmental immunity — Special deputies.

  1. The governmental immunity of the county in which the sheriff serves is waived for purposes of § 8-8-302, but to an extent not in excess of the minimum amount required for a surety bond applicable to that county's sheriff pursuant to § 8-8-103. This cap, based on the amount required for a bond, shall apply regardless of whether the sheriff is covered by a surety bond or an insurance policy pursuant to § 8-19-101.
  2. Anyone incurring any wrong, injury, loss, damage, or expense resulting from any act or failure to act on the part of any special deputy appointed by the sheriff, but not employed by the sheriff or the county, shall not bring suit therefor against the sheriff or the county, and the sheriff and county shall be immune from such suits, and the plaintiff shall be required to pursue the remedy therefor against such special deputy and/or the employer or employers of such special deputy, whether the special deputy is acting within the scope of employment or not. Such immunity from suit shall not apply in the case of special volunteer or reserve sheriff's deputies while performing official law enforcement duties under supervision or direction of the sheriff.
  3. No person may serve as a special deputy unless such person proves to the appointing sheriff financial responsibility, as evidenced by a corporate surety bond in no less amount than fifty thousand dollars ($50,000) or by a liability insurance policy of the employer in no less amount than fifty thousand dollars ($50,000).

Acts 1972, ch. 800, § 3; 1976, ch. 775, § 1; T.C.A., § 8-834; Acts 2019, ch. 260, § 2.

Amendments. The 2019 amendment, in (a), substituted “excess of the minimum amount required for a surety bond applicable to that county's sheriff pursuant to T.C.A. § 8-8-103” for “excess of the amount of the surety bond executed for that county's sheriff pursuant to § 8-8-103” in the first sentence and added the second sentence.

Effective Dates. Acts 2019, ch. 260, § 3. April 30, 2019.

Cross-References. Blanket surety bond, § 4-4-108.

NOTES TO DECISIONS

1. Constitutionality.

This section is not void for vagueness. Grundy County v. Dyer, 546 S.W.2d 577, 1977 Tenn. LEXIS 517 (Tenn. 1977), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

2. Construction with Other Statutes.

The general provisions of the Governmental Tort Liability Act, title 29, ch. 20, do not supersede the specific provisions of title 8, ch. 8, part 3 as they relate to the misconduct of sheriff's deputies, except to the extent that title 8, ch. 8, part 3 could extend to actions for negligence under T.C.A. § 29-20-205. Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987), overruled in part, Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 2001 Tenn. LEXIS 756 (Tenn. 2001), overruled, Swanson v. Knox County, — S.W.3d —, 2007 Tenn. App. LEXIS 714 (Tenn. Ct. App. Nov. 20, 2007).

3. Discretionary Function Immunity.

A county, the county sheriff and the sheriff's employees, including deputies and jailers, are protected by a discretionary function immunity. Willis v. Barksdale, 625 F. Supp. 411, 1985 U.S. Dist. LEXIS 12938 (W.D. Tenn. 1985).

4. Maximum Liability.

Trial court did not err by holding that the county was potentially liable for $25,000 per claimant, but that limit could not be multiplied by the number of deputy tortfeasors or the number of batteries committed against the homeowner because what happened at the residence was a single incident or event, even though it lasted several hours, because the abuse inflicted on the homeowner was continuous and unbroken in time. The court had no hesitancy holding that the $25,000 limit could not be applied to each separate battery inflicted on the homeowner because T.C.A. § 8-8-303 did not clearly and unmistakably say so. Siler v. Scott, 591 S.W.3d 84, 2019 Tenn. App. LEXIS 271 (Tenn. Ct. App. May 30, 2019).

Part 4
County Sheriff's Civil Service Law of 1974

8-8-401. Short title.

This part shall be known as the “County Sheriff's Civil Service Law of 1974.”

Acts 1974, ch. 751, § 1; T.C.A., § 8-840.

Cross-References. Employment or termination of employment, § 8-20-112.

Attorney General Opinions. Effect of county base personnel policies, OAG 98-044, 1998 Tenn. AG LEXIS 44 (2/17/98).

Powers of board under sheriff's civil service law, OAG 00-002, 2000 Tenn. AG LEXIS 3 (1/4/00).

8-8-402. Local approval required.

  1. Except as provided in subsection (b), this part shall be local in effect and shall become effective in a particular county upon the contingency of a two-thirds (2/3) vote of the county legislative body approving this law.
  2. On or after June 9, 2010, § 8-8-419(a)(2) shall apply in any particular county which has adopted or which after June 9, 2010, makes this part applicable to such county, and shall also apply in any other county, notwithstanding any private act, resolution, personnel policy or charter provision to the contrary, which has adopted or which adopts a sheriff's civil service law.

Acts 1974, ch. 751, § 2; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 8-841; Acts 2010, ch. 1025, § 2.

8-8-403. “Classified service” defined.

As used in this part, “classified service” includes all positions and employees in the sheriff's department, except for the sheriff, the sheriff's personal secretary, and the cook for the jail facility, and, in those counties deciding to do so, the chief deputy sheriff.

Acts 1974, ch. 751, § 3; T.C.A., § 8-842.

Attorney General Opinions. “Personal secretary” and “classified service” construed, OAG 98-044, 1998 Tenn. AG LEXIS 44 (2/17/98).

Political campaigning by sheriffs’ employees, OAG 06-093, 2006 Tenn. AG LEXIS 102 (5/17/06).

8-8-404. Creation of civil service board.

There is created a civil service board composed of three (3) members selected by the county legislative body.

Acts 1974, ch. 751, § 4; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 8-843.

Attorney General Opinions. Appointments to sheriff’s civil service board; action by board; presence at meetings.  OAG 12-57, 2012 Tenn. AG LEXIS 57 (5/21/12).

8-8-405. Terms of members.

The terms of the members of the board shall be three (3) years; provided, that the initial appointments shall be as follows:

  1. One (1) member selected by the county legislative body for one (1) year;
  2. One (1) member selected by the county legislative body for two (2) years; and
  3. One (1) member selected by the county legislative body for three (3) years.

Acts 1974, ch. 751, § 5; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 8-844.

8-8-406. Qualifications of members.

All members of the board shall be over eighteen (18) years of age, of good moral character, citizens of the United States and the state of Tennessee, and must reside in the respective county, and they shall not hold any elected or appointed office within the county.

Acts 1974, ch. 751, § 6; T.C.A., § 8-845.

Attorney General Opinions. A member of the county election commission may not serve as a member of the county civil service board, OAG 02-121, 2002 Tenn. AG LEXIS 126 (10/30/02).

8-8-407. Compensation of board.

The members of the board shall receive such salary, if any, as determined by the county legislative body in its sound discretion.

Acts 1974, ch. 751, § 7; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 8-846.

Attorney General Opinions. Reimbursement for expenses not authorized, OAG 98-044, 1998 Tenn. AG LEXIS 44 (2/17/98).

8-8-408. Chair — Personnel officer as keeper of department records and secretary of board.

The county mayor shall designate, from the three (3) members thus selected, a chair of the board. The sheriff shall appoint from among the sheriff's employees a personnel officer, who shall be the keeper of the sheriff's departmental records, and also shall serve as secretary of the civil service board.

Acts 1974, ch. 751, § 8; T.C.A., § 8-847; Acts 2003, ch. 90, § 2.

Compiler's Notes.  Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Attorney General Opinions. Appointments to sheriff’s civil service board; action by board; presence at meetings.  OAG 12-57, 2012 Tenn. AG LEXIS 57 (5/21/12).

8-8-409. Powers and duties of board.

The board as a body shall:

  1. Adopt and amend rules and regulations for the administration of this part;
  2. Make investigations concerning the enforcement and effect of this part and require observance of the rules and regulations made thereunder;
  3. Hear and determine appeals and complaints respecting the administration of this part;
  4. Establish and maintain a roster of all employees of the classified service and the office of the sheriff showing their position, rank, compensation and place of residence;
  5. Ascertain and record the duties and responsibilities pertaining to all positions in the classified service and classify such positions in the manner hereinafter provided;
  6. Except as otherwise provided in this part, formulate and hold competitive tests to determine the qualifications of persons who seek employment in any position, and as a result of such tests, establish employment lists of eligibles for the various positions;
  7. Establish records of performance and a system of service ratings to be used to determine promotions, the order of layoffs and reemployment and for other purposes;
  8. Keep any other such records as may be necessary for the proper administration of this part; and
  9. Determine all fringe benefits to employees coming under the provisions of this part.

Acts 1974, ch. 751, §§ 9, 14; T.C.A., § 8-848.

Attorney General Opinions. Authority to appoint civil service board members, OAG 98-044, 1998 Tenn. AG LEXIS 44 (2/17/98).

Adoption of rules interpreting terms, OAG 98-044, 1998 Tenn. AG LEXIS 44 (2/17/98).

Effect of county base personnel policies, OAG 98-044, 1998 Tenn. AG LEXIS 44 (2/17/98).

Appointments to sheriff’s civil service board; action by board; presence at meetings.OAG 12-57, 2012 Tenn. AG LEXIS 57 (5/21/12).

Funding fringe benefits determined under the Sheriff’s Civil Service Law of 1974. OAG 13-104, 2013 Tenn. AG LEXIS 107 (12/11/13).

NOTES TO DECISIONS

1. Scope of Authority.

Compensation for on-the-job injuries arising out of and during the course of employment does not constitute a fringe benefit. Therefore, although T.C.A. § 8-8-409 gives counties the power to determine what fringe benefits they will provide to their employees, T.C.A. § 8-8-409 does not similarly give counties the power to unilaterally determine what compensation they will pay to employees who are injured on the job. Crawley v. Hamilton County, 193 S.W.3d 453, 2006 Tenn. LEXIS 432 (Tenn. 2006).

Although T.C.A. § 8-8-409 gives counties the power to determine what fringe benefits they will provide to their employees, T.C.A. § 5-23-101 makes clear that the legislature does not intend that counties can exempt themselves from the purview of the Governmental Tort Liability Act (GTLA), T.C.A. § 29-20-101 et seq., by adopting written personnel policies that include the provision of fringe benefits. The authority granted to counties to define written personnel policies does not grant them the power to suspend or remove statutory negligence actions as provided for in the GTLA. Crawley v. Hamilton County, 193 S.W.3d 453, 2006 Tenn. LEXIS 432 (Tenn. 2006).

County civil service board lacked power to order salary equalization because, while the board had authority to hear a salary grievance, there was no proof that the sheriff violated state law and the sheriff's department civil service manual gave the sheriff authority to make individual pay determinations. Hammond v. Harvey, 410 S.W.3d 306, 2013 Tenn. LEXIS 640 (Tenn. Aug. 13, 2013).

2. Interpretation.

T.C.A. § 8-8-409 states that a civil service board shall hear and determine appeals and complaints and determine all fringe benefits to employees, and although T.C.A. § 8-8-409 applies only to sheriff department employees, it provides insight into what the legislature considered the appropriate functions of a civil service board to be, i.e., hear administrative appeals and determine benefits to which an employee may be entitled. Tidwell v. City of Memphis, 193 S.W.3d 555, 2006 Tenn. LEXIS 433 (Tenn. 2006).

8-8-410. Preliminary or performance tests required — Exceptions.

  1. All persons in the employ of the office of the sheriff or classified service positions at the time this part becomes operative, who have served for a period longer than six (6) months, shall be retained without preliminary or performance tests, but shall thereafter be subject in all other respects to this part. Any other persons in the classified service at the time this part becomes operative shall be regarded as holding their positions under provisional appointment.
  2. Upon the expiration of a contract by a private contractor to operate a detention facility for a county which has adopted this part, the county sheriff's department may assume responsibility of the operation of such facility and may accept the transfer of any or all employees of the private contractor at the facility to employment by the sheriff's department. At the request of the sheriff to the county legislative body and upon a two-thirds (2/3) vote of the county legislative body, those transferring employees with a period of employment longer than six (6) months at the facility prior to transfer shall be retained without preliminary or performance tests, but shall thereafter be subject in all other respects to this part.

Acts 1974, ch. 751, § 10; T.C.A., § 8-849; Acts 1991, ch. 367, § 1.

8-8-411. Classification plan.

The board shall, as soon as practical after this part becomes operative, adopt a classification plan and make rules for its administration. The position classification plan may, if desired, create different classes of positions within each position in the classified service. The position classification plan shall show the duties, authorities, responsibilities and character of work required of each position and each class thereof. The board shall determine the requirements of each position and class thereof as to education, experience, capabilities, knowledge and skill. As far as practical, the probable lines of promotion to and from the classes of positions shall be indicated.

Acts 1974, ch. 751, § 11; T.C.A., § 8-850.

8-8-412. Creation of new positions — Abolition of old positions.

The board may, upon request of and by the advice of the sheriff, create new positions or combine, alter or abolish existing positions in such manner as the board acting under the advice of the sheriff deems necessary for the effective operation of the office of sheriff. No position in the classified service shall be abolished except upon approval of the board acting in good faith upon the advice of the sheriff.

Acts 1974, ch. 751, § 12; T.C.A., § 8-851.

Attorney General Opinions. Personnel transfers in the sheriff's office — follow-up to OAG 07-106 (7/12/07), OAG 07-163, 2007 Tenn. AG LEXIS 163 (12/12/07).

Transfer of county funds between major appropriation categories as a result of personnel adjustments in the sheriff's civil service system must be approved in accordance with applicable county budgeting statutes, OAG 07-106, 2007 Tenn. AG LEXIS 106 (7/12/07).

8-8-413. Leaves of absence.

  1. The board shall formulate reasonable rules governing the granting of leaves of absence to members of the classified service in good standing. The board shall seek the advice of the sheriff upon any request for leave of absence before acting thereon and shall be guided by the requirements of adequate law enforcement and the operational efficiency of the office of sheriff when considering any such request for a leave.
  2. Any persons coming under the classified service who shall hereafter be inducted into the armed forces of the United States, or who shall hereafter enter the service voluntarily in a time of war or other national emergency, shall, upon application of the sheriff, receive a military leave of absence for the duration of the period of service required. The employee shall retain all rights or seniority and shall be entitled to re-employment in the same capacity and position held at the time of entering military service; however, an application for reinstatement in such position must be made by or on behalf of such employee within three (3) months after termination of active service in the armed forces.

Acts 1974, ch. 751, § 13; T.C.A., § 8-852.

Cross-References. Employees in military service, title 8, ch. 33.

8-8-414. Eligibility lists — Eligibility and promotion tests.

  1. The sheriff shall keep the board informed by periodic reports of the employment needs of the office.
    1. The board shall, as often as necessary, hold tests to establish lists of persons eligible for the various positions in the classified service.
    2. Such tests shall be public, competitive and open to all persons who may be lawfully appointed under the rules promulgated by the board and existing prior to the announcement of the examination. Such rules may set limitations as to residence, age, health, habits, moral character and other necessary prerequisites for the performance of the duties of the position for which examination is designated.
  2. Promotion tests shall be public, competitive and free to all persons examined and appointed under this part who have held a position for at least one (1) year.
  3. All tests shall be practical and shall consist only of subjects which will fairly determine the capacity of the person examined to perform the duties of the position in which the appointment is to be made. Tests may include examination for physical fitness and manual skill. No question in any test shall relate to religious or political opinions or affiliation.
  4. The eligibles shall take rank upon a list which shall be compiled for each position, in the order of their relative excellence as determined by the tests and without reference to when the tests were given. No lists of eligibles shall be valid after one (1) year; however, the civil service board may extend an eligible period for not more than one (1) additional year.
  5. Notice of the time, place and general scope of each test, and the duties, pay and experience required for all positions for which the test is to be held, shall be given by the board to each applicant at least one (1) week preceding the test. The notice must be in writing and addressed to the last known address supplied by the applicant. Notice of promotional tests shall be given as the board may prescribe.

Acts 1974, ch. 751, § 14; T.C.A., § 8-853.

8-8-415. Filling of vacancies — Probationary period.

  1. Whenever a vacancy occurs in any position in the classified section of the office of sheriff, the sheriff shall ask the board for the names and addresses of all eligible persons. The board shall certify the names of all persons on the eligible list for that position within thirty (30) days of the sheriff's request. The sheriff shall investigate each of the five (5) highest on the list of eligibles. If none of the five (5) eligibles are acceptable to the sheriff, the sheriff shall investigate the next five (5) eligibles on the list, one (1) after another until one (1) of the eligibles investigated is acceptable. The sheriff shall appoint this person to the position and notify the board of such action. If the civil service board fails to provide a list, then the sheriff may make appointments to vacancies after having notified the board of an intention to do so.
  2. No appointment or promotion for any position in the classified service shall be deemed complete until after the expiration of six (6) months' probationary service, during which time the sheriff may determine the effectiveness of the employee and if, in the sheriff's judgment, the employee does not meet the standards the sheriff may terminate the employment of that person.
  3. Whenever a position of the classified service is filled by promotion, and the services of the person promoted are terminated by the sheriff during the probationary period, such person shall be returned to such person's former position in the classified service unless such person's conduct during the probationary period has given grounds for dismissal for cause under this part.
  4. Any person dismissed during the probationary period shall not be eligible for a hearing before the board.
  5. A person certified to the sheriff who does not report for duty at the time so designated and who does not explain in writing within five (5) days such failure to report, may be rejected by the sheriff, who shall notify the board of the action taken and the reason for it. The person's name will then be stricken from the eligible list.

Acts 1974, ch. 751, § 15; T.C.A., § 8-854.

Attorney General Opinions. Powers of board under sheriff's civil service law, OAG 00-002, 2000 Tenn. AG LEXIS 3 (1/4/00).

8-8-416. Transfer of positions.

Employees in the classified service may be transferred from one position to another in the same class. Transfers may be instituted only by the sheriff and shall be permitted only with the consent of the sheriff.

Acts 1974, ch. 751, § 16; T.C.A., § 8-855.

8-8-417. Procedural rules to be established — Power to gather evidence.

  1. The practice and procedure of the board with respect to any investigation by the board authorized by this part shall be in accordance with the rules and regulations to be established by the board. The rules shall provide for reasonable notice to all persons affected and for the opportunity to be heard, either in person or as represented by counsel, and to introduce testimony in their behalf at a public hearing.
  2. The board, when conducting any investigations or hearings authorized by this part, shall have the power to administer oaths, take depositions, issue subpoenas, and compel the attendance of witnesses and the production of books, accounts, papers, records, documents and testimony. If any person fails to comply with the orders of the board or of a subpoena issued by the board or any of its members, or if a witness refuses to testify on any matter on which the witness may be lawfully interrogated, the judge in any court of record within the county, on application of any member of the board, shall compel obedience by proceedings as for contempt. The sheriff or the sheriff's legal deputy shall serve such subpoenas as issued by the board.

Acts 1974, ch. 751, § 17; T.C.A., § 8-856.

8-8-418. Report of changes in status required — Suspensions authorized — Hearings.

  1. The sheriff shall give an immediate report in writing of all appointments, reinstatements, vacancies, absences or other matters affecting the status of any member of the classified service or the performance of the duties of members of the classified service. The report shall be in the manner and form prescribed by the board.
  2. The sheriff may suspend any employee for not more than ten (10) days for cause, and there shall be no right of appeal for such suspension. The sheriff does not have the authority to suspend any employee for more than one (1) suspension of ten (10) days within any given six-month period of time without a right of appeal.
  3. If the sheriff suspends any employee for a period longer than ten (10) days, the suspended employee shall be notified in writing of the charges. The suspended employee shall thereafter have ten (10) days to request a hearing before the civil service board. Upon receiving the request, the board shall set a hearing, not more than thirty (30) days from the date of the receipt of the request.

Acts 1974, ch. 751, § 18; T.C.A., § 8-857.

Attorney General Opinions. Powers of board under sheriff's civil service law, OAG 00-002, 2000 Tenn. AG LEXIS 3 (1/4/00).

8-8-419. Political activity restricted.

    1. No person holding a position in the classified service shall take an active part in any political campaign while on duty.
      1. No employee of the sheriff's department shall solicit money for political campaigns; provided, that such restriction shall not prohibit an employee, including a deputy sheriff, who is running for an elected office from soliciting and accepting campaign contributions for such person's own election campaign if the person is not on duty or in uniform when such activities occur.
      2. No employee of the sheriff's office shall make any public endorsement of any candidate in any campaign for elected office; provided that, if an employee or deputy sheriff is running for an elected office then such restriction shall not apply to that employee or deputy sheriff's own campaign.
    2. A deputy sheriff shall not use such position to reflect the deputy sheriff's personal political feelings as those of the sheriff's department or to exert any pressure on anyone to influence that person's political views.
    3. No employee while on duty, nor any officer while in uniform, shall display any political advertising or paraphernalia on such person's body or automobile.
  1. However, nothing in this part shall be construed to prohibit or prevent any such employee from becoming or continuing to be a member of a political club or organization and enjoying all the rights and privileges of such membership or from attending any political meetings, while not on duty. Such employee shall not be denied freedom in the casting of a vote.
  2. Any person violating this section shall be dismissed from the service of the office of the sheriff.

Acts 1974, ch. 751, § 19; T.C.A., § 8-858; Acts 2010, ch. 1025, § 1.

Attorney General Opinions. Political campaigning by sheriffs’ employees, OAG 06-093, 2006 Tenn. AG LEXIS 102 (5/17/06).

Deputy sheriff as candidate for county commission. OAG 10-08, 2010 Tenn. AG LEXIS 8 (1/25/10).

Deputy sheriff as candidate for political office. OAG 10-29, 2010 Tenn. AG LEXIS 29 (3/10/10).

Acts 2010, ch. 1025 does not apply to fundraising or campaign activities that took place before it became law. Retroactive application is inconsistent with the language of the act; nor does the legislative history of the act reflect any intent to apply it retroactively.OAG 10-95, 2010 Tenn. AG LEXIS 101 (8/27/10).

Part 5
Disposal of Property by Sheriff

8-8-501. Disposition of unclaimed property.

The sheriff is hereby authorized to dispose of all abandoned, stolen, and/or recovered or worthless property, other than as provided in § 8-8-504, which remains unclaimed in the sheriff's custody and possession by virtue of confiscation, abandonment or having been stolen and recovered. Such disposition shall not be made until a period of ninety (90) days has elapsed from date of acquisition of such property by the sheriff.

Acts 1961, ch. 259, § 1; T.C.A., § 8-828; Acts 2012, ch. 816, § 1.

Cross-References. Disposal of physical evidence, § 18-1-206.

Disposition of confiscated firearms, § 39-17-1317.

8-8-502. Notice to owner — Time for claiming property.

Prior to disposing of such property, the sheriff shall make a reasonable effort to locate the true owner of the property and notify such owner of the sheriff's possession of the property. The true owner, when located, shall claim the property within a reasonable time.

Acts 1961, ch. 259, § 2; T.C.A., § 8-829.

8-8-503. Court order for disposition — Disposition of proceeds.

Prior to disposing of such property under this part, the sheriff shall present to a judge of one of the criminal courts of the county a list of all such property to be disposed of, together with an affidavit that the sheriff has made a reasonable search for the true owner thereof, and that the true owner cannot be located. The sheriff shall then procure from the judge an appropriate order of the court directing the manner in which such property is to be disposed of, the proceeds to be paid over to the general fund of the county.

Acts 1961, ch. 259, § 3; T.C.A., § 8-830.

8-8-504. Law supplemental — When property not returned.

Nothing in this part shall be construed as repealing any other law now in effect which provides for the disposition of abandoned, stolen, recovered and/or contraband property; provided, that no such property shall be returned to the owner, even if known, if the return of such property may be inimical to the public welfare.

Acts 1961, ch. 259, § 4; T.C.A., § 8-831.

Cross-References. Disposition of unclaimed personal property, §§ 66-29-10166-29-184.

Part 6
Correctional Officers — Civil Service

8-8-601. Inclusion in civil service system.

The civil service system of a county having a metropolitan form of government includes an employee of the sheriff's office who is classified as a correctional officer.

Acts 1993, ch. 53, § 1.

Cross-References. County Sheriff's Civil Service Law, title 8, ch. 8, part 4.

Employment or termination of employment, § 8-20-112.

Identification card for corrections officers authorizing firearm possession, § 39-17-1350.

8-8-602. Civil service status of correctional officers employed as of March 22, 1993.

Each correctional officer employed by the sheriff's office on March 22, 1993, who has served for a period of not less than six (6) months, shall be retained without preliminary or performance tests, but shall be subject in all other respects to the civil service system.

Acts 1993, ch. 53, § 2.

8-8-603. Position classification plan.

With the advice and consent of the sheriff, the civil service commission shall adopt a position classification plan for correctional officers and make rules for its administration.

Acts 1993, ch. 53, § 3.

8-8-604. Reports — Testing.

  1. The sheriff shall keep the board informed by periodic reports of the employment needs of the office.
  2. The board shall as often as necessary conduct tests to establish lists of persons eligible for the various positions.
  3. Such tests shall be public, competitive and open to all persons who may be appointed under the criteria set by the commission. Such criteria may set limitations on residency, age, health, habits, moral character, and other necessary prerequisites for the performance of the duties of the positions.

Acts 1993, ch. 53, § 4.

8-8-605. Vacancies.

Whenever a vacancy occurs in a position for a correctional officer, the sheriff shall ask the commission for the names and addresses of all eligible persons in accordance with the rules of the commission in order to fill the appointment.

Acts 1993, ch. 53, § 5.

8-8-606. Applicability.

This part shall only apply to a county having a metropolitan form of government in which the sheriff has no law enforcement authority.

Acts 1993, ch. 53, § 7.

Chapter 9
Coroners

8-9-101. County coroner — Creation of office — Election and term of office — Medical examiners as coroners.

The county legislative body is hereby granted discretionary authority to create the office of county coroner. If such office is created, the county legislative body shall elect a coroner who shall hold office for two (2) years, and until a successor is qualified. However, in those counties that have a county medical examiner, the county legislative body may vest the duties of the county coroner in the county medical examiner and shall not be required to elect a county coroner.

