S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        January  6,  2004
                                      Opinion  No.  04-001
          Pharmacy  Benefits  under  State  and  Local  Government  Health  Plans

                                        QUESTIONS

                1.    a.    Does  Tenn.  Code  Ann.  ¤  56-7-2359,  the  Òany  willing  pharmacy  statute,Ó  apply
          to  the  state  insurance  committees  administering  the  state  health  plan  for  state,  local,  and  local
          education  employees  (the  ÒState  PlansÓ)? 
                     b.    Would  the  state  insurance  committees  have  violated  Tenn.  Code  Ann.  ¤
          56-7-2359  if  they  created  different  non-economic  terms  and  conditions  (such  as  hours  of  service)  for
          mail-order  pharmacy  benefits  as  opposed  to  retail  pharmacies  to  provide  benefits  for  these  health
          plans?
                2.    Under  the  State  Plans  for  2004  as  implemented,  a  participant  who  uses  a  retail
          pharmacy  for  maintenance  medication  must  make  a  separate  co-payment  for  each  thirty-day  supply.
          A  participant  who  orders  maintenance  prescription  drugs  from  a  mail-order  service,  by  contrast,
          makes  only  a  single  co-payment  for  a  ninety-day  supply.  Does  this  different  treatment  violate  Tenn.
          Code  Ann.  ¤  56-7-117? 
                3.    Does  an  employee  health  plan  by  the  City  of  Memphis  or  any  other  local  government
          that  requires  participants  to  obtain  maintenance  medication  from  a  mail-order  pharmacy  violate
          either  Tenn.  Code  Ann.  ¤  56-7-117  or  Tenn.  Code  Ann.  ¤  56-7-2359?

                                         OPINIONS

                1.    No,  Tenn.  Code  Ann.  ¤  56-7-2359  cannot  reasonably  be  interpreted  to  apply  to  the
          state  insurance  committees  when  defining  the  benefits  for  the  State  Plans.
                Because  of  our  answer  to  Question  1.a,  Question  1.b  is  moot.
                2.    By  its  terms,  Tenn.  Code  Ann.  ¤  56-7-117  applies  to  listed  entities  that  are  regulated
          under  different  provisions  of  state  law.  Because  the  state  insurance  committees  are  not  regulated
          under  any  of  these  statutory  schemes,  this  statute  does  not  apply  to  them  when  they  are  defining  the
          benefits  for  the  State  Plans.



            Page  2
                  3.    A  definitive  answer  to  this  question  would  depend  on  the  facts  and  circumstances,
            particularly  the  structure  of  the  plan  and  the  origin  of  the  restriction. But  for  most  of  the  same
            reasons  discussed  in  Question  1,  we  do  not  think  Tenn.  Code  Ann.  ¤  56-7-2359  applies  to  a  local
            governmental  entity  defining  benefits  to  be  offered  under  its  self-funded  employee  health  plan.
            Similarly,  for  the  same  reasons  in  Question  2,  we  do  not  think  Tenn.  Code  Ann.  ¤  56-7-117  applies
            to  a  local  governmental  entity  defining  benefits  to  be  offered  under  its  self-funded  employee  health
            plan. 

                                               ANALYSIS

                  1.    State  Health  Plan: Compliance  with  the  ÒAny  Willing  ProviderÓ  Statute
                  This  opinion  addresses  the  application  of  two  different  statutes  to  the  various  health  plans
            administered  by  state  committees  under  Tenn.  Code  Ann.  ¤¤  8-27-101,  et  seq. The  request
            apparently  involves  benefits  offered  under  three  plans: the  state  plan  offered  state  employees;  the
            plan  offered  to  local  government  employees  and  administered  by  the  Local  Government  Insurance
            Committee;  and  the  plan  offered  to  local  education  employees  and  administered  by  the  Local
            Education  Insurance  Committee.  The  relevant  statutes  governing  all  these  plans  are  similar. Since
            all  these  plans  apparently  will  be  offering  the  benefit  in  question,  this  opinion  will  refer  to  them
            together  as  the  ÒState  Plans.Ó
                  The  State  Insurance  Committee,  created  under  Tenn.  Code  Ann.  ¤  8-27-101,  is  authorized
            Òto  enter  into  contracts  with  insurance  companies,  claims  administrators  and  other  organizations  for
            some  or  all  of  the  insurance  benefits  or  services,  including  actuarial  and  consulting  advice,  necessary
            to  administer  the  plans  authorized  in  parts  1,  2  and  7"  of  Title  8,  Chapter  27. Tenn.  Code  Ann.  ¤
            8-27-102(a). The  Commissioner  of  Commerce  and  Insurance,  among  other  state  officials,  is  a
            member  of  the  committee. 
                  A.    The  State  Employee  Plan
                  Under  Tenn.  Code  Ann.  ¤  8-27-201(a)(1),  the  State  Insurance  Committee  is  authorized  to
            approve  a  group  insurance  plan  for  state  employees  including  a  plan  providing  medical  expense
            insurance  Òas  it  deems  necessary  and  reasonable.Ó (Emphasis  added). Tenn.  Code  Ann.  ¤
            8-27-201(a)(5)  provides: 
                        (5)  Notwithstanding  the  provisions  of  title  56  to  the  contrary,  the  state
                        insurance  committee  is  authorized  to  enter  into  self-insured  contracts
                        with  health  maintenance  organizations  established  pursuant  to  title
                        56,  chapter  32. The  committee  shall  permit  participation  in  such
                        health  maintenance  organizations  only  in  those  locations  for  which
                        the  organization  has  been  issued  a  certificate  of  authority  by  the
                        department  of  commerce  and  insurance.



            Page  3
            (Emphasis  added).
                  B. Health  Insurance  Plan  for  Employees  of  Local  Governments  and  Quasi-Governmental
                  Organizations
                  Tenn.  Code  Ann.  ¤  8-27-207(a)  creates  a  Local  Government  Insurance  Committee,  which
            includes  many  of  the  same  officials  who  serve  on  the  State  Insurance  Committee,  including  the
            Commissioner  of  Commerce  and  Insurance.  This  committee  is  authorized,  either  independently  or
            with the  assistance  of  the  State  Insurance  Committee  and/or  the  Local  Education  Insurance
            Committee, to establish a health insurance plan for employees of local governments and
            quasi-governmental  organizations  established  for  the  primary  purposes  of  providing  services  for  or
            on  behalf  of  state  and  local  governments. Costs  of  the  plan  are  to  be  voluntary. Tenn.  Code  Ann.
            ¤  8-27-207(f).  Staff  for  the  state  group  insurance  program  also  acts  as  staff  for  the  local  government
            insurance  plan. Id. Subsection  (j)  of  the  statute  provides:
                        (j)  Notwithstanding  the  provisions  of  title  56  to  the  contrary,  the  local
                        government insurance committee is authorized to enter into
                        self-insured contracts with health maintenance organizations
                        established  pursuant  to  title  56,  chapter  32. The  committee  shall
                        permit  participation  in  such  health  maintenance  organizations  only  in
                        those locations for which the organization has been issued a
                        certificate  of  authority  by  the  department  of  commerce  and  insurance.
                  C.    Group  Insurance  for  Local  Education  Employees
                  The  Local  Education  Insurance  Committee  is  established  under  Tenn.  Code  Ann.  ¤  8-27-301
            and  includes  many  of  the  same  officials  who  serve  on  the  State  Insurance  Committee  and  the  Local
            Government  Insurance  Committee,  including  the  Commissioner  of  Commerce  and  Insurance. The
            committee  is  authorized  to  establish  a  health  benefits  plan  for  local  education  employees  Òas  it  deems
            necessary  and  reasonable.Ó  Tenn.  Code  Ann.  ¤  8-27-302(a)(1)  (emphasis  added). The  committee
            acts  separately  from  the  State  Insurance  Committee,  but  the  two  committees  are  to  coordinate  their
            activities. Tenn.  Code  Ann.  ¤  8-27-301(b).  The  staff  for  the  state  group  insurance  program  acts  as
            staff  for  the  local  education  group  insurance  program. Tenn.  Code  Ann.  ¤  8-27-301(e). The
            committee  may  develop  the  plan  in  such  a  way  that  the  local  education  employees  are  covered  by
            the  same  plan  as  the  state  employees. Tenn.  Code  Ann.  ¤  8-27-302(a)(4). The  statute  provides  in
            relevant  part:
                        (c)  Notwithstanding  the  provisions  of  title  56  to  the  contrary,  the  local
                        education  insurance  committee  is  authorized  to  enter  into  self-insured
                        contracts  with  health  maintenance  organizations  established  pursuant
                        to  title  56,  chapter  32. The  committee  shall  permit  participation  in
                        such  health  maintenance  organizations  only  in  those  locations  for



            Page  4
                        which  the  organizations  has  been  issued  a  certificate  of  authority  by
                        the  department  of  commerce  and  insurance.
            Each  of  the  State  Plans  is  self-funded. Funds  for  the  plan  for  state  employees  are  appropriated  at
            Section  17,  Item  1  of  the  Appropriations  Act,  2003  Tenn.  Pub.  Acts  Ch.  356.  The  second  paragraph
            in  this  Item  provides:
                        The employer contribution amounts established by the State
                        Insurance  Committee  for  eligible  participating  employees  shall  not
                        exceed,  in  the  aggregate,  the  amounts  appropriated  in  this  Act. The
                        State  Insurance  Committee  shall  determine  a  calendar  year  2004  plan
                        of  benefits  and  monthly  premiums  for  each  of  the  healthcare  options
                        it authorizes pursuant to Section 8-27-201, Tennessee Code
                        Annotated  which  result,  with  reasonable  certainty,  in  the  provision  of
                        sufficient  revenues  to  pay  plan  expenses  and  to  provide  for  the
                        funding  of  reserves  for  estimated  incurred  but  unreported  claims.  For
                        purposes  of  this  item,  the  State  Insurance  Committee  shall  assume  a
                        total  increase  in  cost  of  twelve  percent  (12%)  to  be  funded  by  a  seven
                        percent  (7%)  premium  increase  and  benefit  adjustments  expected  to
                        reduce  plan  costs  by  five  percent  (5%). The  monthly  premiums  and
                        the  employer  contribution  amounts  shall  be  subject  to  the  approval  of
                        the  Commissioner  of  Finance  and  Administration  pursuant  to  Section
                        4-3-1006,  Tennessee  Code  Annotated. 
            (Emphasis  added). With  regard  to  the  state  employeesÕ  plan,  therefore,  the  State  Insurance
            Committee  was  explicitly  instructed  to  adjust  benefits  in  the  program  sufficient  to  achieve  an
            expected  five  percent  cost  reduction. Similarly,  Section  11,  Item  2  of  the  Appropriations  Act
            provides  that  Ò[t]he  aggregate  amount  of  funds  obligated  through  the  determination  of  the  plans  of
            benefits  and  the  monthly  premiums  by  the  Local  Education  Insurance  Committee  shall  not  exceed
            the  amount  appropriated  to  the  Department  of  Education,  Basic  Education  ProgramÕs  insurance
            component  in  this  Act.Ó 
                  The  relevant  insurance  committee  determines  the  benefits  that  will  be  offered  under  the  plan.
            The  insurance  committee  then  hires  a  plan  administrator  to  administer  claims  and  provide  other
            services  under  the  plan. At  the  present  time,  each  administratorÕs  contract  covers  the  particular
            benefit  option  for  all  the  State  Plans.  Blue  Cross  Blue  Shield  of  Tennessee  administers  the  Preferred
            Provider  Organization  statewide  and  the  Point  of  Service  Plans  in  West  and  Middle  Tennessee. 
            John  Deere  Health  Care,  Inc.,  administers  the  Point  of  Service  Plan  in  East  Tennessee. The  State
            Plans  also  offer  five  Health  Maintenance  Organization  (ÒHMOÓ)  plans  in  different  parts  of  the  State.
            These  HMOs  are  administered  by  Aetna  Life  Insurance  Company  and  John  Deere  Health  Care,  Inc.
            Under  each  agreement,  the  administrator  is  responsible  for  providing  the  services  specified  in  the
            applicable  Request  for  Proposals. The  administrator  is  responsible  for  negotiating  contracts  with
            health  service  providers  like  hospitals,  physicians,  and  pharmacies.  Under  the  agreements  with  Blue



            Page  5
            Cross,  the  administrator  pays  claims  for  medical  benefits  from  a  state  account  designated  for  that
            purpose. Under  two  of  the  agreements,  the  administrator  issues  checks  from  its  own  account  and
            is  reimbursed  through  an  Automatic  Clearing  House  process. Under  another  agreement,  the
            administrator  issues  checks  from  its  own  account  and  is  reimbursed  by  the  State  by  wire  transfer
            payments.  Thus,  the  administrator,  effectively,  does  not  pay  the  claims  from  its  own  funds. Under
            each  agreement,  the  administrator  is  paid  a  flat  monthly  fee  per  plan  member  per  month. 
                  Each  agreement  also  includes  a  Òrisk  sharingÓ  provision. This  provision  generally  applies
            if  actual  per  member  per  month  claims  under  the  plan  are  greater  or  smaller  than  the  Òtarget
            incurredÓ  per  member  per  month  claims  figure  either  established  through  the  initial  Request  for
            Proposal  process,  or  negotiated  for  contract  extension  periods. If  actual  claims  are  lower  than  the
            target, outside a Òrisk free corridorÓ established in the agreement, the State must pay the
            administrator  a  percentage  of  the  difference,  up  to  a  maximum  figure. If  actual  claims  are  higher
            than  the  target,  outside  the  Òrisk  free  corridor,Ó  the  administrator  must  pay  the  State  a  percentage  of
            the  excess,  up  to  a  maximum  figure.  The  administrator,  therefore,  has  a  financial  incentive  to  ensure
            that  claims  remain  within  the  Òrisk  free  corridorÓ  while  providing  benefits  within  the  terms  of  the
            Plan  Document.  Under  the  recent  contracts,  the  amount  for  which  the  administrator  may  be  liable
            under  the  shared  risk  provision  may  represent  a  sizeable  portion  of  administrative  fees,  but  is
            relatively  small  compared  to  overall  claims  and  administrative  costs  of  the  State  Plans. The
            administrators, therefore, assume no risk for payment of claims, but do receive lower net
            compensation  if  claims  exceed  target  figures  agreed  on  between  the  parties.
                  The  request  addresses  one  benefit  component  of  the  State  Plans. Effective  in  2004,  each
            benefit  option  under  the  State  Plans  contains  a  mail  order  benefit.  Draft  committee  minutes  indicate
            they  adopted  the  benefit  on  the  recommendation  of  staff  members  and  after  discussing  it  at  their
            meeting  July  31,  2003.  The  program  will  allow  members  to  receive  up  to  a  ninety  to  102-day  supply
            of  certain  drugs  for  a  single  co-payment. We  will  refer  to  this  option  as  the  ÒQuantity  Discount.Ó
            But  members  will  not  be  able  to  receive  the  Quantity  Discount  from  a  retail  pharmacy  unless  the
            pharmacy  has  agreed  to  the  same  terms  and  conditions  of  the  home  delivery  program. A  member
            may  still  purchase  maintenance  drugs  at  retail  pharmacies  but  must  pay  a  co-payment  for  each  thirty-day 
               supply.  Material  describing  the  State  Plans  for  2004  indicates  that  no  retail  pharmacies  agreed
            to  supply  maintenance  drugs  on  the  same  terms  and  conditions  as  the  home  delivery  pharmacies.
            Discussion  with  state  officials  indicates  that  it  is  not  entirely  clear  whether  retail  pharmacies  were,
            in  fact,  offered  an  opportunity  to  offer  the  Quantity  Discount  on  the  same  terms  and  conditions  as
            the  mail-order  pharmacies.  At  any  rate,  the  Quantity  Discount  is  currently  available  only  if  members
            purchase  maintenance  drugs  from  a  mail-order  pharmacy. As  a  result,  members  have  a  financial
            incentive  to  purchase  maintenance  drugs  from  the  mail-order  pharmacies  rather  than  from  retail
            pharmacies.
                  The  first  question  concerns  Tenn.  Code  Ann.  ¤  56-7-2359,  sometimes  referred  to  as  the  Òany
            willing  pharmacyÓ  statute. This  statute  provides  in  relevant  part:



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                        (a) No  health  insurance  issuer  and  no  managed  health  insurance
                        issuer  may: 
                        (1)  Deny  any  licensed  pharmacy  or  licensed  pharmacist  the  right  to
                        participate  as  a  participating  provider  in  any  policy,  contract  or  plan

                        on  the  same  terms  and  conditions  as  are  offered  to  any  other  provider
                        of  pharmacy  services  under  the  policy,  contract  or  plan;  provided,
                        that  nothing  herein  shall  prohibit  a  managed  health  insurance  issuer
                        or  health  insurance  issuer  from  establishing  rates  or  fees  that  may  be
                        higher  in  non-urban  areas,  or  in  specific  instances  where  a  managed
                        health insurance issuer or health insurance issuer determines it
                        necessary  to  contract  with  a  particular  provider  in  order  to  meet
                        network  adequacy  standards  or  patient  care  needs. 
                        (2)  Prevent  any  person  who  is  a  party  to  or  beneficiary  of  any  policy,
                        contract  or  plan  from  selecting  a  licensed  pharmacy  of  such  person's
                        choice  to  furnish  the  pharmaceutical  services  offered  under  any
                        contract,  policy  or  plan;  provided  the  pharmacy  is  a  participating
                        provider  under  the  same  terms  and  conditions  of  the  contract,  policy
                        or  plan  as  those  offered  any  other  provider  of  pharmacy  services; 

                                                 *  *  *  *
                        (d)  The term  "managed  health  insurance  issuer"  has  the  same
                        meaning  as  such  term  is  defined  in  ¤  56-32-228(a). 
                        (e)  Each  health  insurance  issuer  or  managed  health  insurance  issuer

                        shall apply the same coinsurance, co-payment, deductible and
                        quantity  limit  factors  within  the  same  employee  group  and  other  plan-sponsored 
                                  group  to  all  drug  prescriptions  filled  by  any  licensed
                        pharmacy  provider,  whether  by  a  retail  provider  or  a  mail  service
                        provider;  provided,  that  all  pharmacy  providers  comply  with  the  same
                        terms  and  conditions. Nothing  in  this  section  shall  be  construed  to
                        prohibit  the  health  insurance  issuer  or  managed  health  insurance
                        issuer from applying different co-insurance, co-payment, and
                        deductible  factors  within  the  same  employer  group  and  other  plan-sponsored 
                                 group  between  generic  and  brand-name  drugs  nor  prohibit
                        an  employer  or  other  plan-sponsored  group  from  offering  multiple
                        options  or  choices  of  health  insurance  benefit  plans  including,  but  not
                        limited  to,  cafeteria  benefit  plans. 
            (Emphasis  added). The  any  willing  pharmacy  statute  was  first  enacted  in  1998  as  part  of  the
            ÒConsumer  Health  Care  Advocacy  Act,Ó  1998  Tenn.  Pub.  Acts  Ch.  1033. That  act  is  now  codified
            in  several  different  parts  of  Title  56.
                  The  first  question  is  to  which  party  Ñ  the  insurance  committees  or  the  administrators  Ñ
            development  of  the  Quantity  Discount  should  be  attributed. This  issue  is  important  because,  as



            Page  7
            written,  the  statute  prohibits  certain  actions  by  a  Òhealth  insurance  issuerÓ  or  a  Òmanaged  health
            insurance  issuer.Ó  As  discussed  below,  we  think  the  statute  cannot  reasonably  be  interpreted  to  apply
            to  the  state  insurance  committees,  who,  in  this  instance  and  under  their  statutory  authority,  set  the
            benefits  for  a  self-funded  health  benefit  program  for  public  employees. Further,  based  on  the  facts
            discussed above, the Quantity  Discount was developed and adopted by  the state insurance
            committees,  and  by  its  terms  was  limited  to  mail-order  pharmacies. Any  restriction  on  the
            pharmacies  permitted  to  participate  in  the  benefit,  therefore,  is  attributable  to  the  state  insurance
            committees,  and  not  the  plan  administrators. Since  the  Òany  willing  pharmacyÓ  statute  does  not
            apply  to  the  committees,  their  development  of  the  benefit  did  not  violate  the  statute.
                  i.     Health  Insurance  Issuer
                  First,  Tenn.  Code  Ann.  ¤  56-7-2359  applies  to  Òhealth  insurance  issuers.Ó The  statute
            contains  no  definition  of  this  term.  The  1998  law  contained  no  separate  definition  of  the  term. The
            section  as  enacted  in  1998  used  the  term  Òhealth  insurance  issuerÓ  and  Òmanaged  health  insurance
            issuerÓ  interchangeably.  1998  Tenn.  Pub.  Acts  Ch.  1033.  2001  amendments  to  the  statute  clarified
            that  the  act  applies  to  both  types  of  entities. At  the  same  time,  sponsors  of  the  amendments  noted
            that  the  Department  of  Commerce  and  Insurance  used  the  two  terms  interchangeably. (Senate
            Commerce  Committee,  April  18,  2001,  remarks  of  Sen.  McNally).  It  is,  therefore,  not  clear  that  the
            term  was  ever  intended  to  have  a  meaning  different  from  Òmanaged  health  insurer.Ó
                  The  term  Òhealth  insurance  issuerÓ  is  explicitly  defined  in  Tenn.  Code  Ann.  ¤¤  56-7-2801,

            et  seq.,  the  ÒHealth  Insurance  Portability,  Availability  and  Renewability  Act,Ó  passed  in  1997.  1997
            Tenn.  Pub.  Acts  Ch.  157.  As  used  in  that  act,  however,  the  term  Òhealth  insurance  issuerÓ  was  not
            meant  to  include  an  employee  health  benefit  plan  like  the  State  Plans.  The  act  contains  the  following
            definition:
                        ÒHealth  insurance  issuerÓ  means  an  entity  subject  to  the  insurance
                        laws  of  this  state,  or  subject  to  the  jurisdiction  of  the  commissioner,

                        that  contracts  or  offers  to  contract  to  provide  health  insurance
                        coverage,  including  but  not  limited  to,  an  insurance  company,  a
                        health  maintenance  organization  and  a  nonprofit  hospital  and  medical
                        service  corporation. "Health  insurance  issuer"  does  not  include  a
                        group  plan. 

            Tenn.  Code  Ann.  ¤  56-7-2802(16)  (emphasis  added). ÒHealth  insurance  coverageÓ  means  benefits
            consisting  of  medical  care  (provided  directly,  through  insurance  or  reimbursement,  or  otherwise  and
            including  items  and  services  paid  for  as  medical  care)  under  any  policy,  certificate,  or  agreement

            offered  by  a  health  insurance  issuer.  Tenn.  Code  Ann.  ¤  56-7-2802(15).  (Emphasis  added).  ÒGroup
            health  planÓ  means:
                        .  .  .  an  employee  welfare  benefit  plan  (as  defined  in  ERISA,  ¤  3(1))
                        to  the  extent  that  the  plan  provides  medical  care  and  including  items



            Page  8
                        and services paid for as medical care to employees or their
                        dependents  (as  defined  under  the  terms  of  the  plan)  directly  or
                        through  insurance,  reimbursement,  or  otherwise. A  program  under
                        which  creditable  coverage  is  provided  shall  be  treated  as  a  group
                        health  plan  for  the  purposes  of  applying  this  part;
            Tenn.  Code  Ann.  ¤  56-7-2802(14). This  Office  does  not,  typically,  issue  opinions  on  federal  law,
            and  the  discussion  that  follows  is  not  meant  to  be  authoritative. Because  the  state  health  insurance
            laws  frequently  refer  to  ERISA  for  different  purposes,  however,  it  is  necessary  to  address  the  scope
            of  the  federal  laws  to  interpret  applicable  state  laws.
                  The  term  Òemployee  welfare  benefit  planÓ  is  defined  in  29  U.S.C.  ¤  1002  broadly  to  include
            Òany  plan,  fund,  or  program  which  was  .  .  .  established  or  maintained  by  an  employer  or  an  employee
            organization,  or  by  both,  to  the  extent  that  such  plan,  fund,  or  program  was  established  or  is
            maintained  for  the  purpose  of  providing  for  its  participants  or  their  beneficiaries,  through  the
            purchase  of  insurance  or  otherwise,  (A)  medical,  surgical,  or  hospital  care  or  benefits  .  .  ..Ó 29
            U.S.C.  ¤  1002(1).  An  employee  welfare  benefit  plan  subject  to  ERISA  (the  ÒEmployee  Retirement
            Income  Security  ActÓ)  generally  includes  both  insured  and  self-funded  employee  benefit  plans.
            Other  parts  of  the  state  statute  indicate  that  a  self-funded  governmental  plan  like  the  State  Plans  is
            a  Ògroup  health  planÓ  and,  therefore,  not  a  Òhealth  insurance  issuerÓ  as  the  statute  defines  the  term.
            In  Tenn.  Code  Ann.  ¤  56-7-2807(a)(1)(A),  for  example,  the  statute  provides  that:
                        [t]he  requirements  of  this  part  shall  apply  with  respect  to  group  health
                        plans  only:
                        (A)  Subject  to  subdivision  (a)(2),  in  the  case  of  a  plan  that  is  a

                        nonfederal  governmental  plan[.]

            (Emphasis  added). The  act  defines  Ògovernmental  planÓ  as  follows:
                        ÒGovernmental  planÓ  has  the  meaning  given  such  term  under  ERISA,
                        ¤  3(32),  and  any  federal  governmental  plan[.]
            Tenn.  Code  Ann.  ¤  56-7-2802(12). ERISA  defines  Ògovernmental  planÓ  in  part:
                        The term Ògovernmental planÓ means a plan established or
                        maintained  for  its  employees  by  the  Government  of  the  United  States,
                        by  the  government  of  any  State  or  political  subdivision  thereof,  or  by
                        any  agency  or  instrumentality  of  any  of  the  foregoing.
            29  U.S.C.  ¤  1002(32).  The  state  employeesÕ  plan  falls  within  this  definition.  It  appears,  further,  that
            federal  courts  have  applied  this  definition  broadly  to  include  a  plan  established  by  a  state  legislature
            for  employees  of  the  state,  its  agencies,  and  its  political  subdivisions. See,  e.g.,  Cliburn  v.  Police
            Jury  Association  of  Louisiana,  Inc.,  982  F.Supp.  386  (M.D.La.  1997)  (the  Louisiana  Parochial



            Page  9
            Employees  Retirement  System  was  a  Ògovernmental  planÓ  under  ERISA  even  though  it  covered
            some  non-governmental  employees,  relying  on  Hightower  Texas  Hosp.  AssÕn.,  65  F.3d  443  (5th  Cir.
            1995),  rehÕg  denied,  73  F.3d  43  (5th  Cir.  1996)). Since  all  the  State  Plans  were  established  by  the
            General  Assembly  for  employees  of  the  State  or  political  subdivisions,  we  think  a  court  would
            conclude  that  all  of  the  State  Plans  are  governmental  plans  within  the  meaning  of  29  U.S.C.  ¤
            1002(32). We  think  it  can  reasonably  be  concluded,  therefore,  that  the  term  Òhealth  insurance
            issuer,Ó  while  not  defined  in  the  statute  or  the  public  act  of  which  it  was  a  part,  does  not  include  the
            state  insurance  committees. 
                  ii.    Managed  Health  Insurance  Issuer
                  When  the  Òany  willing  pharmacyÓ  statute  was  amended  in  2001,  it  expressly  provided  that
            the  term  Òmanaged  health  insurance  issuerÓ  has  the  same  meaning  as  the  definition  of  the  term  in
            Tenn.  Code  Ann.  ¤  56-32-228(a). This  statute  was  part  of  1998  Tenn.  Pub.  Acts  Ch.  1033. Tenn.
            Code  Ann.  ¤  56-32-228(a)  defines  Òmanaged  health  insurance  issuerÓ  as  follows:
                        (a)  As  used  in  this  section  Òmanaged  health  insurance  issuer"  means
                        an  entity  that: 
                        (1)  Offers  health  insurance  coverage  or  benefits  under  a  contract  that
                        restricts  reimbursement  for  covered  services  to  a  defined  network  of
                        providers;  and 

                        (2)  Is  regulated  under  this  title  or  is  an  entity  that  accepts  the
                        financial  risks  associated  with  the  provision  of  health  care  services
                        by  persons  who  do  not  own  or  control,  or  who  are  not  employed  by,
                        such  entity. 

            (Emphasis  added). Arguably,  this  definition  could  include  the  state  committees  offering  enrollees
            in  the  State  Plans  self-funded  health  care  benefits  and  contractually  restricting  reimbursement  for
            covered  services  to  network  health  care  providers.  But  other  parts  of  the  statute  clarify  that  the  term
            Òmanaged  health  insurance  issuerÓ  (ÒMHIIÓ)  was  intended  to  include  entities  in  the  business  of
            providing  insurance,  not  entities  like  the  committees  offering  self-funded  plans  to  state,  local,  and
            local  education  employees. For  instance,  in  Tenn  Code  Ann.  ¤  56-32-228(b)(2),  the  MHII  clearly
            is  identified  as  an  entity  other  than  an  employer  offering  a  self-funded  plan,  because  it  says,  Òthe
            obligation  of  a  managed  health  insurance  issuer  to  make  the  offer  described  in  this  section  may  be
            satisfied  by  the  managed  health  insurance  issuer  providing  to  the  employer  or  other  plan  sponsor

            presentation  materials  for  dissemination  to  employees  or  principal  enrollees.Ó (Emphasis  added).
            Similarly,  Tenn.  Code  Ann.  ¤  56-32-228(b)(1)  states  in  part  that  Ò[e]very  managed  health  insurance
            issuer  shall  offer,  or  contract  with  another  carrier  to  offer,  an  additional  [point-of-service]  benefit
            .  .  ..Ó (Emphasis  added). Here,  an  MHII  is  regarded  as  a  type  of  Òcarrier,Ó  a  colloquial  term
            associated  with  a  company  in  the  business  of  offering  insurance.  The  focus  is  on  controlling  entities
            that  are  in  business  to  sell  contracts  and  plans  of  insurance  and  the  described  managed  care  risk
            contracts  in  Tenn.  Code  Ann.  ¤  56-32-228(a),  not  on  self-funded  plans  offered  by  an  employer  or
            governmental  entity,  like  the  State  Plans.



            Page  10
                  Legislative  history  of  the  1998  act  supports  this  interpretation.  The  act  contains  no  mention
            of  self-insured  plans,  and  sponsors  acknowledged  that  it  did  not  attempt  to  regulate  employee  plans
            because,  under  ERISA,  state  regulation  would  be  preempted. At  the  same  time,  legislative  history
            indicates  that  legislators  did  think  the  act  would  apply  to  the  State  Plans. During  a  House  session
            April  28,  1998,  the  sponsor  of  the  bill  was  asked  how  many  consumers  would  benefit  from  the  bill.
            Rep.  McDaniel  replied  in  part: 

                        Self-insured programs are under ERISA, and of course thereÕs
                        nothing  we  can  do  in  the  State  of  Tennessee  to  change  that.  We  have
                        no  control  over  that,  and  it  does  narrow  down  the  numbers,  but  we
                        have  no  control  over  ERISA  anyway.
            House  Session  April  28,  1998,  (remarks  of  Rep.  McDaniel).
                  During  a  Senate  Session,  Sen.  Graves  made  the  following  statement  in  response  to  the  same
            question:
                        I  canÕt  give  you  an  exact  number.  I  will  tell  you  that  the  only  people
                        who  are  totally  exempted  from  this  legislation  are  those  who  are
                        regulated  by  ERISA. ERISA  plans  are  regulated  by  the  federal
                        government,  and  we  cannot  pass  state  law  to  impact  ERISA.  And  the
                        POS  option,  and  I  think  thatÕs  probably  where  the  major  confusion
                        has been, all state plans are regulated under the POS option,

                        TennCare  is  exempted  because  it  is  against  the  grain  and  probably
                        unconstitutional  to  say  you  have  to  be  on  public  assistance  but  then
                        you  can  also  pay  out  of  your  own  pocket  to  go  where  you  want  to  go.
                        Farm  Bureau  already  offers  a  point  of  service  option. We  did  allow
                        small  business  because  of  an  overwhelming  concern  for  our  small
                        business  folks  that  we  not  pass  a  regulation  that  puts  a  hardship  on
                        them. If  they  believe  that  the  point  of  service  option,  only  the  point
                        of  service  option  is  a  hardship  on  them,  they  may  submit  in  writing
                        to  opt  out  of  that  service  option. 
            Senate  Session  April  29,  1998  (remarks  of  Sen.  Graves)  (emphasis  added). The  italicized  language
            refers  to  a  requirement  in  another  part  of  the  1998  act  that  a  managed  health  insurance  issuer  provide
            a  point  of  service  option  in  addition  to  an  HMO. In  fact,  the  State  Plans  do  offer  a  point  of  service
            option,  although  at  the  present  time  it  does  not  cover  the  whole  State. We  do  not  think  Senator
            GravesÕ  statement,  however,  is  sufficient  to  include  the  state  insurance  committees  within  the
            definition  of  Òmanaged  health  insurance  issuer.Ó The  State  Plans  are  administered  by  entities
            regulated  under  the  insurance  laws. In  some  instances,  these  entities  may  be  Òmanaged  health
            insurance  issuersÓ  whose  actions  are  subject  to  the  provisions  of  the  statutes. But  we  do  not  think,
            under  a  reasonable  interpretation  of  the  statute,  that  Tenn.  Code  Ann.  ¤  56-7-2359  can  be  interpreted
            to  apply  to  the  insurance  committees  when  defining  the  benefits  for  the  State  Plans.



            Page  11
                  Other  provisions  of  the  insurance  statutes  governing  health  plans  support  this  conclusion.
            Different  provisions  of  Tenn.  Code  Ann.  ¤¤  56-7-2301,  et  seq.,  of  which  the  Òany  willing  pharmacyÓ
            statute  is  a  part,  apply  to  different  categories  of  health  plans  and  regulated  entities. Only  one  or  two
            of  these  statutes,  however,  contain  language  that  would  explicitly  include  the  State  Plans. For
            example,  Tenn.  Code  Ann.  ¤  56-7-2355  addresses  coverage  of  emergency  services  for  health  benefit
            plans. The  definition  of  Òhealth  benefit  planÓ  explicitly  includes  Òother  plans  administered  by  the
            state  government[.]Ó Tenn.  Code  Ann.  ¤  56-7-2355(3). Similarly,  Tenn.  Code  Ann.  ¤  56-7-2361
            requires  various  entities  to  issue  a  pharmacy  benefit  identification  card  to  individuals  insured  under
            the program. The  statute  expressly  includes,  Òhealth  maintenance  organizations,  third  party
            administrators  for  self-insured  plans  and  state  administered  plans[.]Ó  Tenn.  Code  Ann.  ¤  56-7-2363
            requires  various  types  of  health  plans  or  issuers  to  provide  optional  coverage  for  colorectal  cancer
            examinations  and  laboratory  tests  beginning  in  2004. The  statute  includes,  Òall  self-insured  group
            arrangements  to  the  extent  not  preempted  by  federal  law[.]Ó  Since  governmental  plans  are  exempted
            from  ERISA  regulation,  state  regulation  of  these  plans  is  not  preempted  by  federal  law. 29  U.S.C.
            ¤  1003(b)(1).  The  statute,  therefore,  includes  the  State  Plans.  By  contrast,  however,  the  Òany  willing
            pharmacyÓ  statute  nowhere  mentions  either  state  or  local  governmental  entities. Statutes  do  not
            apply  to  the  State  or  its  political  subdivisions  absent  an  express  or  necessarily  implied  intent.  Keeble
            v.  City  of  Alcoa,  204  Tenn.  286,  319  S.W.2d  249  (1959)  (city);  Mayhew  v.  Wilder,  46  S.W.3d  760,
            769  (Tenn.Ct.App.  2001),  p.t.a.  denied  (2001)  (State);  Harrison  Construction  Co.  v.  Gibson  Co.
            Board  of  Education,  642  S.W.2d  148  (Tenn.Ct.App.  1982)  (county  school  board). For  all  these
            reasons,  the  Òany  willing  pharmacyÓ  statute  cannot  reasonably  be  interpreted  to  apply  to  the  state
            committees  when  they  are  setting  the  benefits  for  the  State  Plans.
                  Because  of  our  answer  to  Question  1.a,  Question  1.b  is  moot.
                  2.    State  Health  Plan: Compliance  with  Tenn.  Code  Ann.  ¤  56-7-117
                  The  next  question  is  whether  the  state  health  plan,  by  providing  the  drug  benefits  described
            above,  violates  Tenn.  Code  Ann.  ¤  56-7-117. That  statute  provides:
                        (a)  No  group  medical  benefit  contract  issued  by  an  insurance
                        company,  a  hospital  service  corporation,  a  hospital  and  medical
                        service corporation, a medical service corporation, a health
                        maintenance  organization  or  a  health  care  center,  which  provides
                        coverage  for  prescription  drugs,  may  require  any  person  covered
                        under  such  contract  to  obtain  prescription  drugs  from  a  mail-order
                        pharmacy  in  order  to  obtain  benefits  for  such  drugs,  or  to  pay  an
                        additional  fee  or  be  subjected  to  any  other  penalty  for  failing  to  utilize
                        any  mail-order  pharmacy  designated  by  the  insurance  company  or
                        other  issuing  organization. 
                        (b) The  commissioner  is  authorized  to  promulgate  regulations  to
                        implement  and  enforce  the  provisions  of  this  section. 



            Page  12











































                   This  statute  regulates  Òmedical  service  plan  corporationsÓ  other  parts  of  the  statute  refer  to  as  medical  1

            service  corporations.

                   This  statute  governs  the  establishment  of  Òprimary  health  care  centers.Ó  The  term  Òhealth  care  2

            centerÓ  is  not  defined  in  Tennessee  statutes. (Emphasis  added).  We  have  found  no  definition  of  the  term  Ògroup  medical  benefit  contractÓ  in  state
            statutes.  By  its  terms,  however,  this  statute  explicitly  applies  to  a  list  of  entities  that  are  defined  and
            regulated  under  various  provisions  of  the  Tennessee  statutes:  insurance  companies,  Tenn.  Code  Ann.
            ¤¤  56-2-101,  et  seq.;  hospital  service  corporations,  Tenn.  Code  Ann.  ¤¤  56-28-101,  et  seq;  hospital
            and medical service corporations, Tenn. Code Ann. ¤¤ 56-29-101, et seq.; medical service
            corporations,  Tenn.  Code  Ann.  ¤¤  56-27-101,  et  seq.;  health  maintenance  organizations,  Tenn.  Code  1

            Ann.  ¤¤  56-32-101,  et  seq.;  and  health  care  centers,  Tenn.  Code  Ann.  ¤¤  68-1-701,  et  seq. Since  2

            the  state  insurance  committees  do  not  fall  within  any  of  these  statutes,  they  are  not  subject  to  Tenn.
            Code  Ann.  ¤  56-7-117  when  defining  benefits  for  the  State  Plans.
                  3.    Local  Governmental  Plans
                  Finally,  you  ask  whether  an  employee  health  plan  established  by  the  City  of  Memphis  or  any
            other  local  government  that  requires  participants  to  obtain  maintenance  medication  from  a  mail  order
            pharmacy  violates  either  Tenn.  Code  Ann.  ¤  56-7-117  or  Tenn.  Code  Ann.  ¤  56-7-2359.  A  definitive
            answer  to  this  question  would  depend  on  the  facts  and  circumstances,  especially  the  structure  of  the
            plan  and  the  origin  of  the  restriction.  But,  for  the  reasons  discussed  in  Question  1,  we  do  not  think
            Tenn.  Code  Ann.  ¤  56-7-2359  applies  to  a  local  governmental  entity  defining  benefits  to  be  offered
            under  its  self-funded  employee  health  plan. Similarly,  for  the  reasons  discussed  in  Question  2,  we
            do  not  think  Tenn.  Code  Ann.  ¤  56-7-117  applies  to  a  local  governmental  entity  defining  benefits
            to  be  offered  under  its  self-funded  employee  health  plan.



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



            Page  13




                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel



            Requested  by:
                  Honorable  James  W.  White
                  Executive  Director,  Fiscal  Review  Committee
                  G-19  War  Memorial  Building
                  Nashville,  TN  37243-0057



                          In  Bacchus,  the  Court  struck  down  a  revenue  provision  that  imposed  taxes  on  alcoholic  beverages  produced  1

                 out-of-state  while  granting  exemptions  to  domestically  produced  products. In  holding  that  the  tax  scheme  violated  the
                 Commerce  Clause,  the  Court  noted  that  the  statute  was  an  attempt  to  erect  the  very  trade  barriers  between  states  that  the
                 Commerce  Clause  was  intended  to  prohibit. According  to  the  Court,  there  was  nothing  in  the  Twenty-First  Amendment S  T  A  T  E  O  F  T  E  N  N  E  S  S  E  E

                                                                 OFFICE  OF  THE

                                                            ATTORNEY  GENERAL
                                                                 PO  BOX  20207
                                                       NASHVILLE,  TENNESSEE  37202

                                                                January  30,  2004
                                                              Opinion  No.  04-010
                 Constitutionality  of  Tenn.  Code  Ann.  ¤  57-3-402  as  applied  to  mail  order  sales  of  wine  to  retail
                 customers

                                                                  QUESTION

                          Does  Tenn.  Code  Ann.  ¤  57-3-402,  which  prohibits  vintners  from  making  mail  order  sales
                 of  wine  to  retail  customers,  violate  the  Commerce  Clause  of  the  United  States  Constitution?

                                                                   OPINION

                           No.  The  Twenty-First  Amendment  of  the  U.S.  Constitution  authorizes  states  to  regulate  the
                 sale  of  alcoholic  beverages  within  their  borders  so  long  as  such  authority  is  not  used  to  discriminate
                 against  out  of  state  manufacturers  of  alcoholic  beverages. Tenn.  Code  Ann.  ¤  57-3-402  prohibits
                 both  domestic  and  out-of-state  vintners  from  making  mail  order  sales  to  retail  customers  and  is
                 therefore  constitutional.

                                                                  ANALYSIS

                           Section  2  of  the  Twenty-First  Amendment  to  the  U.S.  Constitution  authorizes  states  to
                 regulate  the  sale  of  alcoholic  beverages  within  their  borders. It  states:
                                  The transportation or importation into any State, Territory, or
                                  Possession of the United States for delivery or use therein of
                                  intoxicating liquors, in violation of the laws thereof, is hereby
                                  prohibited.
                          Although that amendment gives states wide latitude in regulating the sale of alcoholic
                 beverages  within  their  borders,  the  Commerce  Clause  still  places  limits  on  the  use  of  that  authority.

                 Bacchus  Imports,  Ltd.  v.  Dias,  468  U.S.  263,  104  S.Ct.  3049,  82  L.Ed2d  200  (1984). As  that  case
                 illustrates,  states  may  not  use  the  authority  to  regulate  the  sale  of  alcoholic  beverages  to  engage  in
                 economic  protectionism  of  domestically  produced  alcoholic  beverages.1



            Page  2




































            that  would  authorize  states  to  use  the  authority  to  regulate  alcohol  to  enact  protectionist  legislation.
                   In  Dickerson  v.  Bailey,  336  F.3d  388  (5th  Cir.  2003),  the  United  States  Court  of  Appeals  for  the  Fifth  Circuit  2

            employed  similar  reasoning  and  reached  the  same  conclusion  in  a  case  involving  a  Texas  statute  that  allowed  domestic
            vintners  to  make  mail  order  sales  to  retail  sales  but  prohibited  out  of  state  vintners  from  engaging  in  the  same  activity.
            Since  federal  courts  in  Tennessee  are  bound  to  follow  the  decisional  law  of  the  Sixth  Circuit,  the  primary  focus  in  the
            present  opinion  will  be  on  the  Sixth  CircuitÕs  reasoning  in  Heald.