Code 1858, § 375 (deriv. Const. 1834, art. 7, § 1; Acts 1845-1846, ch. 88); Shan., § 465; Code 1932, § 712; Acts 1979, ch. 146, § 1; T.C.A. (orig. ed.), § 8-901.

Cross-References. Deaths resulting from motor vehicle accidents to be reported monthly, § 55-10-112.

Duties of medical examiners regarding known or suspected child sexual abuse, §§ 37-1-403, 37-1-605.

Election, § 5-5-111.

Inquest, coal mine accidents, § 59-4-303.

Inquests over dead bodies, title 38, ch. 5.

Judgment on motion for misfeasance in office, § 16-15-733.

Motion for summary judgment against coroner, §§ 25-3-10125-3-105.

Summary judgment for coroner, §§ 25-3-114, 25-3-115.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 19; 9 Tenn. Juris., Dead Bodies, § 2.

Attorney General Opinions. The Post-Mortem Examination Act, T.C.A. § 38-7-101 et seq., does not authorize a county medical examiner to deputize a non-physician investigator to perform the county medical examiner's powers and duties under the act, OAG 02-021, 2002 Tenn. AG LEXIS 22 (2/26/02).

County medical examiner and coroner serving on county commission,OAG 11-74, 2011 Tenn. AG LEXIS 76 (10/17/11).

Collateral References.

Reviewing, setting aside or quashing of verdict at coroner's inquest. 78 A.L.R.2d 1218.

8-9-102. Removal — Vacancies.

The county legislative body has the power to remove the coroner for misconduct or omission of duty, and may also supply any vacancy.

Code 1858, § 376 (deriv. Const. 1834, art. 7, § 1); Shan., § 466; Code 1932, § 713; Acts 1979, ch. 146, § 2; T.C.A. (orig. ed.), § 8-902.

8-9-103. Surety bond.

  1. The coroner shall, before entering upon duties of that office, enter into an official bond prepared in accordance with chapter 19 of this title. The bond shall be approved by the county legislative body, entered upon the minutes, recorded in the office of the county register of deeds and transmitted to the office of the county clerk for safekeeping. The bond shall be in the amount of two thousand five hundred dollars ($2,500) payable to the state, conditioned truly and faithfully to execute the duties of the office of coroner. The coroner, if failing to give bond within ten (10) days after appointment, shall vacate the office.
  2. The governing body of any county shall elect, by a two-thirds (2/3) vote, whether or not the coroner of the county shall make a surety bond or a bond with two (2) or more good sureties, approved by the body, prior to the time such coroner is inducted and sworn into office.

Code 1858, §§ 377, 379 (deriv. Acts 1785, ch. 2, § 6); Shan., §§ 467, 469; Code 1932, §§ 714, 716; Acts 1977, ch. 270, § 3; 1978, ch. 689, §§ 1, 12; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-903; Acts 1998, ch. 677, § 7.

Cross-References. Failure to give additional bond when required, vacation of office, § 8-19-405.

New or additional bond or sureties may be required, §§ 8-19-4028-19-407.

8-9-104. Oath of office.

The coroner shall take an oath to support the constitutions of the United States and of Tennessee, and faithfully to execute the duties of the office.

Code 1858, § 378 (deriv. Const. 1834, art. 10, § 1); Shan., § 468; Code 1932, § 715; T.C.A. (orig. ed.), § 8-904.

Cross-References. Oath of office, §§ 8-18-1078-18-114.

8-9-105. Deputies.

  1. Coroners have the power to appoint one (1) or more deputies, and to require them to give bond, with security, to save their respective principals harmless, and for the faithful discharge of their duties.
  2. In those counties which have the office of county coroner, the office of deputy coroner or deputy coroners may be created by private act, and such deputy coroner or deputy coroners shall be authorized to perform all duties which can now be performed by the coroner.

Acts 1873, ch. 111; Shan., § 470; Code 1932, § 717; Acts 1959, ch. 285, § 1; 1979, ch. 146, § 3; T.C.A. (orig. ed.), § 8-905.

Cross-References. Deputation of special constable in emergency, § 8-10-117.

Oath of office, § 8-18-112.

NOTES TO DECISIONS

1. Appointment Without Private Act.

Although T.C.A. § 8-9-105(b) provides that the office of deputy coroner may be created by private act, this provision does not prevent a coroner from appointing a deputy in the absence of a private act. State v. Kelly, 697 S.W.2d 355, 1985 Tenn. Crim. App. LEXIS 2687 (Tenn. Crim. App. 1985).

2. Physician Acting as Medical Examiner.

There was nothing illegal about a physician on duty at an emergency room acting as medical examiner while that office stood vacant; when the physician signed the recommendation of autopsy forms, the physician was at least acting as a de facto officer, and any technical problem with the right to hold office had no effect on the validity of the physician's acts. State v. Kelly, 697 S.W.2d 355, 1985 Tenn. Crim. App. LEXIS 2687 (Tenn. Crim. App. 1985).

8-9-106. Process directed to coroner.

In any legal proceeding, when it appears from the papers that the sheriff is a party, or, from affidavit filed, that the sheriff is interested, the process may be directed to the coroner.

Code 1858, § 381; Shan., § 472; Code 1932, § 719; T.C.A. (orig. ed.), § 8-907.

Cross-References. Constable authorized to execute process when offices of sheriff and coroner vacant or occupants disabled, § 8-10-113.

Textbooks. Tennessee Jurisprudence, 9 Tenn. Juris., Dead Bodies, § 2; 21 Tenn. Juris., Process, § 6.

NOTES TO DECISIONS

1. Competency of Sheriff to Execute Process.

The execution of process by the sheriff or the sheriff's deputy in suits to which the sheriff was a party or in which the sheriff was interested was void. Stewart v. Magness, 42 Tenn. 310, 1865 Tenn. LEXIS 65 (1865); Carson v. Browder, 70 Tenn. 701, 1879 Tenn. LEXIS 225 (1879).

Where the sheriff was a mere nominal party, without any interest to be affected by the result of the litigation, and where no redress was sought against the sheriff, the sheriff was competent to serve process. Avery & Bumam v. Warren, 59 Tenn. 559, 1873 Tenn. LEXIS 111 (1873).

Where the sheriff's deputy had levied on personalty, the sheriff could execute a writ of replevin for it in a suit against the deputy, or could surrender the property in obedience to the writ of replevin; for, while the sheriff could not execute process in the sheriff's favor, yet, if the sheriff executed process against the sheriff or obeyed the same, the act would not be treated as a nullity at the sheriff's instance. Carson v. Browder, 70 Tenn. 701, 1879 Tenn. LEXIS 225 (1879).

2. Process Directed to Sheriff, Who May Execute.

Legal process could not be executed by anyone except the officer to whom it was directed, or the officer's duly constituted deputy, and an execution against a person holding the office of sheriff and others, directed to the sheriff, could not be executed by the coroner, and the officer incurred no liability for failure to execute or return it, although it actually came to the officer's hands. Brown v. Barker, 29 Tenn. 346, 1849 Tenn. LEXIS 81 (1849), overruled in part, Mullins v. State, 202 Tenn. 354, 304 S.W.2d 333 (1957), overruled, Mullins v. State, 202 Tenn. 354, 304 S.W.2d 333, 1957 Tenn. LEXIS 398 (1957).

Chapter 10
Constables

Part 1
In General

8-10-101. Election of constables — Term of office — Reapportionment of districts — Abolition of office.

    1. Two (2) constables shall be elected by the qualified voters in the civil district of each county which includes the county town, and one (1) in every other civil district of the county, each of whom shall hold office for two (2) years, and until the qualification of a successor.
    2. All constables elected to a four-year term, as permitted by the procedure established in this subsection (a), before July 1, 1983, are declared validly elected and shall have the powers and duties established in this chapter and otherwise established by law.
      1. Notwithstanding any other law to the contrary, a county legislative body may, by adopting a resolution by two-thirds (2/3) vote at two (2) consecutive meetings of the county legislative body, abolish the office of constable for that county or set the term of office for the constable at either two (2) or four (4) years. Any change would not be effective until the end of the current term being served by the constable.
      2. This subdivision (a)(3) does not apply in counties having a population of:

        not less than  nor more than

        13,625 13,675

        30,500 30,800

        31,200 31,300

        67,600 67,900

        73,500 73,900

        85,800 86,100

        according to the 1990 federal census or any subsequent federal census.

        1. If the county legislative body of any county having a population of not less than fifty-one thousand nine hundred (51,900) nor more than fifty-two thousand (52,000), according to the 2000 federal census or any subsequent federal census, adopts a resolution in accordance with subdivision (a)(3)(A) to abolish the office of constable for that county, the resolution shall not become operative until approved in an election to be held in accordance with subdivisions (a)(3)(C)(ii)-(v).
        2. Upon passage of the resolution, the county election commission shall, pursuant to § 2-3-204, hold an election on the question of whether or not the office of constable shall be abolished providing options to vote “FOR” or “AGAINST” the question, after the receipt of a certified copy of a resolution from the county requesting an election be held. The ballots used in the election shall have printed on them the substance of the resolution and the voters shall vote for or against its approval.
        3. The votes cast on the question shall be canvassed and the results proclaimed by the county election commission and certified by the commission to the local governing body.
        4. The qualifications of voters voting on the question shall be the same as those required for participation in general elections. All laws applicable to general elections shall apply to the determination of the approval or rejection of the question on the ballot.
        5. A majority vote of those voting in the election shall determine whether the office of constable shall be abolished. If the question is approved the office of constable shall be abolished as provided in the resolution. If the question is not approved at the election, a successive referendum on the issue shall not be held for a period of two (2) calendar years.
    1. Constables in counties other than counties having populations of not less than one hundred twenty-seven thousand (127,000) nor more than one hundred twenty-eight thousand (128,000), according to the 1970 or any subsequent federal census, and other than those of class 1 as established by § 8-24-101, shall be elected from constable districts established by the county legislative body. Prior to May 20, 1978, the county legislative bodies shall meet and, a majority of the members being present and concurring shall establish constable districts subject to the following limitations:
      1. The number of constables to be elected shall not exceed one half (½) the number of county commissioners;
      2. Constable districts shall be reasonably compact and contiguous and shall not overlap; and
      3. In establishing constable districts, population may be determined in the manner used to establish county commissioner districts. After 1980, constable districts shall be reapportioned at least as often as county commissioner districts, to ensure compliance with the limitations prescribed in this subsection (b).
    2. In counties having a population of not less than eleven thousand five hundred (11,500) nor more than eleven thousand six hundred (11,600), according to the 1970 federal census or any subsequent federal census, there shall be no more than one (1) constable elected per commissioner district, and in addition one (1) additional constable shall be elected for each city or town.
    3. In counties having a population of not less than forty-three thousand two hundred (43,200) nor more than forty-three thousand three hundred (43,300), according to the 1970 federal census or any subsequent federal census, there shall be no more than two (2) constables elected per commissioner district.
    4. In counties having a population of not less than twenty-three thousand four hundred seventy-five (23,475) nor more than twenty-three thousand five hundred (23,500), according to the 1970 federal census or any subsequent federal census, there shall be one (1) constable elected per county legislative district and in addition one (1) additional constable shall be elected for the county town.
    5. In counties having a population of not less than thirty-five thousand four hundred (35,400) nor more than thirty-five thousand four hundred seventy (35,470), according to the 1970 federal census or any subsequent federal census, there shall be one (1) constable elected per county legislative district.
    6. The county legislative body in any county having a population of not less than thirty-one thousand one hundred (31,100) nor more than thirty-one thousand four hundred (31,400), according to the 1990 federal census or any subsequent federal census, may, upon passage of a resolution by a two-thirds (2/3) majority vote, provide that one (1) constable shall be elected for each commissioner from each county legislative district.
    7. In any county having a population of not less than seventy-one thousand one hundred (71,100) nor more than seventy-one thousand two hundred (71,200), according to the 2000 federal census or any subsequent federal census, a candidate qualifying for election to the office of constable shall indicate on the candidate's nominating petition the constable district for which the candidate is seeking to qualify, as well as either Seat A or Seat B.
    1. The office of constable is abolished in class 2 counties as established by § 8-24-101.
    2. This subsection (c) shall not apply in any county having a population of not less than one hundred forty thousand (140,000) nor more than one hundred forty-five thousand (145,000), according to the 1990 federal census or any subsequent federal census.
    3. Notwithstanding subdivision (c)(1), after June 21, 2010, if and when the population of any county having a population of not less than one hundred seven thousand one hundred (107,100) nor more than one hundred seven thousand two hundred (107,200) or not less than one hundred thirty thousand four hundred (130,400) nor more than one hundred thirty thousand five hundred (130,500), according to the 2000 federal census or any subsequent federal census, increases to a size which would constitute any such county as a county of the second class in accordance with § 8-24-101(a)(2), subdivision (c)(1) shall not apply to such county.
  1. The office of constable is abolished in class 1 counties, according to § 8-24-101.
  2. The office of constable is abolished in any county having a population of not less than six thousand one hundred twenty-five (6,125) nor more than six thousand two hundred twenty-five (6,225), according to the 1980 federal census or any subsequent federal census.
  3. The office of constable is abolished in any county having a population of not less than fourteen thousand nine hundred twenty-five (14,925) nor more than fourteen thousand nine hundred forty (14,940), according to the 1980 federal census or any subsequent federal census.
  4. The office of constable is abolished in any county having a population of not less than seven thousand four hundred fifty (7,450) nor more than seven thousand five hundred (7,500), according to the 1980 federal census or any subsequent federal census.
  5. Effective September 1, 1990, the office of constable is abolished in any county having a population of:

    not less than  nor more than

    9,475 9,550

    19,500 19,575

    24,600 24,650

    according to the 1980 federal census or any subsequent federal census.

  6. The office of constable is abolished in any county having a population of not less than seventy-seven thousand seven hundred (77,700) nor more than seventy-seven thousand eight hundred (77,800), according to the 1980 federal census or any subsequent federal census.
  7. The office of constable is abolished in any county having a population of not less than fifteen thousand six hundred (15,600) nor more than fifteen thousand eight hundred fifty (15,850), according to the 1990 federal census or any subsequent federal census.
  8. It is the intent of the general assembly by the enactment of this subsection (k) to remove from the constable, in any county having a population of not less than fifty-nine thousand four hundred (59,400) nor more than fifty-nine thousand five hundred (59,500), according to the 1970 federal census or any subsequent federal census or

    not less than  nor more than

    100,300 100,600

    118,400 118,700

    according to the 1990 federal census or any subsequent federal census, any law enforcement powers and to retain such constable for the purpose of the service of lawfully issued process.

  9. In accordance with Acts 1996, ch. 753, § 7, upon adoption of a resolution by the county legislative body of any county to which that act applies, effective September 1, 1998, the office of constable is abolished in such county.
  10. The office of constable is abolished in any county having a population of not less than seventeen thousand two hundred fifty (17,250) nor more than seventeen thousand four hundred (17,400), according to the 1990 census or any subsequent federal census.
  11. Constables in counties having populations of not less than one hundred forty thousand (140,000) nor more than one hundred forty-five thousand (145,000), according to the 1990 federal census or any subsequent federal census, shall be elected from constable districts established by the county legislative body.

Code 1858, § 384 (deriv. Const., 1834, art. 6, § 15); Acts 1851-1852, ch. 139, § 1; Shan., § 475; Code 1932, § 722; Acts 1978, ch. 934, § 23; T.C.A. (orig. ed.), § 8-1001; Acts 1980, ch. 598, § 1; 1981, ch. 56, § 1; 1982, ch. 601, §§ 1-5; 1982, ch. 796, § 1; 1983, ch. 160, § 1; 1983, ch. 163, §§ 1, 2; 1983, ch. 339, §§ 2, 3; 1983, ch. 340, § 1; 1983, ch. 341, § 1; 1984, ch. 588, § 1; 1989, ch. 385, § 1; 1990, ch. 678, § 1; 1991, ch. 9, §§ 1, 2; 1992, ch. 620, § 1; 1992, ch. 973, § 1; 1994, ch. 537, § 1; 1996, ch. 553, § 1; 1996, ch. 753, § 6; 1996, ch. 797, § 1; 1997, ch. 344, §§ 1-4, 6, 7, 9, 10; 1999, ch. 296, §§ 1, 2; 2004, ch. 450, §§ 1, 3; 2009, ch. 159, § 1; 2009, ch. 230, § 1; 2009, ch. 515, §§ 1, 3; 2010, ch. 1047, § 1.

Compiler's Notes. Subsection (e) was added by Acts 1983, chapters 339 and 341. The version codified above is that added by section 1 of ch. 341.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

For codification of Acts 1992, ch. 973, see the Session Law Disposition Table in Volume 13.

Acts 1996, ch. 753, referred to in (l ), amended this section, effective in any county having a population of not less than thirty-one thousand one hundred (31,100) nor more than thirty-one thousand four hundred (31,400), according to the 1990 federal census or any subsequent federal census, upon adoption of a resolution by July 15, 1996, by a two-thirds (2/3) vote of the county legislative body of such county. The section as set out above reflects the amendment by ch. 753.

Acts 1996, ch. 797, § 2 provides that nothing in the act shall be construed as having the effect of removing any incumbent from office or abridging the term of any official prior to the end of the term for which such official was elected.

Cross-References. Bribery, §§ 39-16-10239-16-104.

Election contests, title 2, ch. 17.

Election, time for holding, § 2-3-202.

Law enforcement powers of constables, §§ 8-10-108, 40-6-210, 55-8-152, 55-9-414, 57-9-101.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 23; 22 Tenn. Juris., Sheriffs, § 2.

Attorney General Opinions. Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Bradley County constable — handgun carry permit; county abolishing position, OAG 99-159, 1999 Tenn. AG LEXIS 149 (8/19/99).

Constable serving as deputy sheriff, OAG 99-160, 1999 Tenn. AG LEXIS 148 (8/19/99).

Abolition of office of constable in DeKalb County, OAG 03-092, 2003 Tenn. AG LEXIS 110 (7/28/03).

Abolition of office of constable in Johnson, Sullivan, McNairy, Stewart, and Lauderdale Counties, OAG 03-121, 2003 Tenn. AG LEXIS 29 (9/24/03).

In counties where the county commission may abolish the office of constable under T.C.A. § 8-10-101(a)(3)(A), a court would probably conclude that the offices of county commissioner and constable are incompatible under the common law, OAG 08-177, 2008 Tenn. AG LEXIS 226 (11/20/08).

Constables carrying firearms.OAG 13-110, 2013 Tenn. AG LEXIS 115 (12/27/13).

NOTES TO DECISIONS

1. Constitutionality.

Statutory amendment which abolished the office of constable in counties with a population of not more than 77,800 or less than 77,700 people was constitutional. Long v. Blount County Election Comm'n, 854 S.W.2d 894, 1993 Tenn. App. LEXIS 159 (Tenn. Ct. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 217 (Tenn. June 1, 1993).

Decisions Under Prior Law

1. Nature of Office.

The office of constable is essentially a state office and is no part of a county's or city's governmental or corporate functions. Glasgow v. Fox, 214 Tenn. 656, 383 S.W.2d 9, 1964 Tenn. LEXIS 518, 1964 Tenn. LEXIS 519 (1964).

8-10-102. Qualifications for office.

    1. Except as provided in subdivision (a)(2), to qualify for election or appointment to the office of constable, a person shall:
      1. Be at least twenty-one (21) years of age;
      2. Be a qualified voter of the district;
        1. Any person holding the office of constable on or before June 30, 2011, shall be able to read and write;
        2. Any person elected or appointed to the office of constable on or after July 1, 2011, shall possess at least a high school diploma or general educational development certificate (GED(R)); provided, however, that this subdivision (a)(1)(C)(ii) shall not apply to any person holding the office of constable on June 30, 2011, and who is re-elected to the office of constable on or after July 1, 2011, without any interruption in holding such office;
      3. Not have been convicted in any federal or state court of a felony; and
        1. Not have been separated or discharged from the armed forces of the United States with other than an honorable discharge.
        2. This subdivision (a)(1)(E) does not apply to any county having a population of not less than eighteen thousand two hundred (18,200) nor more than eighteen thousand five hundred (18,500), according to the 1990 federal census or any subsequent federal census, if a person has served in the office of constable for ten (10) or more years.
    2. This subsection (a) does not apply to a county having a population of not less than fourteen thousand six hundred fifty (14,650) nor more than fifteen thousand (15,000), according to the 1990 federal census or any subsequent federal census.
    1. Except as provided in subdivision (b)(2), any person seeking the office of constable shall file with the county election commission, along with the nominating petition, an affidavit signed by the candidate affirming that the candidate meets the requirements of this section. In the event that person seeks election to the office of constable by the county legislative body to fill a vacancy in office, the same affidavit shall be filed with the county clerk prior to the election.
    2. This subsection (b) does not apply to a county having a population of not less than fourteen thousand six hundred fifty (14,650) nor more than fifteen thousand (15,000), according to the 1990 federal census or any subsequent federal census.
  1. In counties having a population of not less than fourteen thousand six hundred fifty (14,650) nor more than fifteen thousand (15,000), according to the 1990 federal census or any subsequent federal census, no person under eighteen (18) years of age is eligible to the office of constable.

Code 1858, § 396; Shan., § 487; Code 1932, § 733; impl. am. Acts 1971, ch. 162, § 3; Acts 1973, ch. 76, § 1; T.C.A. (orig. ed.), § 8-1002; Acts 1996, ch. 686, §§ 1, 4; 1997, ch. 554, § 1; 2011, ch. 481, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2011, ch. 481, § 4 provided that the act, which rewrote subdivision (a)(1)(C), shall apply to any election or appointment to the office of constable on or after July 1, 2011.

Attorney General Opinions. Franklin County constables, OAG 00-050, 2000 Tenn. AG LEXIS 50 (3/20/00).

The minimum age for a person to seek the office of constable for a county with a population of 12,826 according to the 2000 federal census is 21, OAG 01-152, 2001 Tenn. AG LEXIS 160 (9/25/01).

A diploma from a correspondence school is not a high-school diploma for purposes of T.C.A. § 8-10-102(a)(1)(C)(ii).OAG 14-39, 2014 Tenn. AG LEXIS 42 (3/31/14).

8-10-103. Vacation of office by removal from district.

A constable shall vacate office by removal from the district, and is liable to a penalty of forty dollars ($40.00) for acting as constable after such removal, to be recovered before any judge of the court of general sessions of the county in which the constable resides, one half (½) to the use of the person suing, and the other one half (½) to the use of the county.

Code 1858, § 399 (deriv. Const., 1834, art. 6, § 15); Shan., § 490; Code 1932, § 736; impl. am. Acts 1979, ch. 68, §§ 2, 3; T.C.A. (orig. ed.), § 8-1003.

NOTES TO DECISIONS

1. Becoming Regular Deputy Sheriff as Vacation of Office.

A constable could be specially deputized by the sheriff to levy a particular execution, yet a constable, by acceptance of the office of a regular deputy sheriff to serve process, even in the limited portion of the county in which the constable resided, vacated the office of constable. State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326, 1905 Tenn. LEXIS 67 (1905).

8-10-104. Completion of in-service education required prior to exercise of law enforcement powers and authority.

  1. A constable shall not exercise any law enforcement powers and authority conferred upon the constable by §§ 8-10-108, 39-17-1315, 39-17-1350, 40-6-210, 40- 6-212, 55-8-152, 57-9-101, 57-9-103, and 57-9-201, if the constable fails to complete the in-service education requirements described in part 2 of this chapter.
  2. A constable who violates this section commits a Class C misdemeanor, subject to a fine only. Each day of a violation of this section constitutes a separate offense.

Acts 2020, ch. 688, § 1.

Compiler's Notes. Former § 8-10-104 (Code 1858, § 400; Shan., § 491; Code 1932, § 737; T.C.A. (orig. ed.), § 8-1004), concerning temporary appointments to fill vacancies in the office of constable, was repealed by Acts 1993, ch. 414, § 10(a), effective July 1, 1993.

Effective Dates. Acts 2020, ch. 688, § 2. July 1, 2020.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

8-10-105. [Repealed.]

Compiler's Notes. Former § 8-10-105 (Code 1858, § 401; Shan., § 492; Code 1932, § 738; T.C.A. (orig. ed.), § 8-1005), concerning elections to fill vacancies in the office of constable, was repealed by Acts 1993, ch. 414, §§ 8, 10(b), effective July 1, 1993.

8-10-106. Surety bond.

  1. Before entering upon the duties of the office, every constable shall give bond. The bond shall be approved by the county legislative body and prepared in accordance with chapter 19 of this title. The county served by a constable may elect to pay the costs of obtaining and recording the constable's bond, as required by this section. If the county does not elect to pay such bond, the constable shall pay all costs of obtaining and recording the bond. The bond shall be in a penalty of not less than four thousand dollars ($4,000) nor more than eight thousand dollars ($8,000), at the discretion of the body, and shall be payable to the state, and conditioned for the faithful discharge of the duties of the office, and the prompt payment to the proper person of all moneys collected or received by the constable by virtue of the office. The bond shall be recorded in the office of the county register of deeds and transmitted to the office of the county clerk for safekeeping.
  2. Notwithstanding any law to the contrary, the bond as required for a constable shall be a surety bond executed by a surety company authorized to do business in Tennessee as surety.

Code 1858, §§ 385, 386 (deriv. Acts 1837-1838, ch. 152; 1839-1840, ch. 63, §§ 2, 5); Shan., §§ 476, 477; Code 1932, §§ 723, 724; Acts 1977, ch. 270, § 4; 1978, ch. 689, §§ 2, 12; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1006; Acts 1998, ch. 677, §§ 8, 9; 2011, ch. 150, § 1.

Cross-References. New or additional bond or sureties may be required, § 8-19-402.

Recording fee of clerk, § 8-21-701.

Textbooks. Tennessee Jurisprudence, 22 Tenn. Juris., Sheriffs, § 20.

NOTES TO DECISIONS

1. Construction with Other Acts.

Provisions of §§ 8-19-111 and 8-19-301, providing that constable's official bond was obligatory on the principal and sureties for acts while the officer continued in office, were to be read into the bond executed. Garner v. State, 37 Tenn. App. 510, 266 S.W.2d 358, 1953 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1953).

2. Surety Liability.

Where the defendant, a duly elected constable, was found to have violated plaintiff's constitutional rights, the defendant and the defendant's surety were liable for nominal, but not punitive, damages. Ford v. Wells, 347 F. Supp. 1026, 1972 U.S. Dist. LEXIS 13699 (E.D. Tenn. 1972).

Sureties on bond given under this section were liable under the provisions of § 8-19-301 for any wrongful act of the constable done either under color of or by virtue of the constable's office. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

Sureties on the bond of a constable were liable for a wrongful act done by the constable in an attempt to serve a valid process or under a statute authorizing the constable to arrest without a warrant. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

The sureties of the constable were liable for any act of the constable in the constable's character as an officer which was a breach of the constable's duties but were not liable for the constable's act in the constable's character as an individual. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

3. —Acts After Term.

Where a collection was made by a constable as the agent of the creditor, after the expiration of the constable's term, on a claim placed in the constable's hands during the constable's term, the constable's sureties were not liable for the constable's failure to pay the money over to the creditor. Crittenden v. Terrill, 39 Tenn. 588, 1859 Tenn. LEXIS 283 (1859).

The constable and the constable's sureties were not liable to a judgment by motion for the nonreturn of an execution, where the constable's term of office expired before the return day thereof. Neil v. Beaumont, Vanleer & Co., 40 Tenn. 556, 1859 Tenn. LEXIS 163 (1859).

4. —Collections Without Process.

A constable and the constable's sureties were liable for money collected as such without process. Bosley v. Smith, 22 Tenn. 406, 1842 Tenn. LEXIS 111 (1842); State v. Gilmore, 35 Tenn. 503, 1856 Tenn. LEXIS 16 (1856).

A motion would lie for money collected on judgment without execution, though paid in bank bills which were not shown to be current and convertible. Rigsby v. Walter, 47 Tenn. 147, 1869 Tenn. LEXIS 23 (1869).

The sureties were liable for nonpayment of money collected on a note placed in the hands of the constable who agreed “to account for it as an officer,” even though there was no suit brought, judgment had, nor execution issued. Rader v. Davis, 73 Tenn. 536, 1880 Tenn. LEXIS 177 (1880).

5. —Collection on Claim Exceeding Jurisdiction.

A motion would not lie against a constable and the constable's sureties for money collected by the constable as such on a claim exceeding the jurisdiction of a justice of the peace (now general sessions judge) at the time of the collection, although the amount collected was within the jurisdiction, and the constable had receipted for the claim in the constable's official capacity. Kiggin v. Sharkey, 71 Tenn. 707, 1879 Tenn. LEXIS 134 (1879).

6. —Acts Under Color of Office.

A constable and the surety on official bond were liable to any person injured by a wrongful act of such officer done under color of office or by virtue of office. Marable v. State, 32 Tenn. App. 238, 222 S.W.2d 234, 1949 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1949).

Constable's act in shooting tires on car of person allegedly guilty of misdemeanor in order to make arrest was an act under color of office for which the constable and the constable's sureties were liable under § 8-19-301, and the issue of their liability was a question for the jury. State ex rel. Harbin v. Dunn, 39 Tenn. App. 190, 282 S.W.2d 203, 1943 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1943).

7. —Constable Continuing in Office.

Constable, who was elected and furnished bond, and who was reelected and continued to pay premiums on bond, was covered by the bond since the constable continued to hold office until a successor was elected and qualified. Garner v. State, 37 Tenn. App. 510, 266 S.W.2d 358, 1953 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1953).

8. Validity of Bond.

A constable's bond was good and bound the sureties thereon, though it was not acknowledged by the obligors in open court; if delivered, accepted, recorded and filed, the proof necessary to avoid it as an escrow, if it can be so avoided, had to be as clear, satisfactory and demonstrative as that required to set aside a decree or judgment of a court of record upon the ground of fraud. Amis v. Marks, 71 Tenn. 568, 1879 Tenn. LEXIS 117 (1879).

A constable's bond was not invalidated by the fact that two blanks therein, one for the name of the constable and the other that the constable had been elected, were filled up by the order of the county legislative body after the bond was signed, sealed, acknowledged and delivered, if the constable was inducted into office on the faith of the bond. Rader v. Davis, 73 Tenn. 536, 1880 Tenn. LEXIS 177 (1880).

9. Complaint on Bond.

In a suit against a constable and sureties on bond, pleading averring the election of the constable, the execution of the bond and the constable's qualification, and setting forth the terms and conditions of the bond, and then averring that during the last six months of the constable's term of office, and by virtue of the constable's office, the constable collected a certain sum of money for the plaintiff, and failed and refused to pay over the same was sufficient. It would be sufficient to aver generally, that, from time to time, the constable received divers sums of money amounting to a certain sum, without stating on what particular days or from what persons received, and had not accounted for or paid over the same. Smith v. Wilkinson, 45 Tenn. 157, 1867 Tenn. LEXIS 110 (1867).

10. Evidence.

In a suit in chancery upon a constable's bond against the sureties, a copy of the bond certified by the county clerk, by the constable's deputy, to be a true and correct copy as it appeared of record and on file in the constable's office, and proved by the clerk of the circuit court to be on file in the constable's office, in a suit against the same sureties, in which a final judgment had been pronounced, was admissible as prima facie evidence of the bond, and that it was duly executed, acknowledged and recorded by the county legislative body especially where the sureties admit by their pleadings that they did sign the bond. Amis v. Marks, 71 Tenn. 568, 1879 Tenn. LEXIS 117 (1879).

A copy of constable's bond, certified by the county clerk under the seal of the court, was admissible in evidence, upon a motion made thereon against the constable and the constable's sureties. Morgan v. Betterton, 109 Tenn. 84, 69 S.W. 969, 1902 Tenn. LEXIS 60 (1902).

Collateral References.

Personal liability of constable, or the constable's bond, for negligently causing personal injury or death. 60 A.L.R.2d 873.

Personal liability of policeman, sheriff or similar peace officer or bond, for injury suffered as a result of failure to enforce law or arrest law breaker. 41 A.L.R.3d 700.

8-10-107. Replacement of sureties.

The county legislative body, as in its discretion it may deem necessary, shall require constables to give new sureties whenever the old sureties die, remove from the county, or become insolvent or otherwise unable to pay.

Code 1858, § 387 (deriv. Acts 1839-1840, ch. 63, § 4); Shan., § 478; mod. Code 1932, § 725; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1007.

Cross-References. New or additional sureties may be required, § 8-19-402.

8-10-108. Oath of office.

  1. Except as provided in subsection (b), every constable shall take an oath that the constable will well and truly serve the state in the office of constable; that the constable will faithfully, and without delay, execute and return all lawful process directed to the constable; and that the constable will well and truly, according to the constable's power and ability, do and execute all other duties of the office of constable.
  2. In counties having a population of:

    not less than  nor more than

    3,700 4,700

    6,000 7,800

    8,400 8,500

    8,535 8,540

    9,200 9,570

    10,770 10,780

    11,500 11,511

    11,512 11,550

    11,700 11,900

    12,060 12,500

    12,550 13,000

    14,500 14,600

    15,300 15,500

    15,750 16,000

    17,000 17,350

    18,000 18,200

    18,300 18,900

    19,000 19,100

    19,130 19,140

    21,000 21,500

    21,600 22,300

    23,200 23,350

    23,355 23,391

    23,391 23,450

    23,500 23,750

    24,000 24,255

    25,600 27,500

    27,900 28,000

    28,555 28,600

    28,825 28,827

    29,250 31,250

    31,260 33,000

    33,700 34,000

    35,480 41,800

    41,900 50,000

    57,550 59,400

    59,500 60,050

    60,600 62,000

    64,000 65,000

    101,000 118,400

    118,700 200,000

    according to the 1960 federal census or any subsequent federal census, and in Fentress County and Hamblen County, every constable shall take an oath that the constable will well and truly serve the state in the office of constable; that the constable will cause the peace of the state to be kept, to the best of the constable's power; that the constable will arrest all such persons as go in the constable's sight armed offensively, or who commit any riot, affray, or other breach of the peace, or will use the constable's best endeavor, on complaint made, to apprehend all felons, rioters, or persons riotously assembled; and that, if such persons flee or make resistance, the constable will pursue, and make hue and cry, according to law; that the constable will faithfully, and without delay, execute and return all lawful process directed to the constable; and that the constable will well and truly, according to the constable's power and ability, do and execute all other duties of the office of constable.

  3. The oath of office may be administered to the constable by any judge of the court of general sessions or other judicial officer of the constable's county.
  4. Notwithstanding any other law or interpretation thereof to the contrary, the constables in counties having a population of not less than thirteen thousand five hundred sixty-five (13,565) nor more than thirteen thousand six hundred (13,600), according to the 1980 federal census or any subsequent federal census, shall continue to be vested with all law enforcement powers and authority conferred upon other constables by subsection (b) and §§ 39-17-505, 40-6-210, 40-6-212, 55-8-152, 57-9-101, 57-9-103 and 57-9-201.
  5. Notwithstanding any other law to the contrary, the constables in counties having a population of not less than seventeen thousand four hundred seventy-five (17,475) nor more than seventeen thousand five hundred seventy-five (17,575), according to the 2000 federal census or any subsequent federal census, shall be vested with all law enforcement powers and authority conferred upon other constables by subsection (b) and  §§ 39-17-505, 40-6-210, 40-6-212, 55-8-152, 57-9-101, 57-9-103 and 57-9-201.

Code 1858, §§ 388, 389 (deriv. Acts 1741, ch. 5, §§ 2, 6); Shan., §§ 479, 480; Code 1932, §§ 726, 727; Acts 1969, ch. 160, § 1; 1969, ch. 319, §§ 2, 4; 1970, ch. 383, § 1; 1970, ch. 384, § 1; 1970, ch. 496, § 1; 1970, ch. 588, §§ 1, 2; 1971, ch. 53, § 2; 1971, ch. 231, § 1; 1972, ch. 472, § 1; 1973, ch. 197, § 1; 1973, ch. 382, § 1; 1973, ch. 389, § 1; 1974, ch. 631, §§ 1, 2; Private Acts 1976, ch. 242, § 1; Private Acts 1976, ch. 293, § 1; Acts 1977, ch. 239, § 1; impl. am. Acts 1979, ch. 68, §§ 2, 3; T.C.A. (orig. ed.), § 8-1008; Acts 1982, ch. 881, § 1; 1983, ch. 339, § 1; 1987, ch. 59, § 1; 1991, ch. 9, § 3; 1992, ch. 973, § 2; Private Acts 1994, ch. 191, § 1; Acts 1996, ch. 553, § 2; 1996, ch. 675, § 11; 1996, ch. 753, § 1; 2004, ch. 450, § 2.

Compiler's Notes. Acts 1983, ch. 339, § 3 provided that the amendment by that act would have no effect unless approved by a two-thirds vote of the county legislative body of any county to which it applied and that its approval or nonapproval should be proclaimed by the presiding officer of the county and certified by the presiding to the secretary of state. The amendment was approved July 9, 1983.

Acts 1987, ch. 59, adding (d), requiring a referendum to become effective, was approved in a referendum on April 27, 1987.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 1996, ch. 693, § 1 deleted provisions of former § 57-5-202 which granted enforcement authority under title 57, chapter 5, to constables.

Acts 1996, ch. 753, § 6 abolishes the office of constable, effective in any county having a population of not less than thirty-one thousand one hundred (31,100) nor more than thirty-one thousand four hundred (31,400), according to the 1990 federal census or any subsequent federal census, upon adoption of a resolution by July 15, 1996, by a two-thirds (2/3) vote of the county legislative body of such county. The section as set out above reflects the amendment by ch. 753.

Cross-References. Abolition of office of constable in Class 2 counties, § 8-10-101.

Filing oath of office, §§ 8-18-1098-18-114.

Attorney General Opinions. Authority of Morgan County constables to carry guns, OAG 93-62, 1993 Tenn. AG LEXIS 62 (10/20/93).

Loudon county constables, OAG 94-95, 1994 Tenn. AG LEXIS 96 (8/30/94).

Overton County constables not law enforcement officers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

Authority of constables without law enforcement powers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

Constable serving as part-time town policeman, OAG 99-095, 1999 Tenn. AG LEXIS 95 (4/26/99).

Law enforcement powers of Bradley County constables, OAG 99-129, 1999 Tenn. AG LEXIS 124 (6/29/99).

Franklin County constables, OAG 00-050, 2000 Tenn. AG LEXIS 50 (3/20/00).

A constable of a county that falls within population brackets set out in T.C.A. § 8-10-108(b) is “a conservator of the peace with all the power and authority belonging to the office of constable by common law,” including law enforcement powers, OAG 02-094, 2002 Tenn. AG LEXIS 100 (8/28/02).

A constable with law enforcement powers is not a “neutral and detached” magistrate qualified to issue criminal arrest and search warrants; therefore, serving as constable directly interferes with an individual's ability to carry out the duties of the office of judicial commissioner, OAG 02-109, 2002 Tenn. AG LEXIS 114 (10/02/02).

Escorting a funeral, for hire, is not a law enforcement purpose; however, there is no statutory prohibition against a constable escorting funerals for a private party on his or her own time, if such activity does not interfere with the constable's performance of his or her official duties, OAG 02-116, 2002 Tenn. AG LEXIS 121 (10/18/02).

If a constable is escorting a funeral for a private party, he or she should take care not to convey the impression that the service is being performed in an official capacity; thus, the constable should not perform such services while in uniform or driving an official car using red or blue flashing lights and/or a siren, OAG 02-116, 2002 Tenn. AG LEXIS 121 (10/18/02).

NOTES TO DECISIONS

1. Acts Under Color of Office.

A constable and the surety on official bond are liable to any person injured by a wrongful act of such officer done under color of office or by virtue of office. Marable v. State, 32 Tenn. App. 238, 222 S.W.2d 234, 1949 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1949).

Because trial counsel was a constable and had the ability to arrest individuals in Sumner County there was a conflict of interest in his representation of petitioner in a criminal trial, but petitioner suffered no prejudice because the evidence was overwhelming in that a videotape showed a family that lived in deplorable conditions. Brewington v. State, 414 S.W.3d 126, 2013 Tenn. Crim. App. LEXIS 479 (Tenn. Crim. App. June 6, 2013).

2. Judgment Against Sureties — Notice of Motion.

Judgment could be taken against sureties of constable for failure to account for moneys collected where party to whom money was payable gave notice to constable that the party would file motion for judgment even though sureties had no notice. Baxter v. Marsh, 9 Tenn. 459, 9 Tenn. 460, 1830 Tenn. LEXIS 48 (1830).

Collateral References.

Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office. 39 A.L.R.3d 303.

8-10-109. Common law power reserved in certain counties.

  1. Every constable, so elected and sworn, in those counties set out in § 8-10-108(b), including counties added to § 8-10-108(b) at any time subsequent to 1969, is a conservator of the peace and vested with all the power and authority belonging to the office of constable by common law.
      1. Notwithstanding any other law to the contrary, a county legislative body may, by adopting a resolution by a two-thirds (2/3) vote at two (2) consecutive meetings of the county legislative body, remove any law enforcement powers exercised by the constables of the county.
      2. Except as provided in subdivision (b)(1)(C), any such action by the county legislative body to remove such law enforcement powers shall apply to constables elected for terms of office following the expiration of the term of office of constables in office at the time such action is taken by the county legislative body.
      3. If during a constable's term of office, a constable is convicted of any felony or is removed from office under § 8-47-101 for knowingly or willfully committing misconduct in office, then with respect to such constable, the action of the county legislative body for removal of law enforcement powers shall become effective on the date such constable is removed from office or the date of the felony conviction; provided, however, that if the felony conviction is overturned and there is additional time remaining on the term of office for which the constable was elected, the law enforcement powers shall be restored to such constable until the end of such term of office.
    1. This subsection (b) does not apply in counties having a population of:

      not less than  nor more than

      13,625 13,675

      30,500 30,800

      31,200 31,300

      67,600 67,900

      73,500 73,900

      85,800 86,100

      according to the 1990 federal census or any subsequent federal census.

Code 1858, § 390 (deriv. Acts 1741, ch. 5, § 3); Shan., § 481; Code 1932, § 728; Acts 1969, ch. 160, § 2; 1969, ch. 319, §§ 1, 4; 1973, ch. 382, § 2; T.C.A. (orig. ed.), § 8-1009; Acts 1997, ch. 344, §§ 5-7, 9, 10; 2009, ch. 230, § 2; 2009, ch. 515, § 2; 2011, ch. 481, § 2.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Execution of process from other counties, § 8-8-202.

Judgment before justice on motion for misfeasance in office, § 16-15-733.

Motion for summary judgment against constable, §§ 25-3-10125-3-105.

Attorney General Opinions. Overton County counstable not conservator of the peace, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

Authority of constables without law enforcement powers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

Law enforcement powers of Bradley County constables, OAG 99-129, 1999 Tenn. AG LEXIS 124 (6/29/99).

County constables are conservators of the peace within the meaning of T.C.A. § 8-10-109, OAG 02-116, 2002 Tenn. AG LEXIS 121 (10/18/02).

In counties where the county commission may remove constables’ law enforcement powers under T.C.A. § 8-10-109(b)(1), a court would probably conclude that the offices of county commissioner and constable are incompatible under the common law, OAG 08-177, 2008 Tenn. AG LEXIS 226 (11/20/08).

NOTES TO DECISIONS

1. Duties.

2. —Diligence Required.

Where a constable receipted for a claim for collection, and thereby was obligated to collect or return it according to law, the constable had an obligation beyond that which, by office, the constable was bound to perform; or if the constable received the claim without any such express undertaking, such an undertaking was implied; and in either case, it became the constable's duty to procure the issuance of the warrant and of the execution, as a means by which to collect the money; and if, by the use of lawful means, the constable could collect the claim, and by reason of the constable's negligence or fraud, the constable failed to do so and the remedy on the claim was lost, the constable's sureties were not liable, but the constable was liable individually in a common law action to the owner of the claim for the loss. Lee v. Hardeway, 14 Tenn. 501, 14 Tenn. 502, 1834 Tenn. LEXIS 129 (1834); Rose v. Lane, 22 Tenn. 218, 1842 Tenn. LEXIS 72 (1842), criticized, Reichman v. Harris, 252 F. 371, 1918 U.S. App. LEXIS 2071 (6th Cir. Tenn. 1918); Fowler v. Bledsoe, 27 Tenn. 509, 1847 Tenn. LEXIS 117 (1847); Vance v. Campbell, 27 Tenn. 524, 1847 Tenn. LEXIS 123 (1847); Mallett v. Hutchinson, 38 Tenn. 558, 1858 Tenn. LEXIS 226 (1858); Crittenden v. Terrill, 39 Tenn. 588, 1859 Tenn. LEXIS 283 (1859).

3. —Collections in Money.

The note placed with an officer for collection was not discharged by payment to a third party who had received the note from the officer in payment of the officer's personal debt because the actual receipt of money by the officer is a condition of the debtor's discharge, and when the officer accepted a debt due the officer for the note, the officer acted out of the line of duty. Haynes v. Bridge, Townley & Co., 41 Tenn. 32, 1860 Tenn. LEXIS 7 (1860).

4. Payment to Constable as Satisfaction of Judgment.

Where a constable had charge of a judgment for collection, and credited the same with a sum to be paid by a third person, which sum was afterwards paid as promised, to the constable, the payment was good, and to that extent satisfied the judgment though the constable did not pay the money over to the judgment creditor. Cain v. Bryant, 59 Tenn. 45, 1873 Tenn. LEXIS 24 (1873).

5. Voluntary Payments by Constable.

To create an implied assignment of a debt or judgment to an officer paying it, so as to enable the officer to enforce the payment thereof against the original debtor, two things were indispensably necessary, namely: (1) That the officer's liability for the default shall have been fixed by the judgment of a court of competent jurisdiction; and (2) That such judgment shall have been satisfied. Lintz v. Thompson, 38 Tenn. 456, 1858 Tenn. LEXIS 212 (1858); Burt v. Thompson & Warren, 40 Tenn. 534, 1859 Tenn. LEXIS 154 (1859); Walker v. Howell, 41 Tenn. 238, 1860 Tenn. LEXIS 56 (1860); Beal v. Smithpeter, 65 Tenn. 356, 1873 Tenn. LEXIS 364 (1873).

Where a constable or other officer voluntarily paid an execution in the officer's hands to avoid a motion against the officer, and to save the officer from the debt and penalty for the officer's dereliction of duty, the officer could not thereafter sue the original debtor in assumpsit, and recover the amount so paid, because, the payment being voluntary and officious, the law did not imply a promise upon which to found the action. Burt v. Thompson & Warren, 40 Tenn. 534, 1859 Tenn. LEXIS 154 (1859).

8-10-110. [Obsolete.]

Code Commission Notes.

This section (Code 1858, § 4147; Shan., § 5959; Code 1932, § 10160; T.C.A. (orig. ed.), § 8-1010), concerning the executive officers of justice courts, is deemed by the Code Commission to be obsolete.

8-10-111. Duties.

  1. It is the duty of a constable to execute all process lawfully directed to the constable, and to wait upon the court, when appointed by the county legislative body or by the sheriff, as the case may be.
    1. In counties governed by a metropolitan government as provided for by title 7, chapters 1-3, any constable to whom a precept or process is directed by a judge or clerk of a court of general sessions may perform the constable's duties relating thereto by delivering such precept or process within a reasonable time to the sheriff of the county, who shall serve such precept or process.
    2. Upon delivering the precept or process to the sheriff as provided in this subsection (b) and taking a receipt therefor, the constable will have performed the constable's function and duty relating thereto. Thereupon, the constable and the surety on the constable's bond shall be relieved of all liability for failure to serve the precept or process, and the constable shall not be subject to any penalty or fine for refusing or neglecting to serve such precept or process.
    3. Nothing in this subsection (b) shall change, alter, or diminish the duties of the constable under § 8-10-113.
    4. Duly elected constables when proceeding under this subsection (b) shall not accept any fees for their services.
    5. Proper action hereunder by any constable shall not constitute a failure to perform such constable's statutory duties and shall not act to vacate the office.
  2. All constables in counties having a population of not less than sixty-seven thousand five hundred (67,500) nor more than sixty-seven thousand six hundred (67,600), according to the 1980 federal census or any subsequent federal census, may serve summonses, garnishments, subpoenas, attachments and all other documents from the circuit and chancery courts.

Code 1858, § 397; Shan., § 488; Code 1932, § 734; Acts 1967, ch. 157, § 1; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1011; Acts 1984, ch. 904, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Constable as conservator of the peace, § 8-10-109.

Execution of process from other counties, § 8-8-202.

Fees, § 8-21-901.

Fine for failure to serve process, § 8-10-115.

Grand jury process, § 8-10-114.

Judgment on motion for misfeasance in office, § 16-15-733.

Motion for summary judgment against constable, §§ 25-3-10125-3-105.

Penalty for improper conduct of sales, § 8-10-116.

Service of process when employee of party to action prohibited, §§ 8-8-216, 8-8-217.

Attorney General Opinions. Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Authority of constables without law enforcement powers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

8-10-112. Failure to perform duty.

A failure on the part of the constable to comply with such requirement in such reasonable time as the court may prescribe shall vacate the office.

Code 1858, § 398; Shan., § 489; Code 1932, § 735; T.C.A. (orig. ed.), § 8-1012.

Cross-References. Fine for failure to serve process, § 8-10-115.

Judgment on motion for misfeasance in office, § 16-15-733.

Motion for summary judgment against constable, §§ 25-3-10125-3-105.

Penalty for improper conduct of sale, § 8-10-116.

Summary judgment for constable, §§ 25-3-114, 25-3-115.

Attorney General Opinions. Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

NOTES TO DECISIONS

1. Failure to Return Warrant.

It was not a criminal offense for a constable to fail to return a warrant in trespass, placed in the hands of the constable for service, before the judge of the proper civil district, whatever may be the motive of the constable for such failure. State v. White, 37 Tenn. 620, 1858 Tenn. LEXIS 79 (1858).

8-10-113. Acting for sheriff and coroner.

A constable may execute process from any court whenever there is at the time neither sheriff nor coroner, or whenever both the sheriff and the coroner are incompetent, or one (1) of those offices is vacant and the person holding the other office is incompetent in the particular case.

Code 1858, § 394 (deriv. Acts 1807, ch. 104, § 13); Shan., § 485; Code 1932, § 731; T.C.A. (orig. ed.), § 8-1013.

Cross-References. Filling vacancy in office of sheriff, § 8-8-106.

Fine for failure to serve process, § 8-10-115.

Process directed to coroner when sheriff a party or interested, § 8-9-106.

Temporary discharge of sheriff's duties when office vacant, § 8-8-107.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 23.13.

Attorney General Opinions. Authority of constables without law enforcement powers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

8-10-114. Grand jury process.

A constable appointed to wait upon grand juries, during the term of the constable's appointment, has power and authority to execute and return all process for enforcing the attendance of witnesses sent for by the grand jury.

Code 1858, § 395 (deriv. Acts 1857-1858, ch. 29); Shan., § 486; Code 1932, § 732; T.C.A. (orig. ed.), § 8-1014.

Cross-References. Fees, § 8-21-901.

NOTES TO DECISIONS

1. Compensation.

Constable appointed to wait upon grand jury was entitled to per diem for each day the constable performed any bona fide service for the grand jury even though grand jury was not in session every day. Connors v. Shelby County, 113 Tenn. 177, 81 S.W. 598, 1904 Tenn. LEXIS 13 (1904).

8-10-115. Fine for failure to serve process.

Any constable to whom a precept or process is directed by a judge of the court of general sessions who refuses or neglects to serve such precept or process may be fined for every such offense on complaint of any person prosecuting, at the discretion of the court, the fine to be paid to the person complaining.

Code 1858, § 391 (deriv. Acts 1741, ch. 5, § 8); Shan., § 482; Code 1932, § 729; impl. am. Acts 1979, ch. 68, §§ 2, 3; T.C.A. (orig. ed.), § 8-1015.