                   At  the  same  time,  no  Tennessee  statute  expressly  authorizing  mail  order  sales  has  been  found.  3


                   Tenn.  Code  Ann.  ¤  57-3-402(b)  prohibits  common  carriers  and  other  persons  from  bringing  or  carrying  4

            alcoholic  beverages  into  the  state  unless  they  are  consigned  to  a  duly  licensed  manufacturer  or  wholesaler.  Tenn.  Code
            Ann.  ¤  57-3-402(c)  prohibits  any  person,  common  carrier  or  railroad  company  from  transporting  or  accepting  for
            delivery  any  alcoholic  beverages  unless  they  are  consigned  to  a  licensed  wholesaler. In  Heald  v.  Engler,  342  F.3d  517  (6th  Cir.  2003),  the  Sixth  Circuit  struck  down  a  Michigan
            statute  that  authorized  domestic  vintners  to  make  mail  order  sales  to  retail  customers  but  prohibited
            out-of-state  vintners  from  engaging  in  the  same  practice. The  Court  noted  that  the  Twenty-First  2

            Amendment did not authorize states to enact protectionist legislation to favor domestic
            manufacturers  of  alcoholic  beverages  over  those  from  other  states. It  stated  that  to  withstand  a
            constitutional  challenge,  statutes  regulating  the  manufacture  and  sale  of  alcoholic  beverages  must
            provide  equal  treatment  for  domestic  and  out-of-state  producers.
                  No  statute  expressly  prohibiting  vintners  from  making  mail  order  sales  to  retail  customers
            has  been  found. Such  sales  are  prohibited  under  the  statutes  governing  the  transportation  of  alcohol  3

            in  this  state,  generally. Tenn.  Code  Ann.  ¤  57-3-402  prohibits  common  carriers  and  other  persons
            from  bringing  or  carrying  alcohol  into  Tennessee,  unless  the  recipient  is  a  manufacturer  or  licensed
            wholesaler  of  alcoholic  beverages. Wine  is  an  alcoholic  beverage  as  that  term  is  defined  in  Tenn.  4

            Code  Ann.  ¤  57-3-101(a)(1)(A). Vintners  are  manufacturers  of  alcoholic  beverages  as  that  term  is
            defined  by  Tenn.  Code  Ann.  ¤  57-3-101(a)(10). 
                  Unlike  the  Michigan  statute  at  issue  in  Heald,  Tenn.  Code  Ann.  ¤  57-3-402  makes  no
            distinction  between  domestic  and  out-of-state  vintners  and  other  manufacturers  of  alcoholic 
            beverages. By  its  terms,  it  applies  equally  to  all  and  is  therefore  constitutional  under  the  analysis
            that  was  employed  by  the  Sixth  Circuit  in  Heald.





                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter



            Page  3




                                                        MICHAEL  E.  MOORE
                                                        Solicitor  General


                                                        MICHAEL  A.  MEYER
                                                        Assistant  Attorney  General
           Requested  by:
                 Honorable  Glen  Casada
                 State  Representative
                 209  War  Memorial  Bldg
                 Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                   425  FIFTH  AVENUE  NORTH
                                  NASHVILLE,  TENNESSEE  37243

                                      Opinion  No.  04-100
                                        June  24,  2004

          Liability  of  Statewide  Independent  Living  Council

                                        QUESTIONS

                1.    Are  members  of  the  Statewide  Independent  Living  Council  immune  from  liability  in
          a  lawsuit  in  state  court,  in  the  same  manner  as  state  employees  in  the  performance  of  their  duties,
          pursuant  to  Tenn.  Code  Ann.  ¤  9-8-307,  generally,  and  pursuant  to  Tenn.  Code  Ann.  ¤  9-8-307(h),
          more  specifically?
                2.    If  the  answer  to  Question  #1  is  Òyes,Ó  would  the  Attorney  GeneralÕs  Office  authorize
          legal  representation  to  members  of  the  Council  that  would  be  provided  by  the  State  of  Tennessee?
                3.    If  the  members  of  the  Council  are  deemed  Òstate  employeesÓ  under  Question  #1  for
          purposes  of  liability  and  legal  representation,  and  if  they  are  sued  in  federal  court  instead  of  state
          court,  would  the  Attorney  GeneralÕs  Office  authorize  legal  representation  that  would  be  provided  by
          the  State  of  Tennessee,  and  would  any  judgments  awarded  by  a  federal  court  be  paid  by  the  State  of
          Tennessee  in  the  event  a  judgment  is  returned  against  any  members  of  the  Council? If  so,  under
          what  circumstances  would  representation  be  provided  and  judgments  be  paid  by  the  State  of
          Tennessee  in  a  federal  lawsuit  against  Council  members?
                4.    If  the  answer  to  Question  #1  is  Òno,Ó  would  the  members  of  the  Council  who  are  also
          members  of  the  Board  of  the  non-profit  corporation  be  immune  from  suit  in  state  court  under  the
          provisions  of  Tenn.  Code  Ann.  ¤  48-58-601(c)  or  any  other  provision  of  law?


                                         OPINIONS

                1.    Members  of  the  SILC  are  not  Òstate  employeesÓ  by  reason  of  their  appointment,
          although  some  SILC  members  may  otherwise  be  employees  of  the  State.  We  have  found  no  statute
          that  expressly  defines  members  of  the  Statewide  Independent  Living  Council  as  state  employees
          entitled  to  immunity  from  liability  under  Tenn.  Code  Ann.  ¤  9-8-307(h). Further,  29  U.S.C.A.
          ¤  796d  requires  the  Council  to  be  composed  of  members,  a  majority  of  whom  are  not  employed  by
          any  state  agency  or  center  for  independent  living.



            Page  2
                  2.    While  Tenn.  Code  Ann.  ¤  9-8-307(h)  applies  to  those  members  of  the  SILC  who  are
            otherwise  state  employees,  the  specific  facts  and  circumstances  surrounding  an  issue  may  control
            whether  representation  would  be  provided  or  approved  by  the  Attorney  General  and  Reporter  under
            Tenn.  Code  Ann.  ¤  8-6-109.  In  any  circumstance,  only  those  members  who  are  otherwise  state
            employees  would  be  eligible  for  representation.
                  3.    Members  of  the  SILC  are  not  deemed  state  employees  by  reason  of  their  appointment
            alone. The  facts  and  circumstances  surrounding  an  issue  may  control  whether  representation  for
            those  members  who  are  state  employees  would  be  provided  or  approved  by  the  Attorney  General
            under  Tenn.  Code  Ann.  ¤  8-6-109  in  litigation  in  federal  court. Further,  we  have  found  no  statute
            that  expressly  authorizes  payment  of  any  judgment  awarded  by  federal  court  against  either  general
            members  of  the  Statewide  Independent  Living  Council  or  the  Council  in  its  corporate  capacity. For
            those  members  who  are  otherwise  state  employees,  Tenn.  Code  Ann.  ¤  9-8-112  controls  payment
            by  the  State  of  any  adverse  judgments  against  them.
                  4.    Yes. Tenn.  Code  Ann.  ¤  48-58-601(c)  would  apply  to  the  full  extent  of  that  statute
            to  provide  immunity  from  suit  in  state  courts  for  members  of  the  Council  who  are  also  members  of
            the  Board  of  the  non-profit  corporation.


                                               ANALYSIS

                  1.    You  have  asked  whether  members  of  the  Statewide  Independent  Living  Council
            (ÒSILCÓ) are  immune  from  liability  in  a  lawsuit  in  state  court,  in  the  same  manner  as  state
            employees  in  the  performance  of  their  duties,  pursuant  to  Tenn.  Code  Ann.  ¤  9-8-307,  generally,  and
            pursuant  to  Tenn.  Code  Ann.  ¤  9-8-307(h). 
                  Tenn.  Code  Ann.  ¤  9-8-307  vests  the  Tennessee  Claims  Commission  with  exclusive
            jurisdiction  over  all  monetary  claims  against  the  State  for  certain  specified  categories  of  acts  or
            omissions  of  state  employees.  State  officers  and  employees  are  absolutely  immune  from  liability  for
            acts  or  omissions  within  the  scope  of  their  employment,  so  long  as  the  act  or  omission  was  not
            willful,  malicious,  criminal,  or  done  for  personal  gain.  Tenn.  Code  Ann.  ¤  9-8-307(d)  and  (h).  Tenn.
            Code  Ann.  ¤  8-42-101(3)(A)  defines  Òstate  employeeÓ  to  include  any  state  official,  any  person
            Òemployed  in  the  service  of  and  whose  compensation  is  payable  by  the  state,  or  any  person  .  .  .
            employed  by  the  state  whose  compensation  is  paid  in  whole  or  in  part  from  federal  funds.Ó ÒState
            employeeÓ  is  further  defined  to  include  several  specific  classes  of  individuals. Tenn.  Code  Ann. 
            ¤  8-42-101(3). Most  of  the  members  of  the  SILC  do  not  fall  within  any  part  of  this  definition.
                  As  you  note  in  your  opinion  request,  the  SILC  is  a  non-profit  corporation  formed  on  January
            1,  1996,  to  comply  with  federal  requirements  to  establish  a  statewide  living  council  in  order  for  the
            State  to  be  eligible  to  receive  financial  assistance  from  the  federal  government  for  independent  living
            services. 29  U.S.C.A.  ¤  796d(a);  34  C.F.R.  ¤  364.21(a)(1). In  Tennessee,  this  funding  is  used  to
            operate  the  Department  of  Human  ServicesÕ  Vocational  Rehabilitation  Program. The  SILC  exists



            Page  3
            by  virtue  of  federal  law,  not  state  law. Federal  law  specifically  prohibits  the  SILCÕs  establishment
            as  an  entity  within  a  state  agency  and  requires  that  the  SILC  be  independent  of  any  state  agency. 29
            U.S.C.A.  ¤  796d(a);  34  C.F.R.  ¤  364.21(a)(2).  The  SILC  is  responsible  for  developing  the  state  plan
            in  conjunction  with  the  State  and  for  monitoring,  reviewing,  and  evaluating  the  implementation  of
            that  plan.  29  U.S.C.A.  ¤  796d(c);  34  C.F.R.  ¤  364.21(g).  Federal  law  requires  that  members  of  the
            SILC  be  appointed  by  the  Governor  with  the  input  of  organizations  representing  or  interested  in
            individuals  with  disabilities. 29  U.S.C.A.  ¤  796d(b);  34  C.F.R.  ¤  364.21(b). Federal  law  also
            dictates  the  composition  of  the  SILC. Id. The  SILC  must  include  Òat  least  one  director  of  a  center
            for  independent  living  chosen  by  the  directors  of  centers  for  independent  living  within  the  State.Ó
            29  U.S.C.A.  ¤  796d(b)(2)(A);  34  C.F.R.  ¤  364.21(b)(2)(i)(A).  The  SILC  must  include,  as  nonvoting
            members,  a  representative  from  the  Tennessee  Department  of  Human  Services  and  Òrepresentatives
            from  other  State  agencies  that  provide  services  to  individuals  with  disabilities.Ó 29  U.S.C.A.
            ¤  796d(b)(2)(B);  34  C.F.R.  ¤  364.21(b)(2)(i)(B). The  SILC  may  also  include  as  members  Òother
            representatives  from  centers  for  independent  living;  parents  and  guardians  of  individuals  with
            disabilities;Ó advocates; representatives from private businesses; and representatives from
            organizations  that  serve  individuals  with  disabilities. 29  U.S.C.A.  ¤  796d(b)(3);  34  C.F.R.
            ¤  364.21(b)(2)(ii).  SILC  membership  must  Òprovide  statewide  representation  .  .  .  [of]  a  broad  range
            of  individuals  with  disabilities  .  .  .Ó  and  must  be  Òknowledgeable  about  centers  and  independent
            living  services.Ó 29  U.S.C.A.  ¤  796d(b)(4)(A);  34  C.F.R.  ¤  364.21(c). A  majority  of  the  voting
            members  of  the  SILC  must  be  individuals  with  disabilities  who  are  not  employed  by  any  state  agency
            or center for independent living.  29 U.S.C.A. ¤ 796d(b)(4)(A)(iv) and (B); 34 C.F.R.
            ¤  364.21(b)(2)(iii)  and  (d).  SILC  members  generally  serve  three-year  terms  and  may  not  serve  more
            than  two  consecutive  full  terms. 29  U.S.C.A.  ¤  796d(b)(6);  34  C.F.R.  ¤  364.21(f). The  SILC  is
            permitted  to  reimburse  membersÕ  expenses  incurred  to  attend  meetings  and  perform  SILC  duties.
            29  U.S.C.A.  ¤  796d(f);  34  C.F.R.  ¤  364.21(k). The  SILC  may  also  compensate  members  for  each
            day  spent  performing  SILC  duties  if  the  member  is  not  otherwise  employed  or  if  performing  SILC
            duties  causes  the  member  to  forfeit  income  from  a  job. Id.

                  Based  on  the  foregoing,  and  inasmuch  as  federal  law  requires  that  the  SILC  be  independent
            of  the  State  and  that  the  majority  of  its  members  not  be  state  employees  in  order  to  qualify  for  federal
            funding,  it  is  the  opinion  of  this  office  that  only  those  SILC  members  actually  employed  by  the  State
            and  being  compensated  by  the  State  for  the  performance  of  their  SILC  duties  in  the  course  of  their
            employment  would  be  found  by  any  court  or  administrative  tribunal  to  be  state  employees  subject
            to  the  absolute  immunity  provisions  of  Tenn.  Code  Ann.  ¤  9-8-307(d)  and  (h). 
                  2.    You  also  asked  whether,  if  the  answer  to  Question  #1  were  Òyes,Ó  the  Attorney
            GeneralÕs  Office  would  authorize  legal  representation  to  members  of  the  Council  that  would  be
            provided  by  the  State  of  Tennessee.  With  regard  to  those  SILC  members  who  might  be  considered
            state  officials  or  employees  subject  to  the  absolute  immunity  provisions  of  Tenn.  Code  Ann.  ¤  9-8-
            307(d)  and  (h),  the  specific  facts  and  circumstances  surrounding  the  state  official  or  employeeÕs
            request  for  representation  will  control  whether  representation  would  be  provided  or  approved  by  the
            Attorney  General  and  Reporter. As  discussed  above,  state  officers  and  employees  enjoy  absolute
            immunity  from  liability  only  for  acts  or  omissions  within  the  scope  of  their  employment  and  only



            Page  4
            if  the  act  or  omission  was  not  willful,  malicious,  criminal,  or  done  for  personal  gain. Tenn.  Code
            Ann.  ¤  9-8-307(d)  and  (h).
                  In  addition  to  his  duty  to  represent  the  State  of  Tennessee  and  its  employees,  Tenn.  Code
            Ann.  ¤  8-6-109(b)(1)  confers  upon  the  Attorney  General  and  Reporter  the  authority  to  conduct  the
            trial  and  direction  of  civil  litigated  matters  and  administrative  proceedings  in  which  the  State  of
            Tennessee  or  any  department  thereof  may  be  interested.  A  broad  discretion  is  vested  in  the  Attorney
            General  and  Reporter  in  determining  what  matters  may,  or  may  not,  be  of  interest  to  the  people
            generally.  See  State  ex  rel.  Inman  v.  Brock,  622  S.W.2d  36,  41-42  (Tenn.  1981).  See  also  Op.  Tenn.
            AttÕy  Gen.  No.  88-153  (August  24,  1988).
                  However,  the  SILC  is  not  a  state  agency.  While  broad  discretion  is  vested  in  the  Attorney
            General  and  Reporter  under  Tenn.  Code  Ann.  ¤  8-6-109(b)(1),  only  those  members  who  are  actually
            state  employees  conducting  state  business  would  be  eligible  for  representation  by  this  office.  The
            discretion  of  the  Attorney  General  and  Reporter  is  necessarily  exercised  on  a  case-by-case  basis.
                  3.    You also asked whether, if the members of the Council were deemed Òstate
            employeesÓ  under  Question  #1  for  purposes  of  liability  and  legal  representation,  and  if  they  were
            sued  in  federal  court  instead  of  state  court,  the  Attorney  GeneralÕs  Office  would  authorize  legal
            representation  that  would  be  provided  by  the  State  of  Tennessee,  and  whether  any  judgments
            awarded  by  a  federal  court  would  be  paid  by  the  State  of  Tennessee  in  the  event  a  judgment  is
            returned  against  any  members  of  the  Council. 
                  While  members  of  the  Council  are  not  deemed  state  employees  by  their  appointment  alone,
            the  Attorney  General  and  Reporter  may  determine  to  provide  representation  for  those  members  who
            are  otherwise  state  employees  conducting  state  business,  even  if  the  suit  is  in  federal  court. Tenn.
            Code  Ann.  ¤  8-6-109. Under  those  circumstances  alluded  to  above,  such  representation  may  be
            provided. In  all  cases  where  the  interest  of  the  State  requires  additional  counsel  to  the  Attorney
            General  and  Reporter,  the  Governor  is  authorized  to  employ  such  counsel. Tenn.  Code  Ann.  ¤  8-6-
            106.
                  For  those  members  of  the  SILC  who  are  also  state  employees  apart  from  their  appointment,
            Tenn.  Code  Ann.  ¤  9-8-112  would  determine  the  extent  to  which  an  adverse  judgment  would  be  paid
            by  the  State. In  part,  that  statute  provides:
                        (a)  The  board  of  claims  is  authorized  to  pay  final  judgments  for  state
                        employees,  as  defined  in  ¤  8-42-101,  for  any  damages,  including
                        interest  thereon,  which  are  awarded  in  a  final  judgment  in  a  civil
                        lawsuit  against  the  employee  in  a  court  of  competent  jurisdiction
                        where  it  is  determined  by  the  board  that  the  incident  on  which  such
                        damages  were  awarded  occurred  when  the  employee  was  acting  in
                        good  faith  within  the  scope  of  such  employee's  official  duty  and  under
                        apparent  lawful  authority  or  orders.



            Page  5
                  4.    You  asked  whether,  if  the  answer  to  Question  #1  were  Òno,Ó  the  members  of  the
            Council  who  were  also  members  of  the  Board  of  the  non-profit  corporation  would  be  immune  from
            suit  in  state  court  under  the  provisions  of  Tenn.  Code  Ann.  ¤  48-58-601(c)  or  any  other  provision
            of  law.
                  Tenn.  Code  Ann.  ¤  48-58-601(c)  provides  that:
                        [a]ll  directors,  trustees,  or  members  of  the  governing  bodies  of
                        nonprofit cooperatives, corporations, clubs, associations and
                        organizations  described  in  subsection  (d),  whether  compensated  or
                        not,  shall  be  immune  from  suit  arising  from  the  conduct  of  the  affairs
                        of  such cooperatives, corporations, clubs, associations or
                        organizations.  Such  immunity  from  suit  shall  be  removed  when  such
                        conduct  amounts  to  willful,  wanton  or  gross  negligence.
                  The  SILC  was  incorporated  in  1996  as  a  non-profit corporation. According  to  information
            available  from  the  Secretary  of  StateÕs  website,  the  corporation  is  presently  in  good  standing. Tenn.
            Code  Ann.  ¤  48-58-601(d)  lists  the  categories  of  entities  to  which  this  statutory  immunity  will  apply.
            If  the  SILC  is  one  of  the  entities  so  defined,  Tenn.  Code  Ann.  ¤  48-58-601(c)  would  be  applicable.
                  We  have  not  found  any  other  provision  of  law  that  would  provide  immunity  under  the
            circumstances  of  your  inquiry.

                                                       _______________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       RICHARD  M.  MURRELL
                                                       Assistant  Attorney  General
            Requested  by:
                  Virginia  T.  Lodge,  Commissioner
                  Department  of  Human  Services
                  Citizens  Plaza  Building
                  400  Deaderick  Street
                  Nashville,  TN  37248



                      The  Act  is  closely  related  to  the  Solid  Waste  Management  Act  of  1991,  codified  at  Tenn.  Code  Ann.  ¤¤  68-  1

             211-801  Ñ  874,  the  general  purpose  of  which  is  to  institute  and  maintain  a  comprehensive,  integrated,  statewide
             program  for  solid  waste  management. Tenn.  Code  Ann.  ¤  68-211-803(a). This  Office  has  previously  discussed  the
             general  tenor  and  many  of  the  specific  provisions  of  the  Solid  Waste  Management  Act  of  1991.  See  Op.  Tenn.  AttÕy
             Gen.  91-88  (November  7,  1991). S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                                    OFFICE  OF  THE

                                                ATTORNEY  GENERAL
                                              425  FIFTH  AVENUE  NORTH
                                            NASHVILLE,  TENNESSEE  37243

                                                     July  2,  2004
                                                 Opinion  No.  04-101
             Competitive  Bidding  Requirements  for  Solid  Waste  Authorities


                                                     QUESTION

                    Must  a  solid  waste  authority,  established  under  the  Solid  Waste  Authority  Act  of  1991,  as
             amended,  competitively  bid  contracts  for  solid  waste  collection  and/or  disposal  services?


                                                      OPINION

                    Competitive  bidding  requirements  generally  apply  when  a  solid  waste  authority  seeks  to
             contract  for  solid  waste  collection  and/or  disposal  services,  but  a  solid  waste  authority  need  not
             competitively bid a contract for solid waste collection and/or disposal services under those
             circumstances  in  which  the  participating  counties  or  municipalities  need  not  competitively  bid  such
             a  contract.


                                                     ANALYSIS

                    This  Office  has  been  asked  to  reconsider  a  portion  of  an  earlier  opinion  regarding  competitive
             bidding  requirements  for  a  solid  waste  authority  established  under  the  Solid  Waste  Authority  Act
             of  1991,  codified  at  Tenn.  Code  Ann.  ¤¤  68-211-901  Ñ  925. In  the  earlier  opinion,  this  Office
             concluded  that  a  solid  waste  authority  has  the  legal  right  and  power  to  enter  into  contracts  for  solid
             waste  collection  and/or  disposal  activities  but  must  advertise  and  competitively  bid  such  contracts.

             See  Op.  Tenn.  AttÕy  Gen.  97-145  (October  23,  1997).
                    The  Solid  Waste  Authority  Act  of  1991  (Òthe  ActÓ)  was  enacted  to  provide  for  a  systematic
             and  efficient  means  of  solid  waste  disposal  and  to  encourage  the  best  utilization  and  conservation
             of  energy  and  natural  resources. Tenn.  Code  Ann.  ¤  68-211-925. To  accomplish  its  goals,  the  Act  1

             permits  counties  and  municipalities  to  create  Òsolid  waste  authoritiesÓ  to  manage  the  mutual  solid



            2




































                  As  this  Office  previously  noted,  there  is  no  shortage  of  statutory  enactments  relating  to  local  waste  disposal  2

            services  and  facilities.  See  Op.  Tenn.  AttÕy  Gen.  89-127  (September  29,  1989).  In  fact,  leaving  aside  the  Solid  Waste
            Management  Act  of  1991  and  the  Solid  Waste  Authority  Act  of  1991,  there  are  no  less  than  nine  statutory  schemes
            specifically  addressing  the  issue  in  some  fashion. See  Tenn.  Code  Ann.  ¤  5-16-101  et  seq.  (ÒUrban  Type  Public
            FacilitiesÓ),  Tenn.  Code  Ann.  ¤  5-19-101  et  seq.  (ÒGarbage  and  Rubbish  Collection  and  Disposal  ServicesÓ),  Tenn.
            Code  Ann.  ¤  7-53-101  et  seq.  (ÒIndustrial  Development  CorporationsÓ),  Tenn.  Code  Ann.  ¤  7-54-101  et  seq.  (ÒEnergy
            Production  FacilitiesÓ),  Tenn.  Code  Ann.  ¤  7-58-101  et  seq.  (ÒResource  Recovery  and  Solid  Waste  DisposalÓ),  Tenn.
            Code  Ann.  ¤  7-82-101  et  seq.  (ÒUtility  DistrictsÓ),  Tenn.  Code  Ann.  ¤  68-211-501  et  seq.  (ÒMunicipal  Resource  and
            Energy  Recovery  FacilitiesÓ),  Tenn.  Code  Ann.  ¤  68-211-601  et  seq.  (ÒSolid  Waste  Planning  and  RecoveryÓ),  Tenn.
            Code  Ann.  ¤  68-211-701  et  seq.  (ÒLocal  Approval  of  Solid  Waste  FacilitiesÓ).
                   In  general,  the  term  Òresource  recovery  facilitiesÓ  refers  to  land,  buildings,  facilities  and  equipment  used  for  3

            the  recovery  or  production  of  energy  from  controlled  processing  or  disposal  of  solid  waste  or  the  systematic  separation,
            extraction  and  recovery  of  recyclable  materials  from  solid  waste.  Tenn.  Code  Ann.  ¤  68-211-902(a)(7). waste  needs  and  activities  of  the  participating  counties  and  municipalities.  See  Tenn.  Code  Ann.  ¤¤
            68-211-903,  68-211-906.  It  bears  noting  that  the  Act  is  permissive  rather  than  mandatory.  While
            the  Act  permits  counties  and  municipalities  to  create  solid  waste  authorities  to  manage  their  solid
            waste  activities,  it  does  not  require  counties  and  municipalities  to  create  solid  waste  authorities.
            Tenn.  Code  Ann.  ¤  68-211-903(a).  In  fact,  counties  and  municipalities  have  historically  had  multiple
            options  for  handling  their  solid  waste  needs  and  activities.2


                  The  Act  specifically  provides  that  a  solid  waste  authority  is  a  public  instrumentality  of  the
            counties  and  municipalities  participating  in  its  creation  or  by  agreement  after  its  creation. Tenn.
            Code  Ann.  ¤  68-211-906(a).  A  solid  waste  authority  is  created  and  may  be  operationally  furnished
            to  a  large  degree  by  the  participating  counties  and  municipalities.  Tenn.  Code  Ann.  ¤¤  68-211-903,
            68-211-906(a)(18),  68-211-909,  68-211-918,  68-211-920. Nevertheless,  a  solid  waste  authority
            operates  with  some  degree  of  independence  from  its  participating  counties  and  municipalities. A
            solid  waste  authority  has  and  may  use  a  corporate  seal,  may  sue  and  be  sued,  and  may  incur  debts,
            borrow  money  and  issue  bonds.  Tenn.  Code  Ann.  ¤¤  68-211-906(a)(2),  68-211-906(a)(3),  68-211-
            906(a)(9). Likewise,  a  solid  waste  authority  is  managed  by  a  board  of  directors,  the  members  of
            which  are  appointed  by  the  participating  county  executives  and  municipal  mayors  and  approved  by
            the  county  and  municipal  governing  bodies.  Tenn.  Code  Ann.  ¤  68-211-904(a).
                  The  General  Assembly  has  vested  broad  powers  in  solid  waste  authorities.  Principal  among
            them  is  the  power  to  acquire  and  operate  solid  waste  disposal  facilities  and  resource  recovery
            facilities. Tenn.  Code  Ann.  ¤  68-211-906(a)(4). Equally  important  is  the  power  to  collect  solid  3

            waste  and  transport  it  for  disposal  or  processing.  Tenn.  Code  Ann.  ¤  68-211-906(a)(6).  Lastly,  and
            perhaps  most  important  for  the  question  presented  in  this  opinion  request,  a  solid  waste  authority  has
            the  power  to  enter  into  contracts  for  the  management  and  operation  of  any  facility  or  service  of  the
            authority.  Tenn.  Code  Ann.  ¤  68-211-906(a)(8).  Clearly,  then,  a  solid  waste  authority  may  contract
            with  any  person,  including  individuals,  firms,  associations  and  corporations,  to  provide  solid  waste
            collection  and  disposal  services  for  the  authority.
                  The  question  of  exactly  how  a  solid  waste  authority  may  contract  to  provide  solid  waste



            3














































                   Section  7-39-317  states:  ÒNotwithstanding  any  law  to  the  contrary,  [an  energy  acquisition]  corporation  may  4

            enter  into  any  contract  authorized  by  this  chapter  without  complying  with  competitive  bidding  requirements.Ó collection  and  disposal  services,  and  particularly  whether  competitive  bidding  of  such  contracts  is
            mandatory, requires an examination of not just the Act, but also general laws concerning
            governmental  purchasing  and  specific  laws  concerning  the  collection  and  disposal  of  solid  waste.
            There are numerous statutory provisions concerning the purchase of goods or services by
            governmental  units  or  agencies.  Equally  numerous  are  the  legislative  responses  to  the  issue  of  solid
            waste  collection  and  disposal. Not  surprisingly,  the  convergence  of  these  numerous  laws  is  often
            a  complex  matter.
                  The  analysis  begins  with  the  Act. As  mentioned  above,  the  Act  provides  solid  waste
            authorities  with  broad  contracting  powers. Tenn.  Code  Ann.  ¤¤  68-211-906(a)(8),  68-211-
            906(a)(13). However,  the  Act  contains  no  provisions  detailing  the  method  in  which  solid  waste
            authorities  are  to  exercise  these  contracting  powers.  In  such  circumstances,  the  question  becomes
            whether  to  look  to  other  provisions,  in  this  case  general  county  and  municipal  purchasing  laws,  for
            applicable  procedures  or  whether  the  Act  alone  is  responsible  for  delineating  the  limits  of  the
            contracting  powers  of  solid  waste  authorities.
                  Of  course,  the  General  Assembly  may  provide  specific  purchasing  procedures  for  public
            instrumentalities  to  follow  directly  in  the  legislation  creating  such  instrumentalities. There  are
            numerous  public  instrumentalities  similar  to  solid  waste  authorities,  and  the  General  Assembly  has
            indeed  outlined  specific  purchasing  procedures  for  some  of  them. For  example,  the  General
            Assembly  explicitly  specified  certain  competitive  bidding  procedures  to  be  used  by  the  Tennessee
            Education  Lottery  Corporation  in  executing  procurement  contracts.  Tenn.  Code  Ann.  ¤  4-51-126.
            In  the  same  vein,  the  General  Assembly  may  also  provide  specific  wholesale  exemptions  from
            competitive  bidding  requirements,  as  in  the  case  of  Energy  Acquisition  Corporations  (Municipal  Gas
            Companies).  Tenn.  Code  Ann.  ¤  7-39-317. Where,  as  in  the  case  of  the  Act,  the  General  Assembly  4

            has  provided  neither  specific  purchasing  procedures  nor  wholesale  exemptions,  the  question  remains
            whether  general  county  and  municipal  purchasing  laws,  and  their  accompanying  competitive  bidding
            requirements,  apply  to  the  activities  of  public  instrumentalities.
                  Tennessee  courts  have  seldom  considered  this  issue.  The  most  direct  pronouncement  on  the
            issue  stems  from  Shankle  v.  Bedford  Co.  Bd.  of  Education,  et  al.,  No.  01A01-9609-CH-00387  (Tenn.
            Ct.  App.,  filed  February  28,  1997,  at  Nashville).  The  Shankle  court  considered,  among  other  issues,
            Òwhether  the  Public  Building  Authority  Act  of  1971,  T.C.A.  ¤  12-10-101,  et  seq.,  excludes  public
            building  authorities  from  all  Tennessee  state  and  local  laws,  including  competitive  bidding  statutes
            and  [w]hether  the  1995  Amendments  to  the  Public  Building  Authority  Act  create  an  exception  to  the
            competitive  bidding  statutes.Ó  Id.  (internal  quotation  marks  omitted).  The  Shankle  courtÕs  analysis
            focused  more  on  the  language  of  two  specific  statutory  exemptions  rather  than  the  general  issue  of
            whether  public  building  authorities  were  subject  to  general  state  and  local  laws,  such  as  those
            governing  competitive  bidding.  The  treatment  of  the  latter  issue  was  by  implication.



            4
                  In  Shankle,  the  plaintiffs  contended  that  the  Public  Building  Authority  of  Bedford  County
            violated  Tennessee  law  when  it  awarded  contracts  for  construction  work  on  public  schools  without
            going  through  competitive  bidding  or  a  public  invitation  for  proposals.  In  its  defense,  the  Authority
            contended  that  the  Public  Building  Authority  Act  exempted  it  from  competitive  bidding  statutes
            applicable  to  counties  or  municipalities. The  controversy  centered  upon  the  language  of  two
            statutory  provisions.  The  first  provision,  part  of  the  original  Public  Building  Authority  Act  enacted
            in  1971,  states,  in  pertinent  part:

                  Projects  may  be  acquired,  purchased,  constructed,  reconstructed,  improved,  bettered
                  and  extended  and  bonds  may  be  issued  under  this  chapter  for  such  purposes,
                  notwithstanding  that  any  other  general,  special  or  local  law  may  provide  for  the
                  acquisition,  purchase,  construction,  reconstruction,  improvement,  betterment  and
                  extension  of  a  like  project,  or  the  issuance  of  bonds  for  like  purposes,  and  without
                  regard  to  the  requirements,  restrictions,  limitations  or  other  provisions  contained  in
                  any  other  general,  special  or  local  law.

            Tenn.  Code  Ann.  ¤  12-10-122(a)  (emphasis  added). The  second  provision,  part  of  a  1995
            amendment  to  the  Public  Building  Authority  Act,  states,  in  pertinent  part:
                  An  authority  in  the  operation,  maintenance,  and  routine  repairs  of  a  project  may
                  purchase  goods,  supplies  and  services  which  are  generally  sold  to  the  public  by
                  advertised  price  without  the  necessity  of  competitive  bidding;  provided,  that  no
                  purchase  shall  exceed  five  thousand  dollars  ($5,000)  or  any  larger  limit  as  shall  be
                  allowed  for  such  purchases  under  the  regulations  of  a  municipal  corporation  with
                  which  the  authority  has  contracted.
            Tenn.  Code  Ann.  ¤  12-10-124(b).
                  The  Shankle  court  concluded  that  section  122(a)  exempted  public  building  authorities  from
            competitive  bidding  laws  with  respect  to  the  acquisition,  purchase,  construction,  reconstruction,
            improvement,  betterment  or  extension  of  projects.  As  a  result,  the  court  held  that  the  contracts  for
            construction  work  on  public  schools  at  issue  in  Shankle  did  not  contravene  Tennessee  law.
                  The  plaintiff  had  argued  against  this  interpretation  of  section  122(a),  contending  that  such
            an  interpretation  would  render  section  124(b)  mere  surplusage.  In  particular,  the  plaintiff  argued  that
            if section 122(a) wholly exempted public building authorities from competitive bidding
            requirements,  section  124(b),  with  its  specific  exemption  from  competitive  bidding  requirements,
            would  constitute  a  pointless  amendment.  The  Shankle  court  rejected  this  contention,  stating  that  the
            two  sections  were  aimed  at  different  activities.  The  exemption  of  section  122(a)  was  aimed  at  the
            acquisition,  purchase,  construction,  reconstruction,  improvement,  betterment  or  extension  of
            projects. Section  122(a)  did  not  exempt  public  building  authorities  from  other  general,  special  or
            local  laws  when  it  came  to  the  operation,  maintenance  or  routine  repairs  of  a  project.  On  the  other
            hand,  the  exemption  of  section  124(b)  applied  only  to  the  operation,  maintenance  and  routine  repairs



            5



































                   The  general  statutory  schemes  concerning  county  purchasing  include  the  County  Purchasing  Law  of  1957,  5

            Tenn.  Code  Ann.  ¤  5-14-101  et  seq.,  the  County  Purchasing  Law  of  1983,  Tenn.  Code  Ann.  ¤  5-14-201  et  seq.,  and  the
            County  Financial  Management  System  of  1981,  Tenn.  Code  Ann.  ¤  5-21-101  et  seq.

                   The  general  statutory  scheme  concerning  municipal  purchasing  is  the  Municipal  Purchasing  Law  of  1983,  6

            Tenn.  Code  Ann.  ¤  6-56-301  et  seq.

                   For  instance,  there  are  different  statutory  provisions  concerning  purchasing  by  cities  operating  under  a  city  7

            manager  -  commission  charter,  Tenn.  Code  Ann.  ¤  6-19-104,  versus  those  cities  operating  under  a  modified  city  manager
            -  council  charter,  Tenn.  Code  Ann.  ¤  6-35-205.
                   A  typical  example  of  the  language  of  these  provisions  is  as  follows:  ÒAll  purchases  of  and  contracts  for  8

            purchases  of  supplies,  materials,  equipment  and  contractual  services,  and  all  contracts  for  the  lease  or  rental  of
            equipment,  and  all  sales  of  county-owned  property  which  has  become  surplus,  obsolete  or  unusable,  shall  be  based
            wherever  possible  on  competitive  bids.Ó  Tenn.  Code  Ann.  ¤  5-14-108(a)(1). of  a  project.
                  The  Shankle  court  did  not  in  its  discussion  specifically  state  as  a  general  principle  that  public
            building  authorities  are  subject  to  the  general  purchasing  and  competitive  bidding  laws  applicable
            to  counties  and  municipalities.  This  conclusion  was,  however,  implicit  in  the  courtÕs  treatment  of
            the  issues,  particularly  the  discussion  of  the  distinction  between  sections  122(a)  and  124(b).
                  The  statutes  establishing  and  governing  public  building  authorities  and  solid  waste  authorities
            are  similar  in  many  respects,  particularly  with  regard  to  their  operational  powers.  Compare  Tenn.
            Code  Ann.  ¤  12-10-109  with  Tenn.  Code  Ann.  ¤  68-211-906. As  will  be  discussed  below,  the
            statutes  even  contain  identical  language  in  various  provisions. Accordingly,  given  the  similarity
            between  public  building  authorities  and  solid  waste  authorities  in  terms  of  their  creation,  function
            and  operation,  it  is  the  opinion  of  this  Office  that  solid  waste  authorities  are  generally  subject  to  the
            purchasing  and  competitive  bidding  laws  applicable  to  the  participating  counties  and  municipalities.
                  This  conclusion  merits  a  brief  examination  of  general  county  and  municipal  purchasing  laws,
            particularly  as  they  relate  to  collection  and  disposal  of  solid  waste.  As  previously  mentioned,  there
            are  numerous  statutes  governing  county  and  municipal  purchasing.  In  fact,  there  are  at  least  three
            general  statutory  schemes  dealing  with  purchasing  by  counties  ,  another  general  statutory  scheme  5

            dealing  with  purchasing  by  municipalities and  various  other  statutory  provisions  for  differing  types  6

            of  municipalities. Not  surprisingly,  there  is  some  degree  of  variation  among  these  statutes.  As  a  7

            general  rule,  however,  county  and  municipal  purchasing  statutes  express  a  preference  for  competitive
            bidding  for  purchases  of  supplies,  materials,  equipment  and  contractual  services,  including  services
            such  as  solid  waste  collection  and  disposal.  See  Tenn.  Code  Ann.  ¤¤  5-14-108(a)(1),  5-14-204,  5-
            21-119(b)(3),  6-19-104(b),  6-35-205(b)(1),  6-56-304;  see  also  Op.  Tenn.  AttÕy  Gen.  89-127
            (September  29,  1989). As  has  often  been  stated,  competitive  bidding  serves  to  provide  bidders  with  8

            a  fair  opportunity  to  compete  for  public  contracts  and  to  promote  the  public  interest  by  guarding
            against  favoritism  and  fraud.  MARTA  v.  Metro.  GovÕt  of  Nashville,  842  S.W.2d  611,  616-17  (Tenn.
            Ct.  App.  1992).



            6














































                   It  bears  noting  that  the  Act  contains  no  provision  similar  to  section  124(b)  of  the  Public  Building  Authority  9

            Act,  the  exception  to  otherwise  applicable  competitive  bidding  requirements  with  respect  to  the  operation,  maintenance
            or  routine  repair  of  a  project. Of  course,  there  are  exceptions  to  the  competitive  bidding  requirements  explicitly  set  forth
            in  the  various  purchasing  statutes,  many  of  them  common  to  most  if  not  all  of  the  statutory  schemes.
            For  example,  there  are  exceptions  for  emergency  purchases  of  supplies,  materials  or  equipment,
            purchases  of  perishable  commodities  on  the  open  market  and  purchases  of  goods  or  services  that  may
            not  be  procured  through  competitive  means  because  of  the  existence  of  a  single  source  of  supply  or
            because  of  a  proprietary  product.  See,  e.g.,  Tenn.  Code  Ann.  ¤¤  5-14-108(c)(2),  5-14-110,  5-14-204,
            6-56-304. The  various  purchasing  statutes,  however,  do  not  contain  any  exceptions  explicitly
            pertaining  to  contracts  for  solid  waste  collection  and  disposal  services.
                  The  inquiry  does  not  end  at  this  point. As  alluded  to  above,  the  Act  is  similar  in  many
            respects  to  the  Public  Building  Authority  Act  at  issue  in  Shankle.  In  fact,  the  Act  contains  language
            identical  to  one  of  the  exceptions  to  competitive  bidding  requirements  at  issue  in  Shankle. More
            specifically,  the  Act  provides  as  follows:

                  Projects  may  be  acquired,  purchased,  constructed,  reconstructed,  improved,  bettered
                  and  extended  and  bonds  may  be  issued  under  this  chapter  for  such  purposes,
                  notwithstanding  that  any  other  general,  special  or  local  law  may  provide  for  the
                  acquisition,  purchase,  construction,  reconstruction,  improvement,  betterment  and
                  extension  of  a  like  project,  or  the  issuance  of  bonds  for  like  purposes,  and  without
                  regard  to  the  requirements,  restrictions,  limitations  or  other  provisions  contained  in
                  any  other  general,  special  or  local  law.

            Tenn.  Code  Ann.  ¤  68-211-923(c)  (emphasis  added). This  language  is  identical  to  that  of  section
            122(a)  of  the  Public  Building  Authority  Act.  Accordingly,  this  language  constitutes  an  exception
            to  otherwise  applicable  competitive  bidding  requirements  insofar  as  the  activities  at  issue  are
            acquisition,  purchase,  construction,  reconstruction,  improvement,  betterment  or  extension  of  a
            project. Yet  the  question  presented  in  this  request  concerns  a  solid  waste  authority  entering  into
            contracts  for  solid  waste  collection  and  disposal  services. Such  services  do  not  fall  within  the
            parameters  of  the  exception  set  forth  at  section  923(c)  of  the  Act.9


                  There  is,  however,  another  provision  of  the  Act  that  has  some  bearing  on  the  question
            presented.  In  particular,  the  Act  provides  that  a  solid  waste  authority  has  the  power  to  Ò[u]se  in  the
            performance  of  its  functions  the  .  .  .  rights  and  powers  of  any  county  or  counties,  or  municipalities
            with  respect  to  which  the  authority  shall  have  been  created,  with  the  consent  of  such  county  or
            counties,  or  municipalities  and  subject  to  such  terms  and  conditions  as  may  be  agreed  upon.Ó  Tenn.
            Code  Ann.  ¤  68-211-906(a)(18).  This  provision  is  somewhat  unique  among  public  instrumentalities.
            Its  existence  requires  a  more  detailed  examination  of  the  rights  and  powers  of  counties  and
            municipalities,  particularly  as  they  relate  to  the  collection  and  disposal  of  solid  waste.



            7
                  As  previously  mentioned,  there  are  numerous  statutes  specifically  concerning  the  collection
            and  disposal  of  solid  waste  by  counties  and  municipalities.  Obviously,  counties  and  municipalities
            have  a  longstanding  general  authority  to  collect  and  dispose  of  garbage,  refuse  or  other  waste
            themselves,  often  through  a  sanitation  or  public  works  department. See,  e.g.,  Tenn.  Code  Ann.  ¤¤
            5-19-103(2),  5-19-107(4),  5-19-107(5),  6-2-201(19),  6-19-101(19),  6-33-101(a). Counties  and
            municipalities  also  have  authority  to  contract  with  other  entities  to  collect  and  dispose  of  solid  waste.

            See,  e.g.,  Tenn.  Code  Ann.  ¤¤  5-19-103(4),  5-19-106(a),  5-19-107(7),  6-2-201(13),  6-19-101(13),
            6-33-101(a). It  is  this  power  that  has  particular  bearing  on  the  issue  presented  in  this  opinion
            request.
                  In  1969,  the  General  Assembly  enacted  legislation  specifically  aimed  at  aiding  counties  in
            their  management  of  solid  waste. Tenn.  Code  Ann.  ¤  5-19-101  et  seq.  (commonly  known  as
            ÒGarbage  and  Rubbish  Collection  and  Disposal  ServicesÓ).  The  legislation  provides  counties  with
            various  options  to  address  the  collection  and  disposal  of  solid  waste. One  of  the  options  is  as
            follows:
                  Contractual  arrangements  the  county  may  make  between  itself  and  any  municipality,
                  any  utility  or  other  service  district,  any  private  organization  or  any  combination  of
                  such  entities  engaged  in  garbage  and  rubbish  collection  and/or  garbage  and  rubbish
                  disposal  services.  In  the  event  all  such  county  services  are  to  be  rendered  exclusively
                  by  such  contractual  arrangements,  the  contracts  involved  shall  be  negotiated  by  the
                  county  executive,  shall  be  subject  to  the  approval  of  the  county  legislative  body  or
                  other  governing  body  and  may  be  administered  by  the  county  executive  without  the
                  appointment  of  a  superintendent,  as  provided  for  hereafter,  being  required.

            Tenn.  Code  Ann.  ¤  5-19-103(4)  (emphasis  added). This  section  provides  counties  the  authority,
            under  limited  circumstances,  to  negotiate  contracts  for  solid  waste  collection  and  disposal  services
            rather  than  submit  them  for  competitive  bids. See  Op.  Tenn.  AttÕy  Gen.  89-127  (September  29,
            1989).
                  Similarly,  counties  and  municipalities  are  exempted  from  general  competitive  bidding
            requirements  in  another  unique  circumstance  pertaining  to  the  collection  and  disposal  of  solid  waste.
            In  1975,  the  General  Assembly  enacted  legislation  granting  counties  and  municipalities  various
            powers  related  to  the  construction  and  operation  of  Òenergy  production  facilities.Ó  Tenn.  Code  Ann.
            ¤  7-54-101  et  seq.  Energy  production  facilities  include  facilities  for  the  recovery  and  production  of
            energy  from  solid  waste  and  other  materials.  Tenn.  Code  Ann.  ¤¤  7-54-101(2),  68-211-501(2),  68-
            211-501(4).
                  The  Energy  Production  Facilities  legislation  provides  counties  and  municipalities  the  power
            to  enter  into  contracts  with  any  person  for  the  disposal  of  solid  waste  at  an  energy  production  facility



            8














































                   ÒMunicipalityÓ  as  used  in  this  legislation  includes  both  counties  and  municipalities.  Tenn.  Code  Ann.  ¤  7-  10

            54-101(4). under  Òsuch  terms  and  conditions  as  the  municipality  shall  determine.Ó  Tenn.  Code  Ann.  ¤  7-54-  10

            105(a)(3).  The  legislation  further  provides  as  follows:
                  All  contracts  for  the  construction,  operation  or  maintenance  of  an  energy  production
                  facility  and  all  contracts  authorized  by  ¤  7-54-105(a)(3)  [contracts  with  any  person
                  for  the  disposal  of  solid  waste  at  an  energy  production  facility]  shall  be  exempted
                  from  any  applicable  competitive  bidding  laws  of  this  state  which  shall  be  applicable
                  to  a  municipality,  and  such  ordinances  or  resolutions  of  any  municipality  which
                  require  competitive  bidding  .  .  .  .
            Tenn.  Code  Ann.  ¤  7-54-107.  This  exemption  is  not  a  blanket  one.  Rather,  to  invoke  the  exemption,
            the  municipal  governing  body  must  find  (1)  that  it  is  unlikely  the  exemption  will  encourage
            favoritism  or  substantially  decrease  competition  and  that  the  awarding  of  contracts  pursuant  to  the
            exemption  will  result  in  substantial  cost  savings  to  the  municipality,  (2)  that  the  exemption  will
            preserve  or  increase  employment  within  the  municipality  or  otherwise  promote  the  local  economy,
            or  (3)  that  emergency  conditions  require  prompt  execution  of  such  contracts  pursuant  to  the
            exemption. Tenn.  Code  Ann.  ¤  7-54-107(1). Additionally,  the  exemption  requires  the  following
            alternative  procedure  for  contracts:
                  (A)   Quotations  and  other  relevant  information  pertaining  to  the  proposed  contract
                  shall  be  solicited  through  a  request  for  proposals  prepared  by  the  municipality  which
                  shall  be  spread  upon  the  minutes  and  be  made  a  public  record  of  the  municipality;
                  (B)   The  award  of  such  contract  may  be  made  to  a  responsive  and  responsible
                  vendor  whose  proposal  is  determined  by  the  proposing  municipality  to  be  the  best
                  evaluated  offer  resulting  from  negotiation  and  taking  into  consideration  the  relative
                  importance  of  price  and  other  evaluation  factors  set  forth  in  the  request  for  proposals;
                  (C)   If  provided  in  the  request  for  proposals,  the  responding  proposal  shall  be
                  opened  so  as  to  avoid  disclosure  of  contents  to  competing  offerors  and  kept  secret
                  during  the  process  of  negotiation.  However,  all  proposals  that  have  been  submitted
                  shall  be  open  for  public  inspection  after  the  contract  is  awarded,  except  for  trade
                  secrets  and  confidential  information  contained  in  the  proposals  and  identified  as
                  such;
                  (D)   As  provided  in  the  request  for  proposals  and  under  rules  adopted  by  the
                  municipality,  discussions  may  be  conducted  with  responsible  offerors  who  submit
                  proposals  determined  to  be  reasonably  susceptible  of  being  selected  for  award.
                  Offerors  must  be  accorded  fair  treatment  with  respect  to  any  opportunity  for
                  discussion and revision of proposals, and revisions may be permitted after
                  submission  and  before  award  for  the  purpose  of  obtaining  the  best  and  final  offers.
            Tenn. Code Ann. ¤ 7-54-107(2).  Thus, as this Office has previously noted, counties and



            9













































                   In  the  opinion  under  reconsideration,  this  Office  also  considered  the  issue  of  which  requirements  a  solid  11

            waste  authority  must  follow  when  its  participating  counties  and/or  municipalities  do  not  have  equally  stringent
            purchasing  laws. This  Office  opined  that,  in  such  circumstances,  the  solid  waste  authority  must  follow  the  most
            stringent  applicable  law.  See  Op.  Tenn.  AttÕy  Gen.  97-145  (October  23,  1997).  We  reiterate  that  opinion  here. municipalities  may  contract  for  the  disposal  of  solid  waste  at  an  energy  production  facility  without
            complying  with  general  requirements  for  competitive  bidding. See  Op.  Tenn.  AttÕy  Gen.  89-127
            (September  29,  1989).
                  The  above  discussion  is  not  meant  to  be  an  exhaustive  one  with  regard  to  circumstances  in
            which  counties  or  municipalities  have  the  power  to  contract  for  the  collection  and  disposal  of  solid
            waste  without  submitting  the  contract  for  competitive  bidding.  Apart  from  the  generally  applicable
            provisions  detailed  above,  various  counties  and  municipalities  may  be  subject  to  private  acts  or  other
            legislation  of  local  impact  that  alters  general  competitive  bidding  requirements,  either  under  narrow
            circumstances  or  for  county  or  municipal  purchasing  in  its  entirety.  Yet  it  is  clear  from  the  above
            discussion  that  counties  and  municipalities  do  have  the  authority,  under  certain  circumstances,  to
            contract  for  solid  waste  collection  and  disposal  services  without  submitting  the  contract  for
            competitive  bidding.
                  In  the  opinion  under  reconsideration,  this  Office  opined  that  when  a  solid  waste  authority  is
            contracting  for  collection  and  disposal  services,  it  is  generally  subject  to  the  same  purchasing  laws,
            including  competitive  bidding  requirements,  that  govern  the  counties  and  municipalities  forming  the
            authority. See  Op.  Tenn.  AttÕy  Gen.  97-145  (October  23,  1997). In  effect,  given  the  absence  of
            provisions  outlining  purchasing  procedures  in  the  Act  itself,  solid  waste  authorities  stand  in  the  same
            shoes  as  the  counties  and  municipalities  forming  them.  We  reiterate  that  opinion  today.  Through
            the  course  of  the  above  discussion,  however,  it  has  become  clear  that  there  are  exceptions  to  any
            competitive  bidding  requirements  applicable  to  counties  and  municipalities  under  those  purchasing
            laws,  particularly  with  respect  to  contracts  for  solid  waste  collection  and  disposal  services.  It  is  the
            opinion  of  this  Office  that  solid  waste  authorities  may  contract  for  solid  waste  collection  and  disposal
            services  without  using  a  competitive  bidding  process  under  the  same  circumstances  in  which  the
            participating  counties  or  municipalities  have  the  authority  to  contract  for  such  services  without  using
            a  competitive  bidding  process.11





                                                      ___________________________________
                                                      PAUL  G.  SUMMERS
                                                      Attorney  General  and  Reporter



           10



                                                     ___________________________________
                                                     MICHAEL  E.  MOORE
                                                     Solicitor  General


                                                     ___________________________________
                                                     R.  STEPHEN  JOBE
                                                     Assistant  Attorney  General
           Requested  by:
                 Hon.  Jerry  W.  Cooper 
                 State  of  Tennessee
                 Senate  Chamber
                 309  War  Memorial  Bldg.
                 Nashville,  TN  37243-0214



                     Tenn.  Code  Ann.  ¤  47-9-705(c)  provides  otherwise  for  continuation  statements  filed  under  1

              subsection  (d),  financing  statements  filed  against  transmitting  utilities  under  subsection  (e),  and  initial
              financing  statements  under  ¤  47-9-706. S  T  A  T  E  O  F  T  E  N  N  E  S  S  E  E

                                                     OFFICE  OF  THE

                                                 ATTORNEY  GENERAL
                                                     PO  BOX  20207
                                             NASHVILLE,  TENNESSEE  37202

                                                      July  2,  2004
                                                  Opinion  No.  04-102

              Authority  of  the  Secretary  of  State  to  Adjust  the  Lapse  Date  on  Financing  Statements  Having
              Initial  Maturity  Dates  Beyond  June  30,  2006 

                                                      QUESTION

                     Does  the  Secretary  of  State  have  the  current  authority  to  adjust  the  lapse  date  to  June  30,
              2006,  on  U.C.C.  financing  statements  filed  prior  to  July  1,  2001,  whose  initial  maturity  dates  are
              beyond June 30, 2006, and whose debtors are not identified on the financing statements as
              transmitting  utilities,  in  order  to  conform  to  the  provisions  of  Tenn.  Code  Ann.  ¤  47-9-705(c),  as
              amended  in  2000? If  not,  may  the  Secretary  of  State  promulgate  a  rule  to  effect  such  adjustments?

                                                       OPINION

                     Yes. The  Secretary  of  State  does  have  the  authority  to  adjust  the  lapse  date  to  June  30,  2006,
              on  U.C.C.  financing  statements  filed  prior  to  July  1,  2001,  that  show  effective  dates  after  June  30,
              2006. Although  it  may  not  be  absolutely  necessary  that  the  Secretary  of  State  promulgate  a  rule  to
              effect  these  adjustments,  it  is  recommended  that  he  do  so.

                                                      ANALYSIS

                     As  part  of  revisions  to  the  Uniform  Commercial  Code,  Tennessee  amended  its  law  in  2000
              to  provide  that  almost  all  financing  statements,  with  the  exception  of  those  for  transmitting  utilities
              and  mortgages,  will  be  effective  for  a  period  of  five  years. Tenn.  Code  Ann.  ¤  47-9-515(a).
              Furthermore,  Tenn.  Code  Ann.  ¤  47-9-705(c)  specifies  that,  unless  otherwise  provided, an  effective  1

              financing  statement  which  satisfies  the  requirements  of  the  former  Article  9  Òceases  to  be  effective
              at  the  earlier  of:  (1)  the  time  the  financing  statement  would  have  ceased  to  be  effective  under  the  law
              of  the  jurisdiction  in  which  it  is  filed;  or  (2)  June  30,  2006.Ó Under  the  former  Article  9,  as  adopted
              by  Tennessee,  a  financing  statement  could  have  a  period  of  effectiveness  of  five  to  twenty  years.
              Tenn.  Code  Ann.  ¤  47-9-403(2)(a)  (repealed  as  of  July  1,  2001,  by  2000  Tenn.  Pub.  Acts,  ch.  846).



            Page  2



































                    Tenn.  Code  Ann.  ¤  47-9-705(d)  states  that:  2


                        The  filing  of  a  continuation  statement  after  this  act  takes  effect
                        does  not  continue  the  effectiveness  of  the  financing  statement  filed
                        before  this  act  takes  effect. However,  upon  the  timely  filing  of  a
                        continuation  statement  after  this  act  takes  effect  and  in  accordance
                        with  the  law  of  the  jurisdiction  governing  perfection  as  provided
                        in  Part  3,  the  effectiveness  of  a  financing  statement  filed  in  the
                        same office in that jurisdiction before this act takes effect
                        continues  for  the  period  provided  by  the  law  of  that  jurisdiction. The  revised  Article  9  of  the  U.C.C.  sets  a  standard  effective  period  of  five  years.  The  problem  under
            the  Tennessee  statutes  is  that  there  are  financing  statements  that  were  properly  filed  and  perfected
            under  the  former  Article  9  whose  stated  period  of  effectiveness  extends  beyond  June  30,  2006.  The
            new  Article  9  does  not  allow  these  financing  statements  to  have  effect  after  June  30,  2006,  unless
            affirmative  action  is  taken  to  continue  them.
                  Tenn.  Code  Ann.  ¤  47-9-515(d)  contains  a  provision  for  the  filing  of  a  continuation  statement
            to  extend  the  effectiveness  of  a  financing  statement.  However,  Ò[a]  continuation  statement  may  2

            be  filed  only  within  six  (6)  months  before  the  expiration  of  the  five-year  period  specified  in
            subsection  (a)  .  .  .  .Ó  Tenn.  Code  Ann.  ¤  47-9-515  (d).  Since  the  records  in  the  Secretary  of  StateÕs
            office  reflect  the  former  lapse  dates  of  the  financing  statements,  confusion  may  arise  as  to  when  this
            six-month  period  commences.  Unless  the  dates  on  the  financing  statements  are  adjusted  to  show  the
            new  lapse  date,  it  will  not  be  clear  when  a  continuation  statement  may  be  filed. For  example,  a
            properly  filed  financing  statement  filed  on  January  31,  2000,  with  an  effective  period  of  twenty  years
            would  show  a  lapse  date  of  January  31,  2020. Unless  the  Secretary  of  State  is  permitted  to  adjust
            the  lapse  date  to  June  30,  2006,  it  will  not  be  clear  from  the  records  that  a  continuation  statement  can
            be  filed  anytime  after  December  30,  2005,  and  before  June  30,  2006.
                  The  Secretary  of  State  has  asked  whether  he  has  the  authority  to  adjust  the  lapse  date  to  June
            30,  2006,  on  the  financing  statements  that  presently  indicate  effective  periods  extending  beyond  June
            30,  2006,  so  that  it  will  be  clear  that  the  secured  parties  have  a  six-month  window  in  which  to  file
            a  continuation  statement.  It  is  the  opinion  of  this  office  that  the  Secretary  does  have  this  power.  In
            making  such  adjustments  of  the  stated  termination  date,  the  Secretary  of  State  would  merely  be
            correcting  the  records  he  maintains  to  conform  to  the  law  on  termination  of  financing  statements.
            This  power  is  inherent  in  the  proper  execution  of  the  SecretaryÕs  duties.  Thus,  the  Secretary  of  State
            does  have  the  authority  to  adjust  the  lapse  date  to  June  30,  2006,  on  U.C.C.  financing  statements
            filed  prior  to  July  1,  2001,  whose  stated  effective  dates  are  beyond  June  30,  2006. 
                  Moreover,  the  Secretary  of  State  may  remove  any  doubt  about  his  authority  through  exercise
            of  his  rulemaking  powers.  Tenn.  Code  Ann.  ¤  47-9-526  states  that  the  Secretary  of  State  Òshall  adopt
            and  publish  rules  to  implement  this  chapter.  The  filing-office  rules  must  be:  (1)  consistent  with  this
            chapter;  and  (2)  adopted  and  published  in  accordance  with  the  Uniform  Administrative  Procedures



            Page  3
            Act,  compiled  in  Title  4,  Chapter  5.Ó  Adopting  such  a  rule  would  be  consistent  with  Chapter  47  of
            the  Tennessee  Code;  specifically,  it  would  be  consistent  with  Tenn.  Code  Ann.  ¤  47-9-705(c)(2),
            which  states  that  Òthe  financing  statement  ceases  to  be  effective  .  .  .  [on]  June  30,  2006,Ó  and  such
            a  rule  would  be  consistent  with  Tenn.  Code  Ann.  ¤ 47-9-515(d),  which  allows  for  a  six-month
            window  for  the  filing  of  continuation  statements.  Changing  the  Secretary  of  StateÕs  records  to  reflect
            the  correct  lapse  date  under  current  law  would  make  apparent  to  secured  parties  that  they  have  the
            opportunity  to  continue  their  interest  beyond  June  30,  2006. While  the  Secretary  might  make  the
            adjustments  to  reflect  the  new  law  even  in  the  absence  of  a  rule,  a  rule  serves  to  implement  the  clear
            directive  of  ¤  47-9-526  and  to  explain  the  impetus  for  the  SecretaryÕs  action  to  those  who  may  be
            unaware  of  the  new  statutes. 
                  Adjusting  the  lapse  date  of  certain  financing  statements  would  not  be  an  unconstitutional 
            ÒtakingÓ  under  the  Fifth  Amendment.  The  Supreme  Court  stated  in  United  States  v.  Locke  ,  471  U.S.
            84,  104,  105  S.Ct.  1785,  1797  (1985),  Òeven  with  respect  to  vested  property  rights,  a  legislature
            generally  has  the  power  to  impose  new  regulatory  constraints  on  the  way  in  which  those  rights  are
            used,  or  to  condition  their  continued  retention  on  performance  of  certain  affirmative  duties.  As  long
            as  the  constraint  or  duty  imposed  is  a  reasonable  restriction  designed  to  further  legitimate  legislative
            objectives,  the  legislature  acts  within  its  powers  in  imposing  such  new  constraints  or  duties.Ó  In  this
            case,  the  Secretary  of  State  is  merely  implementing  the  law  passed  by  the  legislature  whose  purpose
            is  to  centralize  and  make  uniform  the  location  and  method  of  filing  financing  statements.  This  is  a
            legitimate  legislative  objective  and  the  requirement  that  a  party  file  either  a  continuation  statement
            or  an  initial  financing  statement  is  a  reasonable  restriction. 
                  Some  might  contend  that  ¤  47-9-705  is  retroactive  in  application  since  it  appears  to  take  away
            vested  property  rights.  Article  I,  ¤  20,  of  the  Tennessee  Constitution  forbids  retrospective  laws.
            ÒWhen  a  statute  creates  a  new  right,  eliminates  a  vested  right,  or  impairs  a  contractual  obligation,
            its  retrospective  application  is  constitutionally  forbidden.Ó  Collier  v.  Memphis  Light,  Gas  &  Water
            Div.,  657  S.W.2d  771,  775  (Tenn.  App.),  perm.  app.  denied  (Tenn.  1983). However,  a  statute  does
            not  operate  retrospectively  simply  because  it  upsets  expectations  based  in  prior  law.  Landgraf  v.  USI
            Film  Products,  511  U.S.  244,  269,  114  S.Ct.  1483,  1499  (1994). Although  ¤  47-9-705  may  upset
            expectations,  it  is  not  retroactive  in  application  since  it  specifies  an  action  a  person  must  currently
            take  to  preserve  his  rights  in  the  future. The  statute  does  not  eliminate  a  vested  right;  rather,  it
            simply  requires  the  secured  party  to  take  additional  steps  that  are  entirely  reasonable  and  are
            necessary  to  accomplish  the  LegislatureÕs  goal  of  standardizing  the  effectiveness  of  UCC  financing
            statements. Conditioning  retention  of  a  vested  right  on  performance  of  affirmative  administrative
            duties  is  constitutionally  permissible.  United  States  v.  Locke,  471  U.S.  84,  105  S.Ct.  1785  (1985).




                                                       PAUL  G.  SUMMERS
                                                       Attorney  General



            Page  4





                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General




                                                       DEBORAH  A.  TOON
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Riley  Darnell
                  Secretary  of  State
                  State  Capitol
                  Nashville,  TN  37243-0305



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  2,  2004
                                      Opinion  No.  04-103

          Treatment  of  Depreciation  under  the  Federal  Job  Creation  and  Worker  Assistance  Act  of  2002  in
          Calculating  Partnership  Earnings  for  the  Tennessee  Excise  Tax

                                         QUESTION

                Does  the  add-back  of  depreciation  allowed  under  title  1,  ¤  101,  of  the  federal  Job  Creation
          and  Worker  Assistance  Act  of  2002  (26  U.S.C.  ¤  168(k))  (JCWAA)  in  calculating  a  limited
          partnershipÕs  net  earnings  for  purposes  of  the  Tennessee  excise  tax  negate  the  deduction  of  the
          amount  subject  to  self-employment  taxes?


                                         OPINION

                No.  Depreciation  allowed  under  title  1,  ¤  101,  of  the  JCWAA  remains  an  amount  added  back
          to  a  limited  partnershipÕs  federal  ordinary  income  under  Tenn.  Code  Ann.  ¤  67-4-2006(b)(1)(H)
          notwithstanding  the  deduction  of  the  amount  subject  to  self-employment  taxes.

                                         ANALYSIS

                The  calculation  of  a  limited  partnershipÕs  Tennessee  excise  tax  liability  derives  from  its
          ordinary  income  for  federal  tax  purposes  as  listed  on  its  federal  partnership  tax  return.  Tenn.  Code
          Ann.  ¤  67-4-2006(a)(4)(A).  Both  distributions  to  partners  and  depreciation  under  the  JCWAA  are
          available  as  deductions  in  the  calculation  of  the  businessÕs  federal  ordinary  income. 26  U.S.C.
          ¤  703.  The  excise  tax  provides  for  distributions  to  partners,  which  are  reflected  in  Tennessee  law
          as  the  amount  subject  to  self-employment  taxes,  to  be  subtracted  from  ordinary  income  in  calculating
          net  earnings.  Tenn.  Code  Ann.  ¤  67-4-2006(a)(4)(A).  At  the  same  time,  an  individual  partner  may
          be  entitled  to  a  deduction  for  depreciation  under  the  JCWAA  as  part  of  the  calculation  of  his  or  her
          personal  income  for  federal  income  taxation. However,  Tennessee  law  provides  that  JCWAA
          depreciation  is  added  back  to  a  partnershipÕs  federal  ordinary  income  in  calculating  its  net  earnings.
          Tenn.  Code  Ann.  ¤  67-4-2006(b)(1)(H).
                Thus,  the  treatment  of  JCWAA  depreciation  under  Tennessee  law  may  appear  to  negate  the
          deduction  of  the  amount  subject  to  self-employment  taxes.  However,  this  treatment  is  consistent
          with  the  structure  of  the  Tennessee  excise  tax  statutes,  the  treatment  of  depletion,  and  the  General



            Page  2
            AssemblyÕs  intent  to  ÒdecoupleÓ  TennesseeÕs  excise  tax  calculation  from  the  calculation  of  federal
            ordinary  income  to  avoid  the  loss  of  revenues  that  would  otherwise  result.
                  Tenn.  Code  Ann.  ¤  67-4-2007  imposes  a  tax  on  a  businessÕs  net  earnings.  Tenn.  Code  Ann.
            ¤  67-4-2004(20)  lists  the  types  of  ÒpersonsÓ  or  ÒtaxpayersÓ  subject  to  this  tax. Tenn.  Code  Ann.
            ¤  67-4-2006  sets  out  the  method  for  computing  net  earnings  for  the  various  types  of  business.
                  Tenn.  Code  Ann.  ¤  67-4-2006(a)(4)  governs  the  calculation  for  a  taxpayer  treated  as  a
            partnership  for  federal  tax  purposes.  This  subsection  starts  with  Ò[t]he  amount  of  ordinary  income
            or  loss  determined  under  the  applicable  provisions  of  the  Internal  Revenue  Code,  including,  but  not
            limited  to,  guaranteed  payments  to  partners  and  capital  gains,Ó  ¤  67-4-2006(a)(4)(A),  as  the  basis
            of  the  partnershipÕs  net  earnings  and  then  subtracts  from  this  amount  Ò[t]he  amount  subject  to  self-employment 
                      taxes,  without  regard  to  any  cap,  distributable  or  paid  to  each  partner  or  member.Ó  Tenn.
            Code  Ann.  ¤  67-4-2006(a)(4)(B). 
                  Distributions  to  partners,  as  listed  on  a  partnershipÕs  federal  tax  return,  become  one
            component  of  the  amount  subject  to  federal  self-employment  tax  for  an  individual.  This  amount  is
            deducted  from  a  partnershipÕs  total  income  to  arrive  at  the  amount  on  which  net  earnings  for
            Tennessee  excise  tax  purposes  are  based.  Thus,  for  limited  partnerships,  Tenn.  Code  Ann.  ¤  67-4-
            2006(a)(4)(B)  subtracts  such  payments  to  arrive  at  the  amount  subject  to  the  excise  tax. 
                  Tenn.  Code  Ann.  ¤  67-4-2006(b)(1)  provides  that  certain  amounts  are  to  be  Òadded  to  a
            taxpayerÕs  net  earnings  or  net  losses.Ó  The  effect  of  this  add-back  provision  is  that  certain  amounts
            that  a  business  would  be  able  to  deduct  to  arrive  at  its  ordinary  income  on  its  federal  tax  return,
            notably  depletion,  are  added  back  to  its  ordinary  income  to  arrive  at  the  businessÕs  net  earnings  for
            the  Tennessee  excise  tax. 
                  Tenn.  Code  Ann.  ¤  67-4-2006(b)(1)(H),  enacted  in  2002,  operates  the  same  way. This
            subsection  includes  in  the  list  of  amounts  added  back  to  federal  ordinary  income  Ò[a]ny  depreciation
            permitted  as  a  deduction  in  computing  federal  taxable  income  solely  as  a  result  of  the  provisions  of
            title  1,  ¤  101,  of  the  Job  Creation  and  Worker  Assistance  Act  of  2002.Ó This  federal  tax  provision
            allows  additional  depreciation  on  property  acquired  after  September  10,  2001,  and  placed  in  service
            before  January  1,  2005,  or,  in  certain  cases,  January  1,  2006.  Even  though  a  partnership  may  have
            deducted  such  depreciation  in  calculating  its  federal  taxable  income,  Tenn.  Code  Ann.  ¤  67-4-
            2004(b)(1)(H)  still  requires  the  partnership  to  add  the  depreciation  back  to  its  ordinary  income  in
            calculating  net  earnings  for  the  Tennessee  excise  tax.
                  In  addition,  the  potential  ability  of  an  individual  partner  to  include  depreciation  allowed
            under  the  JCWAA  in  preparing  his  or  her  federal  individual  income  tax  return,  such  as  for  property
            of  a  separate  sole  proprietorship  maintained  by  that  individual,  does  not  affect  the  operation  of  Tenn.
            Code  Ann.  ¤  67-4-2006.  Pursuant  to  Tenn.  Code  Ann.  ¤  67-4-2004(20),  the  taxpayer  for  purposes
            of  the  excise  tax  is  the  partnership.  Therefore,  the  net  earnings  or  losses  being  determined  pursuant
            to  Tenn.  Code  Ann.  ¤  67-4-2006  are  those  of  the  partnership  and  not  those  of  the  individual  partners.



            Page  3
            Similarly,  any  property  on  which  JCWAA  depreciation  is  taken  on  a  federal  tax  return  and  added
            back  under  ¤  67-4-2006(b)(1)(H)  would  be  property  of  the  partnership. 
                  The  treatment  of  JCWAA  depreciation  as  an  add-back  does  not  deny  a  partnership  or
            individual  taxpayer  the  benefit  of  this  depreciation  for  federal  tax  purposes.  The  add-back  required
            by  Tenn.  Code  Ann.  ¤  67-4-2006(b)(1)(H)  does  not  mean  that  the  amount  is  also  added  back  on  an
            individualÕs  federal  self-employment  tax  return. The  General  Assembly  intended  this  treatment
            merely  to  ÒdecoupleÓ  a  businessÕs  net  earnings  for  purposes  of  the  excise  tax  from  its  federal
            ordinary  income  so  as  not  to  deprive  Tennessee  of  the  excise  tax  revenues  it  would  have  collected
            if  the  JCWAA  had  not  been  enacted.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       JONATHAN  N.  WIKE
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Beth  Halteman  Harwell
                  State  Representative,  56th  Legislative  District 
                  107  War  Memorial  Building
                  Nashville,  Tennessee  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  2,  2004
                                      Opinion  No.  04-104
          Budget  of  Shelby  County  Sheriff

                                         QUESTION

                May  the  Shelby  County  Board  of  Commissioners  lawfully  adopt  a  budget  reducing  below
          current  levels  the  salaries  and  number  of  employees  in  the  SheriffÕs  Department  without  the  SheriffÕs
          consent  when  doing  so  will  interfere  with  the  statutorily  mandated  duties  of  the  Sheriff?

                                         OPINIONS

                Under  Tenn.  Code  Ann.  ¤  8-20-120,  Ò[n]o  county  governing  body  shall  adopt  a  budget  absent
          the  consent  of  the  sheriff,  which  reduces  below  current  levels  the  salaries  and  number  of  employees
          in  the  sheriffÕs  department.Ó  The  statute  provides  that,  in  the  event  a  county  governing  body  fails
          to  budget  any  salary  expenditure  which  is  a  necessity  for  the  discharge  of  the  statutorily  mandated
          duties  of  the  Sheriff,  the  Sheriff  may  seek  a  writ  of  mandamus  to  compel  such  appropriation.  The
          writ  of  mandamus  authorized  by  Tenn.  Code  Ann.  ¤  8-20-120  may  only  be  sought  after  the  Sheriff
          has  gone  through  both  the  local  budget  process  and  the  application  procedure  required  by  Tenn.
          Code  Ann.  ¤  8-20-101(a)(2).  But  the  Court  of  Appeals  for  the  Western  Section  has  held  that  some
          provisions  of  Tenn.  Code  Ann.  ¤¤  8-20-101,  et  seq.,  are  not  applicable  to  positions  within  the
          countyÕs  civil  service  system.  Patterson  v.  Rout,  slip  op.,  No.  W2001-01769-COA-R3-CV,  2002
          WL  1592674  (Tenn.  Ct.  App.  W.S.  July  10,  2002). 
                This  Office  has  not  reviewed  the  current  ordinance  regarding  the  Shelby  County  Civil
          Service. If  the  SheriffÕs  employees  are  included  in  this  system,  then,  under  Patterson,  a  court  is
          likely  to  hold  that  conditions  of  employment  and  salary  levels  are  governed  by  that  system  and
          cannot  be  changed  by  petitioning  under  Tenn.  Code  Ann.  ¤¤  8-20-101,  et  seq.  But  we  think  a  court
          would  conclude  that,  under  Tenn.  Code  Ann.  ¤  8-20-101,  once  the  Shelby  County  Commission
          passes  a  budget,  the  Shelby  County  Sheriff  may  petition  the  court  for  additional  positions  necessary
          to  enable  him  to  carry  out  his  statutorily  mandated  duties  and,  under  Tenn.  Code  Ann.  ¤  8-20-120,
          may  seek  a  writ  of  mandamus  to  enforce  the  courtÕs  order.

                                         ANALYSIS

                This  opinion  concerns  whether  the  Shelby  County  Board  of  Commissioners  may  lawfully
          adopt  a  budget  reducing  below  current  levels  the  salaries  and  number  of  employees  in  the  SheriffÕs
          Department  without  the  SheriffÕs  consent  when  doing  so  will  interfere  with  the  statutorily  mandated



            Page  2
            duties  of  the  Sheriff. The  request  indicates  that  the  Shelby  County  Board  of  Commissioners  is
            considering  a  budget  under  which  the  Mayor  of  Shelby  County  proposes  to  cut  seventeen  million
            dollars  from  the  Shelby  County  SheriffÕs  budget.  The  request  indicates  that,  under  the  proposal,  the
            county  would  make  deep  cuts  in  funding  which,  if  adopted,  will  reduce  below  current  levels  the
            salaries  and  number  of  employees  in  the  SheriffÕs  Department  and  adversely  affect  the  SheriffÕs
            ability  to  safeguard  the  citizens  of  Shelby  County. The  request  indicates  that  the  cuts  include,  but
            are  not  limited  to,  eliminating  the  S.W.A.T.  team  and  narcotics  and  metro  gang  units,  and  reducing
            patrols  by  thirty  percent  and  court  staffing  by  forty-five  percent.
                  Under  Tenn.  Code  Ann.  ¤  8-20-120,  a  county  in  adopting  any  budget  must  fund  the
            statutorily  mandated  duties  of  the  Sheriff. This  statute  states:
                        Notwithstanding  any  other  provision  of  the  law  to  the  contrary,
                        county  governing  bodies  shall  fund  the  operations  of  the  county
                        sheriffÕs  department.  The  sheriff  may  appoint  such  personnel  as  may
                        be  provided  for  in  the  budget  adopted  for  such  department. No
                        county  governing  body  shall  adopt  a  budget  absent  the  consent  of  the
                        sheriff,  which  reduces  below  current  levels  the  salaries  and  number
                        of  employees  in  the  sheriffÕs  department. In  the  event  a  county
                        governing  body  fails  to  budget  any  salary  expenditure  which  is  a
                        necessity  for  the  discharge  of  the  statutorily  mandated  duties  of  the
                        sheriff,  the  sheriff  may  seek  a  writ  of  mandamus  to  compel  such
                        appropriation.
            (Emphasis  added). Similarly,  Tenn.  Code  Ann.  ¤  8-24-103  requires  the  county  legislative  body  to
            make  the  necessary  appropriation  to  fund  the  operation  of  the  SheriffÕs  Office,  including  the  salary
            of  all  the  SheriffÕs  deputies,  that  have  been  authorized  by  the  court. State  ex  rel.  Ledbetter  v.
            Duncan,  702  S.W.2d  163,  165  (Tenn.  1985).  The  writ  of  mandamus  authorized  by  Tenn.  Code  Ann.
            ¤  8-20-120  may  only  be  sought  after  the  Sheriff  has  gone  through  both  the  local  budget  process  and
            the  application  procedure  required  by  Tenn.  Code  Ann.  ¤  8-20-101(a)(2). Jones  v.  Mankin,  1989
            WL  44924,  slip  op.  (M.S.  Tenn.  Ct.  App.  May  5,  1989).
                  Thus,  Tenn.  Code  Ann.  ¤  8-20-120  is  part  of  the  process  set  forth  in  Tenn.  Code  Ann.  ¤¤  8-
            20-101,  et  seq. This  statutory  scheme  provides  a  mechanism  under  which  certain  county  officers,
            including  the  Sheriff,  may  name  the  county  executive  and  petition  a  court  to  increase  the  number  of
            personnel  and  their  salaries  in  that  officialÕs  office  beyond  that  provided  in  the  county  budget.  Under
            this  statutory  scheme,  a  Sheriff  may  petition  a  court  to  increase  the  number  of  SheriffÕs  personnel
            and  to  increase  their  salaries. Under  Tenn.  Code  Ann.  ¤  8-20-101(a):
                        Where  any  one  (1)  of  the  .  .  .  sheriffs  cannot  properly  and  efficiently
                        conduct  the  affairs  and  transact  the  business  of  such  personÕs  office
                        by  devoting  such  personÕs  entire  working  time  thereto,  such  person
                        may  employ  such  deputies  and  assistants  as  may  be  actually  necessary



            Page  3
                        to  the  proper  conducting  of  such  personÕs  office  in  the  following
                        manner  and  under  the  following  conditions,  namely: 
                                                 *  *  *  *
                              (2)  The  sheriff  may  .  .  .  make  application  to  the  judge  of  the
                        circuit  court  in  the  sheriffÕs  county,  for  deputies  and  assistants,
                        showing  the  necessity  therefor,  the  number  required  and  the  salary
                        that should be paid each; provided, that in the counties where
                        criminal  courts  are  established,  the  sheriff  may  apply  to  the  judge  of
                        such  criminal  court[.]
            Suit  is  brought  under  Tenn.  Code  Ann.  ¤  8-20-102,  and  the  conduct  of  the  petition  hearing  is
            governed  by  Tenn.  Code  Ann.  ¤  8-20-103(a). Tenn.  Code  Ann.  ¤  8-20-101(c)  permits  the  Sheriff
            to  file  in  court  an  agreement  with  the  county  executive  if  the  Sheriff  agrees  Òwith  the  number  of
            deputies  and  assistants  and  the  compensation  and  expenses  related  thereto,  as  set  forth  in  the  budget
            adopted  by  the  county  legislative  body  .  .  ..Ó
                  But  the  extent  to  which  this  statutory  scheme  is  applicable  to  the  Shelby  County  SheriffÕs
            Office  is  not  clear. Tenn.  Code  Ann.  ¤  8-20-112  provides:
                        In any county having a civil service system for the sheriffÕs
                        department  pursuant  to  chapter  8,  part  4  of  this  title  or  other  provision
                        of  general  law  or  the  provisions  of  a  private  act,  or  a  civil  service
                        system  for  all  county  employees  pursuant  to  the  provisions  of  a
                        private  act,  the  employment  or  termination  of  employment  of  any
                        deputy  or  assistant  in  any  offices  covered  by  this  chapter  shall  be
                        pursuant  to  the  provisions  of  such  civil  service  system,  and  the
                        provisions  of  ¤  8-20-109  shall  not  apply  to  such  county.
            (Emphasis  added).  Shelby  County  has  operated  a  civil  service  system  under  1971  Tenn.  Priv.  Acts
            Ch.  110,  as  amended,  the  Shelby  County  Salary  Policy  and  Civil  Service  Merit  Act. Since
            September  1,  1986,  Shelby  County  has  operated  as  a  charter  county  under  Tenn.  Code  Ann.  ¤¤  5-1-
            201,  et  seq.  Under  Tenn.  Code  Ann.  ¤  5-1-210(8),  the  charter  adopted  under  this  statute  may  provide
            for  the  maintenance  and  administration  of  a  civil  service  system. The  Shelby  County  Charter
            provides  that  the  1971  private  act,  among  others,  is  applicable  to  the  county  as  an  ordinance,  and
            may  be  amended  by  ordinance.  Shelby  County  Charter,  ¤¤  7.14  &  6.09.  The  Court  of  Appeals  for
            the  Western  Section  has  concluded  that,  under  Tenn.  Code  Ann.  ¤  8-20-112,  Tenn.  Code  Ann.  ¤¤
            8-20-101,  et  seq.,  cannot  be  used  to  raise  the  salaries  of  employees  holding  classified  positions  under
            Shelby  CountyÕs  civil  service  system.  Patterson  v.  Rout,  slip  op.,  No.  W2001-01769-COA-R3-CV,
            2002  WL  1592674  (Tenn.  Ct.  App.  W.S.  July  10,  2002). The  Court  found  that  salaries  for  those
            positions  are  governed  by  the  countyÕs  civil  service  system.  The  Court  expressly  refused  to  rely  on
            its  holding  to  the  contrary  in  Key  v.  Bolton,  No.  02A01-9703-CR-00072,  1997  Lexis  556  (Tenn.  Ct.
            App.  August  13,  1997),  p.t.a.  denied  (1997).  The  Court  pointed  out  that  the  opinion  was  filed  as  a
            ÒMemorandum  Opinion,Ó  and,  under  the  Court's  rules,  could  not  be  relied  on  for  any  reason  in  a



            Page  4
            subsequent  unrelated  case. The  Court  remanded  the  case  to  the  Trial  Court  to  determine  whether
            three  of  the  positions  for  which  an  increase  was  sought  were  classified  positions.
                  This  Office  has  not  reviewed  the  current  ordinance  regarding  the  Shelby  County  Civil
            Service. If  the  SheriffÕs  employees  are  included  in  this  system,  then,  under  Patterson,  a  court  is
            likely  to  hold  that  terms  of  employment  and  salary  levels  are  governed  by  that  system  and  cannot  be
            changed  by  petitioning  under  Tenn.  Code  Ann.  ¤¤  8-20-101,  et  seq. But  it  is  not  clear  that  the
            Shelby  County  Sheriff  would  be  precluded  from  enforcing  the  requirement  that  the  county  fund
            salary  expenditures  necessary  for  the  discharge  of  the  SheriffÕs  statutorily  mandated  duties  as  set
            forth  in  Tenn.  Code  Ann.  ¤  8-20-120  and  Tenn.  Code  Ann.  ¤  8-20-101.  In  Patterson,  the  Court  of
            Appeals  found  that  the  primary  purposes  of  a  civil  service  employment  system  Ñ  protecting
            employees  from  arbitrary  removal  and  establishing  consistent  terms  of  employment  Ñ  would  be
            undermined  if  salaries  could  be  raised  by  a  process  that  circumvented  the  civil  service  system.  But
            that  case  involved  only  the  salaries  of  particular  positions,  not  whether  the  positions  themselves  were
            necessary  for  the  official  to  carry  out  his  statutorily  mandated  duties. We  think  a  court  would
            probably  conclude  that  requiring  the  county  commission  to  fund  the  offices  listed  in  Tenn.  Code
            Ann.  ¤¤  8-20-101,  et  seq.,  at  a  level  that  will  enable  the  official  to  carry  out  his  or  her  statutorily
            mandated  duties  would  not  undermine  the  countyÕs  civil  service  system  and  is  necessary  to  protect
            the  public. For  this  reason,  we  think  a  court  would  conclude  that,  under  Tenn.  Code  Ann.  ¤  8-20-
            101,  once  the  Shelby  County  Commission  passes  a  budget,  the  Shelby  County  Sheriff  may  petition
            the  court  for  additional  positions  necessary  to  enable  him  to  carry  out  his  statutorily  mandated  duties
            and  may  seek  a  writ  of  mandamus  to  enforce  the  courtÕs  order.



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel



            Page  5
            Requested  by:
                  Honorable  Mark  Norris
                  State  Senator
                  302  War  Memorial  Building
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                   425  FIFTH  AVENUE  NORTH
                                  NASHVILLE,  TENNESSEE  37243

                                         July  2,  2004
                                      Opinion  No.  04-105
          Effect  of  Special  Legislation  Extending  CountyÕs  Authority  Over  Activities  Regulated  by  State
          Agency


                                         QUESTION

                Would  a  private  act  that  purports  to  give  a  single  county  expansive  zoning  and  regulatory
          authority  over  business  activities  and  property  uses,  which  are  already  subject  to  regulation  by  the
          Tennessee  Department  of  Environment  and  Conservation  under  Titles  68  and  69,  contravene  general
          laws  having  mandatory  statewide  application  and/or  lack  a  rational  basis  in  violation  of  Article  XI,
          Section  8  of  the  Tennessee  Constitution? 


                                         OPINION

                It  is  the  opinion  of  this  Office  that  the  proposed  private  act  would  be  inconsistent  with
          general  laws  in  Tennessee  defining  the  authority  of  counties  and  delegating  power  to  the  Department
          of  Environment  and  Conservation.  Since  no  rational  basis  for  the  classification  is  apparent  on  the
          face  of  the  legislation,  and  this  Office  cannot  conceive  of  any,  the  proposed  special  law  would
          constitute  invalid  class  legislation. 