Cross-References. Execution of process from other counties, § 8-8-202.

Attorney General Opinions. Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Authority of constables without law enforcement powers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

8-10-116. Penalty for improper conduct of sales.

It is a Class C misdemeanor, for which, on conviction, a constable may be removed from office and otherwise punished, for a constable to make any official sale at unlawful hours, or to purchase at the constable's own sales.

Code 1858, § 393 (deriv. Acts 1805, ch. 31, § 1; 1807, ch. 99, § 1; 1813, ch. 103); Shan., § 484; Code 1932, § 730; T.C.A. (orig. ed.), § 8-1016; Acts 1989, ch. 591, § 113.

Cross-References. Officers not to purchase at own sale, misdemeanor, § 39-16-405.

Penalty for Class C misdemeanor, § 40-35-111.

Attorney General Opinions. Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Purchase of confiscated items by law enforcement officers, OAG 99-105, 1999 Tenn. AG LEXIS 105 (5/10/99).

8-10-117. Emergency deputation of special constable.

A judge may, in writing, specially depute any discreet person of full age, not being a party to the suit pending, to perform any particular duty devolving by law upon a constable, if no constable is at hand, and the business urgent; but no judge shall make such special deputation, unless one (1) of the parties to a suit pending, or the party's attorney, shall make oath before the judge, and file the same in writing, stating that, to the best of the party's information, there is no regular officer at hand, and that the business is urgent. The person thus deputized is vested with all the powers of a constable for the occasion, and is subject to the same obligations and penalties.

Code 1858, §§ 4148, 4149 (deriv. Acts 1741, ch. 5, § 9); Acts 1869-1870, ch. 104, § 1; Shan., §§ 5960, 5961; mod. Code 1932, §§ 10161, 10162; T.C.A. (orig. ed.), § 8-1017; imp. am. Acts 1979, ch. 68, § 3.

Cross-References. Minimum age of constable, § 8-10-102.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, §§ 10, 26, 32.

NOTES TO DECISIONS

1. Applicability.

This section did not give the judge any power to appoint a special constable to execute a fieri facias. The power was limited to pending suits, and a suit was not pending after final judgment. State v. McKittrick, 79 Tenn. 476, 1883 Tenn. LEXIS 88 (1883).

2. —Sufficiency of Writing.

Objection that the given name of the person specially deputized by a justice of the peace (now general sessions court judge) to serve a warrant was not inserted cannot be made for the first time in the supreme court. Keep Mfg. Co. v. Moore, 79 Tenn. 285, 1883 Tenn. LEXIS 60 (1883).

3. —Collateral Attack.

The judge's power to depute a person to execute the warrant being clear, the judge's action could not be collaterally impeached, though the judge deputed a person to execute a warrant on which judgment was rendered, without any effort on the part of plaintiff to find a regular officer. Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880).

4. Oath — Sufficiency.

An oath that the affiant could not conveniently see an officer, and, wishing to bring suit, asked for a special deputation, was void, and the service of the process was void. The oath must be that there is no regular officer at hand, and that the business is urgent. Hazleton v. Simpson, 58 Tenn. 679, 1872 Tenn. LEXIS 317 (1872).

Collateral References.

Liability of constable or bond for defaults and misfeasances of assistants and deputies. 1 A.L.R. 236, 102 A.L.R. 174, 116 A.L.R. 1064, 71 A.L.R.2d 1140.

Liability of police officer or bond for injuries or death of third persons resulting from operation of motor vehicle by subordinate. 15 A.L.R.3d 1189.

8-10-118. Vacancy in office.

Any vacancy in the office of constable shall be filled by appointment of the county legislative body and by election of the people in accordance with § 5-1-104.

Acts 1993, ch. 414, § 10.

Attorney General Opinions. Withdrawal of resignation by constable, OAG 07-136, 2007 Tenn. AG LEXIS 136 (9/24/07).

8-10-119. Official uniform.

  1. Any constable may wear the official uniform of the type and design with the insignias of the Tennessee constable as described in subsection (b). Wearing of the uniform is permissive with the individual constable when such uniform is purchased by the constable; provided, that if such uniform is provided by the county, then the uniform shall be worn in accordance with a dress code adopted by the county legislative body or the sheriff of such county.
  2. The official uniform for the constable shall consist of:
    1. Taupe pants with a one-inch wide brown stripe running vertically down each side of the pants;
    2. Shirts of either dark brown or white, at the discretion of the constable, displaying a patch of a design approved by the Tennessee Constable Association or the Tennessee Constable Council;
    3. A necktie of either taupe or brown, at the discretion of the constable; and
    4. Black leather gear and black shoes. Western type belts, holsters and tie-downs are prohibited.
  3. This section does not apply in any county which has removed from constables any law enforcement powers.
  4. This section does not apply in counties having a population of not less than fourteen thousand six hundred fifty (14,650) nor more than fifteen thousand (15,000), according to the 1990 federal census or any subsequent federal census.

Acts 1996, ch. 686, §§ 2, 4; 2004, ch. 655, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2004, ch. 655, § 7 provided that nothing in the act shall be construed or interpreted to authorize any constable or any constable organization to alter or amend the requirements of title 8, chapter 10, part 1, relative to authorized official uniforms for constables or the markings of constable patrol cars.

Acts 2004, ch. 655, § 8 provided that the Tennessee general assembly recognizes that the Tennessee Constable Council is a valid constable organization dedicated to enhancing the professionalism of Tennessee constables. The Tennessee Constable Council shall elect its own officers, set its own dues, determine its own eligibility requirements, and prescribe its own training and teaching requirements. No state funds shall be appropriated to the Tennessee Constable Council. The Tennessee Constable Council is not a governmental entity and is not subject to the governmental entity review law, compiled in title 4, chapter 29.

Attorney General Opinions. Uniform requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

8-10-120. Constable patrol cars.

  1. Constable patrol cars may be white with a brown stripe running horizontally along the upper side. This color scheme shall not be used by any other state or local law enforcement official or agency; provided, that any state or local law enforcement official or agency that is using such color scheme on March 29, 1996, may continue to use such color scheme. When adopted for use by a county constable, the stripe design and other emblems and lettering shall conform to the official uniform markings adopted by the Tennessee Constable Association or the Tennessee Constable Council on file with the director.
  2. Constable patrol cars which conform to the description in subsection (a), which are being operated as provided in § 55-9-414, and which are used as emergency vehicles, may be equipped with blue lights and/or red lights and sirens.
  3. Nothing in this section shall prohibit a county constable from operating unmarked cars for other law enforcement purposes.
  4. Any constable operating a patrol car and using the lights described in this section must have graduated from the last calendar date in-service sponsored by the Tennessee Constable Association or the Tennessee Constable Council.
  5. Each constable shall be responsible for all costs in marking patrol cars.
  6. This section shall not apply in any county which has removed from constables any law enforcement powers.
  7. This section does not apply in counties having a population of not less than fourteen thousand six hundred fifty (14,650) nor more than fifteen thousand (15,000), according to the 1990 federal census or any subsequent federal census.

Acts 1996, ch. 686, §§ 3, 4; 2004, ch. 655, §§ 2, 3.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2004, ch. 655, § 7 provided that nothing in the act shall be construed or interpreted to authorize any constable or any constable organization to alter or amend the requirements of title 8, chapter 10, part 1, relative to authorized official uniforms for constables or the markings of constable patrol cars.

Acts 2004, ch. 655, § 8 provided that the Tennessee general assembly recognizes that the Tennessee Constable Council is a valid constable organization dedicated to enhancing the professionalism of Tennessee constables. The Tennessee Constable Council shall elect its own officers, set its own dues, determine its own eligibility requirements, and prescribe its own training and teaching requirements. No state funds shall be appropriated to the Tennessee Constable Council. The Tennessee Constable Council is not a governmental entity and is not subject to the governmental entity review law, compiled in title 4, chapter 29.

Attorney General Opinions. In-service training requirement for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Traffic stops by constables in their personal vehicles, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Authority of constables without law enforcement powers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

Collateral References.

Authority of Public Official, Whose Duties or Functions Generally Do Not Entail Traffic Stops, To Effectuate Traffic Stop of Vehicle. 18 A.L.R.6th 519.

Part 2
Training and Qualifications

8-10-201. In-service education.

The Tennessee Constable Association or the Tennessee Constable Council shall develop and maintain a series of in-service education courses to be offered routinely throughout the year in the various divisions of the state. These courses shall be offered at nights or on weekends so as not to interfere with the constables' other full-time work. Courses offered shall contain information pertinent to the various aspects of civil and criminal process, firearms certification, and other issues relative to the powers and duties of constables. The constables shall pay costs of the courses unless state or local funds are made available. Upon completion of the in-service course, the Tennessee Constable Association or the Tennessee Constable Council will issue a certificate of completion to each officer.

Acts 1993, ch. 414, § 2; 2004, ch. 655, § 4.

Compiler's Notes. Acts 2004, ch. 655, § 7 provided that nothing in the act shall be construed or interpreted to authorize any constable or any constable organization to alter or amend the requirements of title 8, chapter 10, part 1, relative to authorized official uniforms for constables or the markings of constable patrol cars.

Acts 2004, ch. 655, § 8 provided that the Tennessee general assembly recognizes that the Tennessee Constable Council is a valid constable organization dedicated to enhancing the professionalism of Tennessee constables. The Tennessee Constable Council shall elect its own officers, set its own dues, determine its own eligibility requirements, and prescribe its own training and teaching requirements. No state funds shall be appropriated to the Tennessee Constable Council. The Tennessee Constable Council is not a governmental entity and is not subject to the governmental entity review law, compiled in title 4, chapter 29.

Attorney General Opinions. Firearms for constables without law enforcement powers, OAG 94-112, 1994 Tenn. AG LEXIS 115 (10/6/94).

Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

In-service training requirement for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

8-10-202. Course time requirements.

  1. Each constable elected under § 8-10-101 shall complete forty (40) hours of in-service course time for each twelve-month period during which the constable holds office, beginning on the date the constable is sworn into office.
  2. This section does not apply to any constable with twenty (20) years of cumulative service as a constable before May 3, 2018.

Acts 1993, ch. 414, § 3; 2018, ch. 889, § 1.

Amendments. The 2018 amendment rewrote the section which read: “Each officer shall complete forty (40) hours of in-service course time within twelve (12) months of that officer's election as constable or within twelve (12) months of July 1, 1993.”

Effective Dates. Acts 2018, ch. 889, § 2. May 3, 2018.

Attorney General Opinions. In-service training requirement for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

8-10-203. Range qualification.

Constables must be range-qualified prior to being authorized to carry a firearm. Qualification may be sponsored by the Tennessee Constable Association, the Tennessee Constable Council, or by the local law enforcement authority.

Acts 1993, ch. 414, § 4; 2004, ch. 655, § 5.

Compiler's Notes. Acts 2004, ch. 655, § 7 provided that nothing in the act shall be construed or interpreted to authorize any constable or any constable organization to alter or amend the requirements of title 8, chapter 10, part 1, relative to authorized official uniforms for constables or the markings of constable patrol cars.

Acts 2004, ch. 655, § 8 provided that the Tennessee general assembly recognizes that the Tennessee Constable Council is a valid constable organization dedicated to enhancing the professionalism of Tennessee constables. The Tennessee Constable Council shall elect its own officers, set its own dues, determine its own eligibility requirements, and prescribe its own training and teaching requirements. No state funds shall be appropriated to the Tennessee Constable Council. The Tennessee Constable Council is not a governmental entity and is not subject to the governmental entity review law, compiled in title 4, chapter 29.

Attorney General Opinions. Authority of Morgan County constables to carry guns, OAG 93-62, 1993 Tenn. AG LEXIS 62 (10/20/93).

Requirements for constables carrying firearms, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

Enforcement of statutory requirements for constables, OAG 99-025, 1999 Tenn. AG LEXIS 26 (2/16/99).

8-10-204. Requirements for taking office — Power of arrest.

In all counties where constables are not otherwise prohibited, constables shall be duly elected, trained, and qualified. Constables who meet the provisions of this chapter shall take the oath of office, be sworn and bonded, and retain the power of arrest.

Acts 1993, ch. 414, § 5.

8-10-205. Notification of election or appointment.

The county election council shall notify the Tennessee Constable Association or the Tennessee Constable Council within sixty (60) days of election of the constable. Where the constable is appointed by the county legislative body, the county clerk shall notify the Tennessee Constable Association or the Tennessee Constable Council within sixty (60) days of appointment of the constable. The council or county clerk shall provide the name of the county constable, the constable's current address, and telephone number.

Acts 1993, ch. 414, § 6; 2004, ch. 655, § 6.

Compiler's Notes. Acts 2004, ch. 655, § 7 provided that nothing in the act shall be construed or interpreted to authorize any constable or any constable organization to alter or amend the requirements of title 8, chapter 10, part 1, relative to authorized official uniforms for constables or the markings of constable patrol cars.

Acts 2004, ch. 655, § 8 provided that the Tennessee general assembly recognizes that the Tennessee Constable Council is a valid constable organization dedicated to enhancing the professionalism of Tennessee constables. The Tennessee Constable Council shall elect its own officers, set its own dues, determine its own eligibility requirements, and prescribe its own training and teaching requirements. No state funds shall be appropriated to the Tennessee Constable Council. The Tennessee Constable Council is not a governmental entity and is not subject to the governmental entity review law, compiled in title 4, chapter 29.

8-10-206. Applicability.

  1. Sections §§ 8-10-201 — 8-10-205 do not apply to any constable who has served for four (4) years prior to July 1, 1993.
  2. This part shall not apply to constables whose law enforcement powers have been removed but who have retained the authority to serve lawfully issued process.

Acts 1993, ch. 414, §§ 7, 9.

Attorney General Opinions. Firearms for constables without law enforcement powers, OAG 94-112, 1994 Tenn. AG LEXIS 115 (10/6/94).

Authority of constables without law enforcement powers, OAG 99-038, 1999 Tenn. AG LEXIS 61 (2/24/99).

Chapter 11
County Trustees

8-11-101. Election — Term of office.

  1. A county trustee is elected for each county by the qualified voters thereof, and holds office for four (4) years and until a successor is qualified.
  2. If a vacancy shall occur in the office of trustee, the vacancy shall be filled as provided for in § 5-1-104(b).

Code 1858, § 424 (deriv. Acts 1835-1836, ch. 2, § 4); Shan., § 520; mod. Code 1932, § 772; impl. am. Tenn. Const., art. 7, § 1 as amended in 1960; impl. am. Acts 1961, ch. 194, § 2; T.C.A. (orig. ed.), § 8-1101; Acts 1981, ch. 318, § 6.

Cross-References. Accounting for fees, §§ 8-22-1018-22-117.

Annual audit, § 4-3-304.

Deputies and assistants, title 8, ch. 20.

Election and term of office of trustee, Tenn. Const., art. VII, § 1.

Election contests, title 2, ch. 17.

Election, term of office and removal, Tenn. Const., art. VII, § 1.

Election, time for holding, § 2-3-202.

Payment for office supplies, § 8-26-104.

Salary, §§ 8-24-106.

Vacancies in office, Tenn. Const., art. VII, §§ 2, 5.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 22.

8-11-102. Entry into office — Bond.

Upon producing the certificate of election before the county legislative body, at the next session after the date and delivery of the certificate, the county trustee may enter upon the discharge of the duties of the office, after first giving bond, and taking an oath to support the constitutions of the state and of the United States, and an oath for the faithful performance of the duties of the office. The bond shall be prepared in accordance with chapter 19 of this title, approved by the county legislative body, recorded in the office of the county register of deeds and transmitted to the office of the county clerk for safekeeping.

Code 1858, § 425 (deriv. Acts 1835-1836, ch. 2, § 5); Shan., § 521; mod. Code 1932, § 773; impl. am. Acts 1978, ch. 934, §§ 7, 36; modified; T.C.A. (orig. ed.), § 8-1102; Acts 1998, ch. 677, § 10; 2013, ch. 315, § 4.

Compiler's Notes. Acts 2013, ch. 315, § 31 provided that the act, which amended this section, shall apply to the renewal or obtaining an official bond for any bonding after April 29, 2013.

Cross-References. Bond to cover drainage, levee and watercourse improvement district assessments, §§ 69-6-113, 69-6-130, 69-5-805.

Bond to cover tax collections and revenues, § 67-5-1901.

Collection of delinquent taxes covered by bond, § 67-5-2001.

Condition that fees, etc., will be accounted for, § 8-22-102.

New or additional bond or sureties may be required, § 8-19-402.

Oath concerning tax collections, § 67-5-1901.

Oath of office, §§ 8-18-1098-18-114.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 22.

8-11-103. Minimum amount of bond — Determination — Surety — Examination of sufficiency.

  1. The minimum amount of the official bond executed by each county trustee for each term of office, as required by § 8-11-102, shall be determined from the amount of revenues handled by the trustee during the last fiscal year audited by the comptroller of the treasury, or from the last audit approved by the comptroller of the treasury which was duly prepared in counties using certified public accountants.
    1. If the official bond of the county trustee is executed by a surety company authorized to transact business in this state, the minimum amount of the bond shall be based on the revenues as follows:
      1. Four percent (4%) up to three million dollars ($3,000,000) of the funds collected by the office; and
      2. Two percent (2%) of the excess over three million dollars ($3,000,000) shall be added.
    2. The amounts indicated in subdivisions (b)(1)(A) and (B) shall be cumulative.
    1. If the official bond of the county trustee is executed by personal sureties, the minimum amount of the bond shall be based on revenues as follows:
      1. Six percent (6%) up to three million dollars ($3,000,000) of the funds collected by the office; and
      2. Four percent (4%) of the excess over three million dollars ($3,000,000) shall be added.
    2. The amounts indicated in subdivisions (c)(1)(A) and (B) shall be cumulative.
  2. This section establishes only the minimum amount of the bond and in no way prevents the county legislative bodies or other county governing bodies, exercising their power to approve or disapprove the bond as provided by § 8-11-102, from requiring trustees to execute bonds in greater amounts.
  3. It is the duty of the county legislative body to examine the solvency of the county trustee's bond, and, if the bond is found to be insufficient, as provided by law, it is the duty of the legislative body to notify the county trustee of the fact, and require the county trustee to give new or additional security, in such sum as may be fixed upon by the legislative body, sufficient in its judgment to cover the revenue of the county; and, if the required bond or security is not given on or before the ensuing session of the legislative body, then it is the duty of the legislative body, and it has the power, to declare the office vacant and to elect or appoint a successor, who shall be required to enter into bond with good and sufficient securities, for the remainder of the term for which the trustee was elected.

Acts 1868-1869, ch. 41, § 1; Shan., § 522; mod. Code 1932, § 774; Acts 1959, ch. 187, §§ 1-4; impl. am. Acts 1978, ch. 934, §§ 7, 36; modified; T.C.A., § 8-1103; Acts 2013, ch. 315, §§ 5, 6.

Compiler's Notes. Acts 2013, ch. 315, § 31 provided that the act, which amended this section, shall apply to the renewal or obtaining an official bond for any bonding after April 29, 2013.

Cross-References. Failure to give additional bond, vacation of office, § 8-19-405.

New or additional bond or sureties may be required, § 8-19-402.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 22.

Law Reviews.

Local Government Law — 1959 Tennessee Survey, 12 Vand. L. Rev. 1257 (1959).

Attorney General Opinions. Public Chapter 749, by its plain language, has modified T.C.A. § 8-19-101(a)–(d) to allow a county government to purchase an insurance policy in lieu of individual official bonds for those officers who have specific statutes requiring a bond to be posted. It provides a new alternative for a county government to meet its bonding requirements. OAG 16-31, 2016 Tenn. AG LEXIS 31 (8/22/2016).

8-11-104. Duties.

It is the duty of the county trustee to:

  1. Collect all the state and county taxes on property;
  2. Keep a fair regular account of all the moneys which the county trustee shall receive;
  3. Receive, according to law, all certificates for which the county stands indebted, upon proper warrant;
  4. When a warrant is presented to the trustee for payment, to enter it in a book kept by the trustee for the purpose, ruled in columns, so as successively to show the number, payee or holder, date, day of presentation, and amount of the same;
  5. If there are funds in the treasury, not otherwise appropriated, immediately to pay the demand and take up the warrant; otherwise, deliver it to the owner with the number endorsed, and afterwards to pay it in its numerical order;
  6. Keep fair and regular accounts of such payments;
  7. Pay all just claims against the trustee's county as they are presented, if the trustee has a sufficient sum of money in the trustee's hands not otherwise appropriated;
  8. Upon the trustee's resignation, or going out of office by the appointment of another person, deliver to the trustee's successor all the books and papers of the trustee's office, and especially the book in which the warrants payable are listed and numbered;
  9. On going out of office, make settlement immediately with the county mayor, and pay over the balance found in the trustee's hands to the trustee's successor, taking duplicate receipts;
  10. Deliver one (1) of the receipts to the county clerk, to be by the county clerk recorded in the revenue docket; and
  11. Furnish the county mayor with such papers and vouchers in the county trustee's possession as the county trustee may think necessary for perfecting any settlement with any person who is accountable for county revenue.

Code 1858, § 427 (deriv. Acts 1796 (Mar.), ch. 15, § 6; 1797, ch. 14, §§ 4, 5; 1821, ch. 17; 1821, ch. 33; 1825, ch. 51, § 11; 1827, ch. 49, §§ 19, 24, 26); Acts 1859-1860, ch. 11, §§ 1, 2; 1875, ch. 91, § 1; Shan., § 523; mod. Code 1932, § 775; impl. am. Acts 1978, ch. 934, §§ 7, 16, 22, 36; Acts 1979, ch. 23, § 7; T.C.A. (orig. ed.), § 8-1104; Acts 1993, ch. 315, §§ 6, 7; 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Account of jail funds appropriated and moneys drawn by sheriff from contingent fund, § 41-4-128.

Collector of taxes, § 67-5-1801.

Drainage and levee assessments, collection, §§ 69-6-110, 69-5-817.

Drainage and levee assessment collections, bond, §§ 69-6-113, 69-6-130, 69-5-805.

Drainage and levee assessments, payment of funds to county clerk, § 69-5-111.

Drainage and levee district, collection and enforcement of assessment, § 69-5-802.

Drainage assessment book, entries, § 69-5-813.

Drainage assessment book, recording changes of owners of tracts, § 69-5-816.

Drainage assessment collections, monthly settlement, § 69-5-915.

Drainage district in more than one county, disbursal of funds from bond sales, § 69-5-1108.

Drainage district, special bond for selling bonds or warrants, §§ 69-5-908, 69-5-1108.

Employment of deputies, title 8, ch. 20.

Improvement, drainage or levee districts in more than one county, collection of assessments on lands in own county, § 69-5-1105.

Schools, duties, § 49-2-103.

Special assessment list for costs of proposed levee, improvement or drainage district certified to for collection, § 69-5-127.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Securities, §§ 4, 7.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

Attorney General Opinions. County Financial Management System of 1981: Duties of county trustee, OAG 92-73, 1992 Tenn. AG LEXIS 71 (12/29/92).

Duty of county trustee to collect municipal property taxes, OAG 99-183, 1999 Tenn. AG LEXIS 215 (9/17/99).

Fund raising — school property, county trustee — audits, OAG 00-005, 2005 Tenn. AG LEXIS 5 (1/11/00).

NOTES TO DECISIONS

1. Construction with Other Acts.

2. —Private Act for Payment of School Teachers.

Private Acts 1937, ch. 502, House Bill 1117, §§ 1-4 which imposed additional duties on the trustee and county superintendent of schools of Carter County in addition to those imposed by the general statutes with reference to the issuance and accounting for county warrants issued to school teachers and which gave the teachers of such county special advantages over the teachers in general in the state and which subjected the trustee of such county to forfeiture of office when no other trustee was subjected to such forfeiture was invalid as being partial and discriminatory. Anderson v. Carter County, 172 Tenn. 114, 110 S.W.2d 321, 1937 Tenn. LEXIS 59 (1937).

3. Settlement of Accounts — Time for.

Requirement as to the trustee's settlement and paying over the balance found in the trustee's hands was an imperative obligation, fixed by law; but the trustee could be required by the county legislative body to make settlement at any other time. Crockett v. Parkison, 43 Tenn. 219, 1866 Tenn. LEXIS 40 (1866).

It was the duty of trustee on going out of office to make settlement immediately with county executive (now county mayor), and to pay over the balance found in the trustee's hands to the trustee's successor, taking duplicate receipts. State use of Giles County v. Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 1928 Tenn. LEXIS 73 (1929).

4. Deposit of Public Funds.

The trustee was neither a debtor nor an insurer of public funds nor did the trustee hold as a special bailee, but held as a trustee, and neither the trustee nor sureties were liable for the loss caused by deposit in a bank of undoubted standing and reputation which later failed. State use of Overton County v. Copeland, 96 Tenn. 296, 34 S.W. 427, 1895 Tenn. LEXIS 33, 54 Am. St. Rep. 840, 31 L.R.A. 844, 54 (1896).

5. Remedies of Warrant Holder.

The holder of county warrants could sue the county on them, without complying with the statutes, or following and exhausting all the modes prescribed by statute, for obtaining money from the county treasury. Gibson County v. Rains, 79 Tenn. 20, 1883 Tenn. LEXIS 7 (1883).

6. Payment of Interest on Warrants.

A county legislative body, as representative of the county, could, in consideration of forbearance to sue, contract with a creditor of the county for payment of interest on a county warrant after its registration by the trustee, until there was money in the treasury to meet it in its regular order, but no longer. Davidson County v. Olwill, 72 Tenn. 28, 1879 Tenn. LEXIS 3 (1879).

7. Surety Liability.

8. —Failure to Account.

The county trustee could maintain a bill in the chancery court against the sureties of a defaulting former trustee for an account of moneys collected for the use of common schools. Bedwell v. Jones, 77 Tenn. 168, 1882 Tenn. LEXIS 31 (1882); Jernegan v. Gray, 82 Tenn. 536, 1884 Tenn. LEXIS 156 (1884).