                                         ANALYSIS

                This  request  seeks  an  opinion  regarding  the  validity  of  pending  private  legislation  that  would
          authorize  Johnson  County,  Tennessee,  to  exercise  certain  powers  granted  to  municipalities  under
          Tenn.  Code  Ann.  ¤  6-2-201,  specifically  the  power  to  define,  regulate  or  even  prohibit  activities  or
          businesses  deemed  detrimental  to  the  health,  safety  or  general  welfare  of  county  residents.
          Significantly,  the  proposed  law  would  appear  to  give  the  county  authority  to  regulate  activities  that
          are  already  subject  to  regulation  by  the  Tennessee  Department  of  Environment  and  Conservation
          (TDEC)  under,  inter  alia,  the  Water  Quality  Control  Act,  Tenn.  Code  Ann.  ¤¤  69-3-101  through  69-
          3-137.  The  proposed  legislation,  House  Bill  No.  3622/Senate  Bill  No.  3529,  provides  in  pertinent
          part:
                     SECTION  1. Notwithstanding  any  provision  of  Tennessee  Code
                     Annotated,  Title  5,  Chapter  1,  to  the  contrary,  in  addition  to  those



            Page  2


                        powers  granted  to  counties  by  Tennessee  Code  Annotated,  Section
                        5-1-118,  Johnson  County,  may,  by  the  adoption  of  a  resolution  by
                        two-thirds  (2/3)  vote  of  the  Johnson  County  Commission,  exercise
                        those  powers  granted  by  Tennessee  Code  Annotated,  Section
                        6-2-201  (22)  and  (23)  by  application  of  such  powers  to  those  activities,
                        businesses  or  uses  of  property  and  business  occupations  and  practices
                        which  are  subject  to  regulation  pursuant  to  title  57,  chapter  5;  title
                        57,  chapter  6;  title  59,  chapter  8;  title  60,  chapter  1;  title  68, 
                        chapters  201  through  221;  or  title  69,  chapters  3,  8,  11  and  12.

            (Emphasis  supplied.)
                  Tenn.  Code  Ann.  ¤¤  6-2-201(22)  and  (23)  expressly  authorize  municipalities  to  exercise  the
            following  powers:
                        (22) Define,  prohibit,  abate,  suppress,  prevent  and  regulate  all
                        acts,  practices,  conduct,  businesses,  occupations,  callings,  trades,
                        uses  of  property  and  all  other  things  whatsoever  detrimental  or
                        liable  to  be  detrimental,  to  the  health,  morals,  comfort,  safety,
                        convenience  or  welfare  of  the  inhabitants  of  the  municipality,  and 
                        exercise  general  police  powers;
                        (23) Prescribe  limits  within  which  business  occupations  and
                        practices  liable  to  be  nuisances  or  detrimental  to  the  health,  morals,
                        security  or  general  welfare  of  the  people  may  lawfully  be  established, 
                        conducted  or  maintained.
                  First,  we  note  that  while  counties  are  accorded  broad  regulatory  authority  under  Title  5,
            Chapter  1,  of  the  Code,  the  General  Assembly  has  repeatedly  amended  Tenn.  Code  Ann.  ¤  5-1-118
            in  order  to refine  the  types  of  powers  that  counties  could  share  with  municipalities. Beginning  in
            2000,  the  legislature  amended  Tenn.  Code  Ann.  ¤  5-1-118  to  extend  to  counties  the  powers  granted
            to  municipalities  by  Tenn.  Code  Ann.  ¤  6-2-201(22)  and  (23),  as  cited  above,  but  it  also  made  the
            following  exceptions:
                        (b) Nothing  in  this  part  shall  be  construed  as  granting  counties
                        the  power  to  prohibit  or  regulate  normal  agricultural  activities.
                        .  .  . 
                        (c)  (2)  The  powers  granted  by  ¤  6-2-201(22)  and  (23)  shall  not
                        apply  to  those  activities,  businesses,  or  uses  of  property  and 
                        business  occupations  and  practices  which  are  subject  to  regulation



            Page  3


                        pursuant  to  title  57,  chapter  5;  title  57,  chapter  6;  title  59,  chapter  8;
                        title  60,  chapter  1;  title  68,  chapters  201  through  221;  or  title  69, 
                        chapters  3,  8,  11  and  12.

            2000  Tenn.  Pub.  Acts,  ch.  969,  ¤  1,  codified  at  Tenn.  Code  Ann.  ¤  5-1-118  (b)  and  (c)  (emphasis
            supplied). The  legislature,  therefore,  in  amending  this  general  law  that  has  statewide  application,
            expressly  determined  that  counties  should  not  have  the  authority  to  regulate  activities  and  practices
            that  are  subject  to  regulation  under  the  Code  provisions  cited  above,  including  activities  expressly
            regulated  by  TDEC.  Title  59,  Chapter  8,  Title  68,  Chapters  201  through  221,  and  Title  69,  Chapters
            3,  8,  11  and  12,  all  relate  to  environmental  statutes  governing  matters  from  surface  mining  and
            landfills  to  water  quality  control  and  dams. Furthermore,  we  have  previously  opined  that  counties
            are  prohibited  under  Tenn.  Code  Ann.  ¤  13-7-114  from  using  their  zoning  authority  to  regulate
            agricultural  uses  of  land,  which  include  concentrated  animal  feeding  operations  (CAFOs).  Op.  Tenn.
            AttÕy  Gen.  99-071  (March  22,  1999).  In  that  opinion,  we  remarked  that  CAFOs  are  already  regulated
            by  TDEC  under  Tenn.  Code  Ann.  ¤  69-3-108(7)  of  the  Water  Quality  Control  Act.
                  The  preamble  language  contained  in  the  proposed  private  act  appears  to  be  directed  at  giving
            Johnson  County  expanded  zoning  authority  in  light  of  the  apparent  growth  in  development  of  the
            county. But  we  find  that  some  of  the  language  in  the  preamble,  and  certainly  the  body  of  the
            proposed  law  itself,  presages  a  broader  purpose.  For  example,  the  preamble  states  the  following  in
            pertinent  part:
                        WHEREAS,  the  countyÕs  present  zoning  authority  is  limited  by
                        state  legislation  and  leaves  some  regulatory  authority  with  state
                        agencies  located  outside  the  county,  which  are  not  subject  to  local 
                        control,  which  imposes  standards  that  do  not  necessarily  reflect
                        those  deemed  absolutely  necessary  to  provide  for  the  health, 
                        safety  and  general  welfare  of  the  citizens  and  residents  of  Johnson
                        County.  .  .  . 
                  We  believe  that  there  is  a  conflict  between  the  provisions  of  the  proposed  private  act  in
            question  here  and  the  general  state  statutes  governing  county  authority,  as  well  as  the  environmental
            statutes,  such  as  the  Water  Quality  Control  Act  in  Title  69.  Article  XI,  Section  8,  of  the  Tennessee
            Constitution  requires  that  Ò[g]eneral  laws  only  are  to  be  passedÓ  by  the  legislature,  and  it  prohibits
            the  passage  of  any  law  conferring benefits  or  rights  on  particular  individuals,  without  affecting
            others  similarly  situated.  When  there  is  a  general  law  of  mandatory  statewide  application,  it  cannot
            be  suspended  by  a  private  act  affecting  a  county  or  municipality  in  the  exercise  of  its  governmental
            functions,  unless  there  is  a  reasonable  basis  for  such  classification. Knox  County  ex  rel.  Kessel  v.
            Lenoir  City,  837  S.W.2d  382,  383  (Tenn.  1992);  Brentwood  Liquors  Corp.  of  Williamson  County
            v.  Fox, 496  S.W.2d  454,  457  (Tenn.  1973). 



            Page  4


                  The  proposed  private  act  suggests  that  Johnson  County  has  unique  geological,  hydrological
            and  topographical  characteristics,  as  well  as  rich  resources  that  Òrequire  a  higher  standard  of
            husbandry  in  order  to  protect  and  preserve  the  lands,  waters,  and  the  quality  of  lifeÓ  for  its  residents.
            But  we  do  not  believe  that  these  circumstances  are  sufficient  to  distinguish  Johnson  County  from
            other  counties  in  this  region  of  East  Tennessee,  so  as  to  warrant  expansive  zoning  and  regulatory
            power  beyond  those  conferred  by  the  general  law  upon  all  other  counties. No  other  rational  basis
            is  stated.  While  the  law  does  not  require  that  a  reasonable  basis  for  the  classification  appear  on  the
            face  of  the  legislation,  Shelby  County  Civil  Service  Merit  Board  v.  Lively,  692  S.W.2d  15,  18  (Tenn.
            1985),  we  cannot  conceive  of  any  possible  reason  why  Johnson  County  should  merit  broader  zoning
            and  regulatory  power  than  any  other  county  in  the  State. It  is  the  opinion  of  this  Office,  therefore,
            that  the  proposed  private  act  would  violate  of  Article  XI,  Section  8,  as  invalid  class  legislation.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ELIZABETH  P.  McCARTER
                                                       Senior  Counsel
            Requested  by:
                  Jason  Mumpower
                  State  Representative
                  212  War  Memorial  Building
                  Nashville,  TN  37243-0103



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  9,  2004
                                      Opinion  No.  04-106
          Juvenile  CourtÕs  Subject  Matter  Jurisdiction  to  Award  Joint  Custody

                                        QUESTIONS

                1.    Does  the  Juvenile  Court  possess  subject  matter  jurisdiction  to  award  joint  custody  or
          guardianship  to  petitioning  parties  when  the  action  is  based  solely  on  a  petition  for  joint  custody
          arising  from  an  agreement  of  the  parties  in  which  the  petitioners  make  no  allegations  of  dependency,
          neglect,  delinquency,  unruliness,  and  when  there  is  no  previous  history  with  a  Juvenile  Court?
                2.    If  the  Juvenile  Court  does  have  jurisdiction  to  award  joint  custody  or  guardianship
          to  petitioning  parties  based  solely  on  their  agreement  in  such  a  case,  does  the  Juvenile  Court  have
          the  jurisdiction  to  do  so  where  one  of  the  petitioners  has  custody  by  virtue  of  an  adoption  or
          surrender  and  the  other  is  not  related  to  the  child?


                                         OPINIONS

                1.    No.  Except  in  cases  involving  the  determination  of  custody  of  children  born  out  of
          wedlock,  the  Juvenile  Court  lacks  subject  matter  jurisdiction  to  award  joint  custody  to  petitioning
          parties  when  the  action  is  based  solely  on  a  petition  for  joint  custody  arising  from  an  agreement  of
          the  parties  in  which  the  petitioners  make  no  allegations  of  dependency,  neglect,  delinquency,
          unruliness,  and  when  there  is  no  previous  history  with  a  Juvenile  Court.
                2.    In  light  of  the  negative  answer  to  Question  No.  1,  Question  No.  2  is  pretermitted.


                                         ANALYSIS

                In  general,  subject  matter  jurisdiction  concerns  the  authority  of  a  particular  court  to  hear  a
          particular  controversy.  Meighan  v.  United  States  Sprint  Comm.  Co.,  924  S.W.2d  632,  639  (Tenn.
          1996)  (citation  omitted).  A  courtÕs  subject  matter  jurisdiction  Òrelates  to  the  nature  of  the  cause  of
          action  and  the  relief  sought  and  is  conferred  by  the  sovereign  authority  which  organizes  the  court.Ó

          Landers  v.  Jones,  872  S.W.2d  674,  675  (Tenn.  1994)  (citing  Cooper  v.  Reynolds,  77  U.S.  308
          (1870);  Turpin  v.  Conner  Bros.  Excavating  Co.,  Inc.,  761  S.W.2d  296,  297  (Tenn.  1988)).
          Accordingly,  subject  matter  jurisdiction  does  not  depend  upon  the  conduct  or  agreement  of  the
          parties. Shelby  County  v.  City  of  Memphis,  365  S.W.2d  291,  292  (Tenn.  1963). If  a  court  lacks



            Page  2
            subject  matter  jurisdiction,  it  cannot  enter  valid  and  enforceable  orders. Brown  v.  Brown,  281
            S.W.2d  492,  497  (Tenn.  1955).
                  It  is  well-established  that  juvenile  courts  are  courts  of  limited  jurisdiction. Stambaugh  v.
            Price,  532  S.W.2d  929,  932  (Tenn.  1976). Thus,  as  such,  the  Juvenile  CourtÕs  subject  matter
            jurisdiction  is  defined  by  statute. Id. As  a  tribunal  created  by  statute,  a  Juvenile  Court  has
            Òjurisdiction  over  matters  relating  to  the  care,  control  and  custody  of  infants,  but  can  exercise  such
            jurisdiction  and  powers  only  as  have  been  conferred  on  [it]  by  the  statute  creating  [it].Ó Hyatt  v.
            Bomar,  358  S.W.2d  295,  296  (Tenn.  1962)  (quotation  marks  omitted).
                  Sections  37-1-103  and  37-1-104  govern  the  subject  matter  jurisdiction  of  the  Juvenile  Court.
            Tenn.  Code  Ann.  ¤  37-1-103  grants  exclusive  original  jurisdiction  to  the  Juvenile  Court  in  the
            following  specific  types  of  cases:
                        (1)  Proceedings  in  which  a  child  is  alleged  to  be  delinquent,  unruly  or
                        dependent  and  neglected,  or  to  have  committed  a  juvenile  traffic
                        offense  as  defined  in  ¤  37-1-146;
                        (2)  Deleted  by  2003  Pub.Acts,  c.  333,  ¤  1,  eff.  July  1,  2003.
                        (3)  Proceedings  arising  under  ¤¤  37-1-141--37-1-144;
                        (4) Proceedings arising under ¤ 37-1-137 for the purposes of
                        termination  of  a  home  placement;
                        (5)  Prosecutions  under  ¤  37-1-412  or  ¤  39-15-401  unless  the  case  is
                        bound  over  to  the  grand  jury  by  the  juvenile  court  or  the  defendant  is
                        originally  charged  with  a  greater  offense  of  which  violation  of  ¤  37-1-
                        412  or  ¤  39-  15-401  is  a  lesser  included  offense;
                        (6)  Proceedings  arising  under  ¤  49-5-5209(e);  and
                        (7)  Proceedings  in  which  a  parent  or  legal  guardian  is  alleged  to  have
                        violated  parental  responsibilities  pursuant  to  ¤  37-1-174.
                        (b)  The  juvenile  court  also  has  exclusive  original  jurisdiction  of  the
                        following  proceedings,  which  are  governed  by  the  laws  relating
                        thereto  without  regard  to  the  other  provisions  of  this  part:
                        (1) Proceedings to obtain judicial consent to employment, or
                        enlistment  in  the  armed  services  of  a  child,  if  consent  is  required  by
                        law;
                        (2)  Proceedings  under  the  Interstate  Juvenile  Compact,  compiled  as
                        chapter  4,  part  1  of  this  title;  and
                        (3)  Proceedings  under  the  Interstate  Compact  on  the  Placement  of
                        Children,  compiled  as  chapter  4,  part  2  of  this  title. 
            Tenn.  Code  Ann.  ¤¤  37-1-103(a)  and  (b)  (Supp.  2003).



            Page  3
                  When  the  Juvenile  Court  has  acquired  jurisdiction  of  a  case  under  Tenn.  Code  Ann.  ¤  37-1-
            103,  such  jurisdiction  continues  until  the  case  is  dismissed,  the  case  is  transferred  to  another  court,
            an  adoption  petition  is  filed,  or  the  minor  reaches  18  years  of  age. Id. ¤  37-1-103(c). 
                  In  turn,  ¤  37-1-104  grants  the  Juvenile  Court  concurrent  jurisdiction  with  the  Circuit  and
            Chancery  Courts  over  the  following  matters:
                        (1)  Treat  or  commit  a  developmentally  disabled  or  mentally  ill  child;
                        (2)  Determine  the  custody  or  appoint  a  guardian  of  the  person  of  a
                        child;  and
                        (3)  Give  judicial  consent  to  the  marriage  of  a  child  if  consent  is
                        required  by  law.
                        (b)  The  juvenile  court  has  concurrent  jurisdiction  with  the  general
                        sessions  court  for  the  offense  of  contributing  to  the  delinquency  or
                        unruly  conduct  of  a  minor  as  defined  in  ¤  37-1-156.
                        (c) The juvenile, circuit and chancery courts have concurrent
                        jurisdiction  to  terminate  parental  or  guardian  rights  pursuant  to  the
                        provisions  of  title  36,  chapter  1,  part  1.
                        (d)(1)(A)  The  juvenile  court  has  concurrent  jurisdiction  and  statewide
                        jurisdiction  with  other  courts  having  the  jurisdiction  to  order  support
                        for  minor  children  and  shall  have  statewide  jurisdiction  over  the
                        parties  involved  in  the  case.
                                                  *  *  *
                        (2) In  any  case  in  which  the  court  has  exclusive  or  concurrent
                        jurisdiction  to  order  the  payment  of  child  support,  the  court  may  issue
                        a  child  support  order  when  requested  by  a  party  .  .  .  .
                        (e)  The  juvenile  court  has  concurrent  jurisdiction  with  the  circuit  and
                        chancery court of proceedings arising from the 1980 Hague
                        Convention  on  the  Civil  Aspects  of  International  Child  Abduction.
                        (f)  Notwithstanding  any  provision  of  law  to  the  contrary,  the  juvenile
                        court  has  concurrent  jurisdiction  with  the  circuit  and  chancery  court

                        of  proceedings  to  establish  the  paternity  of  children  born  out  of  lawful
                        wedlock  and  to  determine  any  custody,  visitation,  support,  education
                        or  other  issues  regarding  the  care  and  control  of  children  born  out
                        of  wedlock.  Nothing  in  this  subsection  shall  be  construed  as  vesting
                        the  circuit  and  chancery  court  with  jurisdiction  over  matters  that  are
                        in  the  exclusive  jurisdiction  of  the  juvenile  court  under  ¤  37-1-103.



            Page  4










































                   Were  this  latter  factual  predicate  different,  it  might  present  an  entirely  different  scenario  in  light  of  a  biological  1

            parentÕs  fundamental  constitutional  right  to  the  custody,  care  and  control  of  his  or  her  child.  Stanley  v.  Illinois,  405  U.S.
            645,  651  (1972);  In  re  Swanson,  2  S.W.3d  180,  188  (Tenn.  1999). In  that  event,  the  United  States  and  Tennessee
            Constitutions  require  that,  to  interfere  with  the  parent-child  relationship,  the  court  must  make  a  threshold  finding  of
            parental  unfitness  or  substantial  harm  to  the  child,  In  re  Swanson,  2  S.W.3d  at  188;  Hawk  v.  Hawk,  855  S.W.2d  573,
            579  (Tenn.  1994),  based  on  clear  and  convincing  evidence.  Santosky  v.  Kramer,  455  U.S.  745,  768  (1982);  M.L.J.  v.
            Johnson,  121  S.W.3d  378,  380  (Tenn.  Ct.  App.  2003). Tenn.  Code  Ann.  ¤  37-1-104  (Supp.  2003)  (emphasis  added).
                  You  have  asked  whether  the  Juvenile  Court  possesses  jurisdiction  to  award  joint  custody  or
            guardianship  to  petitioning  parties  when  the  action  is  based  solely  on  a  petition  for  joint  custody  and
            an  agreement  of  the  parties.  You  ask  us  to  assume  that  the  petition  for  custody  makes  no  allegations
            of  dependency,  neglect,  delinquency,  parentage,  or  unruliness. In  addition,  neither  the  petitioners
            nor  the  child  have  a  previous  history  with  a  Juvenile  Court.  Moreover,  we  assume  that  any  parental
            rights  to  the  child  who  is  the  subject  of  the  petition  have  been  extinguished  and  that  the  petitioner
            who  possesses  custody  of  the  child  has  exclusive  parental  rights  to  him  or  her.1


                  In  construing  statutes,  when  the  language  of  a  statute  is  unambiguous,  legislative  intent  is
            derived  from  the  plain  and  ordinary  meaning  of  the  statute. State  v.  Wilson,  132  S.W.3d  340,  341
            (Tenn.  2004)  (citing  Carson  Creek  Vacation  Resorts  v.  Dep't.  of  Revenue,  865  S.W.2d  1,  2  (Tenn.
            1993)).  In  addition,  statutes  will  not  be  construed  in  a  way  that  will  lead  to  an  absurd  result. In  re
            Adoption  of  Hatcher,  16  S.W.3d  792,  796  (Tenn.  Ct.  App.  1999).
                  Here,  based  on  the  above  assumptions,  we  conclude  that  the  Juvenile  Court  lacks  subject
            matter  jurisdiction  to  act  on  the  petition  for  joint  custody. Sections  37-1-103  and  37-1-104,  which
            confer  exclusive  and  concurrent  jurisdiction  upon  the  Juvenile  Court,  do  not  explicitly  or  by
            necessary  implication  give  the  Juvenile  Court  the  authority  to  award  joint  custody  or  guardianship
            to  petitioning  parties  when  the  action  is  based  solely  on  a  petition  for  joint  custody  arising  from  an
            agreement  of  the  parties  in  which  the  petitioners  make  no  allegations  of  dependency,  neglect,
            delinquency,  unruliness,  and  when  there  is  no  previous  history  with  a  Juvenile  Court. Tennessee
            courts  have  consistently  held  that,  when  Òno  statute  explicitly  or  by  necessary  implicationÓ  gives  the
            Juvenile  Court  subject  matter  jurisdiction,  the  court  lacks  authority  to  hear  the  case.  See,  e.g.,  White
            v.  State  ex  rel.  Armstrong,  2001  WL  134601,  *2  (Tenn.  Ct.  App.  2001);  Terry  v.  Botts,  2001  WL
            173207,  *7  (Tenn.  Ct.  App.  2001);  Baltz  v.  Knight,  1998  WL  787526,  *4  (Tenn.  Ct.  App.  1998). 
                  We  are  unable  to  find  a  provision  in  the  statutes  defining  the  exclusive  and  concurrent
            jurisdiction  of  the  Juvenile  Court  which  would  allow  the  would-be  petitioners  to  seek  joint  custody
            based  on  the  above  factual  assumptions.  These  statutes  are  very  specific  in  nature,  vesting  exclusive
            jurisdiction  upon  the  Juvenile  Court  in,  for  example,  proceedings  affecting  the  residency  of  unruly,
            dependent  or  neglected  children,  or  in  proceedings  involving  career  level  teachers.  See  Tenn.  Code
            Ann.  ¤¤  37-1-103(3)  and  (6). Likewise,  the  Juvenile  Court  possesses  concurrent  jurisdiction  in
            proceedings,  inter  alia,  Òarising  from  1980  Hague  Convention  on  the  Civil  Aspects  of  International
            Child  AbductionÓ  and  in  proceedings  to  terminate  parental  rights. Id. ¤¤  37-1-104(e)  and  (f). As



            Page  5
            these  examples  show,  given  the  specificity  of  the  statutory  grants  of  subject  matter  jurisdiction,  the
            General  Assembly  certainly  could  have  enacted  the  factual  scenario  presented  in  your  question  as
            an  additional  jurisdictional  ground,  if  it  so  wished.  At  this  time,  however,  the  General  Assembly  has
            not  enacted  such  a  provision.
                  Our  conclusion  is  buttressed  and  reinforced  by  the  doctrine  of  inclusio  unius  est  exclusio
            alterius,  which  provides  that  Òwhere  general  words  are  used  followed  by  a  designation  of  particular
            things  or  subject  to  be  included  or  excluded  as  the  case  may  be,  the  inclusion  or  exclusion  will  be
            presumed  to  be  restricted  to  the  particular  thing  or  subject.Ó  City  of  Knoxville  v.  Brown,  260  S.W.2d
            264,  268  (Tenn.  1953)  (opinion  on  petition  for  rehearing). Applying  this  principle  here  leads  us  to
            conclude  that  the  General  AssemblyÕs  inclusion  of  specific  instances  in  which  the  Juvenile  Court
            possesses  exclusive  or  concurrent  jurisdiction  necessitates  the  exclusion  of  possible  scenarios  not
            mentioned.
                  We  note  that  if  the  would-be  petitioners  in  your  question  had  alleged  in  their  joint  petition
            that  the  child  for  whom  they  sought  joint  custody  were  born  out  of  wedlock,  the  Juvenile  Court,  as
            well  as  the  Circuit  and  Chancery  Courts,  would  possess  concurrent  subject  matter  jurisdiction  to  hear
            the  case.  See  Tenn.  Code  Ann.  ¤  37-1-104(f).  In  2003,  the  General  Assembly  enacted  ¤  37-1-104(f),

            see  Pub.  Acts  2003,  ch.  333,  ¤  2,  eff.  July  1,  2003,  which  expanded  the  Juvenile  CourtÕs  subject
            matter  jurisdiction  to  cases  involving  the  determination  of  Òcustody,  visitation,  support,  education
            or  other  issues  regarding  the  care  and  control  of  children  born  out  of  wedlock  .  .  .  .Ó Tenn.  Code
            Ann.  ¤  37-1-104(f). Assuming  this  additional  factual  predicate,  the  Juvenile  Court  would  be  in  a
            position  to  assume  jurisdiction  over  the  would-be  petitioners  because  it  would  be  called  to  determine
            the  appropriateness  of  joint  custody  for  a  child  born  out  of  wedlock. 
                  In  sum,  by  filing  a  joint  petition  for  custody  in  the  Juvenile  Court,  the  petitioners  must  fit
            within  one  or  more  of  the  statutory  provisions  which  confer  upon  the  Juvenile  Court  subject  matter
            jurisdiction  to  hear  a  case. Because  the  Juvenile  CourtÕs  subject  matter  jurisdiction  is  defined  by
            statute,  Stambaugh,  532  S.W.2d  at  932,  and  because  its  ability  to  exercise  jurisdiction  is  limited  Òby
            the  statute  creating  [it],Ó  Hyatt,  358  S.W.2d  at  296,  it  is  our  opinion  that  the  Juvenile  Court  lacks
            subject  matter  jurisdiction  over  the  would-be  petitioners  in  your  question.


                                                       _____________________________________
                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       _____________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



            Page  6


                                                       ______________________________________
                                                       JUAN  G.  VILLASE„OR
                                                       Assistant  Attorney  General
            Requested  by:
                  Honorable  Betty  Adams  Green
                  Juvenile  Court  Judge
                  Juvenile  Court  of  Davidson  County
                  100  Woodland  Street
                  Nashville,  TN  37213



                      The  Local  Option  Financial  Management  System  Act  consolidates  county  purchasing  authority  under  county  1

              control,  and  thus  the  county  purchasing  agent  would  make  purchases  for  the  county  school  system.  See  Tenn.  Code  Ann.
              ¤  5-21-103.                  S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                                    OFFICE  OF  THE

                                                ATTORNEY  GENERAL
                                                     PO  BOX  20207
                                            NASHVILLE,  TENNESSEE  37202

                                                     July  9,  2004
                                                  Opinion  No.  04-107
              School  Purchases  Ñ  Local  Option  Financial  Management  System  Act  Ñ  Conflicts

                                                     QUESTION

                     Do  the  provisions  of  Tenn.  Code  Ann.  ¤  49-6-2003  allow  a  contractor  to  submit  a  sealed  bid
              when  the  contractorÕs  spouse  is  an  employee  of  the  school  system  that  has  adopted  the  Local  Option
              Financial  Management  System  Act,  Tenn.  Code  Ann.  ¤¤  5-21-101,  et  seq.?


                                                      OPINION

                     It  is  the  opinion  of  this  Office  that  a  court  would  read  Tenn.  Code  Ann.  ¤  49-6-2003(b)  as
              a  narrow  exception  to  the  conflicts  of  interest  provision  in  Tenn.  Code  Ann.  ¤  5-21-121.  Thus,  if  the
              school  system  employee  is  covered  by  Tenn.  Code  Ann.  ¤  49-6-2003(b);  if  the  county  purchasing
              authority  uses  a  sealed  competitive  bid  process;  and  if  the  school  system  employee  has  no  discretion
              in  drafting  bid  specifications  or  in  evaluating  bids  and  awarding  the  contract,  a  school  system
              employeeÕs  spouse  could  submit  a  bid  to  supply  books,  maps,  school  furniture  and/or  apparatus  to
              the  same  public  school  system.  If  the  school  system  employee  does  not  fall  within  one  of  the
              positions listed in Tenn. Code Ann. ¤ 49-6-2003(b), the employee would be subject to the
              prohibitions  of  Tenn.  Code  Ann.  ¤  5-21-121,  and  the  employeeÕs  spouse  could  not  bid.


                                                     ANALYSIS

                     We  infer  from  your  question  that  a  school  district  employeeÕs  spouse  wishes  to  participate
              in  a  business  transaction  with  the  school  district  by  submitting  a  sealed  competitive  bid  to  the  county
              purchasing  authority. The  county  where  the  school  district  is  located  has  adopted  the  Local  Option  1

              Financial  Management  System  Act,  Tenn.  Code  Ann.  ¤¤  5-21-101,  et  seq.

                     The  Local  Option  Financial  Management  System  Act  has  a  conflicts  of  interest  provision.
              Tenn.  Code  Ann.  ¤  5-21-121.  In  pertinent  part,  the  statute  reads  as  follows: 



            Page  2















































                   This  opinion  did  not  address  Tenn.  Code  Ann.  ¤  49-6-2003.  2(a)  The  director,  purchasing  agent,  members  of  the  committee,  members  of  the
                  county  legislative  body,  or  other  officials,  employees,  or  members  of  the  board  of
                  education  or  highway  commission  shall  not  be  financially  interested  or  have  any
                  personal  beneficial  interest,  either  directly  or  indirectly,  in  the  purchase  of  any
                  supplies,  materials  or  equipment  for  the  county.
            The  General  Assembly  added  this  statutory  provision  when  it  enacted  1981  Tenn.  Public  Acts,  ch.
            325  ¤  21.
                  This  Office  has  previously  opined  that  where  a  husband  and  wife  commingle  their  assets  and
            one  spouse  is  a  school  board  employee  and  the  school  board  purchases  items  from  a  business  owned
            by  the  teacherÕs  spouse,  Tenn.  Code  Ann.  ¤  5-21-121(a)  prohibits  such  purchases  because  the
            teacher,  as  the  business  ownerÕs  spouse,  has  an  indirect  beneficial  interest  and/or  indirect  financial
            interest  in  the  transaction.  Op.  Tenn.  AttÕy  Gen.  00-181  (November  22,  2000).  2


                  The  education  code  also  has  a  conflicts  of  interest  statute  applicable  under  certain  specific
            circumstances.  Tenn.  Code  Ann.  ¤  49-6-2003  reads,  in  relevant  part,  as  follows:
                  (a)  It  is  unlawful  for  any  teacher,  supervisor,  commissioner,  director  of  schools,
                  member  of  a  board  of  education  or  other  school  officer  in  the  public  schools  to  have
                  any  pecuniary  interest,  directly  or  indirectly,  in  supplying  books,  maps,  school
                  furniture  and/or  apparatus  to  the  public  schools  of  the  state  .  .  .  .
                  (b)  Nothing  in  this  section  shall  preclude  a  spouse  or  family  member  of  a  principal,
                  teacher  or  other  school  administrative  employee  from  participating  in  business
                  transactions  with  the  school  system  where  a  sealed  competitive  bid  system  is  used;
                  provided,  that  the  principal,  teacher  or  other  school  administrative  employee  does  not
                  have  discretion  in  the  selection  of  bids  or  specifications.  (Emphasis  added.)

            The  General  Assembly  added  paragraph  (b)  above  when  it  enacted  1997  Tenn.  Public  Acts,  ch.  210
            ¤  1.
                  Tenn.  Code  Ann.  ¤  49-6-2003(a)  covers  teachers,  supervisors,  commissioners,  directors  of
            schools,  members  of  a  board  of  education  or  other  school  officers  in  public  schools.  If  the  school
            system  employee  mentioned  in  your  question  fits  within  one  of  these  categories,  the  employee  would
            be  subject  to  the  statuteÕs  prohibitions.  Even  if  the  school  system  employee  does  fall  within  a
            category  covered  by  Tenn.  Code  Ann.  ¤  49-6-2003(a),  the  school  system  employeeÕs  spouse  might
            be  able  to  submit  a  sealed  competitive  bid  if  the  school  employee  falls  within  a  category  covered  by
            Tenn.  Code  Ann.  ¤  49-6-2003(b).  The  exception  in  paragraph  (b)  applies  to  spouses  or  family
            members  of  a  principal,  teacher  or  other  school  administrative  employee.  Thus,  if  the  school  system
            employee  is  a  principal,  teacher  or  a  school  administrative  employee,  the  school  system  employeeÕs



            Page  3
            spouse  may  do  business  with  the  school  system  under  all  the  conditions  of  Tenn.  Code  Ann.  ¤  49-6-2003. 

                  If  this  statutory  exception  applies  in  a  given  situation,  then  it  appears  that  a  portion  of  the  two
            statutes  conflict.  Tenn.  Code  Ann.  ¤  5-21-121(a)  and  Tenn.  Code  Ann.  ¤  49-6-2003(a)  are  both
            aimed  at  preventing  conflicts  of  interest.  Tenn.  Code  Ann.  ¤  49-6-2003(b),  however,  allows  some
            conduct  prohibited  by  Tenn.  Code  Ann.  ¤  5-21-121.  A  court  of  competent  jurisdiction  would  have
            to  interpret  the  statutes  to  resolve  the  conflict.
                  To  resolve  a  conflict  such  as  this  one,  a  court  would  turn  to  well-established  rules  of  statutory
            construction  for  guidance.  ÒThe  cardinal  rule  of  statutory  construction  is  to  effectuate  legislative
            intent,  with  all  rules  of  construction  being  aides  to  that  end.Ó  Browder  v.  Morris,  975  S.W.2d  308,
            311  (Tenn.  1998).  ÒStatutes  relating  to  the  same  subject  or  sharing  a  common  purpose  must  be
            construed  together  (Ôin  pari  materiaÕ)  in  order  to  advance  their  common  purpose  or  intent.Ó  Id.  That
            intent  is  primarily  discerned  from  the  language  of  the  enactment.  Halbert  v.  Shelby  County  Election
            CommÕn,  31  S.W.3d  246,  248  (Tenn.  2000).  A  court  interprets  a  statute  as  a  whole  and  gives  words
            their  common  and  ordinary  meaning.  State  v.  Levandowski,  955  S.W.2d  603,  604  (Tenn.  1997). It
            is  the  courtÕs  duty  to  read  statutes  in  harmony  wherever  possible.  Frazier  v.  East  Tennessee  Baptist
            Hosp.,  55  S.W.3d  925,  928  (Tenn.  2001).
                  As  a  general  matter,  repeals  of  statutes  by  implication  are  not  favored.  Reams  v.  Trostel
            Mech.  Indus.,  Inc.,  522  S.W.2d  170,  173  (Tenn.  1975).  A  repeal  by  implication  of  an  earlier  act  by
            a  later  act  will  be  found  only  when  a  conflict  between  the  acts  is  inescapable.  Knox  County  AssÕn  v.
            Knox  County  Bd.  of  Educ.,  60  S.W.3d  65,  74  (Tenn.  App.  2001).
                  A  court  could  also  apply  the  well-settled  rule  of  statutory  construction  that  a  specific  statute
            prevails  over  more  general  statutes  on  the  same  subject.  See,  e.g.,  Arnwine  v.  Union  County  Bd.  of
            Educ.,  120  S.W.3d  804,  809  (Tenn.  2003).  Thus,  if  provisions  of  different  titles  or  chapters  of  the
            Code  appear  to  contravene  each  other,  the  provisions  of  each  title  or  chapter  shall  prevail  as  to  all
            matters  and  questions  growing  out  of  the  subject  matter  of  that  title  or  chapter.  Harris  v.  Harris,  849
            S.W.2d  334  (Tenn.  1993).
                  The  courts  strictly  construe  exceptions  to  general  statutes.  Anderson  Fish  &  Oyster  Co.  v.
            Olds,  197  Tenn.  604,  611,  277  S.W.2d  344  (1955). 

                  Using  these  rules  of  statutory  construction,  we  think  that  a  court  would  interpret  Tenn.  Code
            Ann.  ¤  49-6-2003(b)  to  be  a  narrow  exception  to  the  prohibition  in  Tenn.  Code  Ann.  ¤  5-21-121.  The
            latter  statute  has  a  broader  application  than  the  former.  Tenn.  Code  Ann.  ¤  49-6-2003  deals  with
            specific  business  transactions  Ñ  those  in  which  a  contractor  supplies  books,  maps,  school  furniture
            or  similar  equipment  to  the  public  schools. One  way,  then,  to  read  the  statutes  harmoniously  is  to
            view  Tenn.  Code  Ann.  ¤  49-6-2003  as  a  narrow  exception  to  the  broad  prohibition  in  Tenn.  Code
            Ann.  ¤  5-21-121.  In  addition  to  being  more  specific,  Tenn.  Code  Ann.  ¤  49-6-2003  is  a  later  statute



            Page  4
            than  Tenn.  Code  Ann.  ¤  5-21-121,  factors  indicating  that  Tenn.  Code  Ann.  ¤  49-6-2003(b)  would
            control  the  business  transactions  it  addresses.
                  Therefore,  the  spouse  of  a  principle,  a  teacher  or  a  school  administrative  employee  may
            submit  a  bid  to  supply  books,  maps,  school  furniture  or  similar  equipment  to  the  same  school  system
            if  the  county  purchasing  authority  uses  a  sealed  competitive  bid  process  and  the  school  employee  has
            no  discretion  over  drafting  bid  specifications,  evaluating  bids  or awarding  the  contract. If  Tenn.
            Code  Ann.  ¤  49-6-2003  does  not  apply,  Tenn.  Code  Ann.  ¤  5-21-121  would  control  and  prohibit  the
            business  transaction  described.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       KATE  EYLER
                                                       Deputy  Attorney  General
            Requested  by:
                  The  Honorable  Charlotte  Burks
                  State  Senator
                  Suite  9,  Legislative  Plaza
                  Nashville,  TN  37243-0215



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  9,  2004
                                      Opinion  No.  04-108
          West  Tennessee  River  Basin  Authority  -  Proposed  Stokes  Creek  Project


                                         QUESTION

                The  West  Tennessee  River  Basin  Authority  would  like  to  proceed  with  a  project  that  would
          re-establish  a  meandering  channel  for  Stokes  Creek,  a  West  Tennessee  stream.  The  Authority  would
          not  be  utilizing  any  federal  funding  for  this  project.  If  the  Authority  obtains  bottomland  hardwood
          timber  easements  as  required  for  a  lateral  drain  under  the  Agreed  Order  in  National  Ecological
          Foundation  v.  Alexander,  et  al.,  Civil  Action  No.  78-2548-H  (W.D.  Tenn.  May  13,  1985),  may  it
          proceed  without  the  purchase  of  additional  mitigation  lands,  or  would  that  violate  the  Consent  Order
          in  Akers  v.  Resor,  et  al.,  Civil  Action  No.  C-70-349  (W.D.  Tenn.  May  13,  1985)?


                                         OPINION

                The  West  Tennessee  River  Basin  Authority  may  proceed  with  the  Stokes  Creek  project
          without  purchasing  additional  mitigation  lands  as  long  as  it  is  in  compliance  with  the  terms  of  the
          May  13,  1985  Agreed  Order  in  Alexander,  including  obtaining  the  requisite  bottomland  hardwood
          easements.  The  State  was  not  a  party  to  and  thus  is  not  subject  to  the  May  13,  1985,  Consent  Order
          in  Resor.


                                         ANALYSIS

                The  West  Tennessee  Tributary  Project  (Project)  is  a  plan  of  the  U.S.  Army  Corps  of
          Engineers  (Corps)  consisting  of  channel  enlargement  on  the  Obion  and  Forked  Deer  Rivers  to
          provide  adequate  drainage  and  to  reduce  the  frequency,  depth,  and  duration  of  flooding  in  West
          Tennessee. In  1970  a  citizen,  Clark  Akers,  filed  suit  to  challenge  the  CorpsÕ  compliance  in
          implementing  the  Project  with  the  National  Environmental  Policy  Act  and  other  federal  laws  in  a
          case  styled  Akers  v.  Resor,  et  al.,  Civil  Action  No.  C-70-349  (W.D.  Tenn.). As  a  result  of  this
          lawsuit,  a  Consent  Order  was  entered  on  May  13,  1985.  The  State  of  Tennessee  was  not  a  party  to
          the  Akers  v.  Resor  lawsuit  and  thus  is  not  subject  to  the  Consent  Order.  The  Corps  was  permitted
          to  proceed  with  the  Project  as  authorized.  The  Consent  Order  required  the  Corps,  in  part,  to  acquire
          thirty  two  thousand  (32,000)  acres  of  land  for  mitigation  for  the  impacts  to  water  quality  from  the



            Page  2
            Project. The  mitigation  was  required  to  be  within  prescribed  boundaries. In  implementing  the
            Project,  the  Corps  lets  contracts  for  channel  improvements  from  one  particular  mile  to  another,  and
            the  geographical  limits  associated  with  each  contract  are  called  Òitems.Ó For  each  item,  the  Corps
            was  required  to  acquire  all  mitigation  lands  within  the  boundaries  alluded  to  above. The  Corps
            purchased  approximately  12,000  acres  of  mitigation  lands.  No  further  channelization  work  has  been
            done  by  the  Corps  in  a  number  of  years.
                  The  Project  was  also  the  subject  of  litigation  in  a  case  styled  National  Ecological  Foundation
            v.  Alexander,  et  al.,  Civil  Action  No.  78-2548-H  (W.D.  Tenn.).  In  that  matter,  an  Agreed  Order  was
            entered  the  same  day  as  the  aforementioned  Consent  Order. The  Agreed  Order  outlined  the
            responsibilities  of  the  Obion-Forked  Deer  Basin  Authority  (OFDBA)  for  performing  work  inside  and
            outside  the  Project  area.  The  Agreed  Order  references  the  recommendations  of  the  West  Tennessee
            Natural  Resources  Task  Force  (Task  Force)  concerning  procedures  to  be  followed  by  OFDBA  in
            performing  future  work  in  the  Obion-Forked  Deer  River  Basin.  See  Agreed  Order,  Ex.  1.  The  Task
            Force  is  comprised  of  representatives  from  OFDBA,  the  Tennessee  Department  of  Agriculture,  the
            Tennessee  Department  of  Conservation  (now  the  Tennessee  Department  of  Environment  and
            Conservation)  and  the  Tennessee  Wildlife  Resources  Agency. 
                  The  Task  Force  commissioned  a  technical  work  group  to  survey  all  the  reaches  of  the  rivers
            outside  the  CorpsÕ  Project  area  in  the  Obion-Forked  Deer  River  Basin  and  to  classify  each  reach.
            The  classifications  were  incorporated  into  the  Agreed  Order. See  Agreed  Order,  Ex.  2. OFDBA
            must  perform  any  work  within  these  classified  reaches  in  accordance  with  the  methodology  required
            by  the  Agreed  Order  and  the  Task  Force. Included  is  a  requirement  that  prior  to  beginning  any  work
            within  these  classified  reaches,  OFDBA  must  obtain  a  specified  percentage  of  bottomland  hardwood
            easements  from  the  areas  of  woodlands  and  wetlands  referenced  in  the  Agreed  Order.  See  Agreed
            Order,  Ex.  3. The  Agreed  Order  also  references  the  Resor  litigation  and  sets  forth  OFDBAÕs
            responsibilities  for  maintaining  any  channelization  work  performed  by  the  Corps  in  the  Project  area.
                  In  1996,  the  Tennessee  Legislature  amended  the  statutes  governing  OFDBA  by  replacing  the
            authority  with  a  new  entity  called  the  West  Tennessee  River  Basin  Authority  (WTRBA)  that  is
            attached  to  the  Tennessee  Department  of  Environment  and  Conservation.  1996  Tenn.  Pub.  Acts,  ch.
            890,  codified  at  Tenn.  Code  Ann.  ¤¤  64-1-1101  to  64-1-1111. WTRBA  assumed  the  obligations
            undertaken  by  OFDBA  in  the  Agreed  Order. 
                  In  the  opinion  request,  the  Department  mentions  that  Stokes  Creek  is  located  within  the
            Project  area. But  according  to  the  stream  reach  classifications  made  by  the  Task  Force  Technical
            Work  Group,  Stokes  Creek  was  outside  the  Project  area  in  1985.  See  Agreed  Order,  Ex.  2.  It  is  our
            understanding  that,  in  1996,  the  Corps  internally  reformulated  the  Project  and  developed  two
            demonstration  projects,  one  of  which  is  along  Stokes  Creek. However,  the  Corps  failed  to
            commence  work  for  the  demonstration  project  on  Stokes  Creek.
                  The  Corps  was  a  party  to  the  litigation  in  Alexander  and  is  subject  to  the  Agreed  Order. In
            view  of paragraph  12  of  the  Agreed  Order,  which  states  in  part,  ÒThis  Agreed  Order  shall  remain



            Page  3
            in  effect  as  presently  written  and  may  not  be  modified,  amended  or  otherwise  changed  until  the
            completion  or  abandonment  of  the  Corps  of  EngineersÕ  project  and  the  acquisition  by  the  Basin
            Authority  of  all  easements  required  to  complete  the  Basin  AuthorityÕs  project,Ó  we  question  whether
            the  Corps  may  unilaterally  alter  the  Project  by  including  waters  that  were  not  part  of  the  Project  in
            1985. However,  in  light  of  the  DepartmentÕs  question,  it  does  not  matter  whether  Stokes  Creek  is
            in  the  Project  area.  The  requirement  to  obtain  mitigation  lands  is  imposed  only  on  the  Corps  in  the
            Consent  Order  and,  as  stated  previously,  the  State  is  not  obligated  under  the  Consent  Order.
            However,  the  State  must  follow  the  requirements  of  the  Agreed  Order. 
                    WTRBA  proposes  to  re-establish  a  meandering  channel  for  Stokes  Creek  that  will  require
            lateral  drain  construction.  According  to  the  request,  WTRBA  will  not  be  using  any  federal  funding
            for  this  project. The  Agreed  Order  contemplated  the  WTRBA  forerunnerÕs  responsibility  to  include
            maintenance  of  channelization  work  performed  by  the  Corps  in  the  Project  area. In  this  instance,
            WTRBAÕs  proposed  project  is  not  for  maintenance  work  but  for  re-establishing  the  meandering
            channel  that  would  include  constructing  lateral  drainage  features. Paragraph  6  of  the  Agreed  Order
            provides  the  requirements  for  the  construction  of  lateral  drainage  features  by  WTRBA:
                  The  Task  Force  shall  make  determinations  concerning  the  construction  of  lateral
                  drainage  features  to  be  constructed  by  the  Basin  Authority. During  the  time  this
                  Agreed  Order  is  in  effect,  no  lateral  drainage  feature  shall  be  constructed  by  the  Basin
                  Authority  until  it  has  obtained  bottomland  hardwood  easements  for  at  least  eighty
                  percent  (80%)  of  the  woodlands  and  wetlands  (as  shown  on  Exhibit  3)  which  would
                  have  been  affected  by  the  lateral  drainage  features  had  the  lateral  drainage  features
                  been  constructed  in  October  of  1982. If  the  lateral  drainage  feature  impacts  land
                  already  under  easement  to  satisfy  the  requirements  of  paragraph  5,  then  that  number
                  of  acres  may  be  applied  against  the  80%  requirement. The  lateral  drainage  features
                  will be constructed in the manner determined by the Task Force and such
                  construction  will  commence  only  after  receipt  by  the  Basin  Authority  of  a  letter  of
                  approval  from  the  Task  Force  authorizing  the  particular  work. The  easements  to  be
                  obtained  by  the  Basin  Authority  shall  be  on  forms  in  conformity  with  the  easement
                  form  attached  hereto  as  Exhibit  4. 
            The  Task  Force  has  the  duty  to  determine  the  manner  in  which  the  lateral  drainage  features  will  be
            constructed  by  WTRBA  and  must  issue  a  letter  of  approval  to  WTRBA  authorizing  the  particular
            work. WTRBA  cannot  construct  any  lateral  drainage  feature  until  it  has  obtained  bottomland
            hardwood  easements  for  at  least  eighty  percent  (80%)  of  the  woodlands  and  wetlands  which  would
            have  been  affected  by  the  lateral  drainage  features  had  the  lateral  drainage  features  been  constructed
            in  October  of  1982. 
                   As  stated  earlier,  the  State  was  not  a  party  to  the  litigation  that  resulted  in  the  Consent  Order
            in  Resor  and,  therefore,  WTRBA  can  proceed  without  the  purchase  of  additional  mitigation  lands.
            In  proceeding  with  the  project  on  Stokes  Creek,  WTRBA  has  more  than  the  obligation  to  obtain
            bottomland  hardwood  easements. It  is  also  subject  to  the  requirements  specifically  set  forth  in



            Page  4
            Paragraph  6  of  the  Agreed  Order  as  well  as  all  the  general  requirements  of  the  Agreed  Order. 







                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       SOHNIA  W.  HONG
                                                       Assistant  Attorney  General
            Requested  by:
                  Betsy  L.  Child
                  Commissioner
                  401  Church  Street
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  9,  2004
                                      Opinion  No.  04-109
          Request  for  Clarification  of  Opinion  No.  03-133  regarding  Forfeitures  Based  on  Casual  Exchange
          of  Controlled  Substances

                                         QUESTION

                Does  the  reference  to  Hughes  v.  Department  of  Safety,  776  S.W.2d  111  (Tenn.  Ct.  App.),

          p.t.a.  denied  (1989),  in  Op.  Tenn.  AttÕy  Gen.  03-133  (Oct.  8,  2003),  mean  that  conveyances  used  to
          facilitate  the  casual  exchange  of  controlled  substances  are  subject  to  forfeiture  under  Tenn.  Code
          Ann.  ¤53-11-451(a)? 

                                         OPINION

                No.  In  light  of  subsequent  statutory  amendments  and  court  decisions,  the  holding  of  Hughes
          v.  Department  of  Safety,  776  S.W.2d  111  (Tenn.  Ct.  App.),  p.t.a.  denied  (1989),  which  upheld  such
          a  forfeiture,  is  no  longer  good  law.  To  the  extent  that  Op.  Tenn.  AttÕy  Gen.  03-133  can  be  read  to
          suggest  otherwise,  it  is  withdrawn.

                                         ANALYSIS

                The  request  seeks  clarification  of  an  ambiguity  arising  from  Op.  Att'y  Gen.  03-133.  There
          this  office  opined  that  a  conveyance  used  to  facilitate  the  simple  possession  or  casual  exchange  of
          a  controlled  substance,  or  the  distribution  of  one-half  (½)  ounce  or  less  of  marijuana,  or  the
          possession,  manufacture,  or  delivery  of  drug  paraphernalia,  is  not  subject  to  forfeiture  under  the
          Tennessee  Drug  Control  Act  of  1989  if  the  conveyance  is  used  only  to  facilitate  these  activities.  Id.,

          at  1.  In  the  analysis  section  of  the  opinion,  however,  the  office  cited  Hughes  v.  Department  of  Safety,

          776  S.W.2d  111  (Tenn.  Ct.  App.),  p.t.a.  denied  (1989),  and  suggested  that  such  conveyances  may
          be  subject  to  forfeiture,  even  in  connection  with  small  amounts,  if  they  "can  be  proved  by  the
          department  to  have  been  used  in  something  other  than  the  mere  transportation  of  a  controlled
          substance."  Id.,  at  3-4  and  nn.  6,  7. 
                There  is  thus  some  ambiguity  in  the  opinion  concerning  the  case  in  which  a  conveyance  is
          used  to  facilitate  the  casual  exchange  of  a  controlled  substance.  Since  "casual  exchange"  can  involve
          a  purchase  and  sale,  a  conveyance  used  to  facilitate  such  an  exchange  has  obviously  been  used  as
          more  than  mere  transportation.  This  is  the  situation  considered  by  the  court  in  Hughes.  The  court
          first  looked  to  federal  forfeiture  law,  which  had  no  "casual  exchange"  exception,  and  noted  there  was
          a  split  in  federal  case  law  on  the  question  whether  use  of  an  automobile  to  reach  the  scene  of  a  drug



            Page  2
            sale  amounts  to  "facilitation"  of  the  sale.  The  court  reached  the  conclusion  that  using  a  conveyance
            to  drive  to  the  site  of  negotiations  over  purchase,  to  drive  to  another  site  to  consummate  the
            purchase, and to drive away with the purchased drugs did amount to "facilitation" of the
            "transportation,  sale,  and  receipt"  of  the  drugs. 776  S.W.2d  at  114. 
                  The  court  then  considered  the  effect  of  the  then-existing  exception  for  "simple  possession."
            The  court  concluded  that  the  exception  only  applied  "when  the  vehicle's  only  connection  with  the
            substance  is  as  a  means  of  transportation." 776  S.W.2d  at  115. The  court  reasoned  as  follows: 
                        Section 53-11-409(a)(4)(C) does not, however, exempt from
                        forfeiture  a  vehicle  that  has  been  used  to  facilitate  the  illegal  sale  or
                        receipt  of  a  controlled  substance.  Thus,  we  are  convinced  that  the  use
                        of  a  vehicle  to  drive  to  the  point  where  an  illegal  sale  is  made  and  the
                        further  use  to  transport  the  controlled  substance  away  from  the  point
                        of  sale  will  subject  the  vehicle  to  confiscation  regardless  of  the
                        purpose  for  which  the  controlled  substance  was  purchased.

            Id.  The  former  Tenn.  Code  Ann.  ¤  53-1-451(a)(4)(C)  referred  to  the  now-repealed  Tenn.  Code  Ann.
            ¤  39-6-417(b),  which  at  the  time  provided  that  it  was  Òunlawful  for  any  person  knowingly  or
            intentionally  to  possess  a  controlled  substance  unless  the  substance  was  obtained  directly  from,  or
            pursuant  to,  a  valid  prescriptionÓ  (Emphasis  added).  There  was  no  language  in  this  statute  regarding
            a  Òcasual  exchange,Ó  and  thus  no  exemption  from  forfeiture  based  on  a  casual  exchange. 

                  Hughes  was  decided  in  March  of  1989. 776  S.W.2d  at  111. On  November  1,  1989,  the
            Tennessee  Drug  Control  Act  of  1989  took  effect,  repealing  39-6-417(b). In  its  place,  Tenn.  Code
            Ann.  ¤  39-17-418(a)  was  passed,  making  it  Òan  offense  for  a  person  to  knowingly  possess  or  casually
            exchange  a  controlled  substance,  unless  the  substance  was  obtained  directly  from,  or  pursuant  to,  a
            valid  prescriptionÓ  (Emphasis  added).  Thus,  the  law  post-Hughes  is  that  there  is  an  exemption  from
            forfeiture  based  on  a  casual  exchange.
                  While  the  Tennessee  Code  does  not  define  Òcasual  exchange,Ó  the  Tennessee  Supreme  Court
            has  determined  that  a  casual  exchange  occurs  when  the  transfer  of  the  controlled  substance  is  made
            without  design. See  State  v.  Helton,  507  S.W.2d  117,  120,  (Tenn.  1974). The  transfer  of  the
            controlled  substance  may  qualify  as  a  casual  exchange  even  though  money  is  involved  in  the  transfer.

            Id. 

                        The sale  or  distribution  of  a  controlled  substance  under  certain
                        circumstances  can  be  a  misdemeanor  if  the  controlled  substance  was
                        "casually  exchanged." A  casual  exchange  occurs  when  the  transfer
                        of  the  controlled  substance  is  made  without  design. State  v.  Helton,

                        507  S.W.2d  117,  120  (Tenn.1974). The  transfer  of  the  controlled
                        substance  may  qualify  as  a  casual  exchange  even  though  money  is
                        involved  in  the  transfer. Id.



            Page  3





































                   Forfeitures  are  not  favored  by  the  law,  and  statutes  authorizing  such  action  are  to  be  strictly  construed.  See  1

            Redd  v.  Department  of  Safety,  895  S.W.2d  332,  335  (Tenn.  1995). 
                   The  request  noted  that  Hughes  is  listed  in  the  ÒNotes  to  DecisionsÓ  section  of  the  Tennessee  Code  Annotated  2

            ¤  39-17-418. Its  placement  there  is  irrelevant  to  this  analysis. The  insertion  of  annotations  is  the  province  of  the
            Tennessee  Code  Commission.  Tenn.  Code  Ann.  ¤¤  1-1-105(a);  1-1-106(a).  The  General  Assembly  does  not  insert  such
            annotations  into  the  Code,  and  only  the  text  of  the  statute  itself  is  evidence  of  the  statutory  law  of  the  state.  Tenn.  Code
            Ann.  ¤  1-1-111(b)  (ÒThe  text  of  the  statutes,  codes  and  code  supplements  (but  not  the  annotations,  footnotes  and  other
            editorial  matter)  appearing  in  the  printed  copies  of  the  compilation,  containing  a  copy  of  the  commission's  certificate
            of  approval,  shall  constitute  prima  facie  evidence  of  the  statutory  law  of  the  state  of  Tennessee.  .  .Ó).
                   The  Stuart  case  centered  on  the  application  of  the  5th  Amendment's  prohibition  of  double  jeopardy  and  the  3

            8th  Amendment's  excessive  fines  clause  to  forfeiture  cases  in  Tennessee. State  v.  Carey,  914  S.W.2d  93,  96  (Tenn.Crim.App.  1995). Therefore,  not  every  transaction  for
            drugs  is  a  Òsale  or  receiptÓ  within  the  forfeiture  statute,  and  the  mere  presence  of  a  misdemeanor
            amount  of  a  controlled  substance  cannot  trigger  the  seizure  of  a  vehicle.  As  a  casual  exchange  is  not
            limited to transactions made without money, and since forfeiture statutes are to be strictly
            construed, the  exception  to  Tenn.  Code  Ann.  ¤  53-11-451(a)(4)  must  be  read  to  include  casual  1

            exchanges  which  include  money  as  well  as  those  which  do  not.
                        After  Hughes  and  before  the  statute  was  amended,  this  office  opined
                        that  vehicles  could  be  forfeited  even  when  the  amount  of  controlled
                        substance  found  would  only  support  a  charge  of  simple  possession  or
                        casual  exchange. Op.  Tenn.  Atty.  Gen.  93-46  (May  13,  1993). At
                        that  time,  Tenn.  Code  Ann.  ¤  39-6-417  had  been  repealed  and  the
                        new  exemption  statute,  ¤  39-17-418,  was  not  referenced  in  ¤  53-11-
                        451. The  legislature  has  since  amended  the  law  to  include  the  new
                        location  of  the  exception  for  simple  possession  or  casual  exchange.
                        Thus,  the  previous  opinion  is  no  longer  applicable  to  the  situation.
            Op.  Tenn.  AttÕy  Gen.  03-133  (October  8,  2003),  n.  6.  2


                  The previous opinion dealt with the overall scheme of forfeiture and the applicable
            exemptions.  There  was  no  distinction  made  between  a  ÒsaleÓ  of  drugs  and  a  Òcasual  exchange.Ó  As
            the  provisions  for  the  Òcasual  exchangeÓ  of  a  controlled  substance  were  not  in  the  code  at  the  time

            Hughes  was  decided,  Hughes  is  inapplicable  to  them. Therefore,  to  the  extent  that  our  previous
            opinion  could  be  read  to  allow  Hughes  to  permit  the  forfeiture  of  a  vehicle  involved  in  the  casual
            exchange  of  a  controlled  substance,  it  is  withdrawn.
                  It  should  also  be  noted  that  the  Tennessee  Supreme  Court,  in  Stuart  v.  State  of  Tennessee,
            Department  of  Safety,  963  S.W.2d  28  (Tenn.  1998),  considered  the  General  AssemblyÕs  intent  when
            enacting  Tenn.  Code  Ann.  ¤  53-11-451(a)(4)(C).3


                        Finally,  we  note  that  Tennessee's  forfeiture  statutes  embrace  the



            Page  4
                        proportionality  approach.  Under  Tenn.  Code  Ann.  ¤
                        53-11-451(a)(4)(C)  (Supp.  1997),  the  simple  possession  of  a  small
                        amount  of  drugs  or  drug  paraphernalia  cannot  trigger  a  forfeiture
                        action.  Apparently,  the  legislature  has  determined  that  forfeiture
                        would  be  disproportionate  to  those  crimes.

            Id.  at  35  (emphasis  added).
                  While  it  may  be  argued  that  this  is  merely  dictum,  it  is,  nonetheless,  an  indication  of  the
            Supreme  CourtÕs  view  of  the  statute  and  the  exception  it  creates.  The  Court  clearly  states  that  simple
            possession  cannot  result  in  a  forfeiture  action.  The  Court  goes  further  by  indicating  its  understanding
            of  legislative  intent  -  that  the  forfeiture  of  a  vehicle  for  simple  possession  would  be  disproportionate
            to  the  offense  committed.  As  the  Òcasual  exchangeÓ  of  a  controlled  substance  is  also  referred  to  in
            Tenn.  Code  Ann.  ¤  53-11-451(a)(4)(C),  forfeiture  of  a  vehicle  for  that  offense  would  also  be
            disproportionate  to  the  crime  committed.
                  The  Court  in  Stuart  examined  federal  as  well  as  state  case  law  when  reaching  its  conclusions.
            Many  of  these  cases  were  decided  well  after  Hughes. See,  e.g.,  Austin  v.  United  States,  509  U.S.
            602,  113  S.  Ct.  2801,  125  L.  Ed.  2d  488  (1993),  United  States  v.  11869  Westshore  Drive,  70  F.3d
            923,  (6th  Cir.  1995),  cert.  denied,  519  U.S.  811,  117  S.  Ct.  57,  136  L.  Ed.  2d  20  (1996). 
                  Given  the  Supreme  CourtÕs  language  in  Stuart,  the  statute  must  be  interpreted  in  light  of  the
            excessive  fines  prohibition  in  the  Eighth  Amendment  to  the  United  States  Constitution  and  Article
            1,  ¤  16,  of  the  Tennessee  Constitution. A  violation  of  Tenn.  Code  Ann.  ¤  39-17-418  is  a  Class  A
            misdemeanor. Tenn.  Code  Ann.  ¤  39-17-418(c). The  maximum  punishment  for  a  Class  A
            misdemeanor  is  eleven  (11)  months  and  twenty-nine  (29)  days  confinement  or  a  fine  of  two  thousand
            five  hundred  dollars  ($2,500)  or  both. Tenn.  Code  Ann.  ¤  40-35-111(e)(1). In  contrast,  when  a
            vehicle  is  seized  at  the  scene,  its  monetary  value  could  be  well  over  the  maximum  fine.
                  It  is  a  well-settled  rule  of  statutory  construction  that  statutes  must,  in  case  of  any  ambiguity,
            be  construed  to  accord  with  constitutional  requirements.  Construction  of  Tenn.  Code  Ann.  ¤  53-11-
            451(a)(4)(C)  as  exempting  the  forfeiture  of  conveyances  used  to  facilitate  a  casual  exchange  of
            controlled  substances  would  avoid  the  constitutional  issue  examined  above.




                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter



            Page  5



                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       LIZABETH  A.  HALE
                                                       Assistant  Attorney  General
            Requested  by:
                  Honorable  Fred  Phillips
                  Commissioner,  Tennessee  Department  of  Safety
                  1150  Foster  Avenue
                  Nashville,  TN  37249



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  3,  2004
                                      Opinion  No.  04-011

          Tennessee  Tribune  as  a  ÒnewspaperÓ  for  purposes  of  publication  of  official  notices

                                         QUESTION

                Does  the  Tennessee  Tribune  qualify  as  a  ÒnewspaperÓ  or  a  Ònewspaper  of  general  circulationÓ
          for  purposes  of  publication  of  official  notices?

                                         OPINION

                The  Tennessee  Tribune  qualifies  as  a  ÒnewspaperÓ  and/or  a  Ònewspaper  of  general
          circulationÓ  for  purposes  of  publication  of  official  notices.

                                         ANALYSIS

                With  the  exception  of  a  definition  in  the  Election  Code,  Tenn.  Code  Ann.  ¤¤  2-1-101,  et.
          seq.,  the  terms  ÒnewspaperÓ  and  Ònewspaper  of  general  circulationÓ  are  not  defined  in  any  of  the
          state  statutes  that  require  publication  of  official  notices  in  a  ÒnewspaperÓ  or  Ònewspaper  of  general
          circulation.Ó  See  generally  Op.  Tenn.  Atty.  Gen.  00-160  (October  17,  2000);  Op.  Tenn.  Atty.  Gen.
          U93-112  (November  30,  1993)  and  Op.  Tenn.  Atty.  Gen.  U92-99  (September  1,  1992).  However,
          the  Election  Code  does  define  the  term  Ònewspaper  of  general  circulationÓ  and  lists  a  number  of
          requirements  for  meeting  that  definition. The  publication  must  bear  a  title  or  name,  be  regularly
          issued  at  least  as  frequently  as  once  a  week  for  a  definite  price,  and  have  a  second  class  mailing
          privilege. It  must  be  not  less  than  four  pages,  be  published  continuously  during  the  immediately
          preceding  one-year  period,  and  be  published  for  the  dissemination  of  news  of  general  interest.
          Finally,  it  must  be  circulated  generally  in  the  political  subdivision  in  which  it  is  published  and  in
          which  notice  is  to  be  given.  Tenn.  Code  Ann.  ¤  2-1-104(13).
                With  respect  to  the  statutes  in  which  the  terms  ÒnewspaperÓ  or  Ònewspaper  of  general
          circulationÓ  are  not  defined,  three  criteria  have  been  established  in  order  for  a  publication  to  satisfy
          the  requirements  of  those  various  statutes.  See  Op.  Tenn.  Atty.  Gen.  00-160  (October  17,  2000)  and
          Op.  Tenn.  Atty.  Gen.  U91-164  (December  23,  1991).  First,  the  publication  should  be  available  in
          all  parts  of  the  county. Op.  Tenn.  Atty.  Gen.  U92-99  (September  1,  1992). Second,  it  should  be
          published  at  least  weekly.  Op.  Tenn.  Atty.  Gen.  U91-164  (December  23,  1991);  Op.  Tenn.  Atty.
          Gen.  U91-09  (January  22,  1991).  Third,  it  should  contain  news  of  general  interest  to  the  public.  Op.
          Tenn.  Atty.  Gen.  93-19  (March  11,  1993);  Op.  Tenn.  Atty.  Gen.  U92-99  (September  1,  1992);  Op.



            Page  2














































                    We  are  informed  by  the  United  States  Postal  Service  that  the  periodicals  postage  rate  is  the  equivalent  of  1

            a  second  class  mailing  privilege. Tenn.  Atty.  Gen.  U91-09  (January  22,  1991);  Op.  Tenn.  Atty.  Gen.  U90-118  (August  15,  1990);  Op.
            Tenn.  Atty.  Gen.  U90-55  (March  28,  1990).
                  These  criteria  are  supported  by  the  case  of  Cook  v.  McCullough,  1989  WL  155926  (M.S.
            Tenn.  Ct.  App. December  29,  1989),  p.t.a.  denied  (1990). In  that  case,  the  Court  of  Appeals
            determined  that  The  Nashville  Record  was  a  newspaper  for  purposes  of  Tenn.  Code  Ann.  ¤  67-5-
            2502. The  Court  stated:

                  The  Nashville  Record  is  a  ÒnewspaperÓ  in  the  sense  of  the  applicable  statute. It  is
                  published  weekly.  It  is  intended  for  circulation  among  the  general  public.  It  contains
                  matters  of  general  interest. It  is  in  the  form  of  a  newspaper.

            Cook  v.  McCullough,  1898  WL  155926  at  7.
                  According  to  information  supplied  with  the  opinion  request,  the  Tennessee  Tribune  is
            published  in  Davidson  County  and  is  distributed  weekly  throughout  Davidson,  Hamilton,  Knox,
            Madison,  Montgomery,  Rutherford,  Shelby,  Sumner,  and  Williamson  counties  at  a  price  per  issue
            of  $1.00. While  billing  itself  as  ÒTennesseeÕs  Leading  African-American  Weekly  Newspaper,Ó  it
            contains  news  of  interest  to  the  general  public,  including  a  variety  of  local,  regional,  state  and
            national  news.  The  January  22-28,  2004,  issue  contains  a  front-page  article  on  various  observations
            of  Martin  Luther  King  Day,  a  story  announcing  the  new  Director  of  Communications  for  the
            Tennessee  Department  of  Economic  and  Community  Development,  and  a  discussion  of  ÒThe
            Challenge  of  Policing  Police  Brutality.Ó  The  issue  has  a  14-page  section  A;  a  12-page  section  B;  and
            a  separate,  8-page  entertainment  section. Articles  include  those  discussing  business,  education,
            health,  politics,  and  sports. The  publication  contains  an  editorial  and  opinion  page,  classified  ads,
            and  various  other  advertisements. Page  4A  of  the  issue  reflects  that  the  Tribune  was  founded  in
            1991,  and  its  application  to  mail  at  periodicals  postage  rates  is  pending  at  Nashville  .  The  newspaper  1

            is  available  by  subscription,  and  it  may  be  purchased  through  newspaper  racks.
                  Based on the information you have provided, the Tennessee Tribune qualifies as a
            ÒnewspaperÓ  and/or  Ònewspaper  of  general  circulationÓ  in  Davidson,  Hamilton,  Knox,  Madison,
            Montgomery,  Rutherford,  Shelby,  and  Williamson  counties.  Further,  assuming  that  the  application
            to  mail  at  periodicals  postage  rates  is  granted,  the  Tennessee  Tribune  qualifies  as  a  Ònewspaper  of
            general  circulationÓ  under  the  Election  Code.



            Page  3




                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       GARY  R.  THOMPSON
                                                       Assistant  Attorney  General
            Requested  by:
                  Edith  Taylor  Langster
                  State  Representative
                  35  Legislative  Plaza
                  Nashville,  TN 37243-0154



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  9,  2004
                                      Opinion  No.  04-110
          Extending  Sewer  Service  to  Rural  Area

                                         QUESTION

                Must  residents  of  Rutherford  County  who  are  located  within  an  area  designated  as  a  rural  area
          under  the  county  growth  plan  ask  for  annexation  and  build  to  City  of  Murfreesboro  standards  if  they
          wish  to  obtain  municipal  sewer  service?

                                         OPINION

                Since  the  city  is  not  required  by  law  to  provide  sewer  service  outside  its  boundaries,  no
          statute  or  legal  principle  would  prohibit  it  from  specifying  requirements  that  an  area  outside  its
          boundaries  must  request  annexation  and  build  to  city  specifications  as  a  condition  to  extending  sewer
          service  to  that  area.  Unless  the  growth  plan  is  amended  to  include  the  area  within  the  cityÕs  urban
          growth  area,  however,  the  territory  must  be  annexed  by  referendum. 

                                         ANALYSIS

                This  opinion  concerns  whether  residents  of  Rutherford  County  who  are  located  within  an  area
          designated  as  a  rural  area  under  the  county  growth  plan  must  ask  for  annexation  and  build  to  City
          of  Murfreesboro  standards  if  they  wish  to  obtain  municipal  sewer  service.  Under  a  county  growth
          plan,  territory  within  a  county  is  divided  into  three  components:  urban  growth  boundaries,  planned
          growth  areas,  and  rural  areas.  Generally,  the  urban  growth  boundaries  of  a  municipality  ultimately
          included  in  a  growth  plan  must  identify  territory  contiguous  to  the  existing  boundaries  of  a
          municipality  likely  to  be  developed  in  the  next  twenty  years  and  for  which  the  municipality  will  be
          able  to  provide  urban  services.  Tenn.  Code  Ann.  ¤  6-58-106(a)(1).  Generally,  the  planned  growth
          area  of  a  county  is  required  to  identify  unincorporated  parts  of  the  county  that  are  not  within  urban
          growth  boundaries  but  are  likely  to  develop  over  the  next  twenty  years  and  that  reflect  the  county's
          duty  to  manage  natural  resources  and  urban  growth.  Tenn.  Code  Ann.  ¤  6-58-106(b)(1).  Finally,
          each  rural  area  must  generally  identify  unincorporated  parts  of  the  county  that  are  not  within  urban
          growth  boundaries  or  a  planned  growth  area  and  are  to  be  preserved  for  uses  other  than  high  density
          commercial,  industrial  or  residential  development.  Tenn.  Code  Ann.  ¤  6-58-106(c)(1).  This  Office
          noted  that  extension  of  sewer  service  to  a  rural  area  does  not  clearly  violate  the  requirement  under
          Tenn.  Code  Ann.  ¤  6-58-107  that  all  land  use  decisions  made  by  the  legislative  body  and  the
          municipalityÕs  or  countyÕs  planning  commission  shall  be  consistent  with  the  county  growth  plan.
          Op.  Tenn.  AttÕy  Gen.  01-096  (June  12,  2001).



            Page  2
                  Under  Tenn.  Code  Ann.  ¤  6-58-111(d),  if  a  city  wishes  to  annex  territory  beyond  its  urban
            growth  boundary  under  the  county  plan,  it  must  either  propose  an  amendment  to  its  urban  growth
            boundary  under  the  county  growth  plan  or  may  annex  the  territory  by  referendum  as  provided  in
            Tenn.  Code  Ann.  ¤¤  6-51-104  and  6-51-105.  The  request  asks  whether  residents  in  a  rural  area  may
            be  required  to  ÒrequestÓ  annexation  and  build  to  city  standards  in  order  to  obtain  city  sewer  service.
            Unless  the  growth  plan  is  amended,  the  city  could  only  annex  territory  in  the  rural  area  by
            referendum. 
                  A  city  is  authorized,  but  not  required,  to  extend  sewer  service  beyond  its  boundaries. Tenn.
            Code  Ann.  ¤  7-51-401  provides  as  follows:
                        (a) Except  as  provided  in  ¤  7-82-302,  each  county,  utility  district,
                        municipality  or  other  public  agency  conducting  any  utility  service
                        specifically  including  waterworks,  water  plants  and  water  distribution
                        systems  and  sewage  collection  and  treatment  systems  is  authorized  to
                        extend  such  services  beyond  the  boundaries  of  such  county,  utility
                        district,  municipality  or  public  agency  to  customers  desiring  such
                        service. 
                        (b) Any  such  county,  utility  district,  municipality  or  public  utility
                        agency  shall  establish  proper  charges  for  the  services  so  rendered  so
                        that  any  such  outside  service  is  self-supporting. 
                        (c) No  such  county,  utility  district,  municipality  or  public  utility
                        agency  shall  extend  its  services  into  sections  of  roads  or  streets
                        already  occupied  by  other  public  agencies  rendering  the  same  service,
                        so  long  as  such  other  public  agency  continues  to  render  such  service.

            Tenn.  Code  Ann.  ¤  7-51-401  (emphasis  added). We  assume  that  the  area  to  which  sewer  service
            would  be  extended  is  not  presently  served  by  the  county  system. Op.  Tenn.  AttÕy  Gen.  01-125
            (August  7,  2001). Since  the  city  is  not  required  by  law  to  provide  sewer  service  outside  its
            boundaries,  no  statute  or  legal  principle  would  prohibit  it  from  specifying  requirements  that  an  area
            outside  its  boundaries  must  request  annexation  and  build  to  city  specifications  as  a  condition  to
            extending  sewer  service  to  that  area. 





                                                       PAUL  G.  SUMMERS
                                                       Attorney  General



            Page  3


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Larry  Trail
                  State  Senator
                  Suite  8A  Legislative  Plaza
                  Nashville,  TN  37243-0216



                                        S  T  A  T  E O  F T  E  N  N  E  S  S  E  E
                                     OFFICE  OF  THE  ATTORNEY  GENERAL
                                                P.  O.  BOX  20207
                                        NASHVILLE,  TENNESSEE 37202

                                                 July  9,  2004
                                             Opinion  No.  04-111



            Constitutionality  of  a  Specialty  License  Plate  for  DUI  Offenders


                                                QUESTION

                   Is  a  law  requiring  a  person  convicted  of DUI  to  have  a  special  license  plate  indicating  that
            the  offender  was  convicted  permissible  under  the  state  and  federal  constitutions?

                                                 OPINION

                   Yes,  such  a  law  is  permissible  if  it  is  not  deemed  to  be  a  punishment. If  it  is  deemed  to  be
            a  punishment,  it  will  nevertheless  be  permissible  if  the  penalty  imposed  comports  with  federal  and
            state  protections  against  cruel  and  unusual  punishment,  and  if  the  penalty  is  applied  prospectively.

                                                 ANALYSIS

                   1.    Several  provisions  of  both  the  federal  and  state  constitutions  will  not  be  implicated
                         if  the  legislation  is  not  deemed  to  be  a  punishment.
                   Legislation  requiring  a  person  convicted  of  DUI  to  have  a  special  license  plate  would
            implicate  two  provisions  of  the  federal  and  state  constitutions  if  the  legislation  in  question  is  deemed
            a  punishment. The  federal  provisions  include  the  Cruel  and  Unusual  Punishment  Clause  of  the
            Eighth  Amendment  and  the  Ex  Post  Facto  Clause  of  Article  I,  ¤  10.  The  Tennessee  Constitution  has
            similar  provisions  in  Article  I,  ¤¤  16  and  11,  respectively. 
                   The  United  States  Supreme  Court  has  employed  a  two-pronged  analysis  to  determine  whether
            legislation  is  a  punishment  for  ex  post  facto  purposes.  See  Smith  v.  Doe,  538  U.S.  84  (2003)  (ex  post
            facto);  see  also  Cutshall  v.  Sundquist,  193  F.3d  466  (6th  Cir.  1999)  (holding  that  the  Tennessee  Sex
            Offender  Registry  did  not  violate  the  Eighth  Amendment  after  employing  the  two-pronged  analysis
            to  determine  that  requiring  registration  was  not  a  punishment). Under  this  analysis,  a  court  will  first
            look  to  determine  whether  the  legislature  intended  the  legislation,  either  explicitly  or  impliedly,  to
            be  a  punishment  or,  in  the  alternative,  a  civil  penalty. Doe,  538  U.S.  at  92. Factors  that  are  relevant
            for  determining  the  legislatureÕs  intent  include  whether  the  intent  is  expressed  in  the  statute,  the



            Page  2
            presence  of  legislative  findings  in  support  of  the  expressed  intent,  the  manner  of  the  legislationÕs
            codification,  and  the  enforcement  procedures  it  establishes. Doe,  538  U.S.  at  92-94.
                  If  the  legislature  did  indicate  its  intention  to  establish  a  civil  penalty,  the  court  will  then
            determine  whether  the  legislation  is  nevertheless  so  punitive  in  purpose  or  effect  as  to  transform  the
            civil  penalty  into  one  that  is  criminal. Doe,  538  U.S.  at  92. Factors  relevant  to  this  prong  of  the
            analysis  include:
                  [w]hether  the  sanction  involves  an  affirmative  disability  or  restraint,  whether  it  has
                  historically  been  regarded  as  a  punishment,  whether  it  comes  into  play  only  on  a
                  finding  of  scienter,  whether  its  operation  will  promote  the  traditional  aims  of
                  punishment--retribution  and  deterrence,  whether  the  behavior  to  which  it  applies  is
                  already  a  crime,  whether  an  alternative  purpose  to  which  it  may  rationally  be
                  connected  is  assignable  for  it,  and  whether  it  appears  excessive  in  relation  to  the
                  alternative  purpose  assigned.

            Doe,  538  U.S.  at  97  (citing  Kennedy  v.  Mendoza-Martinez,  372  U.S.  144,  168-69  (1963)). 
                  Application  of  this  analysis  in  the  context  of  the  question  presented  here  would  require  an
            examination  of  the  substantive  text  of  the  proposed  legislation. Without  any  actual  text,  it  is  not
            possible  to  predict  whether  a  court  would  consider  a  provision  requiring  DUI  offenders  to  have  a
            special  license  plate  to  be  a  punishment  or  not. 

                  2.    If  the  legislation  is  deemed  to  be  a  punishment,  it  must  comport  with  the  Eighth
                        Amendment  and  Article  I,  ¤  16  of  the  Tennessee  Constitution

                  The  Eighth  Amendment,  as  applied  against  the  states  by  the  Fourteenth  Amendment,
            prohibits  a  state  from  inflicting  Òcruel  and  unusual  punishments.Ó U.S.  Const.  amend  VIII. The
            language  of  Article  I,  ¤  16,  of  the  Tennessee  Constitution  is  almost  identical  to  that  of  the  Eighth
            Amendment,  but  the  Tennessee  Supreme  Court  has  read  Art.  I,  ¤16,  with  a  more  Òexpansive
            interpretation.Ó State  v.  Harris,  844  S.W.2d  601,  603  (Tenn.  1992). 
                  For  purposes  of  determining  whether  a  legislatively  approved  punishment  is  cruel  and
            unusual  under  the  Tennessee  Constitution,  the  Tennessee  Supreme  Court  has  adopted  the  test  applied
            by  the  United  States  Supreme  Court  for  Eighth  Amendment  analysis. State  v.  Black,  815  S.W.2d
            166  (Tenn.  1991)  (citing  Gregg  v.  Georgia,  428  U.S.  153,  173  (1976)).  Under  Black,  three  inquiries
            are  required:  ÒFirst,  does  the  punishment  for  the  crime  conform  with  contemporary  standards  of
            decency?  Second,  is  the  punishment  grossly  disproportionate  to  the  offense?  Third,  does  the
            punishment  go  beyond  what  is  necessary  to  accomplish  any  legitimate  penological  objective.Ó Id.

            at  189  (citation  omitted).



            Page  3
                  No  court  in  Tennessee  has  addressed  whether  such  legislation  would  comport  with  the
            prohibition  against  cruel  and  unusual  punishment. A  survey  of  other  states  reveals  that  only  a
            handful  of  states  have  instituted  similar  measures.  None  of  these  measures  have  been  struck  down
            on  Eighth  Amendment  grounds,  and  a  common  thread  among  all  of  them  is  a  durational  limitation
            on  the  punishment.  For  example,  two  states  have  enacted  legislation  that  would  require  a  defendant
            to  obtain  a  special  license  plate  after  being  convicted  of  a  DUI.  Both  Minnesota  and  Ohio  impound
            the  license  plates  of  DUI  offenders  and  require  the  offenders  to  apply  for  a  specialty  license  plate  in
            order  to  operate  their  vehicle  under  limited  licenses.  See  Minn.  Stat.  ¤  168.041;  Ohio  Rev.  Code
            Ann.  ¤  4503.231. Minnesota  requires  the  offender  to  have  a  specialty  plate  until  the  offenderÕs
            license  is  reinstated  or  reissued. Minn.  Stat.  ¤  168.041(6). Ohio  requires  offenders  to  register  for
            such  a  plate  during  the  period  of  time  that  their  licenses  are  suspended. Ohio  Rev.  Code  Ann.  ¤  ¤
            4510.021;  4503.231.  Neither  require  that  the  license  plate  specifically  identify  the  person  as  a  DUI
            offender. 
                  Other  states  have  upheld  court-imposed  probation  conditions  requiring  probationers  to
            identify  themselves  as  DUI  offenders. The  Georgia  Court  of  Appeals  has  upheld  a  condition  of
            probation  requiring  the  defendant  to  wear  a  bracelet  imprinted  with  the  words  ÒD.U.I.  CONVICTÓ
            during  his  probationary  period  until  further  order  of  the  judge. Ballenger  v.  State,  436  S.E.2d  793
            (Ga.  Ct.  App.  1993).  In  Goldschmitt  v.  State,  490  So.2d  123  (Fla.  Dist.  Ct.  App.  1986),  the  Florida
            Court  of  Appeals  upheld  a  probation  condition  that  required  the  defendant  to  place  a  bumper  sticker
            reading  ÒCONVICTED  D.U.I.-RESTRICTED  LICENSEÓ  on  his  car. It  should  be  noted,  though,
            that  Tennessee  has  previously  rejected  certain  court-imposed  conditions  of  probation  involving  the
            forced  public  disclosure  of  convictions  because  such  conditions  are  not  authorized  in  the  Sentencing
            Act. See  State  v.  Burdin,  924  S.W.2d  82,  87  (Tenn.  1996)  (holding  that  a  condition  requiring  a
            probationer  to  erect  a  sign  in  his  front  yard  announcing  that  he  is  a  sex  offender  was  neither  expressly
            nor  implicitly  authorized  by  the  statutes  governing  a  trial  courtÕs  authority  to  impose  conditions  on
            probation);  State  v.  William  M.  Fahr,  No.  W2000-00973-CCA-R3-CD,  2001  WL  490738,  at  *2-3
            (Tenn.  Crim.  App.  2001)  (holding  that  a  condition  of  probation  requiring  the  defendant  to  make
            public  confession  in  church  that  he  had  improper  sexual  contact  with  an  eleven-year  old  girl  was  not
            authorized  by  the  Sentencing  Act). 

                  3.    The  legislation  would  not  violate  the  Ex  Post  Facto  Clause  if  it  is  applied 
                        prospectively
                  Both  the  Tennessee  and  United  States  Constitutions  prohibit  the  enactment  of  ex  post  facto
            laws.  U.S.  Const.  art.  I,  ¤  10,  cl.1;  Tenn.  Const.,  art.  I,  ¤  11. Laws  that  violate  the  Ex  Post  Facto
            Clauses  of  the  Federal  and  Tennessee  Constitutions  have  two  characteristics. First,  they  must  be
            truly  retroactive;  that  is,  they  must  apply  to  events  occurring  before  their  enactment.  Lynce  v.  Mathis,

            519  U.S.  433,  441  (1997);  State  v.  Ricci,  914  S.W.2d  475,  480  (Tenn.  1996).  A  statute  is  retroactive
            in  the  ex  post  facto  sense  if  it  changes  the  legal  consequences  of  acts  completed  before  its  effective
            date.  Weaver  v.  Graham,  450  U.S.  24,  29  (1981);  Utley  v.  Tenn.  Dept.  of  Corr.,  118  S.W.3d  705,  716
            (Tenn.  Ct.  App.  2003). Second,  they  must  disadvantage  the  affected  person  either  by  altering  the



            Page  4
            definition  of  criminal  conduct  or  by  increasing  the  punishment  for  the  criminal  conduct.  Lynce,  519
            U.S.  at  441;  State  v.  Pearson,  858  S.W.2d  879,  882  (Tenn.  1993). The  heart  of  both  Ex  Post  Facto
            Clauses  bars  the  application  of  laws,  rules,  or  policies  that  change  the  punishment  and  inflict  greater
            punishment  than  the  law  annexed  to  the  crime  when  it  was  committed. Johnson  v.  United  States,

            529  U.S.  694,  699  (2000). The  analysis  focuses  on  whether  a  statute,  rule,  or  policy  retroactively
            increases  the  punishment  beyond  what  was  prescribed  when  the  underlying  crime  was  committed.

            Miller  v.  Florida,  482  U.S.  423,  430  (1987);  Pearson,  858  S.W.2d  at  883.
                  Therefore,  if  the  legislation  applied  only  to  offenders  who  were  convicted  of  DUI  after  the
            effective  date  of  the  legislation,  there  would  be  no  violation  of  either  Ex  Post  Facto  clauses. Were
            the  legislation  to  be  effective  against  the  offenders  who  were  convicted  of  DUI  prior  to  the  passage
            of  the  legislation,  however,  the  legislation  would  likely  run  afoul  of  both  clauses.
                   4.    The  proposed  legislation  is  a  valid  exercise  of  the  StateÕs  police  power
                  The  ability  to  drive  a  motor  vehicle  on  a  public  highway  is  not  a  fundamental  right. Goats
            v.  State,  364  S.W.2d  889,  891  (Tenn.1963);  Sullins  v.  Butler,  135  S.W.2d  930,  932  (Tenn.1940).
            Rather,  it  is  a  revocable  ÒprivilegeÓ  that  is  granted  upon  compliance  with  statutory  licensing
            procedures.  See  Reitz  v.  Mealey,  314  U.S.  33,  36  (1941),  overruled  in  part  by  Perez  v.  Campbell,  402
            U.S.  637  (1971);  Goats,  364  S.W.2d  at  891;  Sullins,  135  S.W.2d  at  932.  State  governments  possess
            an  inherent  power,  i.e.,  police  power,  to  enact  reasonable  legislation  for  the  health,  safety,  welfare,
            morals,  or  convenience  of  the  public.  See  Nashville,  C  &  St.  L.  Ry.  v.  Walters,  294  U.S.  405  (1935);

            Estrin  v.  Moss,  430  S.W.2d  345,  348  (Tenn.1968);  State  v.  Sowder,  826  S.W.2d  924,  927  (Tenn.
            Crim.  App.  1991).  Thus,  the  legislature,  through  its  police  power,  may  prescribe  conditions  under
            which  the  ÒprivilegeÓ  of  operating  automobiles  on  public  highways  may  be  exercised.  Sullins,  135
            S.W.2d  at  932;  State  v.  Booher,  978  S.W.2d  953,  956  (Tenn.  Crim.  App.  1997). 
                  Still,  any  such  regulation  must  be  reasonable. Booher,  978  S.W.2d  at  956. For  the
            legislation  to  be  deemed  reasonable,  the  public  benefits  must  outweigh  the  interference  with  private
            rights.  Id.  Courts  applying  the  test  will  presume  the  legislation  is  reasonable  and  valid  so  that  anyone
            challenging  the  law  would  have  the  burden  of  clearly  showing  how  it  violates  the  Constitution. Id.