9. —Parties to Suit.

The school children of the county were not necessary parties to a suit on the official bond of the county trustees to recover school moneys from a delinquent trustee. State use of Anderson County v. Hays, 99 Tenn. 542, 42 S.W. 266, 1897 Tenn. LEXIS 66 (1897).

Collateral References.

Authority of attorney acting in official capacity to dismiss or otherwise terminate action. 56 A.L.R.2d 1290.

Power of county or its officials to compromise claims. 15 A.L.R.2d 1359.

8-11-105. Refusal to pay warrant or demand.

If the trustee refuses to pay the amount of any county warrant or legal demand upon the county, when requested by the party entitled to receive the money, it is a Class C misdemeanor, on conviction of which the trustee may be removed from office, unless the trustee produces evidence showing that disbursements have exhausted the money on hand.

Code 1858, § 429 (deriv. Acts 1819, ch. 38, § 6); Shan., § 525; Code 1932, § 777; T.C.A. (orig. ed.), § 8-1105; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Securities, § 7.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

8-11-106. Liability to judgment on motion.

If the trustee fails to pay money to those entitled to the same, or neglects to call those to account who ought to pay money into the treasury, whereby the county suffers loss, in either case the trustee and the trustee's sureties shall be liable for the sums so not collected or paid, on motion before the circuit court.

Code 1858, § 430 (deriv. Acts 1827, ch. 49, § 25); Shan., § 526; Code 1932, § 778; T.C.A. (orig. ed.), § 8-1106.

Cross-References. Motion against trustee for failure to pay over revenues, § 67-1-1617.

Summary judgment against trustee, § 25-3-117.

Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal, State and County Securities, § 8.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

8-11-107. Receipts for costs filed.

No county trustee shall pay to any clerk any bill of costs in which other claimants are included, unless the clerk files the receipt or order of such claimant at the time the payment is made.

Code 1858, § 432 (deriv. Acts 1845-1846, ch. 32, § 7); Shan., § 528; Code 1932, § 780; T.C.A. (orig. ed.), § 8-1107.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

8-11-108. Forfeiture for defaults.

The county trustee shall incur a forfeiture of five hundred dollars ($500), to the use of the county, to be recovered on motion before the circuit court, for each of the following defaults:

  1. For refusing at any time to furnish the county mayor with any vouchers or papers in the trustee's hands, deemed necessary by the county mayor for perfecting any settlement with any person accountable for the county revenue;
  2. For refusing to receive, in payment of county taxes, county warrants for which the county, by law, stands indebted; or
  3. For refusing to settle or pay according to law.

Code 1858, § 431 (deriv. Acts 1797, ch. 14, §§ 5, 6); Shan., § 527; Code 1932, § 779; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 8-1108; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 22.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

NOTES TO DECISIONS

1. Refusal to Settle or Pay.

Where the motion was “for refusing to settle or pay, according to law,” and where the judgment assumed that the trustee “has failed or refused to make settlement, according to law,” without showing the time for which the trustee held office, and for which the trustee was liable to settle, and without showing that the trustee's default was for refusing to settle, as required by law, on going out of office, or under an order of the court requiring the trustee to make settlement, the judgment for the penalty fixed by this section was erroneous, and upon writ of error, it was reversed, and the case remanded. Crockett v. Parkison, 43 Tenn. 219, 1866 Tenn. LEXIS 40 (1866).

8-11-109. Failure to pay balance on expiration of term.

If the trustee, on going out of office, fails to pay over the balance of revenue in the trustee's hands, the trustee and the trustee's sureties shall be liable to judgment, on motion of the district attorney general, before the circuit court.

Code 1858, § 428 (deriv. Acts 1827, ch. 49, § 24); Shan., § 524; Code 1932, § 776; T.C.A. (orig. ed.), § 8-1109.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 22; 21 Tenn. Juris., Public officers, § 19.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241 (1978).

NOTES TO DECISIONS

1. Death of Trustee.

Under the provisions contained in § 67-1-1609, a motion against the sureties alone was upheld, where the trustee died before the motion was made or notice was given. Derrick v. State, 71 Tenn. 396, 1879 Tenn. LEXIS 96 (1879).

8-11-110. Compensation for handling funds.

  1. The compensation of the county trustee for receiving and paying over to the rightful authorities all moneys received shall be six percent (6%) on all sums up to ten thousand dollars ($10,000), and four percent (4%) on all sums above ten thousand dollars ($10,000) and up to twenty thousand dollars ($20,000), and a commission of two percent (2%) on all sums above twenty thousand dollars ($20,000).
  2. In computing the compensation of trustees, all funds — state, county, school and special — shall be taken and estimated as one, and each shall pay its respective portion of the above commissions on all sums of money received by the trustee for the state and county, respectively.
  3. At the time of the settlement with the proper officers of the state and county, and the computation of the trustee's commission on collections, the trustee shall furnish the officers, respectively, with a certified statement from the county mayor, showing the amount actually collected by the trustee and paid over to the proper state and county authorities, respectively, as above provided.
  4. The trustee shall not be entitled to any commission on money turned over by the trustee's predecessor in office, or on money borrowed for the use of the county, or received from the proceeds of a sale or sales of bonds.
  5. The trustee shall receive one percent (1%) on all moneys collected from county officers on fees and on the school fund received from the state or on money turned over to the trustee by clerks of the courts and other collecting officers.
  6. In the event any federal funds for school lunch program purposes are handled by the county trustee, the trustee shall be allowed for the handling of such funds an amount not to exceed one-fourth of one percent (¼%) of such funds handled by the trustee; provided, that such amount shall not be taken from federal funds, but the equivalent thereof shall be paid to the trustee out of either school funds or county general purpose funds as determined by a majority vote of the county legislative body.
  7. Notwithstanding any other provisions of this section or the law to the contrary, the trustee shall not be entitled to receive any compensation, commission or fee for handling funds paid by the state to the county or to a local education agency for the purpose of funding the employees' social security contribution for teachers.
  8. Notwithstanding any other provision of this section or the law to the contrary, the trustee shall be entitled to collect a different percentage fee than that which is set forth in subsection (a), upon a negotiated basis for the collection of municipal taxes as set out in an approved intergovernmental agreement.

Acts 1907, ch. 602, § 72; Shan., § 916a2; Code 1932, § 1621; Acts 1947, ch. 164, § 1; C. Supp. 1950, § 1621; impl. am. Acts 1978, ch. 934, §§ 7, 16, 36; T.C.A. (orig. ed.), § 67-1412; Acts 1987, ch. 147, § 1; 1991, ch. 119, § 1; 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Distribution of revenue, compensation of county trustees, § 67-6-712.

Section inapplicable to local education employee group insurance administrative cost payments, § 8-27-303.

Law Reviews.

Local Government Law (Clyde L. Ball), 6 Vand. L. Rev. 1206 (1953).

Attorney General Opinions. County trustee's commission for handling local option sales tax funds. OAG 11-46, 2011 Tenn. AG LEXIS 48 (5/19/11).

NOTES TO DECISIONS

1. Determination of Compensation.

The legislature may delegate to courts the ministerial or judicial duty of determining the amount of compensation that would justly remunerate an official for special services rendered. Carothers v. Giles County, 162 Tenn. 492, 39 S.W.2d 584, 1930 Tenn. LEXIS 113 (1931).

2. Bond Proceeds.

It is the general legislative policy of the state that county trustees shall receive and disburse the proceeds of county bonds without special compensation. Dreaden v. Halliburton, 166 Tenn. 331, 61 S.W.2d 670, 1932 Tenn. LEXIS 136 (1933).

Resolution of county legislative body authorizing one percent commission to county trustee for handling bond issue money was illegal as violative of this section, and a private legislative act applicable to a single county which attempts to provide to the contrary is unconstitutional. Dreaden v. Halliburton, 166 Tenn. 331, 61 S.W.2d 670, 1932 Tenn. LEXIS 136 (1933).

3. County Revenue.

Funds appropriated by the state to reimburse the counties on account of their expenditures on highways are an appropriation of state revenue made for use in paying obligations assumed by the state and are not county revenue so as to entitle the trustee to a commission for the handling of them. State v. Miner, 176 Tenn. 158, 138 S.W.2d 766, 1938 Tenn. LEXIS 148 (1940).

The funds paid over to the county by the state as county aid funds for the maintenance and improvement of county roads and the distributive share of counties in income tax paid over are county revenue for use in county purposes and are funds received from or through collecting officers upon which the trustee is entitled to a commission. State v. Miner, 176 Tenn. 158, 138 S.W.2d 766, 1938 Tenn. LEXIS 148 (1940).

4. School Funds.

County trustee was entitled to deduct commission from school funds distributed by the trustee to the city. Chattanooga v. Richardson, 188 Tenn. 639, 221 S.W.2d 953, 1949 Tenn. LEXIS 383 (1949).

In bill of interpleader filed by county trustee against county school board and county to determine whether trustee was entitled to a fee for handling funds of federal government turned over to county school board, chancellor was authorized to allow a fee of $1,500 to attorneys for trustee payable out of fund received from federal government. Larue v. Anderson County, 194 Tenn. 525, 253 S.W.2d 736, 1952 Tenn. LEXIS 416 (1952).

County trustee was not entitled to fee for handling of funds transmitted by federal government to county school board and in turn transmitted to trustee for purpose of operation and maintenance of school system at Oak Ridge in buildings and property owned by federal government. Larue v. Anderson County, 194 Tenn. 525, 253 S.W.2d 736, 1952 Tenn. LEXIS 416 (1952).

8-11-111. Vacancies.

If the office of the trustee becomes vacant due to death, resignation or removal, the duties of the trustee shall be temporarily discharged by the chief deputy, or deputy designated as temporary successor by the trustee in writing, until a successor trustee is elected or appointed and qualified according to law.

Acts 1993, ch. 315, § 17.

8-11-112. Confidentiality of certain financial records and other personal information acquired by county trustee.

  1. An individual's credit card information, debit card information, bank account and routing information, e-mail address, and telephone number acquired by the county trustee shall not be open for public inspection pursuant to title 10, chapter 7.
  2. Notwithstanding subsection (a), the information made confidential by this section shall be open to inspection by law enforcement agencies, courts, or other government agencies performing official functions.
  3. Information made confidential by this section shall be redacted wherever possible.
  4. Nothing in this section shall limit or deny access to otherwise public information because a file, document, or data file contains confidential information.

Acts 2015, ch. 374, § 1.

Effective Dates. Acts 2015, ch. 374, § 2. May 4, 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

Chapter 12
Surveyors

8-12-101. Election.

There shall be elected by the members of the county legislative body, a majority of the members being present, at the January meeting of the legislative body, every four (4) years, or at any subsequent meeting of the legislative body, one (1) county surveyor for each county in the state.

Code 1858, § 434 (deriv. Acts 1835-1836, ch. 2, §§ 4, 6; 1835-1836, ch. 73, §§ 1, 2); Shan., § 530; mod. Code 1932, § 782; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1201.

Cross-References. Actions for faulty surveying, § 28-3-114.

Election by county legislative body, § 5-5-111.

Election contests, title 2, ch. 17.

Filling vacancies, Tenn. Const., art. VII, §§ 2, 5.

Land surveyors, title 62, ch. 18.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 21.

Collateral References.

Constitutionality of statute regulating land surveyors, 55 A.L.R. 307.

8-12-102. Bond — Oath of office.

Before proceeding to the discharge of duties, the county surveyor shall enter into bond, in the sum of two thousand dollars ($2,000), payable to the state of Tennessee, conditioned for the faithful performance of the surveyor's official duties, and shall also take and subscribe an oath faithfully to discharge the duties of the office. The bond shall be prepared in accordance with chapter 19 of this title, approved by the county legislative body, recorded in the office of the county register of deeds and transmitted to the office of the county clerk for safekeeping.

Code 1858, §§ 436, 437 (deriv. Acts 1823, ch. 49, § 8; 1835-1836, ch. 2, § 4); Shan., §§ 532, 533; Code 1932, §§ 784, 785; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1202; Acts 1998, ch. 677, § 11.

Cross-References. Liability for wrongful survey or acts of deputies, § 8-12-115.

New or additional bond or sureties may be required, § 8-19-403.

Oath of office, §§ 8-18-1098-18-114.

Law Reviews.

Land Laws of Tennessee “Hiatus” (L.D. Smith), 2 Tenn. L. Rev. 185 (1924).

8-12-103. Term of office — Location of records.

  1. The county surveyor shall hold that office for the term of four (4) years, and until a successor is elected and qualified.
  2. The county surveyor shall keep the records of the surveyor's office at the county seat.

Code 1858, § 435 (deriv. Acts 1835-1836, ch. 2, § 4); Acts 1868-1869, ch. 40, § 4; 1871, ch. 58; Shan., § 531; Code 1932, § 783; T.C.A. (orig. ed.), § 8-1203.

8-12-104. Deputies.

The county surveyor has the power to appoint as many as two (2) deputies, with all the powers, rights, and duties of the surveyor, who shall hold office for and during the term of the surveyor appointing them, unless sooner removed by the surveyor, or otherwise removed according to law, and their official acts shall have the same force and effect as the acts of the surveyor. The deputies shall be appointed before the county legislative body, in open session, and the appointment entered on the minutes. They shall take the oath of office prescribed for the surveyor to be administered by the same official.

Acts 1873, ch. 9, §§ 1, 2; Shan., §§ 534-536; Code 1932, §§ 786-788; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1204.

Cross-References. Liability for acts of deputies, § 8-12-115.

Oath of office, §§ 8-18-112, 8-18-113.

8-12-105. Duty to execute surveys.

It is the duty of the county surveyor faithfully to execute and return all orders of survey directed to the surveyor from any court of record in the state, and make all surveys of lands or lots in the county, at the request of any person interested therein, on the payment or tender of the surveyor's fees.

Code 1858, § 438; Shan., § 537; Code 1932, § 789; T.C.A. (orig. ed.), § 8-1205.

Cross-References. Fees, §§ 8-12-108, 8-21-1101.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 21.

8-12-106. Oath of chain bearers — Plat.

The county surveyor shall swear the surveyor's chain bearers to perform their duties without favor or affection, make a plat of all lands or lots surveyed for the person requiring the same, and write on the back of the plat the names of the chain bearers, and the amount of the surveyor's fees.

Code 1858, § 439; Shan., § 538; Code 1932, § 790; T.C.A. (orig. ed.), § 8-1206.

8-12-107. Compensation fixed by county legislative body.

The county legislative body may fix the compensation of the county surveyor, and the surveyor's chain bearers and markers, where the fees are not already established by law.

Code 1858, § 445; Shan., § 549; Code 1932, § 801; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1207.

Cross-References. Fees, §§ 8-12-108, 8-21-1101.

Collateral References.

Surveyor's work as giving rise to right to mechanic's lien. 35 A.L.R.3d 1391.

8-12-108. Compensation allowed by courts.

All courts ordering the survey of any land or lands may allow, in addition to the fee now allowed by law, such additional compensation as the services of the county surveyor may be reasonably worth.

Acts 1859-1860, ch. 120, § 4; Shan., §§ 550, 64146; Code 1932, §§ 802, 10717; T.C.A. (orig. ed.), §§ 8-1208, 8-2140.

Cross-References. Enumeration of fees, § 8-21-1101.

8-12-109. Fees as costs.

When a survey is directed by a court of record, the fees of the surveyor are to be taxed in the bill of costs.

Code 1858, § 440; Shan., § 539; Code 1932, § 791; T.C.A. (orig. ed.), § 8-1209.

8-12-110. Establishment of meridian lines.

The county legislative body of each county may, in its discretion, have established, at or near the county seat, a meridian line of 114.6 poles in length, the termini of which line shall be designated by planted stones, with the exact point on each stone marked with “A.X.,” or otherwise durably engraved.

Acts 1871, ch. 120, § 1; 1879, ch. 219, § 1; Shan., § 541; Code 1932, § 793; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1210.

8-12-111. Testing of instruments — Notation of magnetic declination.

It is the duty of the county surveyor and the surveyor's deputies to test their instruments by the meridian line in the counties in which such lines may be established, and to note the variation of the compass, that is, the difference between the magnetic meridian and the true or astronomical meridian, at least once every six (6) months.

Acts 1871, ch. 120, §§ 2, 3; Shan., § 543; mod. Code 1932, § 795; T.C.A. (orig. ed.), § 8-1211.

8-12-112. Report of tests.

A report of the variation test described in § 8-12-111 shall be made by the county surveyor to the county legislative body, and the report shall be recorded on the minutes of the legislative body.

Acts 1871, ch. 120, §§ 3, 4; Shan., § 544; Code 1932, § 796; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1212.

8-12-113. Prior surveys undisturbed.

Nothing in §§ 8-12-1108-12-114, shall be so construed as to affect surveys made under variations different from that established by those sections and before their enactment.

Acts 1871, ch. 120, § 5; Shan., § 545; Code 1932, § 797; T.C.A. (orig. ed.), § 8-1213.

8-12-114. Interference with meridian markers — Penalty.

It is a Class C misdemeanor for any person willfully to remove, deface or in any way to interfere with the stones marking the termini of the meridian line.

Acts 1871, ch. 120, § 5; Shan., §§ 542, 6502; Code 1932, §§ 794, 10851; T.C.A. (orig. ed.), § 8-1214; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

8-12-115. Liability for wrongful survey — Acts of deputy.

The county surveyor is liable on the surveyor's official bond for any damages done by a wrongful survey or plat. The surveyor and the sureties on such official bond shall be liable for all malfeasance and nonfeasance of the surveyor's deputy in office, to the same extent and in the same manner as a sheriff is liable for the acts of the sheriff's deputy.

Code 1858, § 441; Acts 1873, ch. 9, § 3; Shan., § 540; Code 1932, § 792; T.C.A. (orig. ed.), § 8-1215.

Cross-References. Actions for faulty surveying, § 28-3-114.

Sheriff not liable for wrongdoing of deputy, §§ 8-8-301, 8-8-303.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 21.

NOTES TO DECISIONS

1. Mistake in Survey.

The chancery court had jurisdiction of an action on the surveyor's official bond for a mistake in the survey of land sold by the acre, whereby an excessive quantity was included in the survey, but there could be no recovery for the value of such surplus where it could be recovered from the purchaser. State use of Henning's Heirs v. Keller, 79 Tenn. 399, 1883 Tenn. LEXIS 78 (1883).

2. —Measure of Damages.

When the action was by the vendor for a mistake in the survey of land sold by the acre, whereby an excessive quantity was included in the survey, the damages recoverable were: (1) The expense of the survey; (2) The costs actually expended in an action for the recovery of the excess from the vendee; and (3) The value of such excess where it could not be recovered from the vendee. State use of Henning's Heirs v. Keller, 79 Tenn. 399, 1883 Tenn. LEXIS 78 (1883).

Collateral References.

Surveyor's liability for mistake in, or misrepresentation as to accuracy of, survey of real property. 117 A.L.R.5th 23.

8-12-116. Delivery of records to successor.

In case of the resignation, removal, or expiration of the term of office of any surveyor, the surveyor shall deliver all record books, and all other public papers belonging to the office, to the successor, and, on failure, shall be liable to an action for damages, and shall be also subject to a fine of fifty dollars ($50.00), recoverable before any tribunal having cognizance, for the county.

Code 1858, § 442 (deriv. Acts 1837-1838, ch. 149, § 1); Shan., § 546; Code 1932, § 798; T.C.A. (orig. ed.), § 8-1216.

8-12-117. Delivery after death of surveyor.

In case of the death of such surveyor, the personal representative, or other person having the possession of the books and papers of the surveyor's office, shall deliver them over to the surveyor for the time being, and, on failure or refusal, shall be liable as provided in § 8-12-116.

Code 1858, § 443 (deriv. Acts 1837-1838, ch. 149, § 2); Shan., § 547; Code 1932, § 799; T.C.A. (orig. ed.), § 8-1217.

8-12-118. Compensation for records delivered.

The county legislative body, a majority of the members being present, may make the late surveyor, or such surveyor's personal representatives, compensation for the books and papers delivered over.

Code 1858, § 444 (deriv. Acts 1837-1838, ch. 149, § 3); Shan., § 548; Code 1932, § 800; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1218.

Chapter 13
Registers

8-13-101. Election — Term of office.

  1. A register is elected for each county by the qualified voters thereof, and holds the office for four (4) years, and until a successor is qualified.
  2. If a vacancy shall occur in the office of register, the vacancy shall be filled as provided for in § 5-1-104(b).

Code 1858, § 446 (deriv. Acts 1835-1836, ch. 2, § 4); Shan., § 558; Code 1932, § 807; T.C.A. (orig. ed.), § 8-1301; Acts 1981, ch. 318, § 7.

Cross-References. Accounting for fees, §§ 8-22-1018-22-117.

Election and term of office of register, Tenn. Const., art. VII, § 1.

Election contests, title 2, ch. 17.

Election, term and removal, Tenn. Const., art. VII, § 1.

Election, time for holding, § 2-3-202.

Vacancies in office, Tenn. Const., art. VII, §§ 2, 5.

NOTES TO DECISIONS

1. Manner of Filling Vacancy.

Under Tenn. Const., art. VII, §§ 2, 5, a vacancy in the office of register shall be filled by the justices (now county legislative body) until the first day of September following the first regular biennial August election, when the vacancy shall be filled by the qualified voters of the county for the remainder of the unexpired term, commencing on the first day of September following. Tatum v. Rivers, 66 Tenn. 295, 1874 Tenn. LEXIS 128 (1874).

8-13-102. Surety bonds — Oath of office.

  1. Upon producing the certificate of election before the county legislative body, at the next session after the delivery of the same, the register shall be entitled to enter upon the discharge of the duties of the office, after first giving bond, and taking the oath to support the constitutions of the state and of the United States, and an oath of office. The bond shall be prepared in accordance with chapter 19 of this title, approved by the county legislative body, recorded in the office of the county register of deeds, and transmitted to the office of the county clerk for safekeeping.
  2. The governing body of any county, by a two-thirds (2/3) vote, shall elect whether or not the county register of the county shall make a surety bond or a bond with two (2) or more good sureties, approved by the legislative body, prior to the time such register is inducted and sworn into office.

Code 1858, § 447 (deriv. Acts 1835-1836, ch. 2, § 5); Shan., § 559; mod. Code 1932, § 808; Acts 1977, ch. 270, § 5; 1978, ch. 689, §§ 3, 12; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1302; Acts 1998, ch. 677, § 12; 2013, ch. 315, § 9.

Compiler's Notes. Acts 2013, ch. 315, § 31 provided that the act, which amended this section, shall apply to the renewal or obtaining an official bond for any bonding after April 29, 2013.

Cross-References. New or additional bond or sureties may be required, § 8-19-402.

Oath of office, §§ 8-18-1098-18-114.

8-13-103. Terms of bond.

The bond shall be in the amount of fifty thousand dollars ($50,000) in counties with a population of less than fifteen thousand (15,000), and one hundred thousand dollars ($100,000) in counties with a population of fifteen thousand (15,000) or more, according to the 2010 federal census or any subsequent federal census, or in a greater sum as the county legislative body may determine, payable to the state of Tennessee, conditioned on the true and faithful discharge of the duties of the office.

Code 1858, § 448 (deriv. Acts 1777 (Nov.), ch. 8, § 13; 1847-1848, ch. 167); Shan., § 560; Code 1932, § 809; Acts 1977, ch. 270, § 6; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1303; Acts 2013, ch. 315, § 10.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2013, ch. 315, § 31 provided that the act, which amended this section, shall apply to the renewal or obtaining an official bond for any bonding after April 29, 2013.

Cross-References. Condition that fees, etc., will be accounted for, § 8-22-102.

Law Reviews.

The Tennessee Recording System (Toxey H. Sewell), 50 Tenn. L. Rev. 1 (1982).

NOTES TO DECISIONS

1. Incorrect Registration of Conveyance.

A register of deeds was liable on bond for failure to correctly register a conveyance, notwithstanding the register's negligence was not willful, nor so gross as to imply willfulness. State use of Cardin v. McClellan, 113 Tenn. 616, 85 S.W. 267, 1904 Tenn. LEXIS 55 (1904).

8-13-104. Vacation of office.

  1. Any register who fails to give bond as required by § 8-13-103 within thirty (30) days after election, who fails to provide a client representation letter to the comptroller of the treasury within ten (10) days of a request for such letter during an audit, or who moves out of the county, shall vacate the office.
  2. Notwithstanding any provision of law to the contrary, any register who vacates the office in accordance with the provisions of subsection (a) shall forfeit all compensation from the time of such vacation.

Code 1858, § 449 (deriv. Acts 1823, ch. 5, § 1); Shan., § 561; Code 1932, § 810; T.C.A. (orig. ed.), § 8-1304; Acts 1987, ch. 272, §§ 1, 3.

Cross-References. Failure to give additional bond or sureties when required, vacation of office, § 8-19-405.

8-13-105. Deputies — Appointment — Death, resignation or removal of register.

The register may appoint a deputy or deputies and, in case of the principal's death, resignation or removal, the principal deputy shall continue to act until an appointment shall be made to fill the vacancy, in the manner prescribed by law. All deeds registered by deputies are declared to be validly registered.

Code 1858, § 452 (deriv. Acts 1851-1852, ch. 48, § 2; 1851-1852, ch. 175, § 4); Acts 1859-1860, ch. 91, § 4; Shan., §§ 564, 565; mod. Code 1932, §§ 813, 814; T.C.A. (orig. ed.), § 8-1305; Acts 1993, ch. 315, § 18.

Cross-References. Employment of deputies, title 8, ch. 20, § 10-7-113.

Oath of office, § 8-18-112.

NOTES TO DECISIONS

1. Vacancy by Removal.

Although a vacancy occasioned by the removal of the register to another state was not embraced by the words of this section, it was within the spirit of the law that the register's deputy could continue to act until a successor was appointed, and conveyances registered by such deputy during such vacancy were as effectual as if the vacancy had been occasioned by the register's death. Maley v. Tipton, 39 Tenn. 403, 1859 Tenn. LEXIS 237 (1859).

8-13-106. Location of office.