            While  no  Tennessee  court  has  addressed  the  issue,  a  court  applying  this  balancing  test  would  likely
            determine  that  the  public  benefits  of  the  proposed  legislation  outweigh  the  interference  with  private
            rights. 
                  5.    The  proposed  legislation  does  not  violate  an  offenderÕs  right  to  privacy  under  the
                        Federal  or  State  Constitutions
                  In  Whalen  v.  Roe,  429  U.S.  589,  598-99  (1977),  the  Supreme  Court  recognized  that  it  had
            acknowledged  a  constitutionally  protected  Òzone  of  privacyÓ  in  at  least  two  different  kinds  of
            interests.  One  is  the  individual  interest  in  avoiding  disclosure  of  personal  matters. Id.  at  599.  The
            Tennessee  Supreme  Court,  recognizing  that  Òthe  notion  of  individual  liberty  is  .  .  .  deeply  embedded
            in  the  Tennessee  Constitution,Ó  has  concluded  Òthat  there  is  a  right  of  individual  privacy  guaranteed



            Page  5
            under  and  protected  by  the  liberty  clauses  of  the  Tennessee  Declaration  of  Rights.Ó Id.  at  599-600.
                  Both  courts  have  also  held,  however,  that  a  personÕs  privacy  interests  fade  when  the
            information  involved  is  already  a  matter  of  public  record.  See  Cox  Broad.  Corp.  v.  Cohn,  420  U.S.
            469,  494-95  (1975);  Langford  v.  Vanderbilt  Univ.,  287  S.W.2d  32,  39  (1956). In  Tennessee,  a
            personÕs  criminal  record  is  a  public  record,  and  it  is  available  to  any  citizen  who  requests  it. Tenn.
            Code  Ann.  ¤  ¤  10-7-101,  10-7-507.  Therefore,  requiring  a  DUI  offender  to  receive  a  special  license
            plate  would  not  involve  the  disclosure  of  personal  matters. See  Cline  v.  Rogers,  87  F.3d  176,  179
            (6th  Cir.  1996)  (ÒThere  is  no  violation  of  the  United  States  Constitution  in  this  case  because  there
            is  no  constitutional  right  to  privacy  in  one's  criminal  record.  Nondisclosure  of  one's  criminal  record
            is  not  one  of  those  personal  rights  that  is  ÔfundamentalÕ  or  Ôimplicit  in  the  concept  of  ordered
            liberty.ÕÓ)  (citations  omitted);  Cutshall  v.  Sundquist,  193  F.3d  466,  482  (6th  Cir.  1999)  (holding  that
            the Tennessee Constitution does not provide a right to the nondisclosure of private facts).
            Accordingly,  legislation  requiring  a  person  convicted  of  DUI  to  receive  a  special  license  plate  would
            not  violate  the  offenderÕs  right  to  privacy.
                  6.    The  legislation  does  not  violate  the  Due  Process  Clause  of  the  Fourteenth 
                        Amendment 
                  ÒThe  Fourteenth  Amendment  prohibits  state  actors  from  depriving  an  individual  of  life,
            liberty,  or  property  without  the  due  process  of  law.Ó  Bailey  v.  Floyd  County  Bd.  of  Educ.,  106  F.3d
            135,  140-41  (6th  Cir.  1997). To  implicate  an  offenderÕs  due  process  rights,  the  legislation  must
            interfere  with  one  of  the  offenderÕs  protected  property  or  liberty  interests. Id.  The  offender  would
            have  to  point  to  a  right  conferred  by  either  state  law  or  the  Constitution  to  establish  a  protected
            interest  in  freedom  from  public  disclosure  of  the  fact  that  the  offender  has  been  convicted  of  a  DUI.

            See  Cutshall,  193  F.3d  at  478. The  U.S.  Supreme  Court  has  made  it  clear  that  reputation  alone  is
            not  a  constitutionally  protected  liberty  or  property  interest.  Paul  v.  Davis,  424  U.S.  693,  701  (1976).
            Only  where  the  damage  to  reputation  is  coupled  with  some  other  interest  is  procedural  due  process
            protection  triggered.  Cutshall,  193  F.3d  at  479.  The  Tennessee  Supreme  Court  has  never  recognized
            an  interest  in  freedom  from  public  disclosure  of  a  personÕs  criminal  record. In  fact,  as  noted  above,
            such  information  is  a  public  record. Therefore,  the  legislation  does  not  implicate  procedural  due
            process  protections. 

                  7.    The  legislation  does  not  violate  the  equal  protection  guarantees  of  the  United  States
                        and  Tennessee  Constitutions
                  The  Fourteenth  Amendment  to  the  United  States  Constitution  provides  that  no  State  shall
            Òdeny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws.Ó U.S.  Const.  amend
            XIV,  ¤  1.  The  Equal  Protection  Clause  has  been  construed  as  providing  that  Òall  persons  similarly
            situated  should  be  treated  alike.Ó City  of  Cleburne  v.  Cleburne  Living  Ctr.,  473  U.S.  432,  439
            (1985). Unless  the  legislation  being  contested  either  intrudes  upon  a  fundamental  right  or  involves
            a  suspect  class,  the  legislation  need  only  be  rationally  related  to  a  legitimate  government  interest.



            Page  6

            Id.  at  432;  San  Antonio  Sch.  Dist.  v.  Rodriguez,  411  U.S.  1,  16  (1973). The  Tennessee  Supreme
            Court  has  held  that  the  state  constitutional  guarantees  of  equal  protection  are  co-extensive  with  the
            equal protection provisions of the Fifth and Fourteenth Amendments of the United States
            Constitution. Tenn.  Small  Sch.  Sys.  v.  McWherter,  851  S.W.2d  139,  152  (Tenn.  1993). As  noted
            above,  driving  is  a  privilege  and  not  a  right. DUI  offenders,  furthermore,  are  not  a  suspect  class.
            Therefore,  the  legislation  would  be  subject  to  the  review  under  the  Òrational  basisÓ  test. Under  this
            test,  the  legislation  would  only  be  struck  down  if  it  is  based  on  grounds  totally  unrelated  to  the
            pursuit  of  the  StateÕs  goal  and  only  if  no  grounds  can  be  conceived  to  justify  it.  Clements  v.  Fashing,

            457  U.S.  957,  963  (1982). 




                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       MICHAEL  MARKHAM
                                                       Assistant  Attorney  General 

            Requested  by:
                  Honorable  Jerome  Cochran
                  State  Representative
                  212  War  Memorial  Building
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                   425  FIFTH  AVENUE  NORTH
                                  NASHVILLE,  TENNESSEE  37243

                                         July  9,  2004
                                      Opinion  No.  04-112
          Interstate  Movement  of  Captive  Wildlife  Through  Tennessee  Airports


                                        QUESTIONS

                1.    Are  importation  permits  required  in  Tennessee  for  Class  I  and  II  wildlife  when  they
          are  imported  by  air  to  a  Tennessee  airport  and  then  transported  out  of  Tennessee  by  land  carrier  to
          their  prospective  owner  in  another  state?
                2.    Are  importation  permits  required  in  Tennessee  for  Class  I  and  II  wildlife  when  they
          are  imported  by  land  carrier  to  an  airport  in  Tennessee  and  then  flown  out  of  Tennessee  to  their
          prospective  owner  in  another  state?
                3.    Do  TennesseeÕs  regulations  governing  mobile  facilities  for  Class  I  wildlife  apply  to
          such  wildlife  when  they  are  being  transported  by  land  carrier  from  another  state  either  to  or  from  a
          Tennessee  airport  for  purposes  of  export  to  a  buyer  in  a  third  state?
                4.    If  a  nonresident  has  his  captive  wildlife  permit  privileges  revoked  in  his  home  state,
          can  the  Tennessee  Wildlife  Resources  Agency  issue  the  nonresident  importation  and  propagation
          permits  to  receive  and  export  captive  wildlife  solely  through  one  of  TennesseeÕs  airport  facilities?



                                         OPINIONS 

                1.    No. It  is  the  opinion  of  this  Office  that  the  legislature  did  not  intend  the  import
          permit  provisions  in  Tenn.  Code  Ann.  ¤  70-4-411  to  apply  to  Class  I  and  Class  II  wildlife  entering
          Tennessee  only  temporarily  to  change  carriers  for  transport  to  their  final  destination  in  another  state
          and  not  for  the  purpose  of  permanent  possession  and  propagation  in  Tennessee. 
                2.    The  response  to  this  question  is  identical  to  that  provided  in  question  1.
                3.    Yes. The  wildlife  agency  can  apply  the  statutes  regarding  mobile  facilities  for
          transporting  Class  I  wildlife  to  such  animals  when  they  are  transported  by  land  into  or  out  of
          Tennessee  airports  from  another  state,  because  these  are  reasonable  nondiscriminatory  regulations
          that  advance  legitimate  local  concerns  about  public  health  and  safety. 



            Page  2


                  4.    It  is  the  opinion  of  this  Office  that  the  legislature  did  not  intend  for  the  statutes
            governing  importation  and  propagation  permits  to  apply  to  nonresidents  seeking  to  import  and  export
            captive  wildlife  solely  through  TennesseeÕs  airport  facilities.



                                               ANALYSIS

                  1.  &  2. Necessity  of  Importation  Permits  for  Captive  Wildlife  Entering  Tennessee
                  A  resolution  of  the  first  two  questions  presented  in  your  request  requires  an  examination  of
            the  purpose  and  intent  of  the  permitting  provisions  under  the  captive  wildlife  statutes,  codified  at
            Tenn.  Code  Ann.  ¤¤  70-4-401  through  70-4-417. These  provisions  are  designed  to  regulate  the
            possession  and  propagation  of  live  wildlife  in  this  state  and  are  part  of  the  comprehensive  statutory
            scheme  governing  wildlife  in  Tennessee. Tenn.  Code  Ann.  ¤¤  70-1-101  -  70-8-112.
                  We  understand  that  in  each  of  the  factual  scenarios  posited  by  your  questions,  both  the  seller
            and  the  purchaser  of  the  captive  wildlife  reside  outside  of  Tennessee  in  different  states,  but,  in  order
            to  consummate  delivery,  the  buyer  and  seller  have  agreed  to  transport  the  animal  by  air  and  land
            through  the  State  of  Tennessee.  Under  none  of  the  circumstances  would  the  wildlife  be  transported
            continuously  on  one  carrier  through  this  state. Rather,  in  each  case,  the  animal  would  be  shipped
            into  Tennessee  by  land  or  air,  then  transferred  at  some  point  in  time  at  an  airport  inside  this  state  to
            another  carrier  for  export  out  of  Tennessee  to  its  ultimate  destination. 
                  For  purposes  of  questions  1  and  2,  the  subject  animal  is  designated  as  belonging  to  either
            Class  I  or  Class  II. Tenn.  Code  Ann.  ¤  70-4-403  separates  wildlife  into  five  distinct  classes  for
            purposes  of  their  possession  and  propagation  in  Tennessee.  Class  I  consists  of  wildlife,  both  native
            and  non-native  to  Tennessee,  that  are  determined  to  be  Òinherently  dangerous  to  humansÓ  and,
            therefore,  can  only  be  possessed  in  Tennessee  by  zoos,  circuses  or  commercial  propagators. Tenn.
            Code  Ann.  ¤  70-4-403(1).  Class  II  includes  all  ÒnativeÓ  species,  except  those  listed  in  another  class.
            Tenn.  Code  Ann.  ¤  70-4-403(2).  The  classification  of  the  wildlife  is  also  significant  for  determining
            what  types  of  caging  and  permits,  if  any,  are  required  in  Tennessee. 
                  Class  I  and  II  wildlife  are  generally  subject  to  the  import  permit  requirements  in  Tenn.  Code
            Ann.  ¤  70-4-411,  which  provides  in  pertinent  part: 
                        (a) All  persons  wishing  to  possess  Classes  I  and  II  live  wildlife 
                        obtained  outside  the  state  of  Tennessee  shall  have  in  their  possession
                        the  importation  permit  required  by  this  part. The  permit  and  all  bills 
                        of  lading  and  shipping  papers  relating  to  any  wildlife  which  such 
                        person  may  have  in  such  personÕs  possession  shall  be  open  and 



            Page  3


                        available  for  inspection  at  all  reasonable  times  by  authorized  agency 
                        officers  and  employees  for  the  purpose  of  ensuring  compliance  with
                        the  provisions  of  this  part.
                        .  .  . 
                        (c) An  importation  permit  is  required  for  all  interstate  movement
                        of  live  wildlife  except  Class  III,  except  no  permit  is  required  for  zoos
                        and  temporary  exhibitors.
                  Recognizing  that  the  language  in  Tenn.  Code  Ann.  ¤  70-4-411(c)  suggests  a  very  broad
            application  and  that  the  captive  wildlife  at  issue  in  questions  1  and  2  constitute  articles  in  commerce,
            we  must  analyze  this  permitting  requirement  under  the  Commerce  Clause,  which  limits  the  power
            of  states  to  discriminate  against  interstate  commerce. U.S.  Const.,  Art.  I,  ¤  8.  The  courts  have
            generally  held  that  states  have  authority  to  regulate  matters  of  legitimate  local  concern,  even  though
            interstate  commerce  may  be  affected,  but  in  doing  so  states  must  not  place  themselves  in  a  position
            of  economic  isolation.  Lewis  v.  BT  Investment  Managers,  Inc.,  447  U.S.  27,  100  S.Ct.  2009,  2015,
            64  L.Ed.2d  702  (1980). 
                  Although  the  wildlife  in  question  here  are  coming  within  our  borders  temporarily,  their  flow
            in  interstate  commerce  does  not  cease  until  they  reach  their  final  destination  in  another  state. If  the
            wildlife  agency  were  to  impose  an  import  permit  requirement  on  such  captive  wildlife,  it  would  be
            a  direct  regulation  of  the  flow  of  interstate  commerce  in  which  the  commodity  would  not  be  coming
            to  rest  in  Tennessee. Under  such  circumstances,  we  do  not  believe  that  legitimate  local  interests
            would  be  implicated  sufficiently  to  justify  such  a  permit  under  Tenn.  Code  Ann.  ¤  70-4-411(c). 
                  In  construing  statutes,  it  is  our  duty  to  adopt  a  construction  that  will  sustain  a  statute  and
            avoid  constitutional  conflict  if  its  recitation  permits  such  a  construction. State  v.  Burkhart,  58
            S.W.3d  694,  697-698  (Tenn.  2001).  It  is  the  opinion  of  this  Office  that  the  import  permit  provisions
            in  Tenn.  Code  Ann.  ¤  70-4-411  do  not  apply  to  the  facts  delineated  under  questions  1  and  2,  despite
            the  broad  language  contained  in  subsection  (c). We  reach  this  conclusion  primarily  because  the
            captive  wildlife  are  not  actually  being  imported  into  Tennessee  for  the  purpose  of  possession  and/or
            propagation  in  this  state. Rather,  they  remain  inside  our  borders  only  to  change  carriers. We  note
            that  virtually  all  of  the  captive  wildlife  provisions  in  Tenn.  Code  Ann.  ¤¤  70-4-401  through  70-4-417
            assume  that  permanent possession  and  propagation  of  live  wildlife  is  actually  taking  place  in
            Tennessee. Therefore,  concerns  for  assuring  the  health,  safety  and  welfare  of  the  animals  and  the
            public  come  into  play  in  regulating  such  activities.  And  that  is  why  the  statute  governing  propagation
            permits  for  captive  wildlife  regulates  Ò[a]ny  nonresident  who  enters  the  state  for  the  purpose  of
            selling  Class  I  or  Class  II  wildlife  in  this  state  .  .  .  .  Ó Tenn.  Code  Ann.  ¤  70-4-410(b)  (emphasis
            supplied). 
                  We  believe  the  permit  requirement  in  Tenn.  Code  Ann.  ¤  70-4-411  is  designed  to  allow  the



            Page  4


            Tennessee  Wildlife  Resources  Agency  (TWRA)  to  monitor  and  inspect  for  disease  the  Class  I  and
            Class  II  wildlife  coming  into  Tennessee  for  permanent  residence. Such  wildlife  could  theoretically
            infect  other  captive  wildlife  to  which  they  are  exposed,  or,  if  they  escaped,  they  could  infect  the
            native  wildlife  populations  in  Tennessee. This  rationale  follows  from  the  directive  in  Article  XI,
            ¤  13  of  the  Tennessee  Constitution,  which  empowers  the  legislature  to  enact  laws  Òfor  the  protection
            and  preservation  of  Game  and  Fish,  within  the  State,  .  .  .  .Ó 
                  But  under  the  facts  presented  in  questions  1  and  2, the  possibility  that  the  captive  wildlife
            would  even  have  an  opportunity  to  commingle  with  other  wildlife  or  be  exposed  to  the  general  public
            in  this  state  is  very  slight. It  seems  unlikely  that  the  StateÕs  interest  or  concern  in  regulating  their
            brief  entry  into  Tennessee  would  be  advanced  by  the  imposition  of  an  import  permit  requirement,
            and  we  do  not  believe  the  legislature  intended  such  an  application  under  the  facts  provided.
            Therefore,  we  construe  the  import  permit  requirement  in  Tenn.  Code  Ann.  ¤  70-4-411  to  be  limited
            to  instances  in  which  captive  wildlife  are  actually  being  imported  into  Tennessee  for  the  purpose  of
            possession  and/or  propagation  in  this  state.


                  3.    Mobile  Facilities  for  Captive  Wildlife  Entering  or  Leaving  Tennessee 
                  You  have  also  inquired  whether  Tennessee  can  impose  specific  caging  requirements  on  Class
            I  wildlife  when  they  are  being  transported  from  another  state  either  to  or  from  a  Tennessee  airport
            for  purposes  of  export  to  a  buyer  in  a  third  state.  TennesseeÕs  captive  wildlife  statutes  contain
            extensive  requirements  for  the  housing  and  transportation  of  wildlife,  in  particular  Class  I  animals.
            Tenn.  Code  Ann.  ¤  70-4-405(h)  provides  in  pertinent  part: 
                        (h) Mobile  facilities. No  mobile  facility  shall  be  used  in  transporting
                        wildlife  except  as  follows:
                        .  .  . 
                        (6) Facilities  used  in  transporting  or  temporarily  exhibiting  Class  I
                        wildlife  shall  be  constructed  of  steel  or  case  hardened  aluminum  of
                        sufficient  strength  to  prevent  the  escape  of  wildlife  being  transported.
                        Such  facilities  shall  be  constructed  in  such  a  manner  to  prevent
                        contact  between  the  animal(s)  and  the  general  public. All  doors
                        shall  be  locked  when  the  facility  is  in  use.
                  We  believe  the  legislature  intended  that  TWRA  have  the  authority  to  apply  this  provision
            to  the  facts  presented  in  question  3,  insofar  as  any  such  wildlife  is  transported  by  land  carrier  across
            Tennessee  highways,  for  the  following  reasons.  Unlike  the  import  permit  provisions  in  Tenn.  Code
            Ann.  ¤  70-4-411,  these  caging  requirements  seem  calculated  to  advance  legitimate  local  concerns



            Page  5


            about  public  health  and  safety  under  the  scenario  provided.  And  we  are  unaware  of  any  comparable
            federal  regulations  governing  interstate  transportation  of  Class  I  animals  that  might  preempt  these
            requirements. 
                  Since  these  caging  regulations  impact  articles  that  are  in  the  flow  of  interstate  commerce,  we
            have  analyzed  them  under  the  Commerce  Clause,  as  well. Although  states  retain  authority  under
            their  general  police  powers  to  regulate  matters  of  legitimate  local  concern,  the  dormant  or  ÒnegativeÓ
            aspect  of  the  Commerce  Clause  prohibits  state  regulatory  measures  that  are  designed  solely  to  benefit
            in-state  economic  interests  by  burdening  out-of-state  competitors.  Wyoming  v.  Oklahoma,  502  U.S.
            437,  112  S.Ct.  789,  800  (1992).  But  when  a  state  regulation  operates  evenhandedly,  burdening  in-state 
                as  well  as  out-of-state  interests,  and  affects  interstate  commerce  only  indirectly,  it  must  be
            upheld  unless  the  burden  imposed  on  such  commerce  is  clearly  excessive  in  relation  to  the  stateÕs
            legitimate  local  purpose. Pike  v.  Bruce  Church,  Inc.,  397  U.S.  137,  90  S.Ct.  844,  847  (1970). 
                  Here,  TennesseeÕs  statutory  provisions  regarding  mobile  facilities  for  transporting  Class  I
            wildlife  do  not  discriminate  against  interstate  commerce,  but  operate  evenhandedly,  because  they
            subject  wildlife  entering  Tennessee  for  the  first  time  to  reasonable  caging  requirements  that  are
            identical  to  the  housing  and  transportation  requirements  imposed  on  in-state  sources. Furthermore,
            Tennessee  does  not  stand  to  gain  economically  from  the  regulation,  which  does  not  appear  to  be
            excessive  in  relation  to  the  concerns  the  State  seeks  to  address. Therefore,  it  is  the  opinion  of  this
            Office  that  the  wildlife  agency  has  the  authority  to  impose  such  requirements  on  Class  I  wildlife
            entering  Tennessee  under  the  circumstances  described  in  question  3. 


                  4.    NonresidentÕs  Entitlement  to  Captive  Wildlife  Privileges  in  Tennessee
                  Lastly,  you  have  inquired  whether  TWRA  is  authorized  to  issue  importation  and  propagation
            permits  to  a  nonresident  whose  captive  wildlife  privileges  have  been  revoked  in  his  home  state,  so
            that  the  nonresident  can  import  and  export  captive  wildlife  solely  through  one  of  TennesseeÕs  airport
            facilities.  As  with  the  facts  presented  in  questions  1  and  2,  we  are  not  persuaded  that  the  legislature
            intended  the  permit  provisions  under  Tenn.  Code  Ann.  ¤¤  70-4-410  and  70-4-411  to  apply  to  such
            factual  circumstances. 
                  First,  we  understand  from  additional  information  provided  by  the  agency  that  the  nonresident
            in  question  maintains  no  domicile  in  Tennessee  but  desires  to  list  a  Tennessee  airport  as  the  Òfacility
            [propagating]  locationÓ  for  purposes  of  obtaining  a  propagation  permit.  Tenn.  Code  Ann.  ¤  70-4-410
            expressly  provides  in  pertinent  part:
                        (a) Before  any  person  may  engage  in  the  business  of  propagating
                        or  otherwise  obtaining  Class  I  or  Class  II  wildlife  for  sale,  barter 



            Page  6


                        or  trade,  whether  indigenous  to  this  state  or  not,  such  person  must 
                        obtain  and  possess  a  permit  for  each  propagating  location.
                        (b) Any  nonresident  who  enters  the  state  for  the  purpose  of  selling
                        Class  I  or  Class  II  wildlife  species  in  this  state  shall  also  be  required 
                        to  purchase  and  possess  a  permit. 
            (Emphasis  supplied.) 
                  We  do  not  believe  an  airport  can  constitute  a  facility  or  propagating  location,  primarily
            because  this  requirement  would  appear  to  be  more  applicable  to  persons  actually  maintaining  a
            residence  or  business  in  Tennessee. The  word  ÒpropagateÓ  is  generally  defined  as Òto  cause  to
            continue  or  increase  by  sexual  or  asexual  reproduction;  to  cause  to  spread  out  and  affect  a  greater
            number  or  greater  area.Ó  WebsterÕs  Dictionary  942  (9th  ed.  1983).  A  nonresident,  on  the  other  hand,
            must  satisfy  the  provisions  of  subsection  (b)  above  and  obtain  a  propagation  permit  if  he  or  she
            wishes  to  enter  the  state  in  order  to  sell  Class  I  or  Class  II  wildlife  in  Tennessee. According  to  the
            facts  provided  under  question  4,  the  sale  of  the  animal  has  presumably  already  been  consummated,
            either  through  the  wires  or  by  mail,  before  the  animal  arrives  in  Tennessee.  It  seems  more  likely  that
            the  airport  is  actually  being  used  as  a  delivery  or  transfer  location,  rather  than  a  sale  location. 
                  Similarly,  with  respect  to  an  importation  permit,  the  nonresident  in  this  scenario  is  not
            importing  the  wildlife  for  the  purpose  of  his  own  possession  or  propagation  of  the  animal  in
            Tennessee. As  we  discussed  in  questions  1  and  2  above,  it  is  the  opinion  of  this  Office  that  the
            legislature  did  not  intend  the import  permit  provisions  in  Tenn.  Code  Ann.  ¤  70-4-411  to  apply  to
            Class  I  and  Class  II  wildlife  entering  Tennessee  only  temporarily  to  change  carriers  for  transport  to
            their  final  destination  in  another  state.
                  Finally,  we  would  add  that,  in  the  event  a  nonresident  whose  captive  wildlife  privileges  have
            been  revoked  in  his  home  state  establishes  a  domicile  or  business  address  in  Tennessee,  the  wildlife
            agency  has  the  authority  to  establish  an  internal  policy  that  addresses  the  review  of  an  applicantÕs
            captive  wildlife  permit  history  in  other  states.  In  this  way,  the  agency  can  require  such  information
            on  permit  applications  and  use  its  discretion  in  issuing  possession,  importation  or  propagation
            permits  based  on  that  information. 



                                                       PAUL  G. SUMMERS
                                                       Attorney  General



                                         MICHAEL  E.  MOORE
                                         Solicitor  General



                                         ELIZABETH  P.  McCARTER
                                         Senior  Counsel

         Requested  by:
             Gary  Myers
             Executive  Director
             Tennessee  Wildlife  Resources  Agency
             Ellington  Agricultural  Center
             P.  O.  Box  40747 
             Nashville,  TN  37204



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  12,  2004
                                      Opinion  No.  04-113

          Nepotism  Act  as  Applied  to  State  Park  Employees


                                        QUESTIONS

                A  Òhospitality  manager  3Ó  was  recently  reassigned  from  one  park  to  another.  This  is  the  top-level 
              manager  at  the  Inn  and  Restaurant. The  hospitality  manager  3  has  a  sister-in-law  who  is
          employed  as  a  servitor  at  his  new  assignment.  The  hospitality  manager  3  is  not  the  direct  supervisor
          of  his  sister-in-law  or  any  of  the  servitors. The  servitors  are  directly  under  the  supervision  of  a
          Òhospitality  assistant.Ó The  hospitality  assistant  is  supervised  by  a  Òhospitality  manager  2.Ó
          Therefore,  the  hospitality  manager  3  neither  evaluates  nor  reviews  the  evaluations  of  servitors.
          However,  the  hospitality  manager  3,  as  the  top-level  manager  of  the  Inn  and  Restaurant,  has  the
          authority  and  does  generally  direct  the  activities  of  all  of  the  Inn  and  Restaurant  employees,
          including  the  servitors.
                1.    Does  the  above-described  situation  violate  the  Tennessee  State  Employees  Uniform
          Nepotism  Policy  Act  of  1980,  Tenn.  Code  Ann.  ¤  8-31-101,  et  seq.?

                2.    If  in  the  above-described  situation  the  hospitality  manager  3  supervised  the  person
          responsible  for  doing  evaluations  of  the  related  servitor  and  thus  would  be  the  reviewer  of  the
          servitorÕs  evaluations,  would  there  be  a  violation  of  the  Act?


                                         OPINIONS

                1.    The  above-described  factual  situation  is  not  a  violation  of  the  Tennessee  State
          Employees  Uniform  Nepotism  Policy  Act  of  1980  if  the  supervisory  authority  of  the  hospitality
          manager  3  over  the  Inn  and  Restaurant  employees  cannot  be  construed  to  be  solely  applicable  to  his
          sister-in-law.
                2.    The  situation  described  in  question  2  would  violate  the  Tennessee  State  Employees
          Uniform  Nepotism  Policy  Act  of  1980  because  the  hospitality  manager  3  would  be  in  the  direct  line
          of  supervising  the  job  performance  of  his  sister-in-law.



            Page  2

                                               ANALYSIS

                  1.    The  Tennessee  State  Employees  Uniform  Nepotism  Policy  Act  of  1980  (Act)  is  set
            forth  in  Tenn.  Code  Ann.  ¤  8-31-101  et  seq. The  Act  does  not  define  nepotism  per  se;  however,  a
            dictionary  definition provides that nepotism is Òpatronage or favoritism based upon family
            relationship.Ó Random  House  WebsterÕs  College  Dictionary  886  (2nd  ed.  1999). Analysis  under
            this  Act  depends  largely  on  the  factual  setting. Op.  Tenn.  AttÕy  Gen.  82-505  (November  8,  1982)
            (promotion  of  a  brother  does  not  violate  the  Act  if  it  does  not  result  in  one  brother  supervising  the
            job  performance  or  work  activities  of  another  brother). The  definitions  used  in  the  chapter  are
            provided  in  Tenn.  Code  Ann.  ¤  8-31-102  as  follows:
                  (1)  "Governmental  entity"  means  any  state  agency,  authority,  board,  commission,
                  department,  or  office  within  the  executive  or  judicial  branch  of  state  government  or
                  any  autonomous  state  agency,  authority,  board,  commission,  department,  office,  or
                  institution  of  higher  education;  provided,  that  "governmental  entity"  does  not  include
                  any  agency  or  office  of  the  legislative  branch; 
                  (2)  "Relative"  means  a  parent,  foster  parent,  parent-in-law,  child,  spouse,  brother,
                  foster brother, sister, foster sister, grandparent, grandchild, son-in-law,
                  brother-in-law,  daughter-in-law,  sister-in-law,  or  other  family  member  who  resides
                  in  the  same  household;  and 
                  (3)  "State  employee"  means  any  person  who  is  employed  by  a  governmental  entity.
            Tenn.  Code  Ann.  ¤  8-31-103  prohibits  the  direct  supervision  of  relatives  as  follows: 
                  Within  each  governmental  entity,  no  state  employees  who  are  relatives  shall  be
                  placed  within  the  same  direct  line  of  supervision  whereby  one  (1)  relative  is
                  responsible  for  supervising  the  job  performance  or  work  activities  of  another  relative;
                  provided,  that  to  the  extent  possible,  the  provisions  of  this  chapter  shall  not  be
                  construed  to  prohibit  two  (2)  or  more  such  relatives  from  working  within  the  same
                  state  governmental  entity. 
                  Relatives,  as  defined  in  Tenn.  Code  Ann.  ¤  8-31-102(2),  are  in  the  same  direct  line  of
            supervision  if  one  relative  is  responsible  for  supervising  the  individual  job  performance  or  work
            activities  of  another  relative. The  factual  situation  at  issue  in  question  1  makes  it  abundantly  clear
            that  the  hospitality  manager  3  has  no  involvement  in  supervising  the  job  performance  of  his  sister-in-law. 
                 In  applying  Tenn.  Code  Ann.  ¤  8-31-103,  the  relevant  portion  of  the  statute  is  Òwhereby  one
            (1)  relative  is  responsible  for  supervising  the  job  performance  or  work  activities  of  another  relative

            .  .  .Ó  (Emphasis  added).  A  hospitality  manager  3  is  the  top-level  manager  of  the  Inn  and  Restaurant.
            Although  the  hospitality  manager  3  does  not  supervise  the  servitorsÕ  job  performance,  according  to
            the  given  factual  situation,  the  hospitality  manager  3  Òhas  the  authority  and  does  generally  direct  the
            activities  of  all  of  the  Inn  and  Restaurant  employees,  including  the  servitors.Ó 



            Page  3

                  The  given  factual  situation  does  not  give  specific  information  about  the  hospitality  manager
            3Õs  authority  generally  to  direct  the  activities  of  all  the  Inn  and  Restaurant  employees. This  Office
            has  previously  opined  that,  when  an  administrator  has  the  responsibility  for  recommending  actions
            relative  to  the  job  performance  or  work  activities  of  a  relative,  that  situation  is  prohibited  under  the
            Act  if  the  recommendations  are  applicable  solely  to  the  relative  as  opposed  to  actions  which  are
            applicable  to  a  number  of  employees. Op.  Tenn.  AttÕy  Gen.  84-264  (September  20,  1984). In  the
            given  scenario,  if  the  hospitality  manager  3  directs  the  activities  of  all  the  Inn  and  Restaurant
            employees  and  those  directions  are  not  applicable  individually  and  solely  to  his  sister-in-law,  then
            the  situation  described  does  not  violate  the  Act. 
                  2.    In  the  hypothetical  at  issue  in  question  2,  the  hospitality  manager  3  supervises  the
            person  responsible  for  evaluating  the  servitor  who  is  a  relative  and,  therefore,  would  be  the  reviewer
            of  the  servitorÕs  evaluations. In  this  case,  one  relative  is  responsible  for  supervising  the  job
            performance  of  another  relative,  as  described  in  Tenn.  Code  Ann.  ¤  8-31-103. It  is  this  OfficeÕs
            opinion  that  this  scenario  would  violate  the  Act,  because  the  relatives  are  in  the  same  direct  line  of
            supervision. 
                  As  we  previously  opined,  application  of  this  chapter  is  to  be  given  a  liberal  construction  as
            evidenced  by  the  last  clause  of  Tenn.  Code  Ann.  ¤  8-31-103  that  states  that  Òthe  provisions  of  this
            chapter  shall  not  be  construed  to  prohibit  two  (2)  or  more  such  relatives  from  working  within  the
            same  state  governmental  entity.Ó  Furthermore,  Tenn.  Code  Ann.  ¤  8-31-104  provides  for  the  transfer
            of  spouses  who  are  in  violation  of  Tenn.  Code  Ann.  ¤  8-31-103  so  as  to  avoid  conflict  with  the
            chapterÕs  prohibitions. Transferring  one  of  the  relatives  in  the  given  hypothetical  situation  would
            thus  cure  the  violation. 





                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       SOHNIA  W.  HONG
                                                       Assistant  Attorney  General



            Page  4

            Requested  by:
                  Betsy  L.  Child
                  Commissioner
                  Tennessee  Department  of  Environment  and  Conservation
                  21st  Floor,  L&C  Tower
                  401  Church  Street
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  19,  2004
                                      Opinion  No.  04-114
          Sale  of  Register  of  Deeds  Records  to  Vendor  for  Resale  to  Public  by  Subscription

                                        QUESTIONS

                Several  registers  of  deeds  have  entered  into  agreements  with  private  vendors  for  the  off-site
          storage  of  the  information  recorded  in  their  offices.  Vendors  periodically  upload  to  their  servers  a
          copy  of  the  data  stored  on  the  computers  in  the  register  of  deedsÕ  offices. Vendors  then  sell
          subscriptions  to  the  public  for  access  to  this  information.
                1.    Is  a  county  authorized  to  enter  into  an  agreement  with  a  vendor  in  which  the  county
          provides  copies  of  public  records  to  the  vendor  in  exchange  for  services?
                2.    Is  a  county  authorized  to  enter  into  an  agreement  with  a  vendor  in  which  the  vendor
          will  profit  from  selling  or  providing  access  to  copies  of  public  records  that  the  county  has  given  to
          the  vendor  in  exchange  for  services?
                3.    May  a  vendor  who  has  obtained  copies  of  public  records  from  a  county  offer  access
          to  these  public  records  to  anyone  for  a  fee  and  impose  certain  restrictions  on  the  buyer  such  as
          limiting  the  use  of  information  for  personal  and  non-commercial  purposes,  and  prohibiting  the
          modification,  copying,  distribution,  transmittal,  display,  transfer,  or  sale  of  such  information?

                                         OPINIONS

                All  of  the  arrangements  specifically  described  in  the  request  violate  Tenn.  Code  Ann.  ¤  10-7-
          123,  which  requires  an  official  to  provide  remote  electronic  access  to  all  members  of  the  public  for
          a  uniform  fee. But  a  private  party  who  obtains  public  records  by  remote  electronic  access  or
          otherwise  pursuant  to  the  Public  Records  Act  is  free,  having  obtained  the  records,  to  sell  access  to
          them  subject  to  any  terms  and  conditions  the  private  party  is  able  to  negotiate  with  purchasers.

                                         ANALYSIS

                This  opinion  concerns  the  authority  of  a  county  register  of  deeds  to  contract  with  private
          vendors  regarding  the  records  of  the  registerÕs  office. Any  definitive  answer  to  this  question,  of
          course,  would  require  a  review  of  the  particular  contractual  arrangement.  This  Office  has  addressed
          the  general  authority  of  a  county  official  to  enter  into  a  business  venture  with  a  private  entity  to  sell
          public  records.  Op.  Tenn.  AttÕy  Gen.  00-101  (May  24,  2000).  That  opinion  notes  that  any  contract



            Page  2
            for  the  sale  or  storage  of  public  records  would  have  to  be  consistent  with  the  countyÕs  statutory  duty
            to  provide  public  access  to  public  records  and  that,  absent  express  statutory  authority,  counties  are
            not  authorized  to  enter  into  contracts  for  the  sale  of  public  records.
                  Under  Tenn.  Code  Ann.  ¤¤  10-7-503,  et  seq.  (the  ÒPublic  Records  ActÓ),  public  records  must
            Òat  all  times,  during  business  hours,  be  open  for  personal  inspection  by  any  citizen  of  Tennessee,  and
            those  in  charge  of  such  records  shall  not  refuse  such  right  of  inspection  to  any  citizen,  unless
            otherwise  provided  by  state  law."  Tenn.  Code  Ann.  ¤  10-7-503(a).  The  governmental  custodian  of
            the  public  records  may  charge  the  requesting  individual  the  cost  of  disclosing  a  public  record  in  a
            specific  format  if  it  does  not  have  the  record  in  that  format.  The  Tennessean  v.  Electric  Power  Board
            of  Nashville,  979  S.W.2d  297  (Tenn.  1998).  In  addition,  a  public  agency  may  charge  the  actual  costs
            of  providing  a  copy  of  a  record. Under  Tenn.  Code  Ann.  ¤  10-7-506(a): 
                        In  all  cases  where  any  person  has  the  right  to  inspect  any  such  public
                        records,  such  person  shall  have  the  right  to  take  extracts  or  make
                        copies  thereof,  and  to  make  photographs  or  photostats  of  the  same
                        while  such  records  are  in  the  possession,  custody  and  control  of  the
                        lawful custodian thereof or such custodian's authorized deputy;
                        provided,  that  the  lawful  custodian  of  such  records  shall  have  the
                        right  to  adopt  and  enforce  reasonable  rules  governing  the  making  of
                        such  extracts,  copies,  photographs  or  photostats. 
            Tenn.  Code  Ann.  ¤  10-7-506(a).  This  Office  has  stated  in  the  past  that,  ordinarily,  a  county  may  not
            charge  more  than  the  actual  cost  of  copying  the  record,  including  the  cost  to  provide  the  copy  in  the
            format  requested.  Op.  Tenn.  AttÕy  Gen.  02-065  (May  17,  2002).  See  also  J.D.Hickman  v.  Tennessee
            Board  of  Probation  and  Parole,  M2001-02346-COA-R3-CV,  2003  WL  724474,  slip  op.  (M.S.  Tenn.
            Ct.  App.  March  4,  2003)  (a  state  agency  could  require  a  requestor  to  pay  in  advance  the  cost  of
            producing  or  delivering  a  copy  of  requested  records,  including  the  costs  of  a  special  computer  run
            needed  to  retrieve  the  information  in  the  format  requested).
                  In  addition,  under  Tenn.  Code  Ann.  ¤  10-7-506(c),  with  regard  to  a  map  or  geographical
            information  with  commercial  value,  a  state  or  local  government  agency  may  charge  a  copying  fee
            that  includes  part  of  the  cost  of  developing  the  data. The  statute  provides  in  relevant  part:
                        (c)(1)  If  a  request  is  made  for  a  copy  of  a  public  record  that  has
                        commercial  value,  and  such  request  requires  the  reproduction  of  all
                        or  a  portion  of  a  computer  generated  map  or  other  similar  geographic
                        data  that  was  developed  with  public  funds,  a  state  department  or
                        agency or a political subdivision of the state having primary
                        responsibility  for the data or system may  establish and impose
                        reasonable  fees  for  the  reproduction  of  such  record,  in  addition  to  any
                        fees  or  charges  that  may  lawfully  be  imposed  pursuant  to  this  section.
                        The  additional  fees  authorized  by  this  subsection  may  not  be  assessed



            Page  3
                        against  individuals  who  request  copies  of  records  for  themselves  or
                        when  the  record  requested  does  not  have  commercial  value. State
                        departments  and  agencies  and  political  subdivisions  of  the  state  may
                        charge  a  reasonable  fee  (cost  of  reproduction  only)  for  information
                        requested  by  the  news  media  for  news  gathering  purposes  (broadcast
                        or  publication).
                               (2)  The  additional  fees  authorized  by  this  subsection  shall
                        relate  to  the  actual  development  costs  of  such  maps  or  geographic
                        data  and  may  include:
                               (A)  Labor  costs;
                               (B) Costs incurred in design, development, testing,
                        implementation  and  training;  and
                               (C)  Costs  necessary  to  ensure  that  the  map  or  data  is  accurate,
                        complete  and  current,  including  the  cost  of  adding  to,  updating,
                        modifying  and  deleting  information.
                               (3)  The  development  cost  recovery  set  forth  above  shall  be
                        limited  to  not  more  than  ten  percent  (10%)  of  the  total  development
                        costs unless additional development cost recovery between ten
                        percent  (10%)  and  twenty  percent  (20%)  is  approved  by  the  following
                        procedures:  .  .  .  For  political  subdivisions  of  the  state,  approval  for
                        additional  development  cost  recovery  as  contained  in  a  proposed
                        business  plan  must  be  obtained  from  the  governing  legislative  body.
                        If  the  governing  legislative  body  approves  additional  development
                        cost recovery, such recovery shall be submitted to the ISC
                        [Information  Systems  Council]  for  approval.  The  development  costs
                        of  any  system  being  recovered  with  fees  authorized  by  this  section
                        shall  be  subject  to  audit  by  the  comptroller  of  the  treasury,  it  being  the
                        legislative  intent  that  once  such  additional  fees  have  paid  the  portion
                        of the development costs authorized above, such fees shall be
                        adjusted  to  generate  only  the  amount  necessary  to  maintain  the  data
                        and  ensure  that  it  is  accurate,  complete  and  current  for  the  life  of  the
                        particular system.  Notwithstanding the limitations above, the
                        recovery  of  maintenance  costs  shall  not  be  subject  to  the  limitations
                        and  procedures  provided  above  for  the  recovery  of  development
                        costs.
                  Official  records  required  by  law  to  be  maintained  may  be  stored  in  electronic  form. Tenn.
            Code  Ann.  ¤  10-7-404(a).  This  statute  applies  to  records  in  the  office  of  the  county  register. Tenn.



            Page  4
            Code  Ann.  ¤  10-7-403(1). The  system  of  maintaining  computer  records  must  also  comply  with
            Tenn.  Code  Ann.  ¤  10-7-121.  Under  this  provision,  generally,  information  required  to  be  kept  as  a
            record  by  a  government  official  may  be  maintained  on  a  computer  instead  of  in  bound  books  or  paper
            records  if  the  information  is  available  for  public  inspection;  care  is  taken  to  maintain  the  information
            during  the  time  required  by  law  for  retention;  data  is  copied  to  computer  storage  media  daily,  and
            computer  storage  media  more  than  one  week  old  is  stored  at  a  location  other  than  at  the  building
            where  the  original  is  maintained;  and  the  official  can  provide  a  paper  copy  of  the  information  when
            needed  or  when  requested  by  a  member  of  the  public.
                  Under  Tenn.  Code  Ann.  ¤  10-7-123,  a  county  official  may,  at  his  or  her  discretion,  provide
            computer  access  and  remote  electronic  access  to  information  in  the  office  records.  The  official  may
            charge  users  of  information  an  amount  sufficient  to  recover  the  costs  of  providing  the  services  and
            for  no  other  access  services.  Tenn.  Code  Ann.  ¤  10-7-123(a)(1).  The  fee  must  be  uniformly  applied.

            Id.  Once  a  remote  electronic  access  system  is  in  place,  access  must  be  given  to  all  members  of  the
            public  who  desire  access  to  the  records  and  pay  the  applicable  reasonable  fees,  including  those  who
            may  use  such  information  for  proprietary  purposes. Tenn.  Code  Ann.  ¤  10-7-123(a)(4).
                  The  first  question  is  whether  a  county  is  authorized  to  enter  into  an  agreement  with  a  vendor
            in  which  the  county  provides  copies  of  public  records  to  the  vendor  in  exchange  for  services.
            Counties  are  creatures  of  statutes  and  have  only  such  powers  as  are  expressly  conferred  by  the
            legislature  or  necessarily  implied  from  such  grants  of  power.  Metropolitan  Government  of  Nashville
            and  Davidson  County  v.  Allen,  220  Tenn.  222,  225,  415  S.W.2d  632  (1967);  Bayless  v.  Knox  County,

            199  Tenn.  268,  281,  286  S.W.2d  579  (1955);  Hicks  v.  Fox,  190  Tenn.  82,  86,  228  S.W.2d  68  (1950);

            State  ex  rel.  Citizens  of  Wilson  County  v.  Lebanon  &  Nashville  Turnpike  Co.,  151  Tenn.  150,  160,
            268  S.W.  627  (1924).  None  of  the  relevant  statutes  discussed  above  concerning  the  amounts  public
            officials  may  charge  in  connection  with  providing  access  to,  and/or  copies  of,  public  records,
            authorizes  counties  or  county  officials  to  accept  services  in  exchange  for  such  access. Moreover,
            any  fee  charged  for  remote  electronic  access  to  computerized  public  records,  Òshall  be  uniformly
            applied.Ó Tenn.  Code  Ann.  ¤  10-7-123(a)(1). The  statute  does  not  define  the  term  Òremote
            electronic  access.Ó  Under  the  described  arrangement,  the  county  register  apparently  allows  a  single
            private  company  to  obtain,  by  computer,  electronic  copies  of  documents  kept  in  the  registerÕs  office.
            Depending  on  the  facts  and  circumstances  of  the  arrangement,  we  think  a  court  would  conclude  that
            the  county  has,  in  effect,  provided  Òcomputer  access  and  remote  electronic  access  for  inquiry  onlyÓ
            to  a  single  private  company  in  exchange  for  the  companyÕs  record-keeping  services. These  terms
            are  not  available  to  other  members  of  the  public.  For  this  reason,  we  think  this  arrangement  violates
            Tenn.  Code  Ann.  ¤  10-7-123,  which  requires  an  official  to  provide  remote  electronic  access  to  all
            members  of  the  public  for  a  uniform  fee.
                  2.    County  Agreements  under  Which  Vendor  Will  Profit  from  Providing  Access  to  Public
            Records
                  Question  2  concerns  the  legality  of  an  ÒInternet  Service  AgreementÓ  between  a  county  and
            a  private  company. Under  the  agreement,  the  company  agrees  to  provide  Internet  access  to  the



            Page  5
            countyÕs  land  records,  allowing  online  searching  of  indexes  and  imaged  documents  retrieved  as  they
            are  recorded  daily  by  the  county  registerÕs  office. County  officials  have  free  Internet  access  to  the
            records. The  private  company  obtains  Òunlimited  usageÓ  of  the  countyÕs  records. In  return,  the
            company  provides  a  copy  of  the  records  to  the  county  in  CD  form  as  a  backup  and  maintains  an  off
            site  backup  of  the  records  updated  about  every  thirty  minutes.  Apparently,  the  private  company  then
            charges  other  members  of  the  public  a  fee  to  access  the  records  on  the  Internet. 
                  Under  Tenn.  Code  Ann.  ¤  10-7-123,  a  county  official  must  charge  a  uniform  fee  to  users  of
            information  provided  through  remote  electronic  access.  Once  a  remote  electronic  access  information
            system  is  in  place,  access  must  be  given  to  all  members  of  the  public  who  desire  access  to  such
            records,  and  pay  applicable  reasonable  fees  as  defined  in  this  section,  including  those  who  may  use
            such  information  for  proprietary  purposes.  Again,  for  the  reasons  discussed  above,  we  think  a  court
            would  conclude  that  the  county  has,  in  effect,  provided  Òcomputer  access  and  remote  electronic
            access  for  inquiry  onlyÓ  to  a  single  private  company  in  exchange  for  the  companyÕs  record-keeping
            services. These  terms  are  not  available  to  other  members  of  the  public. For  this  reason,  we  think
            this  arrangement  violates  Tenn.  Code  Ann.  ¤  10-7-123,  which  requires  an  official  to  provide  remote
            electronic  access  to  all  members  of  the  public  for  a  uniform  fee.
                  3.    Private  Use  of  Copies  of  Public  Records 
                  Question  3  concerns  the  legality  of  an  arrangement  where  there  is  apparently  no  written
            agreement  between  the  county  and  the  private  company. The  company  provides  online  access  to
            records  for  the  county  to  members  of  the  public  for  a  fee. Terms  of  the  agreement  with  customers
            include  a  clause  disclaiming  any  liability  if  the  records  are  inaccurate. 
                  As  discussed  above,  any  contract  for  the  sale  or  storage  of  public  records  must  be  consistent
            with  the  countyÕs  statutory  duty  to  provide  public  access  to  public  records.  Again,  as  described,  the
            county  is  providing  some  form  of  online  or  computer  access  to  a  private  company. The  company
            pays  no  fee  for  the  service. The  county  does  not  provide  the  same  access  to  other  members  of  the
            public  on  the  same  terms.  For  this  reason,  we  think  this  arrangement  also  violates  Tenn.  Code  Ann.
            ¤  10-7-123,  which  requires  an  official  to  provide  remote  electronic  access  to  all  members  of  the
            public  for  a  uniform  fee.
                  The  countyÕs  authority  to  provide  documents  must  be  distinguished,  however,  from  the  right
            of  a  private  party  to  use  public  documents  obtained  from  the  county. A  county  must  provide  all
            members  of  the  public  with  copies  of  public  records  in  the  same  form  and  at  the  same  price. But
            once  a  member  of  the  public  obtains  a  copy  of  a  record,  the  public  agency  that  provided  the  record
            is  not  authorized  to  place  conditions  on  how  the  member  of  the  public  may  use  the  record. Thus,
            a  private  party  who  obtains  public  records  by  remote  electronic  access  or  otherwise  pursuant  to  the
            Public  Records  Act  is  free,  having  obtained  the  records,  to  sell  access  to  them  subject  to  any  terms



            Page  6
            and  conditions  the  private  party  is  able  to  negotiate  with  purchasers.


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  John  G.  Morgan
                  Comptroller  of  the  Treasury
                  State  Capitol
                  Nashville,  TN  37243-0260



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  19,  2004
                                      Opinion  No.  04-115
          Over-the-Counter  Sale  of  Non-Corrective,  Decorative/Cosmetic  Contact  Lenses

                                        QUESTIONS

                1.    Do  Tenn.  Code  Ann.  ¤¤  63-8-102(12)  and  63-8-113(a)(6)  apply  to  the  retail  sale  of
          over-the-counter,  non-corrective,  decorative/cosmetic  contact  lenses? 
                2.    Does  Tenn.  Code  Ann.  ¤  63-8-114(4)  authorize  the  Tennessee  Board  of  Optometry
          to  prohibit  or  regulate  the  over-the-counter  sale  of  non-corrective,  decorative/cosmetic  contact
          lenses?
                3.    Does  Tenn.  Code  Ann.  ¤  63-1-134(a)  authorize  the  Tennessee  Board  of  Optometry
          to  assess  civil  penalties  against  retailers  of  non-corrective,  decorative/cosmetic  contact  lenses?


                                         OPINIONS

                1.    No.  Since  non-corrective,  decorative/cosmetic  contact  lenses  do  not  appear  to  fall
          within  the  Optometry  ActÕs  definition  of  Òophthalmic  materials,Ó  such  sale  is  neither  the  Òpractice
          of  optometry  as  a  professionÓ  as  defined  in  Tenn.  Code  Ann.  ¤  63-8-102(12),  nor  does  such  sale
          involve  testing  the  vision  of  any  person  by  any  means  for  the  purpose  of  fitting  that  person  with  or
          prescribing  ophthalmic  materials,  as  described  in  Tenn.  Code  Ann.  ¤  63-8-113(a)(6). 
                2.    No.  Tenn.  Code  Ann.  ¤  63-8-114(4)  prohibits  contact  lenses  from  being  ordered,  sold
          or  dispensed  by  a  retail  merchant.  However,  the  Tennessee  Board  of  Optometry  may  not  prohibit
          or  regulate  the  over-the-counter  sale  of  non-corrective,  decorative/cosmetic  contact  lenses,  since  such
          non-corrective,  decorative/cosmetic  contact  lenses  are  not  Òophthalmic  materials.Ó
                3.    No. Since  non-corrective,  decorative/cosmetic  contact  lenses  are  not  Òophthalmic
          materialsÓ  under  the  Act,  a  retailer  of  such  non-corrective,  decorative/cosmetic  contact  lenses  is  not
          Òrequired  to  be  licensed,  permitted  or  authorizedÓ  by  the  Board  of  Optometry  within  the  meaning
          of  Tenn.  Code  Ann.  ¤  63-1-134(a).  Therefore,  that  section  cannot  authorize  the  Board  to  assess  civil
          penalties  against  retailers  of  non-corrective,  decorative/cosmetic  contact  lenses. 



            Page  2











































                   Such  lenses  are  sometimes  referred  to  as  ÒplanoÓ  lenses.  1


                   We  note,  however,  that  the  ophthalmic  practice  rules  which  are  contained  in  the  trade  regulation  rules  of  the  2

            Federal  Trade  Commission  define  Òophthalmic  goodsÓ  as  Òeyeglasses,  or  any  component  of  eyeglasses,  and  contact
            lenses,Ó  and  further  define  Òophthalmic  servicesÓ  as  the  Òmeasuring,  fitting,  and  adjusting  of  ophthalmic  goods
            subsequent  to  an  eye  examination.Ó  16  CFR  ¤  456.1(c)and  (d).  ANALYSIS

                  1.    You  have  asked  whether  Tenn.  Code  Ann.  ¤¤  63-8-102(12)  or  63-8-113(a)(6)  apply
            to  the  retail  sale  of  over-the-counter,  non-corrective,  decorative/cosmetic  lenses. You  also  have
            informed  this  office  that  the  Board  of  Optometry  considers  over-the-counter,  non-corrective,
            decorative/cosmetic  contact  lenses  to  be  ophthalmic  materials  and  medical  devices. We  understand
            further that  such  over-the-counter,  non-corrective,  decorative/cosmetic  contact  lenses  have  a
            spherical,  cylindrical  and  prismatic  power  or  value  of Òzero.Ó1


                  The  Òpractice  of  optometry  as  a  professionÓ  is  defined  in  Tenn.  Code  Ann.  ¤  63-8-102(12)
            in  pertinent  part  as  meaning:
                        (A)   The  employment  of  objective  or  subjective  methods  (either  or
                        both)  for  the  purpose  of  ascertaining  defects  of  vision  or  muscular
                        anomalies  or  other  abnormal  conditions  of  the  eyes;
                        (B)   The  prescribing  of  ophthalmic  lenses  or  prisms  to  remedy  or
                        relieve  defects  of  vision  or  muscular  anomalies;
                        (C)   The  orthoptic  training,  the  adjusting,  or  fitting  or  adapting  of
                        lenses  or  prisms  or  eyeglasses  or  spectacles  to  remedy  or  relieve
                        defects  of  vision  or  muscular  anomalies;
                        (D)   The  supplying,  replacement  or  duplication  of  an  ophthalmic
                        lens  or  frame;  .  .  .  .
                  Tenn.  Code  Ann.  ¤  63-8-113(a)(6)  makes  it  unlawful  for  any  person  not  duly  licensed  in
            accordance  with  the  Optometry  Act,  Tenn.  Code  Ann.  ¤¤  63-8-101,  et  seq.,  to  Ò[t]est  the  vision  of
            any  person  by  any  means  for  the  purpose  of  fitting  that  person  with  or  prescribing  ophthalmic
            materials.Ó ÒOphthalmic  materials,Ó  in  turn,  is  defined  by  Tenn.  Code  Ann.  ¤  63-8-102(9):
                        ÒOphthalmic materialsÓ means any  lens which has a spherical,
                        cylindrical  or  prismatic  power  or  value  used  before  or  upon  the  eye
                        and  any  frame  or  other  appliance  used  for  the  purpose  of  holding  or
                        positioning  any  ophthalmic  lenses  before  the  eyes. 
                  Over-the-counter,  non-corrective,  decorative/cosmetic  contact  lenses  do  not  appear  to  us  to
            fall  within  the  above  statutory  definition  of  Òophthalmic  materials.Ó We  are  not  persuaded  that  a  2

            lens  with  a  spherical,  cylindrical  or  prismatic  power  or  value  of  ÒzeroÓ  in  fact  has  any  spherical,
            cylindrical  or  prismatic  power  or  value.  Further,  because  the  Act  does  not  define  the  term  Òmedical



            Page  3









































                   It  is  our  understanding  that  legislation  may be  pending  before  the  Congress  to  amend  the  definition  of  3

            Òmedical  deviceÓ  in  the  Federal  Food,  Drug  and  Cosmetic  Act  ,  21  U.S.C.  ¤  360j,  to  include  within  that  definition  non-corrective 
                   contact  lenses  and/or  all  contact  lenses.  See  H.R.  2218  for  the  108th  Congress  (3  versions).  Such  legislation
            may  address  the  FDAÕs  April  4,  2003,  announcement  that  it  now  considers  non-corrective  contact  lenses  to  be
            cosmetics,  instead  of  its  previous  position  that  it  had  jurisdiction  over  all  contact  lenses  as  medical  devices. See  68  FR
            16520.  However,  according  to  the  FDA  Public  Health  Web  Notification:  Non-corrective  Decorative  Contact  Lenses
            Dispensed  Without  a  Prescription,  October  23,  2002,  the  FDA  cautioned  consumers  against  using  decorative  contact
            lenses  that  have  not  been  prescribed  or  fitted  by  a  qualified  eye  care  professional.  device,Ó we can find no basis for ascertaining that over-the-counter, non-corrective,
            decorative/cosmetic  contact  lenses  indeed  are  Òmedical  devices.Ó3


                  Moreover, the  retail  sale  of  over-the-counter,  non-corrective  decorative/cosmetic  contact
            lenses  does  not  fall  within  the  meaning  of  Òthe  practice  of  optometry  as  a  professionÓ  as  defined  in
            Tenn.  Code  Ann.  ¤  63-8-102(12). Tenn.  Code  Ann.  ¤  63-8-102(12)(A)  concerns  Òascertaining
            defects  of  vision  or  muscular  anomalies  or  other  abnormal  conditions  of  the  eyes,Ó  and  the  retail  sale
            of  non-corrective,  decorative/cosmetic  contact  lenses  cannot,  by  definition,  be  for  such  a  purpose.
            Second,  Tenn.  Code  Ann.  ¤  63-8-102(12)(B)  concerns  the  Òprescribing  of  ophthalmic  lenses  or
            prisms  to  remedy  or  relieve  defects  of  vision  or  muscular  anomalies,Ó  and  the  retail  sale  of  non-corrective, 
                     decorative/cosmetic  contact  lenses  cannot,  by  definition,  involve  such  prescribing  in  order
            to  remedy  or  relieve  any  defects  of  vision  or  muscular  anomalies. Third,  Tenn.  Code  Ann.  ¤  63-8-
            102(12)(C)  concerns  Òthe  orthoptic  training,  the  adjusting,  or  fitting  or  adapting  of  lenses  or  prisms
            or  eyeglasses  or  spectacles  to  remedy  or  relieve  defects  of  vision  or  muscular  anomalies,Ó and  the
            retail  sale  of  non-corrective,  decorative/cosmetic  contact  lenses  cannot,  by  definition,  remedy  or
            relieve  defects  of  vision  or  muscular  anomalies.  Last,  Tenn.  Code  Ann.  ¤  63-8-102(12)(D)  concerns
            the  Òsupplying,  replacement  or  duplication  of  an  ophthalmic  lens  or  frame,Ó  and  since  the  retail  sale
            of  non-corrective,  decorative/cosmetic  contact  lenses  does  not,  in  our  view,  involve  Òophthalmic
            materialsÓ  as  defined  in  Tenn.  Code  Ann.  ¤  63-8-102(9),  such  sale  cannot,  by  definition,  involve
            supplying  an  ophthalmic  lens.
                  Therefore,  since  it  is  the  opinion  of  this  office  that  such  over-the-counter,  non-corrective,
            decorative/cosmetic  contact  lenses  do  not  fall  within  the  Optometry  ActÕs  definition  of  Òophthalmic
            materials,Ó  the  retail  sale  of  such  items  is  neither  the  Òpractice  of  optometry  as  a  professionÓ  as
            defined  in  Tenn.  Code  Ann.  ¤  63-8-102(12),  nor  does  it  involve  testing  the  vision  of  any  person  by
            any  means  Òfor  the purpose  of  fitting  that  person  with  or  prescribing  ophthalmic  materials,Ó  as
            described  in  Tenn.  Code  Ann.  ¤  63-8-113(a)(6).
                  2.    Tenn.  Code  Ann.¤  63-8-114  sets  forth  a  number  of  exemptions  to  the  Act. Included
            among  those  exemptions  is  Tenn.  Code  Ann.  ¤  63-8-114(4),  which  provides  that  nothing  in  the  Act
            shall  be  construed
                        [t]o  prevent  a  retail  merchant  from  selling  ready-to-wear  spectacles
                        or  eyeglasses  if  such  merchant  does  not  assist  the  customer  in  fitting
                        or  selecting  such  products  or  otherwise  engage  in  the  practice  of



            Page  4
                        optometry. However,  contact  lenses  may  not  be  ordered,  sold  or
                        dispensed  by  a  retail  merchant.
            Notwithstanding  the  import  of  the  last  sentence  of  this  exemption  provision,  we  do  not  believe  that
            it  may  logically  be  construed  as  an  independent  source  of  authority  to  prohibit  the  over-the-counter
            sale  of  non-corrective,  decorative/cosmetic  contact  lenses. This  is  because  the  sentence  appears  in
            an  exemption  to  a  statutory  scheme  that,  for  the  reasons  stated  above,  does  not  even  regulate  the  sale
            of  such  devices. 
                  3.    Tenn.  Code  Ann.  ¤  63-1-134(a)  provides: 
                        With  respect  to  any  person  required  to  be  licensed,  permitted  or
                        authorized  by  any  board,  commission  or  agency  attached  to  the
                        division  of  health  related  boards,  each  respective  board,  commission
                        or  agency  may  assess  a  civil  penalty  against  such  person  in  an  amount
                        not to exceed one thousand dollars ($1,000) for each separate
                        violation of a statute, rule or order pertaining to such board,
                        commission  or  agency. Each  day  of  violation  constitutes  a  separate
                        violation.
                  Since  non-corrective,  decorative/cosmetic  contact  lenses  are  not  Òophthalmic  materialsÓ
            under  the  Optometry  Act,  a  retailer  of  such  non-corrective,  decorative/cosmetic  contact  lenses  is  not
            Òrequired  to  be  licensed,  permitted  or  authorizedÓ  by  the  Board  of  Optometry  within  the  meaning
            of  Tenn.  Code  Ann.  ¤  63-1-134(a).  Therefore,  that  section  cannot  authorize  the  Board  to  assess  civil
            penalties  against  retailers  of  non-corrective,  decorative/cosmetic  contact  lenses.
                  However,  we  understand  that  the  BoardÕs  concern  about  the  retail  sale  of  over-the-counter,
            non-corrective,  decorative/cosmetic  contact  lenses  stems  from  its  belief  that  such  devices  have
            caused  and  may  continue  to  cause  serious  eye  injuries.  By  way  of  analogy  to  the  Dispensing
            Opticians  Act,  Tenn.  Code  Ann.  ¤  63-14-101,  et  seq.,  which  concerns  the  preparation,  adaptation
            and  dispensing  of  lenses,  the  Supreme  Court  wrote  in  Tennessee  Board  of  Dispensing  Opticians  v.
            Eyear  Corporation,  218  Tenn.  60,  72,  400  S.W.2d  734,  740(1966):
                        The  eyes  of  the  average  individual  are  probably  one  of  the  most
                        delicate  organs  of  the  individual. It  certainly  was  the  purpose  of  the
                        Legislature in passing this Act to require trained and licensed
                        individuals  to  do  these  things  so  as  to  protect  in  every  way  the  eyes
                        of  the  individual. The  Legislature  clearly  felt,  and  it  was  their
                        intention,  in  enacting  this  Act  that  such  an  Act  had  a  direct  and  real
                        connection  with  the  health  and  welfare  of  the  general  public,  and  the
                        purpose  of  the  Act  was  to  protect  such  health  and  welfare.
                  In  that  regard,  and  viewing  the  purpose  of  the  Optometry  Act  as  concomitant  with  that  of  the



            Page  5
            Dispensing  Opticians  Act,  the  Board  of  Optometry  might  wish  to  consider  approaching  the
            Legislature  in  order  to  seek  to  amend  the  Optometry  Act  in  order  to  include  the  retail  sale  of  over-the-
               counter, non-corrective, decorative/cosmetic contact lenses within the Optometry ActÕs
            definition  of  Òophthalmic  materials.Ó Several  states,  for  example,  specifically  regulate  Òplano
            contact  lenses,Ó  Òzero-powered  contact  lenses,Ó  and/or  Òcontact  lenses  in  any  of  their  formsÓ  through
            their  respective  licensing  boards.  Among  the  more  instructive  state  statutes  is  an  Oklahoma  statute
            regulating  the  sale  of  optical  goods  and  devices. 59  Okl.  St.  Ann.  ¤  942(C)  provides:
                        1. It  is  hereby  prohibited  and  declared  contrary  to  the  public  health
                        and  public  policy  of  this  state  to  dispense,  supply,  fit,  adjust,  adapt,
                        or  in  any  manner  apply  contact  lenses  to  the  eyes  of  a  person  whether
                        or  not  those  contact  lenses  are  designed  to  aid  or  correct  human  vision
                        or  are  plano  or  cosmetic  contact  lenses,  without  a  prescription  issued
                        by  a  person  licensed  pursuant  to  Chapter  11,  Chapter  13  or  Chapter
                        14  of  this  title.
                        2.  The  Board  of  Examiners  in  Optometry  may  secure  an  injunction,
                        without bond, in the district courts to prevent the dispensing,
                        supplying,  fitting,  adjusting,  or  adapting  of  any  contact  lens  without
                        a  prescription.
                        3. As  used  in  this  section,  ÒplanoÓ  means  a  contact  lens  with  no
                        prescription  power. 



                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       SARA  E.  SEDGWICK
                                                       Assistant  Attorney  General



            Page  6
            Requested  by:
            Terry  Hendrickson,  O.D.
            President,  Tennessee  Board  of  Optometry
            425  Fifth  Avenue  North
            Nashville,  Tennessee  37247-1010



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  20,  2004
                                      Opinion  No.  04-116
          Imposition  of  Civil  Penalty  for  Violation  of  Hamilton  County  Hotel-Motel  Tax  Act 



                                         QUESTION

                Whether  court  action  is  required  to  impose  a  civil  penalty  for  failure  to  collect  or  remit  the
          hotel-motel  occupancy  privilege  tax  levied  in  Hamilton  County  pursuant  to  Chapter  905,  1980  Public
          Acts,  as  amended  by  Chapter  700,  2004  Public  Acts?

                                         OPINION

                No.  Court  action  is  not  required  to  impose  a  civil  penalty  for  failure  to  collect  or  remit  the
          hotel-motel  occupany  privilege  tax.  The  county  trustee,  as  collector  of  the  tax,  should  impose  and
          collect  the  appropriate  civil  penalties  as  authorized  by  Chapter  700,  2004  Public  Acts.

                                         ANALYSIS

                Public  Chapter  700  of  the  2004  Acts  imposes  a  civil  penalty  of  not  more  than  fifty  dollars
          ($50.00)  for  each  failure  to  collect  or  remit  a  hotel-motel  occupancy  privilege  tax. This  chapter
          amends  Chapter  905  of  the  Public  Acts  of  1980  which  established  the  hotel-motel  occupancy  tax  for
          counties  having  a  population  of  not  less  than  254,000  nor  more  than  255,000  (effectively,  Hamilton
          County).  Under  Chapter  905  as  originally  enacted,  each  occurrence  of  willful  refusal  of  an  operator
          to  collect  or  remit  the  tax  or  willful  refusal  of  a  transient  to  pay  the  tax  imposed  was  declared  to  be
          unlawful  and  was  punishable  upon  conviction  by  a  fine  not  in  excess  of  fifty  dollars  ($50.00).  The
          2004  Amendment  changed  the  penalty  from  criminal  to  civil  by  eliminating  the  criminal  language
          from  the  law.  For  the  former  criminal  language  in  section  7  of  Chapter  905,  Chapter  700  substituted
          the  following:
                     Each  occurrence  of  knowing  refusal  of  an  operator  to  collect  or  remit
                     the  tax  or  knowing  refusal  of  a  transient  to  pay  the  tax  imposed  is  a
                     separate  violation  of  this  act  and  may  result  in  the  imposition  of  a
                     civil  penalty,  to  be  imposed  separately  for  each  violation,  not  to
                     exceed fifty  dollars ($50.00).  As used in this section, Òeach
                     occurrenceÓ  means  each  day.



            Page  2
            Chapter  700  also  amended  Chapter  905  by  adding  the  following  language  as  section  7(b):
                        Nothing  in  this  section  shall  be  construed  to  prevent  the  trustee  or
                        other  authorized  collector  of  the  tax  from  pursuing  any  civil  remedy
                        available  to  the  collector  by  law,  including  issuing  distress  warrants
                        and  the  seizure  of  assets,  to  collect  any  taxes  due  or  delinquent  under
                        this  act.
                  The  previous  language  of  Chapter  905  contemplated  court  action  before  a  penalty  could  be
            imposed.  Chapter  905  originally  stated  that  failure  to  comply  with  the  law  Òshall  be  punishable  upon
            conviction.Ó The  2004  amendment,  however,  removes  the  criminal  language  and  replaces  it  with
            civil  penalty  language  that  does  not  require  a  conviction  and  thus  does  not  require  court  action.
            Section  7,  Chapter  905,  expressly  declares  that  Òinterest  and  penalty  shall  become  a  part  of  the  tax,Ó
            thereby  establishing  in  the  law  the  long  held  principle  that  penalties  and  interest  are  assessed  and
            collected  in  the  same  manner  as  a  tax  Òas  if  they  were  a  part  of  the  tax  imposed.Ó Combustion
            Engineering  Company  Inc.  v.  McFarland,  349  S.W.  2d  138,  139  (Tenn.  1961). If  the  penalty  is
            considered  part  of  the  tax,  then  there  is  no  reason  why  the  trustee  would  collect  the  penalty  in  any
            way  other  than  the  way  in  which  the  tax  is  collected. 
                  The  language  in  sections  9  and  10  of  Chapter  905  provides  that  the  trustee  is  charged  with
            collecting  the  tax  and  is  given  all  the  powers  that  the  county  clerks  have  to  enforce  payment  of  the
            tax.  In  accordance  with  the  language  of  Chapter  905  itself  as  well  as  general  principles  of  tax  law,
            these  powers  of  the  trustee  extend  to  collection  of  the  associated  penalties  as  an  integral  part  of  the
            tax. The  second  portion  of  the  amendment,  which  specifically  negates  any  limit  on  the  civil
            remedies  available  to  the  trustee,  also  buttresses  the  conclusion  that  the  trustee  is  authorized  to
            collect  the  penalty  along  with  the  tax  without  any  court  action.
                  The  Legislature  has  chosen  not  to  require  a  criminal  conviction  against  the  transient  or
            operator  who  has  failed  to  collect  or  remit  taxes;  rather,  the  Legislature  has  chosen  simply  to  impose
            a  civil  penalty  which  is  collectable  by  the  trustee  in  the  same  manner  as  the  tax  without  any
            assistance  from  the  court.






                                                       PAUL  G.  SUMMERS
                                                       Attorney  General



            Page  3


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       DEBORAH  A.  TOON
                                                       Assistant  Attorney  General

            Requested  by:
                  The  Honorable  Ward  Crutchfield
                  State  Majority  Leader
                  Suite  13,  Legislative  Plaza
                  Nashville,  TN  37243-0210



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                             SECOND  FLOOR  CORDELL  HULL  BUILDING
                                   425  FIFTH  AVENUE  NORTH
                                NASHVILLE,  TENNESSEE  37243-0488

                                         July  20,  2004
                                      Opinion  No.  04-117

          Admission  to  Bail  after  Waiver  of  Extradition


                                         QUESTION

                Is  a  fugitive  from  justice  entitled  to  admission  to  bail  after  the  fugitive  has  waived  extradition
          and  while  the  fugitive  is  awaiting  the  arrival  of  officers  of  the  demanding  state?

                                         OPINION

                No.  In  Tennessee,  a  fugitive  from  justice  is  not  entitled  to  admission  to  bail  after  waiving
          extradition. It  is  the  opinion  of  this  office  that  a  waiver  of  extradition  terminates  the  extradition
          process  and  thereby  terminates  the  right  to  bail.

                                         ANALYSIS

                A  fugitive  from  justice  has  both  a  constitutional  right  and  a  statutory  right  to  admission  to
          bail  pending  completion  of  the  extradition  process.  The  Tennessee  Constitution  provides  Ò[t]hat  all
          prisoners  shall  be  bailable  by  sufficient  sureties,  unless  for  capital  offenses,  when  the  proof  is
          evident,  or  the  presumption  great.Ó  Tenn.  Const.,  art.  I,  ¤  15.  ÒUnder  the  foregoing  constitutional
          provision  [a  prisoner]  is  entitled  to  bail  as  a  matter  of  rightÓ  in  all  except  capital  cases.  Wallace  v.
          State,  193  Tenn.  182,  245  S.W.2d  192,  193  (1952).  Similarly,  the  Uniform  Criminal  Extradition  Act
          provides:
                Unless  the  offense  with  which  the  prisoner  is  charged  is  shown  to  be  an  offense
                punishable  by  death  or  life  imprisonment  under  the  laws  of  the  state  in  which  it  was
                committed,  the  judge  or  magistrate  must  admit  the  person  to  bail  by  bond  or
                undertaking,  with  sufficient  sureties,  and  in  such  sum  as  the  judge  or  magistrate
                deems  proper,  for  the  personÕs  appearance  before  the  judge  or  magistrate  at  a  time
                specified  in  such  bond  or  undertaking,  and  for  the  personÕs  surrender,  to  be  arrested
                upon  the  warrant  of  the  governor  of  this  state.
          Tenn.  Code  Ann.  ¤  40-9-106. However,  neither  the  constitutional  right  nor  the  statutory  right
          extends  to  a  fugitive  from  justice  who  has  waived  extradition. 



            Page  2

                  Extradition  is  a  process  whereby  fugitives  from  justice  are  returned  by  the  asylum  state  to  the
            demanding  state  to  stand  trial  on  pending  criminal  charges. See  generally  de  la  Beckwith  v.  Evatt,

            819  S.W.2d  453,  455  (Tenn.  Crim.  App.  1991).  The  extradition  process  generally  begins  when  the
            fugitive  is  arrested  in  the  asylum  state  as  a  result  of  criminal  charges  in  the  demanding  state.  Id.;  see

            Tenn.  Code  Ann.  ¤¤  40-9-103  and  40-9-401. If  the  fugitive  does  not  waive  extradition,  the
            extradition  process  continues  and  the  fugitive  is  taken  before  a  magistrate,  where  the  fugitive  is
            either  committed  to  jail  or  admitted  to  bail.  Tenn.  Code  Ann.  ¤¤  40-9-105,  -106;  de  la  Beckwith,  819
            S.W.2d  at  455.  Then  the  magistrate  establishes  a  time  in  which  the  demanding  state  may  arrest  the
            fugitive.  Tenn.  Code  Ann.  ¤¤  40-9-106,  -108. ÒUpon  notification  by  the  authorities  in  the  asylum
            state  that  the  accused  refuses  to  waive  extradition,  the  demanding  state  submits  formal  documents
            requesting  the  governor  of  this  state  to  issue  a  requisition  [warrant]  and  agentÕs  commission.Ó de
            la  Beckwith,  819  S.W.2d  at  455-56;  Tenn.  Code  Ann.  ¤¤  40-9-110,  112. If  the  demanding  stateÕs
            request  is  approved,  the  governor  issues  his  rendition  warrant,  which  authorizes  the  arrest  of  the
            fugitive  and  the  delivery  of  the  fugitive  to  the  agents  of  the  demanding  state. Tenn.  Code  Ann.  ¤¤
            40-9-116,  -118.  When  the  fugitive  is  arrested  on  the  governorÕs  rendition  warrant,  the  fugitive  has
            a  right  to  challenge  the  extradition  in  a  habeas  corpus  proceeding. Tenn.  Code  Ann.  ¤  40-9-119.
            However,  the  right  to  bail  terminates  upon  issuance  of  the  governorÕs  rendition  warrant. Elliott  v.
            Johnson,  816  S.W.2d  332,  337  (Tenn.  Crim.  App.  1991).
                  Under  the  express  terms  of  the  bail  provision  of  the  Extradition  Act,  admission  to  bail  is  only
            authorized  during  the  extradition  process  and  terminates  upon  the  conclusion  of  that  process  when
            the  governorÕs  rendition  warrant  is  issued.  Tenn.  Code  Ann.  ¤  40-9-106,  -116. Similarly,  the  right
            to  admission  to  bail  terminates  when  the  extradition  process  terminates  through  execution  of  a
            waiver. See  Elliott  v.  Johnson,  816  S.W.2d  332,  336  (Tenn.  Crim.  App.  1991)  (noting  that  bail  is
            only  available  during  an  extradition  proceeding  if  there  is  no  waiver). This  is  the  necessary  result
            because,  in  the  case  of  a  fugitive  who  has  waived  extradition,  there  will  be  no  subsequent
            Òappearance  before  the  judge  or  magistrate  at  a  time  specified,Ó  there  will  be  no  occasion  for  the
            prisoner  to  Òbe  arrested  upon  the  warrant  of  the  governor  of  this  state,Ó  and  there  will  be  no
            governorÕs  warrant. See  Tenn.  Code  Ann.  ¤  40-9-106,  -116. Moreover,  because  of  the  waiver  of
            extradition,  the  fugitive  does  not  have  a  right  to  habeas  corpus  review.  See  Tenn.  Code  Ann.  ¤  40-9-
            119.  Thus,  the  right  to  admission  to  bail  is  intrinsically  linked  to  the  invocation  of  the  extradition
            process.  In  other  words,  the  right  to  admission  to  bail  terminates  upon  waiver  of  the  extradition
            process.
                  Furthermore,  Article  IV,  Section  2,  Clause  2,  of  the  United  States  Constitution  places  an
            affirmative  duty  on  the  governor  of  the  asylum  state  to  return  fugitives  from  justice  upon  proper
            demand  of  the  executive  authority  of  the  demanding  state. If  a  fugitive  is  out  on  bail  after  waiving
            extradition,  the  governor  may  be  unable  to  meet  his  constitutional  obligation  to  deliver  the  fugitive
            when  the  demanding  stateÕs  agents  arrive.  See  Tenn.  Code  Ann.  ¤  40-9-109;  see  Mandina  v.  State,

            749  S.W.2d  472,  474  (Tenn.  Crim.  App.  1986)  (ÒThe  enforcement  of  a  forfeited  bond  would  not
            meet  the  requirements  placed  on  the  executive  of  the  asylum  stateÓ).



            Page  3
            Accordingly,  it  is  the  opinion  of  this  office  that  the  constitutional  and  statutory  right  to  bail  in  an
            extradition  proceeding  terminates  upon  the  execution  of  a  waiver  of  the  extradition  process.



                                                       _______________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter

                                                       _______________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       _______________________________
                                                       MARK  A.  FULKS 
                                                       Assistant  Attorney  General 



            Requested  by:
            Hon.  Joe  Crumley
            District  Attorney  General
            Washington  County  Courthouse
            P.O.  Box  38
            Jonesborough,  Tennessee  37659 



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  20,  2004
                                      Opinion  No.  04-118
          Admissibility  of  Laboratory  Reports

                                         QUESTION

                Whether  the  affidavit  accompanying  a  laboratory  report,  required  pursuant  to  Tenn.  Code
          Ann.  ¤  40-35-311(c)(1),  must  be  signed  by  the  laboratory  technician  who  performed  the  test.

                                         OPINION

                Yes.  The  statute  appears  to  contemplate  that  the  affidavit  be  from  the  laboratory  technician
          who  performed  the  test  and  who  has  personal  knowledge  of  the  accuracy  of  the  items  required  by
          the  statute.


                                         ANALYSIS

                Tenn.  Code  Ann.  ¤  40-35-311(c)(1)  allows  the  laboratory  report  of  a  defendantÕs  drug  test
          to  be  admissible  in  probation  revocation  proceedings,  even  though  the  laboratory  technician  who
          performed  the  test  is  not  present  to  testify. The  report  must  be  accompanied  by  an  affidavit
          containing  at  least  the  following  information:
                (A)  The  identity  of  the  certifying  technician;
                (B)  A  statement  of  qualifications  from  the  certifying  technician;
                (C)  A  specific  description  of  the  testing  methodology;
                (D)  A  statement  that  the  method  of  testing  was  the  most  accurate  test  for  this
                particular  drug;
                (E)  A  certification  that  the  test  results  were  reliable  and  accurate;
                (F)  A  declaration  that  all  established  procedures  and  protocols  were  followed;  and
                (G)  A  statement  of  acknowledgment  that  submission  of  false  information  in  the
                affidavit  may  subject  the  affiant  to  prosecution  for  the  criminal  offense  of  perjury
                pursuant  to  ¤  39-16-702.
          Subsection  (c)(2)  further  provides:
                If  the  State  intends  to  introduce  a  laboratory  report  and  affidavit  in  lieu  of  the  live
                testimony  of  the  laboratory  technician  as  authorized  by  this  subsection,  it  shall



            Page  2
                  provide  the  defendant  or  the  defendantÕs  attorney,  if  known,  with  a  copy  of  the  report
                  and  affidavit  at  least  five  (5)  days  prior  to  the  revocation  hearing.  (Emphasis  added).
            You  have  asked  whether  a  laboratory  report  concerning  a  defendantÕs  drug  test,  which  contains  all
            of  the  required  statutory  information,  but  signed  by  someone  other  than  the  technician  who  prepared
            the  drug  analysis,  is  admissible  in  a  probation  revocation  hearing.
                  The  language  of  ¤  40-35-311(c)(1)  and  (2)  appears  to  contemplate  that  the  affiant  be  the
            laboratory  technician  who  performed  the  tests  and  who  has  personal  knowledge  of  the  accuracy  of
            the  items  required  by  the  statute.  This  must  include  a  declaration  that  all  established  procedures  and
            protocols  were  followed.  Therefore,  it  is  the  opinion  of  this  Office  that  the  affidavit  accompanying
            a  laboratory  report,  as  required  pursuant  to  Tenn.  Code  Ann.  ¤  40-35-311(c)(1),  must  be  signed  by
            the  laboratory  technician  who  performed  the  test.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       JENNIFER  L.  BLEDSOE
                                                       Assistant  Attorney  General
            Requested  by:
                  Mike  Bottoms
                  District  Attorney  General
                  252  N.  Military,  Suite  202
                  Lawrenceburg,  TN  38464



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  20,  2004
                                      Opinion  No.  04-119
          Waivers  for  Certification  of  Reserve/Part-time/Full-time  Law  Enforcement  Officers 

                                        QUESTIONS

                1.    Whether  a  person  who  has  been  convicted  or  pleaded  guilty  to  or  entered  a  plea  of
          nolo  contendere  to  any  misdemeanor  charge  relating  to  force,  violence,  theft,  dishonesty,  gambling,
          liquor  or  controlled  substances,  may  be  granted  a  waiver  in  order  to  serve  as  a  reserve/part-time/full-time 
              law  enforcement  officer. 
                2.    Whether  a  person  who  has  been  convicted  or  pleaded  guilty  or  nolo  contendere  to  any
          misdemeanor  charge  relating  to  force,  violence,  theft,  dishonesty,  gambling,  liquor  or  controlled
          substances,  is  required  to  obtain  a  waiver  in  order  to  serve  as  a  reserve/part-time/full-time  law
          enforcement  officer  where  the  record  of  the  conviction  or  plea  has  been  officially  removed  by  a  court
          order  stating  that  the  personÕs  guilt  be  removed,  the  accusation  dismissed,  and  the  person  released
          from  all  penalties  and  disabilities  resulting  from  the  conviction  or  plea. 

                                         OPINIONS

                1.    Yes. Under  POST  Commission  Rules  1110-2-.03(1)(d)1.  and  1110-9-.04(1)(b),  a
          person  who  has  been  convicted  or  pleaded  guilty  or  nolo  contendere  to  a  misdemeanor  charge
          relating  to  force,  violence,  theft,  dishonesty,  gambling,  liquor  or  controlled  substances,  may  request
          and  be  granted  a  waiver  of  the  preemployment  requirements  relating  to  criminal  activity,  except  in
          cases  of  domestic  violence  and  those  involving  narcotics  violations  that  could  have  resulted  in  a
          felony  charge.
                2.    Yes. Tenn.  Code  Ann.  ¤  38-8-106(4)  makes  no  distinction  between  current
          convictions/pleas  and  those  that  have  been  expunged  by  order  of  a  court  of  competent  jurisdiction.
          Although  a  record  of  the  proceedings  related  to  such  convictions  or  pleas  may  be  expunged,  such
          convictions  or  pleas  nonetheless  remain  as  impediments  to  a  personÕs  service  as  a  police  officer  and
          a  waiver  of  preemployment  qualifications  is  required. 



            Page  2

                                               ANALYSIS

            1.  Waiver  eligibility

                  Tenn.  Code  Ann.  ¤  38-8-106(4)  and  POST  Commission  Rule  1110-2-.02(1)(d)  bar  any
            person  convicted  or  having  pleaded  guilty  or  nolo  contendere  to  Òany  violation  of  any  federal  or  state
            laws  or  city  ordinances  relating  to  force,  violence,  theft,  dishonesty,  gambling,  liquor  or  controlled
            substances,Ó  from  employment  as  a  police  officer  in  the  State  of  Tennessee.  This  provision  applies
            to  both  full-time  police  officers  and  Òany  person  employed/utilized  as  a  part-time/
                temporary/reserve/auxiliary  police  officer  or  as  a  special  deputy.Ó Tenn.  Code  Ann.  ¤  38-8-
            106(4).  However,  under  POST  Rules  1110-2-.02(1)(d)1.  and  1110-9-.04(1)(b),  the  Commission  may
            consider  a  waiver  for  criminal  activity  on  an  individual  basis  and  depending  on  the  circumstances.
            POST  Rule  1110-9-.04(1)(b)  specifically  sets  forth  the  limits  on  the  CommissionÕs  consideration  of
            waivers:
                  1. Waivers  may  be  granted  if  the  officer  has  been  convicted  of  or  pleaded  guilty  to
                     or  entered  a  plea  of  nolo  contendere  to  any  violation  of  any  federal  or  state  law  or
                     city  ordinance  (excluding  felony  charge  and  domestic  violence)  with  the  following
                     charges:
                     (i)  relating  to  force,  violence,  theft,  dishonesty,  gambling,  liquor  (including
                          driving  while  intoxicated);
                     (ii)  or  controlled  substances  when  the  offense  was  classed  as  a  misdemeanor.
                  The  rule  thus  allows  the  Commission  to  grant  waivers  except  where  the  criminal  activity  in
            question  was  charged  as  a  felony  or  where  it  was  a  case  of  domestic  violence. In  felony  cases  and
            misdemeanor  domestic  violence  cases,  a  waiver  may  not  be  granted. 