The register shall keep the register's office in the county seat and, either personally or by deputy, shall give due attendance at the office for the purpose of performing the register's official duties.

Code 1858, § 450 (deriv. Acts 1805, ch. 1, §§ 1, 2; 1831, ch. 90, § 15; 1853-1854, ch. 87, § 5); Shan., § 562; mod. Code 1932, § 811; T.C.A. (orig. ed.), § 8-1306.

8-13-107. Records kept in office — Suitable facility

  1. The papers and records of the office shall at all times be and remain in the register's office or other suitable facility.
  2. As used in this section, “suitable facility” means a facility that stores local government records securely against theft and natural disasters.

Code 1858, § 451 (deriv. Acts 1805, ch. 1, § 1; 1853-1854, ch. 87, § 5); Shan., § 563; Code 1932, § 812; T.C.A. (orig. ed.), § 8-1307; Acts 2019, ch. 68, §§ 1, 2.

Amendments. The 2019 amendment added “or other suitable facility” at the end of  present (a); and added (b).

Effective Dates. Acts 2019, ch. 68, § 3. March 28, 2019.

8-13-108. Duties of office.

  1. It is the duty of the register to:
    1. Determine whether each instrument offered for registration is entitled to registration under the laws of this state;
    2. If the instrument is accepted for registration, note on the instrument the time the instrument is actually received by the register;
    3. Keep a notebook containing information regarding all instruments registered, except that a separate notebook for uniform commercial code instruments may also be kept. The information contained in the notebook shall include the names of the grantors, grantees, the time of receipt (date, hour and minute) and the fees received. A notebook kept for uniform commercial code instruments shall contain the same information, except that the name of the debtor may be substituted for grantor and secured party may be substituted for grantee. The notebook shall be maintained in a well-bound book or computer storage media in accordance with § 10-7-121. The notebook information shall be maintained as a permanent record;
    4. Enter into the appropriate notebook the required information as listed above. The register shall endeavor to make entries into the notebook in the order of time of reception as nearly as practicable, but entries shall be made without undue delay even if due to volume of instruments received the exact order of time of reception cannot be maintained. However, no instrument received on a certain day shall be entered into the notebook after instruments received on a later day;
    5. Record or file the instrument in the appropriate book or record series;
    6. Certify the fact of registration upon every instrument registered, the time it was received, the book and page or other reference where it is recorded or filed, the amount of fees received (if any), and the amount of taxes received (if any). This certification shall be entered on each instrument, and if the register determines that insufficient space exists on the instrument to enter the certification without overlaying writing on the instrument, the register may add a page to contain the certification, attach this page to the instrument being registered, and this additional page shall be considered a part of the original instrument to be registered;
    7. Carefully preserve as permanent records the recorded copies of all deeds, deeds of trust and other instruments affecting interests in real estate;
    8. Exhibit the notebooks and instruments registered to all persons wishing to inspect them, during regular business hours;
    9. Register, in the proper book of the register's office, the correction by the clerk of any error or omission in the clerk's certificate of probate or acknowledgment;
    10. Enter upon a book kept for that purpose any deposition taken to perpetuate testimony, together with the order of the judge, on tender of the fee allowed for the service;
    11. Procure and keep good and well-bound books, to be called books of trust deeds, etc., in which the register shall register, separately from land titles, in the order in which they are filed, all mortgages and deeds of trust on personal property, contracts, leases, powers of attorney, as to personalty, and all other instruments required to be registered that are no part of the title or conveyance of any real estate, so as to have real estate titles in books separate from other conveyances. A separate set of books, to be called books of commercial secured liens, shall be kept, in which the register shall register, separately from all other items, all liens filed under the Uniform Commercial Code, compiled in title 47, chapters 1-9, and which shall be indexed as set forth in § 47-9-519;
    12. Procure and keep good and well-bound books, to be called records of bankruptcies, in which the register shall register, separately from land titles, in the order in which they are filed, certified copies of petitions in bankruptcy (with schedules omitted), decrees of adjudication of bankruptcy, and orders of bankruptcy courts approving trustees' bonds which may be tendered for registration; and
    13. Provide a client representation letter to the comptroller of the treasury within ten (10) days of a request for such letter during any audit.
    1. When a system of microphotography is used to record any instruments, papers, documents or notices, each original reel of film thereof kept by the register shall be given a separate number, and shall be called a “book,” “film” or “reel” or shall be similarly designated, and each page or photograph of such instrument, paper, document or notice shall be called a “page,” “image” or such similar designation.
    2. Whenever, under any law, it is required that an instrument, paper, document or notice is to be identified or referred to as recorded in a book or page, or both, it shall be sufficient for purposes of identification and of compliance with such law or laws that reference be made to such instrument, paper, document or notice by the designation adopted by the register pursuant to this section.
    3. The recording and registering of such instruments, papers, documents or notices in the “official record book” imparts notice as required by law in like manner and effect as if the original instrument, paper, document or notice was recorded in separate books or film.
  2. In those counties having a population of not less than two hundred thousand (200,000) nor more than four hundred ten thousand (410,000), according to the 1960 federal census, the registers of the counties who maintain indexed records in accordance with title 10, chapter 7, part 2, and whose indexes are maintained in chronological order within alphabetical order may, in their discretion, be exempt from the duties in subdivision (a)(1) relative to the keeping of notebooks. All references in this section to notebooks and the requirements as to the notices and information to be entered in the notebooks shall apply to the registers' index records.
  3. All counties having complied with title 10, chapter 7, part 4, in the establishment of a county records commission, are hereby authorized to maintain a continuous recording of any and all instruments, papers or notices in one (1) general series of books or film to be designated “official record book.” The series shall be numbered consecutively beginning with number one (1).
    1. In counties having a metropolitan form of government with a population of four hundred thousand (400,000), or more according to the 1990 federal census, the office of register of deeds is authorized to implement an automated system for recording deeds and other instruments from remote locations. Electronic copies of such instruments are to be received within the register's office, reviewed for legibility and form, with any needed corrections, additions, modifications or changes needed to meet legal requirements for recordable form transmitted back to the sender over the system's dedicated lines. Once approved, a digitized label with the appropriate recording number, fees, taxes, date and time is affixed to the document which becomes an officially recorded document and is retained by the register of deeds. A copy of the digitized image is then transmitted back to the sender confirming that the recording has been completed. The register wishing to implement such electronic system may request technical assistance from the office of the comptroller of the treasury to advise on matters of system security and reliability.
    2. The office of register of deeds in such county is further authorized to implement a method to accept the optional payment of fees for recording deeds and other instruments by means of electronic funds transfer. The method implemented shall ensure that such transfer is properly documented and recorded.
    3. Any register implementing an automated system for recording deeds and other instruments electronically transmitted from remote locations shall file a statement with the comptroller of the treasury at least thirty (30) days prior to offering such service. The statement shall contain the following information:
      1. A description of the computer hardware and software to be utilized;
      2. A description of the procedures to be used to provide electronic recording of deeds and other instruments electronically transmitted from remote locations;
      3. A description of the system security features;
      4. A description of the register's office personnel who will be responsible for setting up remote users and for monitoring remote access activity;
      5. A description of the types of records or documents to be electronically recorded;
      6. A description of the integration of the electronic recording system with the register's office other automated systems such as imaging, indexing, fee collection, cash management and accounting;
      7. A description of the instrument archive, document retrieval, and system backup policies and procedures;
      8. The estimated cost of the system including development and implementation cost; and
      9. The estimated cost savings of electronic recording of instruments.
    4. A register which implements an automated system for recording electronically transmitted deeds and other instruments from remote locations shall provide to the comptroller of the treasury a post implementation review of the system between twelve (12) and eighteen (18) months after the date a statement as described in this section has been filed with the comptroller of the treasury. The review shall include:
      1. An assessment of the system by the register;
      2. Responses from a survey of users of the system; and
      3. Any recommendations for improvements to an automated system for recording deeds and other instruments electronically transmitted from remote locations.
  4. In any county having a population in excess of eight hundred ninety thousand (890,000), according to the 2000 federal census or any subsequent federal census, or any county in which the register receives endorsement from the existing county records commission or county mayor, the register may assume the functions and duties of the microfilm, public records or archives departments, or any of these, as established by the county commission.

Code 1858, § 454 (deriv. Acts 1841-1842, ch. 12, §§ 1-3, 5, 6; 1847-1848, ch. 119, § 3; 1849-1850, ch. 24, § 4); Acts 1867-1868, ch. 62, § 1; 1879, ch. 65, § 1; Shan., § 567; mod. Code 1932, § 816; mod. C. Supp. 1950, § 816; Acts 1963, ch. 81, § 1 (10-104); 1963, ch. 303, § 1; 1968, ch. 471, § 1; 1974, ch. 615, § 1; T.C.A. (orig. ed.), § 8-1308; Acts 1987, ch. 272, § 2; 1995, ch. 30, § 1; 1999, ch. 134, § 1; 2000, ch. 846, § 23; 2003, ch. 49, § 1; 2003, ch. 90, § 2; 2005, ch. 144, § 1; 2012, ch. 735, § 1.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Affidavits of heirship, recording and indexing, § 30-2-712.

Bonds of county officers, recording, §§ 8-19-103, 8-19-104.

Books, laying annually before county legislative body for examination, § 10-7-103.

Entry taker, acting as, §§ 8-13-114, 8-13-115, 8-13-117.

Fees charged by registers, § 8-21-1001.

Fees for making transcript books, § 10-7-114.

Plat of subdivision, recording only when approved by regional and municipal planning commissions, §§ 13-3-402, 13-4-302.

Registration of instruments, title 66, ch. 24.

Registration of writings as notice to all the world, § 66-26-102.

Textbooks. Tennessee Jurisprudence, 8 Tenn. Juris., Counties, § 20; 21 Tenn. Juris., Recording Acts, § 11.

Law Reviews.

The Tennessee Recording System (Toxey H. Sewell), 50 Tenn. L. Rev. 1 (1982).

Attorney General Opinions. Timing of recordation of documents received in mail, OAG 94-037, 1994 Tenn. AG LEXIS 39 (3/21/94).

Register of deeds should record any deed offered for and entitled to registration under the laws of the state even if the deed of land for a road right-of-way has not been approved by the county executive (now county mayor) or the county superintendent of highways, and failure to record the deed could result in exposure of the register of deeds to legal liability for damages, OAG 02-105, 2002 Tenn. AG LEXIS 110 (10/01/02).

Register of deeds not entitled to remove instrument that has been accepted and recorded, OAG 03-057, 2003 Tenn. AG LEXIS 74 (5/01/03).

NOTES TO DECISIONS

1. Registration.

2. —Improper Registry.

When a trust deed, properly acknowledged, was noted and registered, it afforded constructive notice to all persons even though it was registered in the chattel mortgage book instead of the trust deed registry. Swepson v. Exchange & Dep. Bank, 77 Tenn. 713, 1882 Tenn. LEXIS 128 (1882).

3. —Liability for Mistake.

Where register failed to discharge duties, good faith and mistake was no defense. Brown v. Brown, 16 Tenn. App. 230, 64 S.W.2d 59, 1933 Tenn. App. LEXIS 6 (Tenn. Ct. App. 1933).

4. Certification — Sufficiency.

Where grantee in grant executed a deed on the back of the grant, a certificate by the register certifying “that the above and foregoing grant and certificates is a true and correct copy of a grant and certificates as the same appears of record in my office in Book C, page 374” was sufficient to cover grant and deed, since certificate constituted but one instrument. De Garmo v. Prater, 125 Tenn. 497, 146 S.W. 144, 1911 Tenn. LEXIS 43 (1911).

Collateral References.

Errors in public records, power and duty of recorders to correct. 156 A.L.R. 1321.

Failure to properly record or file instrument affecting property, consequences of neglect or fault of recording officer. 70 A.L.R. 595.

Validity and construction of regulations as to subdivision maps or plats. 11 A.L.R.2d 524.

8-13-109. Payment for record books.

The different county legislative bodies or trustees shall pay for all such books procured as aforementioned, as is now done for county records.

Acts 1867-1868, ch. 62, § 2; Shan., § 568; Code 1932, § 823; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1309.

Cross-References. Books for register's office furnished by county, § 10-7-102.

8-13-110. Indictment of register for failure to perform duties — Civil liability.

Upon failure to perform any official duties, the register may be indicted for a Class C misdemeanor and the register and the register's sureties shall be civilly responsible to any person injured by the failure.

Code 1858, § 456; Acts 1871, ch. 85, § 2; Shan., § 570; mod. Code 1932, § 825; T.C.A. (orig. ed.), § 8-1310; Acts 1989, ch. 591, § 113.

Cross-References. Failure to comply with entry requirements, penalty, § 8-13-117.

Penalty for Class C misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Limitations of Actions, § 25.

Attorney General Opinions. Register of deeds should record any deed offered for and entitled to registration under the laws of the state even if the deed of land for a road right-of-way has not been approved by the county executive (now county mayor) or the county superintendent of highways, and failure to record the deed could result in exposure of the register of deeds to legal liability for damages, OAG 02-105, 2002 Tenn. AG LEXIS 110 (10/01/02).

NOTES TO DECISIONS

1. Responsibility of Register.

The office of register is one of great responsibility, and the duties and functions are very important to the public and to individuals, and the possible consequences of their mistakes should constantly admonish them to be careful and painstaking in the discharge of these duties. Maxwell v. Stuart, 99 Tenn. 409, 42 S.W. 34, 1897 Tenn. LEXIS 46 (1897); State use of Cardin v. McClellan, 113 Tenn. 616, 85 S.W. 267, 1904 Tenn. LEXIS 55 (1904).

Collateral References.

Breach of duty by recording officer, when statute of limitation commences to run. 110 A.L.R. 1067.

Failure to properly record or file instrument affecting property, neglect or fault of recording officer. 70 A.L.R. 595.

Liability of officer charged with duty of keeping record of instruments for mistakes or defects in record. 94 A.L.R. 1303.

8-13-111. Fees accompanying instrument — Register to adopt policy regarding overages.

  1. The register shall not be compelled to receive a deed, in any case, and perform official duties in relation thereto, unless the legal fees for registration accompany the instrument.
  2. A register shall adopt a policy regarding the procedure to follow if the register receives instruments for recordation accompanied by fees in excess of the required amount, and that policy shall include one (1) or more of the following:
    1. Establishing a credit, debit or a copy account for individual customers;
    2. Contacting the person or entity tendering the instrument for specific instructions regarding the excess fee;
    3. Allowing the register's office to retain reasonable overage amounts as fees of the office; or
    4. Registering every instrument eligible for registration and providing a refund of the excess moneys, less a reasonable amount of the excess payments retained as fees of the office.

Code 1858, § 453 (deriv. Acts 1841-1842, ch. 12, § 5); Shan., § 566; Code 1932, § 815; T.C.A. (orig. ed.), § 8-1311; Acts 2004, ch. 896, § 1.

Cross-References. Fee for certified copy of entry, § 8-21-1001.

Fee for reregistration, § 66-24-109.

Fees for recording conveyances to state, extension of credit for fee required, § 12-2-106.

8-13-112. Seal of office.

The county registers in the various counties are authorized and empowered to have official seals, which shall be made so as to emboss on paper and contain the words, “Register's Office of  (the name of county) County.”

Acts 1949, ch. 51, §§ 1, 2; C. Supp. 1950, § 812.1 (Williams, § 815.1); T.C.A. (orig. ed.), § 8-1312.

8-13-113. Effect of certification under seal.

All instruments certified by the county register under seal shall have the same force and effect as certified instruments under seal from courts of record; provided, that instruments certified without the seal shall have the same effect that they would have had before the passage of this section and § 8-13-112.

Acts 1949, ch. 51, § 3; C. Supp. 1950, § 812.2 (Williams, § 815.1); T.C.A. (orig. ed.), § 8-1313.

8-13-114. Acting as entry taker.

In all counties where there is no entry taker, the registers of such counties are authorized to act as such and receive remuneration as such.

Acts 1927, ch. 61, § 1; Code 1932, § 803; T.C.A. (orig. ed.), § 8-1314.

8-13-115. Preservation of records of entry.

The books and papers of entry belonging to the office shall be kept and carefully preserved by the register.

Acts 1871, ch. 58, § 1; 1879, ch. 46, § 2; 1879, ch. 65, § 1; Shan., § 554; mod. Code 1932, § 804; T.C.A. (orig. ed.), § 8-1315.

8-13-116. Recording official discharge from the military with register of deeds.

  1. The register of deeds shall record the official discharge of persons who after 1915 have served as members of the United States armed forces, the United States armed forces reserve, or the United States armed forces auxiliary.
  2. The register of deeds shall, after September 1, 2010, record the official discharge of persons who have served as members of the United States armed forces, the United States armed forces reserves, or the United States armed forces auxiliary in a bound book separate from all other documents recorded in the register of deeds office in those counties that do not store documents electronically. No other public documents shall be recorded and stored in these designated books.
  3. The register of deeds shall keep books which originated prior to, as well as after, September 1, 2010, and which have been designated specifically for the storage of official military discharge documents in a location not accessible to the general public, so long as the books do not contain other public documents.
  4. The register of deeds, in counties that record and store documents electronically, shall not make available to the general public any display of military discharge records and shall only provide copies of such records in compliance with § 10-7-513.

Acts 2010, ch. 797, § 2.

Code Commission Notes.

Former § 8-13-116 (Acts 1879, ch. 46, § 3; 1899, ch. 323, § 1; Shan. § 555; mod. Code 1932, § 805; T.C.A. (orig. ed.), § 8-1316), concerning fees for copies of entries, was deemed by the code commission to be obsolete and replaced by § 8-21-1001.

8-13-117. Failure to comply with entry requirements.

Any register who fails strictly to comply with §§ 8-13-1148-13-116 commits a Class C misdemeanor.

Acts 1868-1869, ch. 40, § 7; Shan., § 557; mod. Code 1932, § 806; T.C.A. (orig. ed.), § 8-1317; Acts 1989, ch. 591, § 113; 1998, ch. 1080, § 4.

Compiler's Notes. Former § 8-13-116, referred to in this section, is deemed by the code commission to be superseded by § 8-21-1001.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

8-13-118. Recording of military discharge documents in the office of county register.

    1. If a veteran of the United States armed forces, or any other person, personally appears and presents to the county register a military discharge for recording, before accepting the document for recording, the county register shall give to the person a written notice substantially as follows:

      NOTICEA MILITARY DISCHARGE RECORDED IN THE OFFICE OF THE COUNTY REGISTER IS NOT A CONFIDENTIAL RECORD. IT IS A PUBLIC RECORD AND THE INFORMATION CONTAINED ON THE DISCHARGE CAN BE EXAMINED BY ANYONE.

    2. A military discharge may be recorded with all or a portion of the veteran's social security identification number redacted, but this is not required for recording. However, if the discharge is altered, the United States government may not accept it as a valid document for purposes of approving military benefits to the veteran or the veteran's family. A county register will not cause a military discharge record recorded in the office of the county register to be viewed over the Internet, except through a subscription service approved by the county register.
    3. If, after giving the person offering the document the opportunity to read the notice described in subdivision (a)(1), the person still desires to have the military discharge recorded, the county register may record it. The register may record a military discharge received by mail without giving the notice described in subdivision (a)(1).
  1. A county register may record a military discharge of a veteran of the United States armed forces that is received with or without the redaction of all or a portion of the veteran's social security identification number. For a military discharge to be eligible for recording, the document must be an original or a copy authenticated as a true copy by the appropriate armed service of the United States or the United States department of defense or agency thereof. Additionally, the county register may make a copy of a military discharge eligible for recording, allow the person tendering the military discharge to make redactions on the copy made by the county register, and record the copy with the redactions.

Acts 2006, ch. 643, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Request for removal of military discharge or redaction of social security number from military discharge, § 10-7-513.

Chapter 14
Public Defenders

Part 1
District Public Defenders and Investigators

Code Commission Notes.

This part, title 8, chapter 14, part 1 was renumbered from title 8, chapter 14, part 2 by authority of the Code Commission in 2016.

8-14-101. Indigent person — Defined.

For the purposes of this part, an “indigent person” is one who does not possess sufficient means to pay reasonable compensation for the services of a competent attorney:

  1. In any criminal prosecution or juvenile delinquency proceeding involving a possible deprivation of liberty; or
  2. In any habeas corpus or other post-conviction proceeding.

Acts 1989, ch. 588, § 1; 1991, ch. 345, § 1; T.C.A. § 8-14-201.

Code Commission Notes.

This section was renumbered from § 8-14-201 to § 8-14-101 by authority of the Code Commission in 2016.

Compiler's Notes. The Code Commission transferred numerous sections in this title to this part, effective upon the 2016 replacement of this volume. See the following parallel reference table for the old and new locations.

Old Sections New Sections

8-14-201             8-14-101

8-14-202             8-14-102

8-14-203             8-14-103

8-14-204             8-14-104

8-14-205             8-14-105

8-14-206             8-14-106

8-14-207             8-14-107

8-14-208             8-14-108

8-14-209             8-14-109

8-14-210             8-14-110

8-14-211             8-14-111

8-14-212             8-14-112

Cross-References. Public defender service as creditable service in consolidated retirement system, § 8-34-618.

Attorney General Opinions. Criminal prosecution construed to exclude child support and contempt proceedings, OAG 98-092, 1998 Tenn. AG LEXIS 92 (4/15/98).

“Public defenders” representation of indigents in child support and contempt proceedings, OAG 98-092, 1998 Tenn. AG LEXIS 92 (4/15/98).

Office of public defender a state agency, OAG 99-033, 1999 Tenn. AG LEXIS 18 (2/18/99).

8-14-102. Creation of the district public defenders office — Positions and qualifications — Elections and appointments.

  1. For each judicial district, except the twentieth and thirtieth districts, the offices of district public defender, assistant district public defender and district investigator are hereby created.
      1. The terms of office of all district public defenders shall be eight (8) years, and until their successors are elected and qualified. Each district public defender shall be elected by the qualified voters of each respective district in the regular August election. The district public defender shall be a duly licensed attorney admitted to the practice of law in this state, and shall have been a resident of the state for five (5) years and of the judicial district for one (1) year.
      2. A vacancy in the office of the district public defender shall be filled by the voters of the district at the next biennial election more than thirty (30) days after the happening of the vacancy. The election shall be ordered by the governor by issuing proper writs of election to the county election commissions throughout the district, notice being given for one (1) month by publication in one (1) or more newspapers in the district. In the meantime, the governor shall appoint a suitable person to fill the office temporarily until the election takes place.
        1. Effective September 1, 2022, there is created the position of district public defender for the thirty-second judicial district. At the regular August election in 2022, the qualified voters of the thirty-second judicial district shall elect a person to the position of district public defender for a full eight-year term. The person elected to such position shall possess the same qualifications, powers, and duties and shall receive the same compensation, payable in the same manner, benefits, emoluments, and dignity of office as is required or provided by law for other district public defenders.
        2. The district public defender of the thirty-second judicial district is entitled to three (3) assistant public defender positions, one (1) district investigator position, one (1) administrative assistant position, and two (2) secretary positions.
        3. On September 1, 2022, the district public defender is entitled to purchase such office space and other office property necessary to establish the office of the district public defender for the thirty-second judicial district. Nothing contained herein shall be construed as prohibiting such district public defender from also establishing an additional office in the thirty-second judicial district. By September 1, 2022, all records, files, papers, and other official documents pertaining to any pending or completed case arising out of any of the counties comprising the thirty-second judicial district shall be transferred to and become the property of the office of district public defender for the thirty-second judicial district.
    1. The district public defender of any judicial district in which assistant district public defender positions are authorized by law shall appoint suitable persons to serve as assistant district public defenders. Any assistant district public defender shall be an attorney licensed to practice law in this state. Persons so appointed shall serve at the pleasure of the district public defender and shall perform such duties as the district public defender may require.
    2. The district public defender of any judicial district in which district investigator positions are authorized by law shall appoint suitable persons to serve as district investigators. Persons so appointed shall serve at the pleasure of the district public defender and shall perform such duties as the district public defender may require.
  2. No person holding the office of district public defender pursuant to this part shall be permitted to engage in the practice of law except as the duties of such office require. No person employed as a full-time assistant district public defender or as a full-time district investigator pursuant to this part shall be permitted to engage in the practice of law except as the duties of such positions require. Notwithstanding any other restrictions, attorneys with pending private legal matters at the time of employment with the office of district public defender shall have a reasonable length of time to conclude or transfer such cases in keeping with the standards of professional and ethical conduct.
    1. For each judicial district in which district public defenders are authorized, there shall be authorized the following number of assistant district public defender positions:

      Judicial district Assistant district public defender positions 1 6 2 6 3 6 4 5 5 3 6 16 7 3 8 4 9 3 10 5 11 10 12 4 13 5 14 3 15 4 16 5 17 4 18 4 19 6 21 4 22 5 23 4 24 4 25 5 26 5 27 3 28 3 29 3 31 1

      Click to view table.

    2. It is the legislative intent to provide additional assistant district public defender positions in both the 20th and 30th judicial districts in a manner consistent with the most current weighted caseload study. Funding for these positions shall be contingent upon specific appropriation by the general appropriations act for such positions.
  3. For each district, there is authorized at least one (1) criminal investigator position and one (1) additional criminal investigator for each five (5) assistant district public defenders or majority portion of such number.
  4. A district public defender may fill a full-time employee position with two (2) part-time employees. In order to implement such assignments, available funds may be reallocated or transferred, subject to overall budgetary limits.
  5. There is authorized one (1) paralegal position for the sixth judicial district.
  6. The number of assistant district public defender positions enumerated in this section or any other law for each specified judicial district shall be the minimum number of positions authorized in the district. Nothing in this section or any other law shall be construed to prohibit or prevent the employment of additional assistant district public defenders in a particular judicial district, regardless of whether the positions are funded by a state or non-state source, or whether they are specifically enumerated in this or any other section.

Acts 1989, ch. 588, § 2; 1990, ch. 751, § 5; 1990, ch. 964, § 1; 1992, ch. 965, § 1; 1993, ch. 472, § 7; 1994, ch. 904, § 1; 1995, ch. 473, § 1; 1996, ch. 1014, § 1; 1999, ch. 165, § 1; 2003, ch. 355, § 6; 2005, ch. 25, § 1; 2006, ch. 815, § 1; T.C.A § 8-14-202; Acts 2019, ch. 420, § 3; 2020, ch. 530, § 4.

Code Commission Notes.

Article II, § 24 of the Constitution of Tennessee provides, in part:

“Any law requiring the expenditure of state funds shall be null and void unless, during the session in which the act receives final passage, an appropriation is made for the estimated first year's funding.”

The Tennessee code commission has been advised by the commissioner of finance and administration that the necessary first year's funding was not appropriated during the 1991 regular session for the public act which would have amended this section.

The code commission was directed by Acts 1991, ch. 509, § 54 to not codify acts which did not receive first year's funding. Accordingly, Acts 1991, ch. 404, § 2, which would have amended this section, has not been codified. If ch. 404, § 2 had been codified, the amendment adding (d)(2) would have read as follows: “(d)(2) Notwithstanding the provisions of subdivision (d)(1), effective July 1, 1991, the district public defender of the thirteenth judicial district shall be entitled to an additional assistant district public defender position to be appointed, and who shall have the same qualifications and duties as is provided in subsection (b).”

This section was renumbered from § 8-14-202 to § 8-14-102 by authority of the Code Commission in 2016.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

Acts 2020, ch. 530, § 5 provided that the act, which amended this section, “shall not be construed to limit, terminate, or otherwise affect the term or future terms of office of any circuit court clerk, criminal court clerk, or clerk and master, subject to the residence requirement found in § 18-1-102. All such incumbents shall continue in office until the expiration of their respective terms of office and shall be eligible for reelection or reappointment. Nothing in this act shall be construed to require, permit, or authorize the consolidation of the offices of clerk and master, circuit court clerk, or criminal court clerk or to place any clerk in a position of dominance over any other clerk.”

Acts 2020, ch. 530, § 6 provided:

“(a)  All process issued after September 1, 2022, shall be returnable at the times and places fixed by local court rules promulgated in accordance with this act. All bonds and undertakings executed after September 1, 2022, shall be governed by local court rules, insofar as to appearance dates and other conditions relating to time and place.

“(b)  All cases, both civil and criminal except those that have previously been heard and taken under advisement, pending in any court in the twenty-first judicial district prior to September 1, 2022, shall as of that date be heard and determined in the appropriate court by the appropriate judge.

“(c)  Notwithstanding Tennessee Code Annotated, Title 16, Chapter 2, to the contrary, nothing in this act shall be construed to repeal, amend, or affect in any manner any jurisdiction granted to any local court by any public or private law.”

Amendments. The 2019 amendment rewrote (b)(1)(A), which read: “District public defenders appointed in the seventh, twenty-third and twenty-seventh judicial districts shall serve until their terms are completed on August 31, 1990. District public defenders appointed in the twenty-second, twenty-fourth, twenty-fifth and twenty-ninth judicial districts shall serve until their terms are completed on August 31, 1991. The district public defender in office in such districts on August 31, 1991, shall be appointed by the governor to serve as district public defender until August 31, 1992. Then, in the twenty-second, twenty-fourth, twenty-fifth and twenty-ninth judicial districts, the next succeeding term shall be for six (6) years, from September 1, 1992, until August 31, 1998. District public defenders in all other districts appointed initially pursuant to this part shall serve from September 1, 1989, until August 31, 1990. At the conclusion of the terms of office specified above, the terms of office of all district public defenders shall be eight (8) years, and until their successors are elected and qualified. Upon the completion of the term of the district public defender in each judicial district appointed under this subdivision (b)(1)(A), each district public defender shall be elected by the qualified voters of each respective district in the regular August election. The district public defender shall be a duly licensed attorney admitted to the practice of law in this state, and shall have been a resident of the state for five (5) years and of the judicial district for one (1) year. Except for the seventh, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-seventh and twenty-ninth judicial districts, prior to September 1, 1989, the governor shall appoint a district public defender for each judicial district from a list of three (3) names per district submitted by the judicial council. If the governor for any reason declines to appoint any of the nominees in a district, the governor shall notify the judicial council, which shall within sixty (60) days of such notice submit another three (3) names for such district. The governor shall have thirty (30) days after receipt of the list to decide whether to appoint any of the nominees.”

The 2020 amendment added (b)(1)(C).

Effective Dates. Acts 2019, ch. 420, § 27. May 21, 2019.

Acts 2020, ch. 530, § 7. March 10, 2020.

Law Reviews.

TBA's State-Wide Public Defender Bill: Priority Number One (Suzanne C. Robertson), 25 Tenn. B.J. 18 (1989).

What Price is Justice? Adequate funding for judicial system needs to be top priority of upcoming General Assembly (W. Andy Hardin), 37 Tenn. B.J. 23 (2001).

Attorney General Opinions. Continuation of work on criminal defense cases, OAG 94-102, 1994 Tenn. AG LEXIS 108 (9/9/94).

“Public defenders” representation of indigents in child support and contempt proceedings, OAG 98-092, 1998 Tenn. AG LEXIS 92 (4/15/98).

Municipal judge serving as assistant public defender for county, OAG 98-0123, 1998 Tenn. AG LEXIS 123 (7/17/98).

8-14-103. Office expenses.

The state shall provide each district public defender with suitable office space within the judicial district, together with necessary equipment and supplies and secretarial assistance. Nothing in this section shall be construed as prohibiting a county from providing another suitable office for such public defender or the public defender's personnel within the judicial district.

Acts 1989, ch. 588, § 3; 1991, ch. 345, § 2; T.C.A § 8-14-203.

Code Commission Notes.

This section was renumbered from § 8-14-203 to § 8-14-103 by authority of the Code Commission in 2016.

Attorney General Opinions. State ownership of equipment purchased for public defender's office, OAG 99-033, 1999 Tenn. AG LEXIS 18 (2/18/99).

Office of public defender a state agency, OAG 99-033, 1999 Tenn. AG LEXIS 18 (2/18/99).

8-14-104. District public defender — Duties.

  1. The district public defender has the duty and responsibility of representing indigent persons for whom the district public defender has been appointed as counsel by the court. Either personally or through an assistant district public defender, the district public defender shall counsel with the accused and represent such accused in the trial court. If the accused is aggrieved by the judgment of the trial court imposing a sentence of imprisonment, or dismissing a habeas corpus or post-conviction petition, the district public defender shall advise such accused fully concerning rights of appellate review.
  2. If the accused desires to appeal to an appellate court, the district public defender shall seasonably take all steps necessary to perfect the appeal, including a new trial motion when required and the filing of all essential transcripts and records with the clerk of the appellate court.
  3. The district public defender has the duty and responsibility of handling all appeals filed by an indigent person represented in the trial courts of this state.
  4. At such times and in such form and manner as may be directed by the chairs of the judiciary committee of the house of representatives and the judiciary committee of the senate, each executive director of the district public defenders conference shall submit reports reflecting the number, kind, status, and disposition of all cases and proceedings.

Acts 1989, ch. 588, § 4; 1990, ch. 751, §§ 1, 2; 1996, ch. 610, § 4; T.C.A § 8-14-204; Acts 2019, ch. 345, § 147; 2019, ch. 420, § 4.

Code Commission Notes.

This section was renumbered from § 8-14-204 to § 8-14-104 by authority of the Code Commission in 2016.

Amendments. The 2019 amendment by ch. 345, substituted “judiciary committee of the house of representatives” for “criminal justice committee of the house of representatives” in (d).

The 2019 amendment by ch. 420, substituted “criminal justice committee of the house of representatives and the judiciary committee of the senate, each executive director” for “judicial council, each executive director” in (d).

Effective Dates. Acts 2019, ch. 420, § 27. May 21, 2019.

Attorney General Opinions. The district public defender has no duty to appear at “drug court” staffings and appearances unless the defendant's liberty is directly at stake in the particular proceeding involved, OAG 03-009, 2003 Tenn. AG LEXIS 13 (1/24/03).

8-14-105. Determination of indigency — Appointment of counsel — Multiple defendants — Law students.

  1. When any person appears without counsel before any court of this state exercising original jurisdiction (whether magistrate, general sessions, municipal, juvenile, circuit, criminal or any court empowered to deprive the person of liberty) upon a criminal prosecution or juvenile delinquency proceeding involving a possible deprivation of liberty, the court shall inquire whether such person is financially able to employ counsel. If the person claims to be without such means, the court shall examine such person and any witnesses the indigent person or the court may call and proceed to determine whether the person is indigent. The determination shall not be based alone on the person's ability to make a bail bond, but the court shall consider income, property, obligations, the number and ages of dependents and any other matters deemed pertinent.
  2. In all habeas corpus and post-conviction proceedings, the court having original jurisdiction of the matter shall determine the question of the petitioner's indigency if such is claimed.
  3. In every case arising under this section, the court's determination of indigency or nonindigency shall be reduced to writing and signed by the court and filed with the papers of the cause. If the court is one of record, the court's determination shall also be entered upon its official minutes.
  4. If the court determines that the person is indigent, as defined in § 8-14-101, and the person has not waived the right to counsel, the court shall make and sign an order appointing the district public defender, or such other appointed counsel as provided by law, to represent the person. The original of the order shall be filed with the papers of the cause, and if the court is one of record, the order shall also be entered upon its official minutes.
    1. If the court appoints the district public defender to represent an accused in any proceeding under this section, but finds the accused is financially able to defray a portion or all the cost to the state of representation by the public defender, then the court shall enter an order directing the party to pay into the registry of the clerk of such court such sum of money as the court determines the accused is able to pay. Such sum shall be subject to execution as any other judgment and may also be made a condition of discharge from probation. Such sum as ordered by the court shall be paid by the accused independently and separately from any fines and costs associated with the cause, and such moneys paid by the accused and collected by the clerk of the court pursuant to this section shall be collected independently and separately from any fines and costs associated with the cause and be applied directly to the sum ordered by the court to be paid under this section. The court may provide for payments to be made at intervals, which the court shall establish, and upon such terms and conditions as are fair and just. The court may also modify its order when there has been a change in the circumstances of the accused.
    2. The clerk of the court shall collect all moneys paid by an accused pursuant to this section. When the accused fails to comply with the orders of the court, the clerk shall notify the court of the accused's failure to comply. The clerk shall, at the end of each month, pay to, and forward all payments received pursuant to this section to the office of the executive director of the district public defenders conference. The clerk of the court shall receive a commission of five percent (5%) of all moneys collected pursuant to the order of the court; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, such commission shall be ten percent (10%).
  5. In any case or proceeding wherein there is more than one (1) indigent person accused, one (1) such person shall be represented by the district public defender's office, and the court shall appoint an attorney to represent such other indigent persons. Such other indigent persons may also be represented by the district public defender's office; provided, that the court makes an affirmative finding prior to the appointment that no conflict of interest exists and it appears there is good cause to believe no conflict of interest is likely to arise. The original of the order shall be filed with the papers of the cause, and if the court is one of record, the order shall also be entered upon its official minutes.
  6. In any case when the trial court is of the opinion that proper representation of an indigent person or persons makes it necessary to do so, the court may for that purpose appoint one (1) or more senior law students actively participating in a legal aid clinic operated by an approved law school located in the judicial district, in accordance with Tennessee Supreme Court Rule 7. The legal aid clinic shall be notified promptly of the appointment and shall be furnished a copy of the order of appointment. The original of the order shall be filed with the papers of the cause, and if the court is one of record, the order shall also be entered upon its official minutes.
  7. All attorneys and law students appointed as provided in subsections (e) and (f) shall be paid by the state pursuant to §§ 40-14-207 and 40-14-208.
  8. Upon the appointment of the district public defender, and/or an attorney pursuant to subsections (e) and (f), no further proceedings shall be had in the case until such counsel has had reasonably sufficient time and opportunity to prepare the case for trial. District public defenders shall be authorized access to query state and federal criminal records history information as the duties of their office may require.
  9. If the court determines that the person accused or proceeded against in any criminal prosecution or other proceeding involving a possible deprivation of liberty, or the person filing a habeas corpus or other post-conviction proceeding is not an indigent person, the court shall advise such person with respect to right to counsel and afford such person a reasonable time, to be fixed by the court, and opportunity to secure counsel and shall stay further proceedings until counsel so obtained has had reasonable time and opportunity to prepare the case for trial.

Acts 1989, ch. 588, § 5; 1990, ch. 751, § 3; 1991, ch. 345, §§ 3, 4; 1995, ch. 456, § 5; 1996, ch. 610, § 4; 1999, ch. 165, § 5; T.C.A § 8-14-205.

Code Commission Notes.

This section was renumbered from § 8-14-205 to § 8-14-105 by authority of the Code Commission in 2016.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Section 8-14-201 referenced in (d) was renumbered as 8-14-101 by the authority of the code commission in 2016.

NOTES TO DECISIONS

1. Habeas Corpus.

When petitioner requested habeas corpus relief, alleging that petitioner was unlawfully sentenced, and also filed a motion for the appointment of counsel, trial court erred in failing to appoint counsel. McLaney v. Bell, 59 S.W.3d 90, 2001 Tenn. LEXIS 764 (Tenn. 2001), overruled in part, Summers v. State, 212 S.W.3d 251, 2007 Tenn. LEXIS 15 (Tenn. 2007), overruled in part, Brown v. Lewis, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 155 (Tenn. Crim. App. Feb. 22, 2007), overruled in part, Nevilles v. United States, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 40237 (W.D. Tenn. Mar. 30, 2015), overruled in concurring opinion at State v. Taylor, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 849 (Tenn. Crim. App. Oct. 13, 2015).

8-14-106. Waiver of right to counsel — Writing — Procedure for acceptance.

  1. No person in this state shall be allowed to enter a plea in any criminal prosecution or other proceeding involving a possible deprivation of liberty when not represented by counsel, unless such person has in writing waived the right to the assistance of counsel.
  2. Before a court shall accept a written waiver of the right to counsel, the court shall first advise the person in open court concerning the right to the aid of counsel in every stage of the proceedings. The court shall at the same time determine whether or not there has been a competent and intelligent waiver of such right, by inquiring into the background, experience and conduct of the person and such other matters as the court may deem appropriate. If a waiver is accepted, the court shall approve and authenticate it and file it with the papers of the cause, and if the court is one of record, the waiver shall also be entered upon its official minutes.

Acts 1989, ch. 588, § 6; T.C.A § 8-14-206.

Code Commission Notes.

This section was renumbered from § 8-14-206 to § 8-14-106 by authority of the Code Commission in 2016.

NOTES TO DECISIONS

1. Compliance.

The vacating of the judgments of the trial court against defendant and the remand of the case for appointment of new counsel and a new sentencing hearing was appropriate because the record showed that defendant did not knowingly, voluntarily, and intelligently waive defendant's right to counsel prior to defendant's sentencing hearing. Upon entry of new judgments, defendant was to have the opportunity to file a timely motion for new trial and a new notice of appeal. State v. Hughes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 946 (Tenn. Crim. App. Dec. 23, 2016).

8-14-107. Compensation.

  1. Effective July 1, 1994, the salary for district public defenders shall be an amount equal to eighty-eight percent (88%) of the salary established by law for district attorneys general. Effective July 1, 1995, the salary for district public defenders shall be an amount equal to the salary established by law for district attorneys general. On March 1, 2018, the base salary for district public defenders shall be one hundred fifty-six thousand twenty-four dollars ($156,024) and shall be adjusted on July 1 to reflect the average percentage pay increase provided for state employees by the general appropriations act.
    1. A full-time assistant district public defender shall be compensated according to the following pay schedule:

      Entry level  $    49,080

      after one (1) year  52,164

      after two (2) years  55,248

      after three (3) years  58,344

      after four (4) years  61,452

      after five (5) years  64,512

      after six (6) years  67,596

      after seven (7) years  70,704

      after eight (8) years  73,812

      after nine (9) years  76,872

      after ten (10) years  79,968

      after eleven (11) years  83,052

      after twelve (12) years  86,100

      after thirteen (13) years  89,184

      after fourteen (14) years  92,256

      after fifteen (15) years  95,328

      after sixteen (16) years  98,424

      after seventeen (17) years  101,220

      after eighteen (18) years  103,932

      after nineteen (19) years  106,548

      after twenty (20) years  109,020

      after twenty-one (21) years  112,620

      after twenty-two (22) years  116,316

      after twenty-three (23) years  120,144

      after twenty-four (24) years  124,392

      after twenty-five (25) years  128,616

    2. The salary levels for assistant district public defenders shall be increased by such percentage amount as shall be fixed by the general assembly in the general appropriations act. For the purpose of budget preparation, it shall be presumed that such percentage amount shall be the same as that received by other state employees.
    3. The executive director of the Tennessee district public defenders conference shall certify the entry level of compensation awarded to assistant district public defenders based on prior service credits. Subject to the approval of the district public defender, assistant district public defenders shall be entitled to prior service credits as follows:
      1. Any assistant district public defender who has prior experience as an assistant district public defender, an assistant district attorney general, a district public defender, a district attorney general, a criminal investigator for the district public defenders, a criminal investigator for the district attorneys general, a United States attorney, an assistant United States attorney, an assistant attorney general representing the state in criminal litigation, an elected judge of a court with criminal jurisdiction, an attorney who served as a law clerk for an appellate or trial judge of a court with criminal jurisdiction or an attorney who as a commissioned officer worked as a military attorney in the field of criminal defense or criminal prosecution while on full-time active duty in the judge advocate general's corps of any of the armed services of the United States, shall be eligible to receive year-for-year credit upon the recommendation of the hiring district public defender, and subject to the approval of the executive committee of the Tennessee district public defenders conference.
      2. The executive director of the Tennessee district public defenders conference may certify prior service credits for prior practice of law but not exceeding the assistant's experience as a licensed practicing attorney and, in no case, shall year-for-year credit exceed twelve (12) years.
    4. Implementation of salary increases pursuant to the pay schedule prescribed in subdivision (b)(1) shall be suspended for the fiscal years beginning July 1, 2003, and ending June 30, 2004, and beginning July 1, 2009, and ending June 30, 2010. In the fiscal years beginning July 1, 2004, and July 1, 2010, and in subsequent fiscal years, salary increases pursuant to the pay schedule prescribed in subdivision (b)(1) shall not include time of service between July 1, 2003, and June 30, 2004, nor between July 1, 2009, and June 30, 2010.
    5. The salary increase provided by subdivision (b)(1), and suspended by subdivision (b)(4) for the period July 1, 2003, through June 30, 2004, shall be reinstated effective July 1, 2017. For purposes of determining the appropriate salary classification for assistant district public defenders, credible service for the time period of July 1, 2003, through June 30, 2004, shall be included.
    6. The salary increase provided by subdivision (b)(1), and suspended by subdivision (b)(4) for the period July 1, 2009, through June 30, 2010, is reinstated effective July 1, 2019. For purposes of determining the appropriate salary classification for assistant district public defenders, credible service for the time period of July 1, 2009, through June 30, 2010, is included.
    1. Effective March 1, 2018, all full-time district investigators shall be compensated according to the following pay schedule:

      Entry level $ 33,852

      after two (2) years  36,924

      after four (4) years  39,972

      after six (6) years  43,032

      after eight (8) years  46,164

      after ten (10) years  49,188

      after twelve (12) years  52,320

      after fourteen (14) years  55,332

      after sixteen (16) years  58,428

      after eighteen (18) years  61,512

      after twenty (20) years  64,584

    2. The salary levels for district investigators shall be increased by such percentage amount as shall be fixed by the general assembly in the general appropriations act. For the purpose of budget preparation, it shall be presumed that such percentage amount shall be the same as that received by other state employees.
    3. The executive director of the district public defenders conference shall certify the level of compensation awarded to district investigators based on prior service credits. Subject to the approval of the district public defender, district investigators are entitled to the same prior service credits as allowed criminal investigators for the district attorneys general in § 8-7-231, as well as relevant experience as a criminal defense investigator.
    4. If a district public defender having a vacant district investigator position appoints a licensed attorney to that position and designates that person to serve as an assistant district public defender, the appointee may, upon recommendation of the appointing district public defender, with approval of the executive committee of the district public defenders conference be compensated as an assistant district public defender as provided for in subsection (b).
    5. Implementation of salary increases pursuant to the pay schedule prescribed in subdivision (c)(1) shall be suspended for the fiscal years beginning July 1, 2003, and ending June 30, 2004, and beginning July 1, 2009, and ending June 30, 2010. In the fiscal years beginning July 1, 2004, and July 1, 2010, and in subsequent fiscal years, salary increases pursuant to the pay schedule prescribed in subdivision (c)(1) shall not include time of service between July 1, 2003, and June 30, 2004, nor between July 1, 2009, and June 30, 2010.
    6. The salary increase provided by subdivision (c)(1), and suspended by subdivision (c)(5) for the period July 1, 2003, through June 30, 2004, shall be reinstated effective July 1, 2017. For purposes of determining the appropriate salary classification for district public defender investigators, credible service for the time period of July 1, 2003, through June 30, 2004, shall be included.
    7. The salary increase provided by subdivision (c)(1), and suspended by subdivision (c)(5) for the period July 1, 2009, through June 30, 2010, is reinstated effective July 1, 2020. For purposes of determining the appropriate salary classification for district public defender investigators, credible service for the time period of July 1, 2009, through June 30, 2010, is included.

Acts 1989, ch. 588, § 8; 1994, ch. 1007, §§ 1-3; 1996, ch. 610, § 4; 1999, ch. 165, §§ 2-4; 2003, ch. 355, §§ 7, 8, 14; 2004, ch. 819, § 1; 2006, ch. 969, § 1; 2007, ch. 544, § 1; 2009, ch. 531, §§ 24-26; T.C.A § 8-14-207; Acts 2017, ch. 461, §§ 7, 8; 2018, ch. 899, §§ 2, 3, 6; 2019, ch. 202, § 3; 2019, ch. 386, § 1; 2020, ch. 757, § 1.

Code Commission Notes.

This section was renumbered from § 8-14-207 to § 8-14-107 by authority of the Code Commission in 2016.

Compiler's Notes. Acts 1994, ch. 1007, § 1 establishes the district public defender salary as a percentage of the district attorney general salary. Effective July 1, 1994, this amount was $71,940 per year.

Acts 1994, ch. 1007, § 4 provided that no level of compensation shall be reduced by the amendments to this section by that act for any assistant district public defender or district investigator who is employed on July 1, 1994.

Per Acts 1994, ch. 1011, the general appropriations act, public defenders get up to four percent extra along with all other state employees sometime after July 1, 1994.

Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Amendments. The 2017 amendment added (b)(5) and (c)(6).

The 2018 amendment rewrote the last sentence in (a) which read: “The annual salary shall be adjusted to reflect all salary increases provided to the district attorney general.”; and rewrote the assistant district public defender pay schedule in (a)(1) and the district investigator pay schedule in (c)(1).

The 2019 amendment by ch. 202, added (b)(6).

The 2019 amendment by ch. 386, in (c)(3), substituted “are” for “shall be” preceding “entitled to”, and added “, as well as relevant experience as a criminal defense investigator” at the end.

The 2020 amendment added (c)(7).

Effective Dates. Acts 2017, ch. 461, § 12. July 1, 2017.

Acts 2018, ch. 899, § 7. May 3, 2018.

Acts 2019, ch. 202, § 4. July 1, 2019.

Acts 2019, ch. 386, § 2. July 1, 2019.

Acts 2020, ch. 757, § 2. July 1, 2020.

Attorney General Opinions. Continuation of work on criminal defense cases, OAG 94-102, 1994 Tenn. AG LEXIS 108 (9/9/94).

Prior service credits, OAG 95-110, 1995 Tenn. AG LEXIS 130 (11/21/95).

Assistant district public defenders, eligibility for longevity pay, OAG 96-102, 1996 Tenn. AG LEXIS 107 (7/31/96).

A district public defender and the district public defenders conference may not recognize prior service credits after the initial hiring of an assistant public defender, OAG 00-075, 2000 Tenn. AG LEXIS 78 (4/17/00).

The district public defender and the district public defenders conference may not recognize prior service credits after the initial hiring of an assistant public defender, OAG 00-075, 2000 Tenn. AG LEXIS 78 (4/17/00).

If the district public defenders conference previously awarded certain prior service credits without the recommendation or approval of the district public defender, it would not be required to recognize other prior service credits without approval of the district public defender, OAG 00-075, 2000 Tenn. AG LEXIS 78 (4/17/00).

Collateral References.

Right of public defenders to join collective bargaining unit. 108 A.L.R.5th 241.

8-14-108. Personnel — State employees.

The personnel of the public defender system shall be state employees, entitled to all state employee benefit programs.

Acts 1989, ch. 588, § 7; T.C.A § 8-14-208.

Code Commission Notes.

This section was renumbered from § 8-14-208 to § 8-14-108 by authority of the Code Commission in 2016.

Attorney General Opinions. Office of public defender a state agency, OAG 99-033, 1999 Tenn. AG LEXIS 18 (2/18/99).

Collateral References.

Right of public defenders to join collective bargaining unit. 108 A.L.R.5th 241.

8-14-109. Immunity of state and personnel of public defender's office.

No court in this state has any power, jurisdiction or authority to entertain any suit against the state or against any public defender or any employees thereof acting in their official capacity with a view to reach the state, its treasury, funds or property, or the funds or property of any public defender or its employees for any act of negligence arising from the execution of the employee's official duties as an employee of the district public defenders conference; provided, that this shall not be construed to bar any suit against the state or an official of the state alleging any ground or seeking any relief which could be sought under a writ of habeas corpus or petition for post-conviction relief.

Acts 1989, ch. 588, § 26; 1991, ch. 345 § 5; T.C.A § 8-14-209.

Code Commission Notes.

This section was renumbered from § 8-14-209 to § 8-14-109 by authority of the Code Commission in 2016.

Attorney General Opinions. State liability for negligence of senior law students appearing for indigents, OAG 99-028, 1999 Tenn. AG LEXIS 23 (2/17/99).

Office of public defender a state agency, OAG 99-033, 1999 Tenn. AG LEXIS 18 (2/18/99).

8-14-110. Twentieth and thirtieth judicial districts — State funding.

For the twentieth and thirtieth judicial districts, the state shall pay, in equal quarterly installments, to the county or metropolitan government which has a local public defender, an amount annually appropriated for that purpose. Such amount shall not be less than the amount appropriated in fiscal year 1992-1993. In addition to the amount appropriated in 1992-1993 the base level of state support on July 1, 2013, shall be adjusted to reflect the percent of change in the average consumer price index (all items-city average) as published by the United States department of labor, bureau of labor statistics, between that figure for the calendar year 2011 and the calendar year 2012. Each succeeding July 1, a similar adjustment shall be made, based on the percent of change in the average consumer price index between the two (2) calendar years preceding July 1 of the year in which the adjustment is made. No adjustment provided for herein shall exceed five percent (5%) per annum. The base level of state support may be adjusted accordingly each year to meet state budget requirements or to reflect changes to programs, workloads or other operational costs.

Acts 1992, ch. 965, § 4; 2013, ch. 286, § 1; T.C.A § 8-14-210.

Code Commission Notes.

This section was renumbered from § 8-14-210 to § 8-14-110 by authority of the Code Commission in 2016.

8-14-111. Special personnel for expedition of post-conviction proceedings in capital cases.

The district public defender is authorized to employ, reassign, or contract with individuals utilizing special funds appropriated solely for the purpose of providing prompt and fair adjudication of post-conviction proceedings in capital sentence cases, including authority to assign the additional personnel the duties of personnel reassigned to the post-conviction cases. In no event shall the employment, contract, or expenditures under this authority extend beyond a two-year period.

Acts 1993, ch. 472, § 3; T.C.A § 8-14-211.

Code Commission Notes.

This section was renumbered from § 8-14-211 to § 8-14-111 by authority of the Code Commission in 2016.

Cross-References. Appropriation of funds, § 16-3-806.

8-14-112. Additional assistant district public defender positions.

  1. Effective July 1, 2004, there are created eighteen (18) additional assistant district public defender positions to be designated in judicial districts as provided in this section.
    1. The executive director of the district public defenders conference and the administrative director of the courts shall meet and prepare a report that contains the recommendations of such officials as to the specific judicial districts in which the additional assistant district public defender positions created pursuant to subsection (a) should be designated. Such report shall be prepared in consultation with the comptroller.
    2. By October 1, 2004, the executive director of the district public defenders conference shall file the report prepared pursuant to subdivision (b)(1) with the speakers of the senate and house of representatives and chairs of the judiciary committees of the senate and house of representatives. Upon the filing of such report, the district public defenders recommended by the report to receive additional assistant positions shall be authorized to interview and employ persons to fill such positions.
  2. As early as is practicable during the first session of the one hundred fourth general assembly, the general assembly shall consider and enact legislation that specifically designates the judicial districts in which the persons employed in the additional assistant district public defender positions created pursuant to subsection (a) will serve.

Acts 2004, ch. 821, § 1; T.C.A § 8-14-212.

Code Commission Notes.

This section was renumbered from § 8-14-212 to § 8-14-112 by authority of the Code Commission in 2016.

8-14-113. Direct public defender appellate division.

  1. The district public defenders conference shall establish, and the executive director shall operate, the district public defender appellate division for the purpose of representing indigent persons in direct appeals, pursuant to § 8-14-104, to the Tennessee court of criminal appeals and the Tennessee supreme court.
  2. The executive director, or the executive director's designee, shall be the director of the appellate division.
  3. An assistant public defender of the appellate division must be an attorney licensed to practice law in this state. A person so employed serves at the direction of the executive director and performs such duties as the executive director may require.
    1. The appellate division shall represent indigent persons upon appeal from the circuit or criminal courts in this state, pursuant to § 8-14-104.
    2. The appellate division may, however, refuse the appointments where necessary:
      1. Due to a conflict of interest;
      2. If the executive director determines the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation; or
      3. Where the district public defender deems it necessary for the best interests of the defendant.
    1. In order to effectively and efficiently use the resources of the appellate division, the executive director may:
      1. Select and employ staff attorneys to perform the duties prescribed by this section; and
      2. Fill a full-time employee position with two (2) part-time employees.
    2. In order to implement assignments, available funds may be reallocated or transferred, subject to overall budgetary limits.
  4. A person employed as a full-time assistant public defender in the appellate division pursuant to this section is not permitted to engage in the practice of law except as the duties of such position requires. Notwithstanding any other restrictions, attorneys with pending private legal matters at the time of employment with the district public defender appeals division shall have a reasonable length of time to conclude or transfer such cases in keeping with the standards of professional and ethical conduct.
  5. Effective July 1, 2019, there are authorized six (6) appellate attorney positions within the appellate division.
  6. Appellate division attorneys are to be compensated as assistant public defenders pursuant to § 8-14-107.

Acts 2019, ch. 428, § 1.

Effective Dates. Acts 2019, ch. 428, § 3. July 1, 2019.

Part 2
District Public Defenders Conference

Code Commission Notes.

This part, title 8, chapter 16, part 2 was renumbered from title 8, chapter 14, part 3 by authority of the Code Commission in 2016.

8-14-201. Creation.

  1. There is hereby created a district public defenders conference for the state, whose membership shall consist of all district public defenders of the state whose salary is paid in whole or in part out of the state treasury. The attorney general and reporter shall be an ex officio member of the conference and act as its legal advisor.
  2. The public defender of Shelby County and the public defender of Davidson County shall also be members of the conference.

Acts 1989, ch. 588, § 11; 1990, ch. 751, § 6; T.C.A § 8-14-301.

Code Commission Notes.

This section was renumbered from § 8-14-301 to § 8-14-201 by authority of the Code Commission in 2016.

Compiler's Notes. The Code Commission transferred numerous sections in this title to this part, effective upon the 2016 replacement of this volume. See the following parallel reference table for the old and new locations.

Old Sections  New Sections

8-14-301      8-14-201

8-14-302      8-14-202

8-14-303      8-14-203

8-14-304      8-14-204

8-14-305      8-14-205

8-14-306      8-14-206

Law Reviews.

What Price is Justice? Adequate funding for judicial system needs to be top priority of upcoming General Assembly (W. Andy Hardin), 37 Tenn. B.J. 23 (2001).

Attorney General Opinions. A district attorney general has no authority to represent a petitioner seeking a protective order. State statutes and local ordinances do not authorize a public defender to represent an individual defending against a petition for an order of protection; however, the ordinances governing the Shelby County's Public Defender's Office do not prohibit the Shelby County Public Defender from doing so. OAG 16-06, 2016 Tenn. AG LEXIS 4 (2/10/2016).

8-14-202. Meetings — Purpose.

Such conference shall meet annually and at other times as herein provided for the consideration of any and all matters pertaining to the discharge of the official duties and obligations of the several members, to the end that there shall be a more prompt and efficient administration of justice in the courts of this state.

Acts 1989, ch. 588, § 12; T.C.A § 8-14-302.

Code Commission Notes.

This section was renumbered from § 8-14-302 to § 8-14-202 by authority of the Code Commission in 2016.

Attorney General Opinions. A district attorney general has no authority to represent a petitioner seeking a protective order. State statutes and local ordinances do not authorize a public defender to represent an individual defending against a petition for an order of protection; however, the ordinances governing the Shelby County's Public Defender's Office do not prohibit the Shelby County Public Defender from doing so. OAG 16-06, 2016 Tenn. AG LEXIS 4 (2/10/2016).

8-14-203. Duties.

It is the duty of the conference to give consideration to the enactment of such laws and rules of procedure as in its judgment may be necessary to the more effective administration of justice and thus promote peace and good order in the state. To this end, a committee of its members shall be appointed to draft suitable legislation and submit its recommendations to the general assembly.

Acts 1989, ch. 588, § 13; T.C.A § 8-14-303.

Code Commission Notes.

This section was renumbered from § 8-14-303 to § 8-14-203 by authority of the Code Commission in 2016.

NOTES TO DECISIONS

1. Rules.

The duties of the district public defenders conference do not include making rules or conducting contested cases as those terms are used in the Uniform Administrative Procedures Act. Moody v. State Dist. Pub. Defenders Conf., 980 S.W.2d 385, 1998 Tenn. App. LEXIS 222 (Tenn. Ct. App. 1998).

8-14-204. Officers — Meetings.

The president of the conference may call meetings at will, upon at least ten (10) days written notice to members, and shall call at least one (1) meeting annually, such annual meeting to be at the same time as that held by the judicial conference of this state. The district public defenders conference shall elect annually a president, a vice president, secretary and such other officers as are necessary.

Acts 1989, ch. 588, § 14; T.C.A § 8-14-304.

Code Commission Notes.

This section was renumbered from § 8-14-304 to § 8-14-204 by authority of the Code Commission in 2016.

Attorney General Opinions. A district attorney general has no authority to represent a petitioner seeking a protective order. State statutes and local ordinances do not authorize a public defender to represent an individual defending against a petition for an order of protection; however, the ordinances governing the Shelby County's Public Defender's Office do not prohibit the Shelby County Public Defender from doing so. OAG 16-06, 2016 Tenn. AG LEXIS 4 (2/10/2016).

8-14-205. Duty to attend meetings.

It is the official duty of each member of the conference to attend its meetings unless otherwise officially engaged, or for other good and sufficient reasons.

Acts 1989, ch. 588, § 15; T.C.A § 8-14-305.

Code Commission Notes.

This section was renumbered from § 8-14-305 to § 8-14-205 by authority of the Code Commission in 2016.

8-14-206. Expense of attending meetings — Reimbursement.

Every member whose salary is paid in whole or in part by the state shall be entitled to have expenses paid for such attendance. Such expenses shall be paid upon the verified statement of such expenses by the district public defender incurring the same and shall be paid from the general fund.

Acts 1989, ch. 588, § 16; T.C.A § 8-14-306.

Code Commission Notes.

This section was renumbered from § 8-14-306 to § 8-14-206 by authority of the Code Commission in 2016.

Part 3
Executive Director of the District Public Defenders Conference

Code Commission Notes.

This part, title 8, chapter 16, part 3 was renumbered from title 8, chapter 14, part 4 by authority of the Code Commission in 2016.

8-14-301. Office of executive director — Creation — Purpose.

There is created the office of executive director of the district public defenders conference. The purpose of this office shall be to assist in improving the administration of justice in Tennessee by coordinating the defense efforts of the various district public defenders and by performing the duties and exercising the powers herein conferred.

Acts 1989, ch. 588, § 17; 1996, ch. 610, § 3; T.C.A § 8-14-401.

Code Commission Notes.

This section was renumbered from § 8-14-401 to § 8-14-301 by authority of the Code Commission in 2016.

Compiler's Notes. The Code Commission transferred numerous sections in this title to this part, effective upon the 2016 replacement of this volume. See the following parallel reference table for the old and new locations.

Old Sections  New Sections

8-14-401      8-14-301

8-14-402      8-14-302

8-14-403      8-14-303

8-14-404      8-14-304

8-14-405      8-14-305

8-14-406      8-14-306

8-14-407      8-14-307

8-14-408      8-14-308

8-14-302. Office of executive director — Election — Term — Removal — Salary.

  1. The executive director of the district public defenders conference shall be elected by a simple majority of the membership of the district public defenders conference for a term of four (4) years. The election of the executive director shall be held at the annual meeting of the conference which immediately precedes July 1 of years in which presidential elections are held.
  2. The term of office of the executive director shall begin on July 1 following the election, and shall extend through June 30 of the next year in which a presidential election is held. The executive director shall, however, be subject to removal from office by vote of a majority of the conference membership at any meeting of the conference held during the term of office of the executive director. Upon removal from office of the executive director, or upon a vacancy in the office otherwise occurring during a meeting of the conference, the conference shall elect by vote of a majority of its membership a person to fill the unexpired term of office. Should a vacancy in the office of executive director occur at any other time, the executive committee of the conference shall appoint a person to the office of executive director to serve until the next meeting of the conference, at which time the conference shall, by vote of a majority of its members, elect a person to fill the unexpired term of office of the executive director.
  3. The executive director shall receive a salary equal to that fixed by law for a district public defender.

Acts 1989, ch. 588, § 18; 1996, ch. 610, § 4; T.C.A § 8-14-402.

Code Commission Notes.

This section was renumbered from § 8-14-402 to § 8-14-302 by authority of the Code Commission in 2016.

8-14-303. Office of executive director — Duties.

  1. The executive director of the district public defenders conference shall:
    1. Work under the supervision and direction of the executive committee of the district public defenders conference;
    2. Assist the district public defenders throughout the state in coordinating the efforts of such district public defenders to perform their duties. Such assistance shall include, but is not limited to:
      1. Obtaining, preparing and supplementing indexes to the unreported decisions of the criminal court of appeals and the supreme court of Tennessee relating to criminal matters;
      2. Preparation of a basic defenders' manual and educational materials; and
      3. Preparation and distribution of uniform appropriate forms;
    3. Initiate conference calls between district public defenders and coordinate efforts of district public defenders involved in defending cases and crimes crossing district lines;
    4. Serve in a liaison capacity among the various branches of state government and the divisions thereof, including, but not limited to, the courts, the general assembly, the executive department and the office of attorney general and reporter;
    5. Administer the accounts of the judicial branch of government which relate to the offices of the district public defenders and prepare, approve and submit budget estimates and appropriations necessary for the maintenance and operation of the offices of district public defenders and make recommendations with respect thereto;
    6. Draw and approve all requisitions for the payment of public moneys appropriated for the maintenance and operation of the judicial branch of government which relate to the offices of the district public defenders, and shall audit claims and prepare vouchers for presentation to the department of finance and administration, including payroll warrants, expense warrants, and warrants covering the necessary costs of supplies, materials and other obligations by the various offices with respect to which fiscal responsibility is exercised;
    7. Have authority, within budgetary limitations, to provide the district public defenders with minimum law libraries, the nature and extent of which shall be determined in every instance by the executive director on the basis of need. All books thus furnished shall remain the property of the state, and shall be returned to the custody of the executive director by each district public defender upon the retirement or expiration of the official duties of each such officer; and
    8. Manage the operations and administer the accounts that relate to the appellate division.
  2. All functions performed by the executive director which involve expenditures of state funds shall be subject to the same auditing procedures by the commissioner of finance and administration and the comptroller of the treasury as required in connection with the expenditure of all other state funds.

Acts 1989, ch. 588, § 19; 1996, ch. 610, § 4; T.C.A § 8-14-403; Acts 2019, ch. 428, § 2.

Code Commission Notes.

This section was renumbered from § 8-14-403 to § 8-14-303 by authority of the Code Commission in 2016.

Amendments. The 2019 amendment added (a)(8).

Effective Dates. Acts 2019, ch. 428, § 3. July 1, 2019.

8-14-304. Duties of executive director.

The executive director of the district public defenders conference shall attend to such duties as may be assigned to the executive director by the district public defenders conference or the executive committee of such conference.

Acts 1989, ch. 588, § 20; 1996, ch. 610, § 4; T.C.A § 8-14-404; Acts 2019, ch. 420, § 5.

Code Commission Notes.

This section was renumbered from § 8-14-404 to § 8-14-304 by authority of the Code Commission in 2016.

Amendments. The 2019 amendment deleted “serve as a member of the state law enforcement planning commission and the judicial council and shall” preceding “attend to”, deleted “other” preceding “duties”, and substituted “the executive committee of such conference” for “thereof; provided, that the executive director shall be the only representative of the various district public defenders to serve as a member of the law enforcement planning commission”.

Effective Dates. Acts 2019, ch. 420,  § 27. May 21, 2019.

8-14-305. Executive director — Assistants and staff.

  1. The executive director shall, subject to the approval of the duly elected officers of the district public defenders conference, appoint a deputy executive director, a budget officer and a director and such other assistants and clerical personnel as are necessary to enable the performance of the duties of the office.
  2. Compensation for other assistants and clerical personnel shall be fixed by the executive director with the approval of the executive committee of the district public defenders conference.
  3. A newly elected or appointed executive director, deputy executive director, or employee licensed as an attorney is not permitted to engage in the practice of law except as the duties of such position requires. Notwithstanding any other restrictions, attorneys with pending private legal matters at the time of employment with the office of executive director shall have a reasonable length of time to conclude or transfer such cases in keeping with the standards of professional ethical conduct.

Acts 1989, ch. 588, § 21; 1996, ch. 610, §§ 1, 2, 4; T.C.A § 8-14-405; Acts 2019, ch. 302, §§ 1, 2.

Code Commission Notes.

This section was renumbered from § 8-14-405 to § 8-14-305 by authority of the Code Commission in 2016.

Amendments. The 2019 amendment, in (a), substituted “a deputy executive director” for “an assistant executive director” preceding “executive”; in (c), rewrote the first sentence, which read: “During the term of office or employment of the executive director, neither the executive director nor any assistant or employee licensed as an attorney in this state shall directly or indirectly engage in the practice of law in any of the courts in this state except as the duties of the office may require.”, and added the second sentence.

Effective Dates. Acts 2019, ch. 302, § 3. July 1, 2019.

8-14-306. Executive director — Office and supplies.

The executive director shall be provided with suitable office space in the supreme court building or other convenient and suitable office space and with all office equipment and supplies necessary to perform the duties of the office.

Acts 1989, ch. 588, § 22; 1996, ch. 610, § 4; T.C.A § 8-14-406.

Code Commission Notes.

This section was renumbered from § 8-14-406 to § 8-14-306 by authority of the Code Commission in 2016.

8-14-307. Executive director and personnel — State employees.

The executive director and personnel of the district public defenders conference shall be state employees, entitled to all state employee benefit programs.

Acts 1989, ch. 588, § 23; 1996, ch. 610, § 4; T.C.A § 8-14-407.

Code Commission Notes.

This section was renumbered from § 8-14-407 to § 8-14-307 by authority of the Code Commission in 2016.

8-14-308. Submission of budget.

Each year's budget for the operation of the office of executive director of the district public defenders conference shall be submitted to the judiciary committee of the house of representatives and the judiciary committee of the senate prior to approval of the budget by the general assembly.

Acts 1989, ch. 588, § 24; 1996, ch. 610, § 4; 2013, ch. 236, § 40; T.C.A § 8-14-408; Acts 2019, ch. 345, § 15.

Code Commission Notes.

This section was renumbered from § 8-14-408 to § 8-14-308 by authority of the Code Commission in 2016.

Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” following “submitted to the”.

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Law Reviews.

What Price is Justice? Adequate funding for judicial system needs to be top priority of upcoming General Assembly (W. Andy Hardin), 37 Tenn. B.J. 23 (2001).

Part 4
District Public Defender's Fiscal Affairs

Code Commission Notes.

This part, title 8, chapter 16, part 4 was renumbered from title 8, chapter 14, part 5 by authority of the Code Commission in 2016.

8-14-401. Fiscal officer.

  1. Whereas the various district public defenders may be entitled to receive funding from various local, state and federal government sources, and private donors, and an orderly system for receiving and disbursing same is necessary, the district public defenders are hereby authorized and empowered to designate the executive director of the district public defenders conference as the fiscal officer for the judicial district served by a district public defender.
  2. The executive director, or the executive director's designee, is hereby authorized and empowered to receive and disburse funds so received for any lawful purpose not inconsistent with this part, subject to the guidelines established by the district public defenders conference.

Acts 1991, ch. 345, § 6; 1996, ch. 610, § 4; T.C.A § 8-14-501.

Code Commission Notes.

This section was renumbered from § 8-14-501 to § 8-14-401 by authority of the Code Commission in 2016.

Compiler's Notes. The Code Commission transferred numerous sections in this title to this part, effective upon the 2016 replacement of this volume. See the following parallel reference table for the old and new locations.

Old Sections  New Sections

8-14-501      8-14-401

Attorney General Opinions. State ownership of equipment purchased for public defender's office, OAG 99-033, 1999 Tenn. AG LEXIS 18 (2/18/99).

Office of public defender a state agency, OAG 99-033, 1999 Tenn. AG LEXIS 18 (2/18/99).

Chapter 15
Auditors

8-15-101. Employment by counties.

The counties are authorized to employ accountants to audit the books of the officers and employees of the counties. Prior to any county authorizing the employment of such auditors or accountants, the county shall request and must obtain the approval of the comptroller of the treasury. The employment of such auditors or accountants is subject to the requirements of § 4-3-304.

Acts 1917, ch. 67, § 1; Shan. Supp., § 582a1; Code 1932, § 833; T.C.A. (orig. ed.), § 8-1501; Acts 1995, ch. 179, § 14.

8-15-102. Employment by committee — Bond.

Such auditor shall be employed by a committee of not less than three (3), appointed by the county legislative body from the members of the legislative body, which committee shall require the accountant so employed to furnish bond for the faithful performance of the accountant's duties.

Acts 1917, ch. 67, § 2; Shan. Supp., § 582a2; Code 1932, § 834; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1502.

8-15-103. Report.

The report of such auditor or accountant shall be furnished to the comptroller of the treasury and members of the county legislative body, and all citizens of the county shall have access to the report.

Acts 1917, ch. 67, § 3; Shan. Supp., § 582a3; Code 1932, § 835; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1503; Acts 1995, ch. 179, § 15.

8-15-104. Appropriation for expenses.

The county legislative body has the authority to appropriate funds out of the general fund of the county for the purpose of defraying the expenses of such audit.

Acts 1917, ch. 67, § 4; Shan. Supp., § 582a4; Code 1932, § 836; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1504.

Chapter 16
Notaries Public

Part 1
Qualifications

8-16-101. Election — Residency requirement — Eligibility.

  1. There shall be elected by the members of the county legislative body as many notaries public as they may deem necessary. In addition to any other requirement imposed by law, a person must be a United States citizen or a legal permanent resident in order to hold the office of notary public. At the time of their election, all notaries must be residents of the county, or have their principal place of business in the county, from which they were elected. If an individual's principal place of business is in any county in the state of Tennessee, the individual is eligible for election as a notary in that county, although the individual may reside in a state other than Tennessee.
  2. Nothing contained within § 5-5-102(c)(2), or any other law, shall be construed to prohibit a member of a county legislative body from also serving as a notary public; provided, that such member complies with the requirements established within this part.
  3. In addition to any other eligibility requirements, each person applying for election as a notary public shall certify under penalty of perjury that such person:
    1. Has never been removed from the office of notary public for official misconduct;
    2. Has never had a notarial commission revoked or suspended by this or any other state; and
    3. Has never been found by a court of this state or any other state to have engaged in the unauthorized practice of law.

Code 1858, § 1792 (deriv. Acts 1835-1836, ch. 11, § 1; 1851-1852, ch. 331, § 2; 1853-1854, ch. 139, § 1); Acts 1881, ch. 64, § 1; Shan., § 3194; mod. Code 1932, § 5892; Acts 1971, ch. 142, § 1; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 8-1601; Acts 1989, ch. 334, § 1; 1993, ch. 418, § 3; 2004, ch. 854, §§ 1, 2; 2008, ch. 834, § 1.

Compiler's Notes. Former parts 2-3 of this chapter were rearranged by Acts 2004, ch. 854, which combined parts 1, 2 and 3 into one part.

Acts 2004, ch. 854, § 17 provided that after July 1, 2004, all references contained in the Tennessee Code Annotated to “notary at large” or “notary public at large” shall be deemed references to “notary public for the state of Tennessee”.

Cross-References. Election by county legislative body, § 5-5-111.

Fees and compensation for services, § 8-21-1201.

Powers of officers of armed forces, §§ 58-1-234, 58-1-60558-1-607.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Notary Public, § 1.

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

Attorney General Opinions. United States citizenship requirement, proposed, OAG 94-059, 1994 Tenn. AG LEXIS 61 (4/15/94).

Inability of the state to require notaries public to be United States citizens. (Opinion No. 94-059 reaffirmed), OAG 06-026, 2006 Tenn. AG LEXIS 26 (2/7/06).

Qualifications for individuals seeking commission as a notary public, OAG 07-076, 2007 Tenn. AG LEXIS 76 (5/22/07).

A notary public is a state official whose duties are prescribed by statute, OAG 07-157, 2007 Tenn. AG LEXIS 157 (11/26/07).

Complaints of criminal misconduct by a notary public should be directed to the appropriate law enforcement agency in the municipality or county in which the alleged conduct took place, OAG 07-157, 2007 Tenn. AG LEXIS 157 (11/26/07).

NOTES TO DECISIONS

1. State Officer.

Each elected notary public is an officer of the state of Tennessee, commissioned by its governor, with power to administer oaths and qualify parties to affidavits. Krueger v. Miller, 489 F. Supp. 321, 1977 U.S. Dist. LEXIS 13982 (E.D. Tenn. 1977).

2. Scope of Jurisdiction.

A notary of this state could not authenticate a deed for registration by taking an acknowledgment in another state, though venue was laid in the notary's county in this state. White v. Manigan, 138 Tenn. 139, 196 S.W. 148, 1917 Tenn. LEXIS 15 (1917).

3. De Facto Notary Public.

An acknowledgment taken by a de facto notary public was not void as against the public and third persons, the notary being in possession by induction into the office under color of right. Stokes v. Acklen, 46 S.W. 316, 1898 Tenn. Ch. App. LEXIS 6 (1898).

Collateral References.

Perjury conviction as affected by notary's nonobservance of formalities for administration of oath to affiant. 80 A.L.R.3d 278.

8-16-102. Approval of notaries.

All notaries shall be approved by the governor. For purposes of this section, “approved” means to accept or to sanction, and does not mean to appoint.

Code 1858, § 1793 (deriv. Acts 1835-1836, ch. 11, § 4); Shan., § 3195; Code 1932, § 5893; T.C.A. (orig. ed.), § 8-1602; Acts 2014, ch. 805, §§ 1, 4.

Cross-References. Officers commissioned, § 8-18-106.

Collateral References.

Notary as an officer. 79 A.L.R. 449.

8-16-103. Term of office.

The term of office of notaries public shall be four (4) years, such term to begin on the d