            2. Effect  of  expungement  on  requirement  for  waiver

                  In  an  earlier  opinion,  this  office  considered  whether  the  Peace  Officers  Standards  and
            Training Commission could consider a police officerÕs/applicantÕs conviction of a crime
            subsequently  expunged  or  diverted.  We  opined  that  Ò[t]he  Commission  may  consider  the  fact  that
            an  individual  has  been  convicted  of  one  of  the  crimes  enumerated  in  Tenn.  Code  Ann.  ¤  38-8-106(4)
            regardless  of  whether  the  conviction  has  been  expunged  or  whether  post-trial  (judicial)  diversion  was
            granted.Ó  Op.  Tenn.  AttÕy  Gen.  No.  00-026,  2000  WL  201993,  *1  (Tenn.A.G.,  Feb.  15,  2000).  We
            reasoned: 
                  It  appears  to  be  the  general  law  that  while  expungement  of  the  record  of  a  criminal
                  conviction  may  remove  many  of  the  disabilities  of  a  criminal  conviction,  it  does  not
                  remove  the  fact  of  a  conviction  for  purposes  of  determining  oneÕs  fitness  to  practice
                  a  particular  profession  or  calling.  .  .  .Because  ¤  38-8-106(4)  is  a  qualifications  section



            Page  3
                  for police officers, the Commission may consider the conviction despite an
                  expungement  of  the  record  of  such  conviction. 

            Id.  at  *2. 
                  POST  Rule  1110-2-.02(1)(d)3.  provides  that  Ò[a]  person  who  has  had  misdemeanor  charges
            expunged  may  be  considered  for  certification.Ó Further,  POST  Rule  1110-9-.04(1)(c)  allows  the
            Commission  to  consider  Òa  waiver  from  preemployment  requirements  relating  to  expungement  of
            charges  on  an  individual  basis  and  depending  on  the  circumstances.Ó  POST  Rule  1110-9-.04(1)(c)1.
            specifically  states  that  Ò[a]  waiver  may  be  considered  for  a  person  who  has  had  misdemeanor  charges
            expunged.Ó  However,  POST  Rule  1110-9-.04(1)(c)2.  specifically  prohibits  consideration  of  waivers
            where  expungements  were  granted  for  (1)  felony  convictions;  (2)  narcotics  violations  that  could  have
            resulted  in  felony  charges;  and  (3)  domestic  violence  convictions.
                  Because  convictions  and  pleas  for  certain  offenses,  including  misdemeanor  charges,  remain
            as  impediments  to  a  personÕs  qualification  to  serve  as  a  police  officer  even  after  the  record  of  such
            matter  has  been  expunged  by  order  of  the  court,  a  waiver  of  preemployment  requirements  is  required.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       BRENT  C.  CHERRY
                                                       Assistant  Attorney  General

            Requested  by:
                  TreÕ  Hargett
                  House  Republican  Leader
                  103  War  Memorial  Building
                  Nashville,  TN 37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  3,  2004
                                      Opinion  No.  04-012
          Beer  Permits  -  Distance  Requirement

                                        QUESTIONS

                     1.    If  a  county  legislative  body  had  passed  a  resolution  prohibiting  the  issuance
          of  a  beer  permit  for  locations  within  two  thousand  feet  of  schools,  churches,  or  other  places  of  public
          gathering,  and  later  issued  permits  in  violation  of  such  distance  requirement,  may  the  county
          legislative  body  at  a  later  date  readopt  such  a  distance  restriction,  the  effect  of  which  would  basically
          grandfather  all  such  permits  without  revoking  all  permits  issued  in  violation  of  the  earlier  adopted
          distance?
                     2.    If  the  answer  to  question  (1)  is  no,  may  a  county  legislative  body  adopt  a
          distance  requirement  of  less  than  two  thousand  feet  by  setting  the  distance  at  a  point  which  would
          basically  grandfather  all  permits  issued  in  violation  of  the  earlier  two  thousand  foot  distance?
                     3.    If  the  answer  to  question  (1)  is  no,  would  your  answer  change  if  the  following
          language,  revised  from  that  which  presently  applies  to  Tenn.  Code  Ann.  ¤  57-5-105(i),  were  added
          at  the  end  of  the  first  sentence  of  ¤  57-5-105(b)(1):
                     This  provision  shall  not  apply  to  locations  where  beer  permits  or
                     licenses  have  been  issued  prior  to  the  date  of  adoption,  or  readoption,
                     of  a  resolution  by  the  county  legislative  body  establishing  such  a
                     distance  requirement.



                                         OPINIONS

                     1.    No.
                     2.    Yes.
                     3.    Yes.



            Page  2

                                               ANALYSIS

                        1.    Tenn. Code Ann. ¤ 57-5-105(b)(1) provides that outside the limits of
            incorporated  cites  and  towns  in  Class  A  counties  (meaning  counties  without  a  metropolitan  form  of
            government):
                        (1) No  beer  will  be  sold  except  at  places  where  such  sale  will  not
                        cause  congestion  of  traffic  or  interference  with  schools,  churches,  or
                        other  places  of  public  gathering,  or  otherwise  interfere  with  public
                        health,  safety  and  morals,  the  county  legislative  body  having  the
                        right  to  forbid  such  storage,  sale  or  manufacture  at  places  within
                        two  thousand  feet  (2,000Õ)  of  such  places  of  public  gatherings  in  its
                        discretion. Nothing  in  this  subdivision  shall  apply  to  places  of
                        business  that  are  located  in  the  terminal  or  main  building  at  public
                        airports  serviced  by  commercial  airlines  with  regularly  scheduled
                        flights. (emphasis  added)
            In  the  hypothetical  county  which  is  the  subject  of  your  inquiry,  such  a  restriction  is  in  place;
            however,  for  some  reason  an  unknown  number  of  beer  permits  have  been  issued  which  allow  beer
            sales  less  that  2000  feet  from  such  locations. Your  question  relates  to  passing  a  new  2000  foot
            restriction  which  would  grandfather  in  these  erroneously  permitted  operations.
                        In  City  of  Murfreesboro  v.  Davis,  569  S.W.2d  805  (Tenn.  1978),  the  Tennessee
            Supreme  Court  held  that  when  such  a  restriction  has  been  discriminatorily  enforced,  the  effect  is  to
            invalidate  the  rule. The  court  stated:
                        Discriminatory  enforcement  of  a  beer  permit  distance  ordinance
                        cannot  be  rectified  by  post  facto  amendments. Restoration  of  the
                        validity  of  a  distance  ordinance  can  only  be  achieved  by  revocation
                        or  other  elimination,  such  as  attrition,  of  the  discriminatorily-issued
                        permits  and  licenses.
            569  S.W.2d  at  808.  See  also  Reagor  v.  Dyer  County,  651  S.W.2d  700  (Tenn.  1983);  Rutherford
            County  Beer  Board  v.  Adams,  571  S.W.2d  830  (Tenn.  1978);  Seay  v.  Knox  County,  541  S.W.2d  946
            (Tenn.  1976);  Serv-U-Mart,  Inc.  v.  Sullivan  County,  527  S.W.2d  121  (Tenn.  1975).
                        Addressing  the  same  issue,  this  office  stated  in  Opinion  No.  01-157  (copy  enclosed):
                              Thus,  if  a  county  has  issued  beer  permits  to  businesses  within
                        20  feet  of  a  church,  it  cannot  enforce  its  300  foot  distance  rule  so  long
                        as  such  a  business,  or  any  other  business,  continues  to  use  its  beer
                        permit  in  violation  of  the  rule.  A  county  that  has  not  enforced  or  has
                        discriminatorily  enforced  its  beer  permit  distance  rule  must  revoke  all



            Page  3
                        permits  issued  in  violation  of  the  distance  standard  it  seeks  to  apply
                        or  wait  for  those  permits  to  become  invalid  through  disuse,  close  of
                        business,  or  other  attrition  if  it  desires  to  enforce  the  rule  again.
                              Tenn.  Code  Ann.  ¤  57-5-108  details  the  processes  by  which
                        a  beer  board  or  other  appropriate  governmental  body  may  revoke  a
                        beer  permit  as  well  as  the  permissible  reasons  for  revoking  a  permit.
                        Yet,  a  beer  board  has  the  right  to  revoke  a  beer  permit  for  any  of  the
                        reasons  which  would  disqualify  an  applicant  for  a  beer  permit  in  the
                        first  instance. See  Midgett  v.  Smith,  591  S.W.2d  765  (Tenn.  1979).
                        If  a  business  did  not  qualify  for  a  beer  permit  in  the  first  instance
                        because  it  did  not  comply  with  the  distance  rule,  its  permit  is  subject
                        to  revocation,  so  long  as  the  county  uniformly  applies  the  rule,  and
                        revokes  all  permits  issued  in  violation  of  it  after  January  1,  1993.
            The  significance  of  the  January  1,  1993,  date  springs  from  Tenn.  Code  Ann.  ¤  57-5-109,  which
            provides:

                        57-5-109.  Proximity to schools, churches, places of public
                        gatherings.  Ñ  (a)  A  city  or  county  shall  not  suspend,  revoke  or  deny
                        a permit to a business engaged in selling, distributing or
                        manufacturing  beer  on  the  basis  of  the  proximity  of  the  business  to  a
                        school,  residence,  church,  or  other  place  of  public  gathering  if  a  valid
                        permit  had  been  issued  to  any  business  on  that  same  location  as  of
                        January  1,  1993. This  section  shall  not  apply  if  beer  is  not  sold,
                        distributed  or  manufactured  at  that  location  during  any  continuous
                        six-month  period  after  January  1,  1993.
                        (b)  For  the  purposes  of  this  section,  Òon  that  same  location  as  of
                        January  1,  1993Ó  means  within  the  boundaries  of  the  parcel  or  tract
                        of  the  real  property  on  which  the  business  was  located  as  of  January
                        1,  1993. The  provisions  of  this  section  apply  whether  or  not  a
                        business  moves  the  building  on  the  location  and  whether  or  not  the
                        business  was  a  conforming  or  nonconforming  use  at  the  time  of  the
                        move.
                        (c)  If  a  business  applies  for  a  beer  permit  within  the  continuous
                        six-month  period  referenced  in  this  section,  and  if  the  city  or  county
                        denies  the  business  a  permit  and  if  the  business  appeals  that  denial,
                        a  new  six-month  continuous  sale  period  shall  begin  to  run  on  the  date
                        when  the  appeal  of  that  denial  is  final.  [Acts  1993,  ch  297,  ¤9;  1997,
                        ch  560,  ¤1;  2002,  ch.  744,  ¤1.]



            Page  4

            The  facts  as  stated  in  your  question  indicate,  however,  that  the  non-conforming  permits,  whether
            issued  before  or  after  January  1,  1993,  were  not  valid  when  issued;  therefore  the  provisions  of  Tenn.
            Code  Ann.  ¤  57-5-109  do  not  apply.
                        Despite  the  language  in  City  of  Murfreesboro  v.  Davis  and  the  other  cases  above
            cited,  the  Tennessee  Court  of  Appeals  has  recently  held  that  if  a  distance  restriction  is  violated
            without  any  intent  of  discriminatory  enforcement,  it  may  not  thereby  become  invalid.  BoydÕs  Creek
            Enterprises,  LLC  v.  Sevier  County,  2002  WL  185474  (Tenn.  Ct.  App.  2002).  In  that  case,  the  county
            had  issued  a  permit  in  violation  of  its  2000-foot  restriction. Twelve  years  later,  it  was  argued  that
            this  action  invalidated  the  restriction. The  Court  rejected  the  view  that  Òone  inadvertently  issued
            permit  invalidated  the  ruleÓ  (emphasis  in  original)  and  stated  that  Òcircumstances  must  be  considered
            as  to  whether  the  issuance  constitutes  a  discriminatory  application  of  the  rule.  The  members  of  the
            Beer  Board  investigated  the  proposed  location  and  found  no  evidence  that  it  was  located  within  2000
            feet  of  a  place  of  public  gathering.  This  fact  weighs  heavily  against  an  indication  of  discriminatory
            application  and  thus  the  case  at  Bar  stands  in  sharp  contrast  to  Reagor,  Adams,  Serve-U-Mart,  Seay,

            and  others  cited  by  the  appellants.Ó Thus,  if  the  erroneous  permits  were  issued  inadvertently  and
            under  circumstances  that  do  not  show  any  discriminatory  intent,  the  distance  requirement  may  well
            remain  intact,  depending  on  the  circumstances.
                        If,  however,  there  was  a  discriminatory  application  of  the  rule,  it  was  invalidated  and
            can  only  be  reinstated  by  revocation  of  all  non-conforming  permits  not  protected  by  Tenn.  Code
            Ann.  ¤  57-6-109,  or  by  allowing  all  non-conforming  permits  to  expire  through  disuse  or  attrition.
            The  latter  method  may  prove  problematic  in  practice,  since  new  applicants  might  well  apply  for
            permits  before  existing  ones  terminate.  But  the  Tennessee  Supreme  Court  has  suggested,  in  Reagor
            v.  Dyer  County,  that  implementation  of  a  formal  ÒpolicyÓ  regarding  attrition,  such  as  not  renewing
            permits  for  new  owners  of  the  affected  locations,  might  be  sufficient  to  maintain  the  restriction  in
            force. 651  S.W.2d  at  701.
                        2.    Under  Tenn.  Code  Ann.  ¤  57-5-105(b)(1),  counties  many  impose  a  distance
            restriction  of  2000  feet  or  less  as  the  minimum  distance  from  a  church,  school,  or  public  gathering
            place  within  which  beer  can  be  sold. Youngblood  v.  Rutherford  County  Beer  Board,  707  S.W.2d
            507  (Tenn.  1986).  Relaxing  the  2000  foot  limit  could  result  in  bringing  the  non-compliant  locations
            into  compliance. If,  for  example,  all  the  permitted  locations  are  less  than  2000  feet,  but  more  than
            1000  feet,  from  a  church,  school,  or  public  gathering  place,  then  establishing  a  1000  foot  limit  would
            bring  them  into  conformity.  This  would  of  course  mean  that  any  future  applicant  located  outside  the
            new  limit  would  likewise  be  entitled  to  a  permit,  assuming  the  other  statutory  requirements  were
            met.  This  office  is  of  the  opinion  that  such  a  new  limit  would  not  be  a  post  facto  amendment  of  the
            vitiated  2000-foot  limit,  but  rather  would  be  a  new,  generally  applicable,  and  less  restrictive  limit,
            and  therefore  would  be  valid  and  enforceable,  if  adopted.
                        3.    This  office  is  of  the  opinion  that  the  legislation  proposed  in  the  third  question
            would  grandfather  preexisting  locations.  A  grandfather  clause  is  a  statutory  exemption  that  allows



            Page  5
            those  already  doing  something  that  violates  a  new  restriction  to  continue  doing  it,  when  they  would
            otherwise  be  stopped  by  the  new  law.  Outdoor  West  of  Tennessee,  Inc.  v.  City  of  Johnson  City,  39
            S.W.3d  131  (Tenn.  Ct.  App.  2000);  Teague  v.  Campbell  County,  920  S.W.2d  219  (Tenn.  Ct.  App.
            1995).  That  is,  in  fact,  what  the  date  restriction  in  Tenn.  Code  Ann.  ¤  57-5-109  accomplishes.  The
            statement  in  City  of  Murfreesboro  to  the  effect  that  the  only  way  to  reinstate  the  provisions  of  a
            discriminatorily  enforced  distance  limit  is  through  revocation  or  elimination  of  the  discriminatory
            permits  would  no  longer  apply  if  the  statute  were  thus  amended.






                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter



                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       STEPHEN  NUNN
                                                       Assistant  Attorney  General



            Requested  by:
                        The  Honorable  Charles  Curtiss
                        State  Representative
                        34  Legislative  Plaza
                        Nashville,  TN  37243-0143



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  20,  2004
                                      Opinion  No.  04-120
          State  Senate  Residency  Requirements

                                         QUESTION

                Where  a  single  county  lies  in  more  than  one  state  senatorial  district,  must  an  incumbent
          senator  reside  in  the  part  of  the  county  that  is  in  the  senatorÕs  district,  or  is  the  requirement  met  by
          living  in  any  part  of  that  county?

                                         OPINION

                The  Senate  is  the  sole  judge  of  the  qualifications  of  its  members.  Under  Article  II,  ¤  6a,  of
          the  Tennessee  Constitution,  a  senator  must  be  a  qualified  voter  of  the  district  he  or  she  represents
          throughout  the  senatorÕs  term.  Only  the  Senate  may  determine  whether  to  expel  an  individual  for
          moving  out  of  the  district  during  his  or  her  term.  But,  while  an  individual  may  qualify  as  a  candidate
          by  living  within  the  county  for  a  year  before  the  election,  he  or  she  must  be  a  qualified  voter  of  the
          district  he  or  she  represents  to  serve  in  the  office.  Thus,  under  the  StateÕs  voter  registration  laws  as
          they  currently  exist,  and  assuming  that  a  candidate  is  already  a  registered  voter  in  the  county  where
          the  district  he  or  she  seeks  to  represent  is  located,  a  candidate  must  be  a  resident  of  that  district  on
          the  day  of  the  election  in  order  to  be  a  qualified  voter.

                                         ANALYSIS

                This  opinion  concerns  the  residency  requirements  for  a  state  senator  who  lives  in  a  county
          that  lies  in  more  than  one  senatorial  district.  The  question  is  where  a  single  county  lies  in  more  than
          one  state  senatorial  district,  whether  an  incumbent  senator  must  reside  in  the  part  of  the  county  that
          is  in  the  senatorÕs  district,  or  whether  the  requirement  is  met  by  living  in  any  part  of  that  county.  We
          address  the  question  in  three  parts.  The  first  issue  is  the  effect  of  such  a  move  within  the  county,  but
          outside  the  district,  on  a  senatorÕs  right  to  remain  in  office  during  a  term.  Under  Article  II,  ¤  6a,  of
          the  Tennessee  Constitution,  Ò[e]ach  district  shall  be  represented  by  a  qualified  voter  of  that  district.Ó
          (Emphasis  added).  To  be  a  qualified  voter  of  the  district,  a  person  must  be  a  registered  voter.  Tenn.
          Const.  art.  IV,  ¤  1.  A  person  must  register  to  vote  in  the  precinct  in  which  the  person  is  a  resident.
          Tenn.  Code  Ann.  ¤  2-2-107(a). Status  as  a  qualified  voter,  and  therefore  residence  within  the
          district,  must  be  maintained  throughout  the  senatorÕs  term.  Op.  Tenn.  AttÕy  Gen.  97-133  (September
          23,  1997)  (interpreting  a  similar  requirement  for  representatives). 
                Once  assembled,  however,  each  House  of  the  General  Assembly  is  the  sole  judge  of  the



            Page  2
            qualifications  and  election  of  its  members. Tenn.  Const.  art.  II,  ¤  11;  Comer  v.  Ashe,  514  S.W.2d
            730  (Tenn.  1974)  (the  Senate  is  the  sole  and  exclusive  judge  of  the  qualifications  and  election  of  its
            members  after  that  particular  Senate  is  constituted  as  of  the  day  of  the  November  general  election);

            State  ex  rel.  Ezzell  v.  Shumate,  172  Tenn.  451,  113  S.W.2d  381  (1938)  (the  House  of  Representatives
            is  the  sole  judge  of  the  qualifications  of  its  members,  and  the  courts  have  no  jurisdiction  to  review
            a  decision  of  the  House,  which  held  that  a  member  of  the  House  did  not  vacate  his  seat  by  the
            acceptance of another lucrative office, notwithstanding Article II, ¤ 26, of the Tennessee
            Constitution);  Gates  v.  Long,  172  Tenn.  471,  113  S.W.2d  388  (1938). Further,  under  Article  II,  ¤
            12,  of  the  Tennessee  Constitution,  each  House  may  Òwith  the  concurrence  of  two-thirds,  expel  a
            member.Ó  For  this  reason,  it  is  wholly  within  the  power  of  the  Senate  to  determine  whether  one  of
            its  members  has  become  disqualified  for  the  office  by  moving  to  a  part  of  the  county  that  is  not
            within  his  or  her  senatorial  district. Once  a  state  senator  takes  the  oath  of  office,  the  only  way  that
            a  member  may  be  removed  from  office  is  by  expulsion  with  the  concurrence  of  two-thirds  of  the
            members  of  the  Senate  under  Article  II,  ¤  12,  of  the  Tennessee  Constitution. Op.  Tenn.  AttÕy  Gen.
            02-032  (March  15,  2002). 
                  The  next  issue  is  whether  an  incumbent  senator  who  has  moved  out  of  the  district  but  remains
            within  the  county  where  the  district  is  located  may  qualify  as  a  candidate  for  reelection. Article  II,
            ¤  10,  of  the  Tennessee  Constitution  provides  in  relevant  part:
                        No  person  shall  be  a  Senator  unless  he  shall  be  a  citizen  of  the  United
                        States,  of  the  age  of  thirty  years,  and  shall  have  resided  three  years  in
                        this State, and one year in the county or district, immediately
                        preceding  the  election.
            Under  this  provision,  therefore,  in  order  to  be  a  candidate  for  the  office  of  state  senator,  an  individual
            must  have  resided  for  one  year  Òin  the  county  or  districtÓ  immediately  preceding  the  election.  Under
            Tenn.  Code  Ann.  ¤  3-1-102(f),  Ò[a]  candidate  for  election  to  the  office  of  senator  shall  be  required
            to  reside  in  the  senatorial  district  from  which  such  candidate  seeks  to  be  elected  for  one  (1)  year
            immediately  preceding  the  election.Ó (Emphasis  added). This  Office  has  concluded  that,  under
            Article  II,  ¤  10,  of  the  Tennessee  Constitution,  where  a  county  lies  in  more  than  one  senatorial
            district,  a  candidate  for  the  office  of  state  senator  need  only  be  a  resident  of  the  county  for  more  than
            one  year  prior  to  election  as  qualification  for  any  one  of  the  state  senatorial  districts  that  are  part  of
            that  county. Op.  Tenn.  AttÕy  Gen.  90-61  (May  16,  1990);  State  ex  rel.  Sonnenburg  v.  Gaia,  717
            S.W.2d  883  (Tenn.  1986). Thus,  in  order  to  be  a  candidate  for  the  office  of  state  senator,  an
            individual  must  have  resided  for  one  year  in  any  part  of  a  county  that  is  part  of  the  senatorial  district.
            The  individual  is  not  required  to  have  lived  for  a  year  in  the  part  of  the  county  that  is  actually  in  the
            senatorial  district. To  the  extent  that  Tenn.  Code  Ann.  ¤  3-1-102(f)  imposes  a  more  stringent
            residency  requirement,  it  is  unconstitutional. 
                  The  issue  then  becomes  whether  a  senator  who  has  moved  out  of  the  district,  but  still  resides
            in  the  county  where  the  district  is  located,  must  be  a  qualified  voter  of  the  district  as  required  under
            Article  II,  ¤  6a,  of  the  Tennessee  Constitution,  to  appear  on  the  ballot  as  a  candidate  for  reelection.



            Page  3
            We  think  a  court  would  conclude  that,  in  order  to  qualify  as  a  candidate  for  the  Senate,  an  individual
            must  be  a  qualified  voter  Ñ  and  therefore  a  resident  Ñ  of  the  district,  at  the  latest,  on  the  day  of  the
            election.  Comer  v.  Ashe,  514  S.W.2d  730  (Tenn.  1974).  In  that  case,  the  Tennessee  Supreme  Court
            found  that  a  candidate  was  not  qualified  to  appear  on  a  ballot  for  the  State  Senate  because  he  would
            not  meet  the  minimum  constitutional  age  requirement  on  election  day. The  Court  found  that  it  had
            jurisdiction  to  determine  the  eligibility  of  a  candidate  for  the  State  Senate  in  the  general  election.
            The  Court  found  that  the  SenateÕs  exclusive  jurisdiction  to  determine  the  qualifications  and  election
            of  its  members  under  Article  II,  ¤  11,  of  the  Tennessee  Constitution  applied  only  after  the  particular
            Senate  was  constituted  on  election  day,  but  that  the  Senate  could  not  nullify,  abrogate,  or  alter  any
            determination  by  the  courts  in  a  cause  reviewed  prior  to  the  commencement  date  of  a  legislative
            term. 514  S.W.2d  at  741.
                  At  the  same  time,  this  Office  has  concluded  that,  under  the  StateÕs  voter  registration  laws,
            a  candidate  must  be  a  resident  of  the  district  he  or  she  seeks  to  represent  for  at  least  thirty  days  prior
            to  the  general  election.  Op.  Tenn.  AttÕy  Gen.  U91-143  (November  21,  1991). This  conclusion  was
            based  on  the  registration  requirements  of  Tenn.  Code  Ann.  ¤  2-2-109. Since  that  opinion  was
            written,  the  registration  statutes  have  been  amended.  Tenn.  Code  Ann.  ¤  2-2-109(a)  now  provides:
                        A  qualified  voter  may  register  or  have  the  voterÕs  registration  altered
                        at  the  commission  office  at  any  time  the  office  is  open,  except  that
                        applications  for  registration  shall  not  be  processed  for  twenty-nine
                        (29)  days  before  an  election;  provided,  that  a  qualified  voter  may  file
                        a  mail  registration  form  by  postmarking  the  registration  form  or
                        submitting  the  registration  form  thirty  (30)  days  before  an  election.
                        A  mail  registration  form  lacking  a  postmark,  but  signed  and  dated  at
                        least  thirty  (30)  days  before  an  election,  shall  be  timely  filed  if  it  is
                        received  by  the  county  election  commission  no  later  than  the  twenty-seventh 
                               day  prior  to  the  election. A  qualified  voter  may  correct  a
                        deficient  but  timely  filed  mail  registration  form  if  the  voter  comes  to
                        the  commission  office  no  later  than  five  (5)  days  before  the  election
                        and  presents  the  rejection  of  registration  notice  to  the  administrator
                        of  elections.  The  administrator  shall  register  the  person  to  vote  if  the
                        person  is  otherwise  eligible  to  register. The  administrator  shall  be
                        empowered  to  update  an  existing  registration  until  no  later  than  five
                        (5)  days  before  an  election  to  place  it  within  the  correct  precinct  in
                        the  county  when  a  voter  changes  the  voterÕs  address  through  the
                        process  described  in  ¤  2-7-140.

            (Emphasis  added).
                  Additionally, both the statutes governing the procedures for voting and residency
            requirements  have  been  amended  since  this  Office  opined  that  a  candidate  must  be  a  resident  of  the
            district  he  or  she  seeks  to  represent  for  at  least  thirty  days  prior  to  the  general  election. Tenn.  Code



            Page  4
            Ann.  ¤  2-7-112(a)  now  provides  in  part:
                        A  voter  shall  sign  an  application  for  ballot,  indicate  the  primary  in
                        which  the  voter  desires  to  vote,  if  any,  and  present  it  to  a  registrar.
                        The  application  for  ballot  shall  include  thereon  a  space  for  the  address
                        of  the  voterÕs  current  residence,  and  the  voter  shall  write  or  print  such
                        address  on  the  application  when  the  voter  signs  it.  The  registrar  shall
                        compare  the  signature  and  information  on  the  application  with  the
                        signature  and  information  on  the  duplicate  permanent  registration
                        record.  The  registrar  shall  make  a  determination  whether  the  voterÕs
                        address is different from the address on the voterÕs permanent
                        registration  record  or  if  the  registration  is  in  inactive  status. If  the
                        voter  has  changed  residence,  or  the  voterÕs  registration  is  inactive,
                        the  registrar  shall  follow  the  procedures  for  voting  pursuant  to  ¤  2-7-
                        140.

            (Emphasis  added).
            Similarly,  Tenn.  Code  Ann.  ¤  2-7-115(a)  provides  that  Ò[a]  voter  may  vote  only  in  the  precinct  where
            the  voter  resides  and  is  registered,  but  if  a  registered  voter  has,  at  any  time  prior  to  voting,  changed
            residence  to  another  place  inside  the  county,  the  voter  must  vote  pursuant  to  the  provisions  of  ¤  2-7-140.

                  Under  Tenn.  Code  Ann.  ¤  2-7-140(c),  a  registered  voter  of  the  county  who  has  changed
            residence  to  a  new  address  within  the  county  of  registration,  but  outside  the  voterÕs  former  voting
            precinct,  must  make  a  written  affirmation  of  the  voterÕs  current  address  and  that  the  voter  is  entitled
            to  vote  before  voting.  Upon  presenting  the  affirmation  at  the  new  polling  location  and  verification
            that  the  new  address  is  within  that  precinct,  the  voter  shall  then  be  allowed  to  vote  using  the  same
            method  as  any  other  voter  at  the  polling  place.
                  Thus,  under  the  StateÕs  voter  registration  laws  as  they  currently  exist,  and  assuming  that  a
            candidate  is  already  a  registered  voter  in  the  county  where  the  district  he  or  she  seeks  to  represent
            is  located,  a  candidate  must  be  a  resident  of  that  district  on  the  day  of  the  election  in  order  to  be  a
            qualified  voter.


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General



            Page  5



                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Larry  Trail
                  State  Senator
                  Suite  8A,  Legislative  Plaza
                  Nashville,  TN  37243-0216



                          See, e.g.,  Tuggle  v.  Allright  Parking  Systems,  Inc.,  922  S.W.2d  105,  107  (Tenn.  1996);  National  Gas  1

                 Distributors,  Inc.  v.  State,  804  S.W.2d  66,  67  (Tenn.  1991);  Worrall  v.  Kroger  Co.,  545  S.W.2d  736,  738  (Tenn.  1977). S  T  A  T  E  O  F  T  E  N  N  E  S  S  E  E

                                                                OFFICE  OF  THE

                                                           ATTORNEY  GENERAL
                                                            425  Fifth  Avenue  North
                                                   NASHVILLE,  TENNESSEE  37243-0497

                                                                 July  22,  2004
                                                             Opinion  No.  04-121
                 Local  government  use  of  federal  general  service  administration  contracts;  Tenn.  Code  Ann.  ¤  12-3-
                 1001(c)

                                                                 QUESTION

                         May  local  governments  legally  make  purchases  through  federal  general  service
                 administration  (ÒGSAÓ)  contracts  pursuant  to  Tenn.  Code  Ann.  ¤  12-3-1001(c)?

                                                                  OPINION

                         Yes,  but  only  to  the  extent  permitted  by  federal  law  or  regulations.

                                                                 ANALYSIS

                         Your  question  seeks  to  determine  whether  local  governments  may  purchase  through  federal
                 GSA  contracts  pursuant  to  Tenn.  Code  Ann.  ¤  12-3-1001(c).  Tenn.  Code  Ann.  ¤  12-3-1001(c)  states
                 as  follows:
                                  (c)     To  the  extent  permitted  by  federal  law  or  regulations,  local
                                  governments  may  make  purchases  of  goods,  except  motor  vehicles,
                                  or services included in federal general service administration
                                  contracts  or  other  applicable  federal  open  purchase  contracts  either
                                  directly or through the appropriate state department or agency;
                                  provided,  that  no  purchase  under  this  section  shall  be  made  at  a  price
                                  higher than that which is contained in the contract between the
                                  general  service  administration  and  the  vendor  affected.
                         One  of  the  most  basic  principles  of  statutory  construction  requires  the  interpreter  to  ascertain
                 and give effect  to  the  intention  and  purpose  of  the  legislature.  That  intent  and  purpose  is  to  be
                 ascertained  primarily  from  the  natural  and  ordinary  meaning  of  the  language  used,  eschewing  any
                 forced  or  subtle  constructions  that  might  artificially  limit  or  extend  the  meaning  of  the  language.1

                 Where  the  statutory  language  is  plain,  clear,  and  unambiguous,  one  must  avoid  any  interpretation  or



            Page  2








































                   Tuggle  v.  Allright  Parking  Systems,  Inc.,  922  S.W.2d  at  107.  2


                   The  issue  whether  federal  law  or  regulation  allows  local  governments  to  use  GSA  contracts  is  beyond  the  3

            scope  of  this  opinion.  It  appears,  however,  that  federal  law  permits  only  limited  purchases  through  GSA  contracts.  See
            e.g.,  40  U.S.C.A.  ¤  502(c)  (stating  that  GSA  Administrator  may  provide  for  use  by  state  or  local  governments  of
            GSA/federal  supply  schedules  for  automated  data  processing  equipment,  software,  supplies,  support  equipment  and
            services);  10  U.S.C.A.  ¤  381  (state  and  local  governments  authorized  to  purchase  law  enforcement  equipment  through
            Federal  procurement  channels,  including  GSA,  provided  that  the  equipment  is  used  in  the  performance  of  Òcounter-drug
            activitiesÓ).  construction  that  departs  from  the  words  of  the  statute.  2


                  Under  a  plain  reading  of  Tenn.  Code  Ann.  ¤  12-3-1001(c),  local  governments  may  purchase
            goods  or  services,  other  than  motor  vehicles,  through  federal  GSA  contracts. The  statute  does
            clarify,  however,  that  such  purchases  may  be  made  Òto  the  extent  permitted  by  federal  law  or
            regulations.Ó Additionally,  even  if  permitted  under  federal  law  and  regulations,  a  local  government  3

            may  not  purchase  through  a  GSA  contract  if  the  price  of  the  good  or  service  is  cheaper  under  a
            contract  between  the  Tennessee  Department  of  General  Services  and  a  vendor. 


                                                       __________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       __________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       __________________________________ 
                                                       EUGENIE  B.  WHITESELL
                                                       Senior  Counsel



            Page  3



            Requested  by:
            Senator  Bill  Ketron
            305  War  Memorial  Building
            Nashville,  TN  37243-0201



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  26,  2004
                                      Opinion  No.  04-122
          JudgeÕs  Authority  to  Order  a  DUI  Offender  to  Attend  an  Exclusive  State-Certified  DUI  School

                                        QUESTIONS

                1.    If  a  county  government  has  authorized  the  sheriff  to  enter  into  a  contract  with  a  state-certified 
                 DUI  school  to  provide  the  mandatory  schooling  required  by  Tenn.  Code  Ann.  ¤55-10-403,
          may  the  probation  order  of  a  general  sessions  judge  require  a  person  convicted  of  driving  under  the
          influence  to  attend  the  sheriffÕs  school  to  the  exclusion  of  all  other  state-certified  DUI  schools?
                2.    May  a  general  sessions  court  judge  select,  within  his  or  her  discretion,  a  certified  DUI
          school  and  use  such  school  exclusively  to  fulfill  the  requirements  of  Tenn.  Code  Ann.  ¤  55-10-403.


                                         OPINIONS

                1.    Yes.  Tenn.  Code  Ann.  ¤  55-10-403(a)(1)  gives  a  general  sessions  judge  the  authority
          to  choose  a  school  in  which  a  DUI  offender  may  participate.

                2.    Yes.  Tenn.  Code  Ann.  ¤  55-10-403(c)  provides  that  the  judge  has  the  discretion  to
          impose  any  condition  of  probation  which  is  reasonably  related  to  the  offense.


                                         ANALYSIS

                Under  Tenn.  Code  Ann.  ¤  55-10-403  (penalties  for  driving  under  the  influence  of  an
          intoxicant),  a  trial  court,  as  a  condition  of  probation,  is  required  to  order  an  offender  to  participate
          in  an  alcohol  and  drug  safety  DUI  school,  and/or  drug  offender  school  program,  if  available.  Tenn.
          Code  Ann.  ¤  55-10-403  (a)(1)  and  (4)(B)(c).  Tenn.  Code  Ann.  ¤  55-10-403(c)  provides: 
                All  persons  sentenced  under  subsection  (a)  shall,  in  addition  to  service  of  at  least  the
                minimum  sentence,  be  required  to  serve  the  difference  between  the  time  actually
                served  and  the  maximum  sentence  on  probation. The  judge  has  the  discretion  to
                impose  any  conditions  of  probation  which  are  reasonably  related  to  the  offense,  but
                shall  impose  the  following  conditions:
                (1)  Participation  in  an  alcohol  and  drug  safety  DUI  school,  and/or  drug  offender



            Page  2  Page  2
                  school  program,  if  available;  or 
                  (2)  Upon  the  second  or  subsequent  conviction  for  violating  the  provisions  of  ¤
                  55-10-401  or  ¤  39-17-418,  involving  the  possession  of  a  controlled  substance,
                  participation  in  a  program  of  rehabilitation  at  an  alcohol  or  drug  treatment  facility,
                  if  available;  and 
                  (3)  The  payment  of  restitution  to  any  person  suffering  physical  injury  or  personal
                  losses  as  the  result  of  such  offense  if  such  person  is  economically  capable  of  making
                  such  restitution. 
                  The  legislative  intent  of  a  statute  must  be  determined  from  its  plain  language  and  should  be
            construed  in  accordance  with  its  ordinary  meaning.  Dunn  v.  Hackett,  833  S.W.2d  78,  81  (Tenn.
            Crim.  App.  1992;  Montgomery  v.  Hoskins,  432  S.W.2d  654,  655  (1968);  State  v.  Rollins,  785
            S.W.2d  129,  131  (Tenn.  Crim.  App.  1989).  Tenn.  Code  Ann.  ¤  55-10-403(c)  specifically  provides
            that  the  judge  has  the  discretion  to  impose  any  conditions  of  probation  which  are  reasonably  related
            to  the  offense.  The  statute  does  not  purport  to  direct  the  use  of  any  particular  DUI  school,  but  seems
            to  leave  the  choice  up  to  the  sentencing  judge. Therefore,  it  appears  that  a  general  sessions  judge
            may  order  a  DUI  offender  to  attend  a  particular  state-certified  DUI  school  to  the  exclusion  of  all
            others  as  long  as  the  choice  is  Òreasonably  relatedÓ  to  the  offense. 




                                                       PAUL  G. SUMMERS
                                                       Attorney  General

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       JENNIFER  L.  BLEDSOE
                                                       Assistant  Attorney  General



            Page  3  Page  3
            Requested  by:
                  Ward  Crutchfield
                  Senator
                  Legislative  Plaza,  Suite  13
                  Nashville,  TN  37243



                       Tenn.  Code  Ann.  ¤  49-3-354.  1


                       Tenn.  Code  Ann.  ¤  49-3-351(d).  2                      S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                                          OFFICE  OF  THE

                                                      ATTORNEY  GENERAL
                                                      425  Fifth  Avenue  North
                                               NASHVILLE,  TENNESSEE  37243-0497

                                                          July  26,  2004
                                                       Opinion  No.  04-123
               Adjustments  in  Basic  Education  Program  funds  based  on  transfer  of  school  or  annexation  of  school
               by  another  LEA. 


                                                          QUESTIONS

                       1.     The  Memphis  City  Board  of  Education  (ÒCity  BoardÓ)  and  the  Shelby  County  Board
               of  Education  (ÒCounty  BoardÓ)  executed  a  joint  construction  and  operation  agreement  for  a  high
               school  in  Cordova  in  June  of  1996,  providing  that  said  school  would  be  operated  for  seven  (7)  years
               by  the  County  Board  and  thereafter  would  pass  to  and  be  financed,  operated,  maintained  and  staffed
               by  the  City  Board. If  this  transfer  was  effective  at  the  end  of  the  2003-2004  school  year,  does  Tenn.
               Code  Ann.  ¤  49-3-317  require  the  City  Board  to  receive  the  Fiscal  Year  2004-2005  Basic  Education
               (ÒBEPÓ) funds for the students currently attending Cordova High School who shall be the
               responsibility  of  the  City  Board  to  educate  in  the  2004-2005  school  year?
                       2.     If  a  school  operated  by  the  County  Board  has  been  annexed  into  the  City  of  Memphis
               and  the  responsibility  to  educate  those  students  transfers  to  the  City  Board,  does  Tenn.  Code  Ann.
               ¤  49-3-317  require  that  the  BEP  funding  for  the  next  school  year  be  adjusted  to  reflect  the  shift  of
               students  from  the  County  Board  to  the  City  Board?

                                                           OPINIONS

                       1.     No. The  City  is  not  required  to  receive  those  funds,  but  Tenn.  Code  Ann.  ¤  49-3-317
               grants  the  Commissioner  authority  to  determine  which  LEA  should  receive  the  BEP  funds  in  such
               a  situation. 
                       2.     No. See  Question  1.

                                                           ANALYSIS

                       The  Commissioner  of  Education distributes  BEP  funds  to  each  Local  Education  Agency  1

               (ÒLEAÓ)  according  to  the  prior  yearÕs  Average  Daily  Membership  (ÒADMÓ)  in  each  LEA.  Even  2



            Page  2





































                   Tenn.  Code  Ann.  ¤  49-3-354(a).  BEP  funds  are  distributed  monthly  from  August  through  April  of  each  school  3

            year.  Tenn.  Code  Ann.  ¤  49-3-314(b).
                   Tenn.  Code  Ann.  ¤  49-3-314(c)(1)  (emphasis  added).  4


                   Tenn.  Code  Ann.  ¤  49-3-351(d)  states  that  when  the  current  yearÕs  ADM,  FTEADM  (Full  time  equivalent  5

            average  daily  membership)  and  I&S  (identified  and  served  special  education  students)  exceeds  the  prior  yearÕs  total  by
            more  than  two  percent  (2%),  Òthen  that  LEAÕs  allocation  of  state  funds  shall  be  calculated  on  the  basis  of  the  current
            year  ADM,  FTEADM,  and  I&S  less  the  first  two  percent  (2%)  by  which  it  exceeds  the  prior  year  ADM,  FTEADM,  and
            I&S.Ó 
                   Tenn.  Code  Ann.  ¤  49-3-317.  6 though  BEP  funding  is  based  on  an  LEAÕs  prior  year  ADM,  funding  is  distributed  to  pay  for  the

            current  yearÕs  expenditures. The  BEP  does  not  reimburse  LEAs  for  the  cost  of  educating  the
            previous  yearÕs  students. The  BEP  provides  LEAs  the  funds  necessary  to  educate  the  students
            currently  enrolled.  Funds  are  distributed  Òperiodically  throughout  the  school  year.Ó ÒNo  LEA  shall  3

            use  state  funds  to  supplant  total  local  current  operating  funds.Ó Only  if  an  LEA  experiences  a  4

            significant  increase  in  enrollment  from  one  year  to  the  next  is  an  exception  made  and  the  BEP
            calculated  on  the  current  yearÕs  total  membership.5


                  Tenn.  Code  Ann.  ¤  49-3-317(c)  grants  the  Commissioner  the  authority  to  adjust  the
            distribution  of  BEP  funds  when  students  shift  from  one  LEA  to  another  after  the  beginning  of  the
            previous  school  term:

                  (c)(1)  If,  as  of  July  1  of  any  school  year,  there  has  been  a  change  since  the  beginning
                  of  the  previous  school  term  in  the  boundaries  of  an  LEA  or,  pursuant  to  ¤  49-2-106,
                  the  creation  or  reactivation  of  an  LEA,  involving  the  shift  of  students  from  one  (1)
                  LEA  to  another,  then,  in  the  distribution  of  state  education  funds,  the  commissioner
                  shall  determine,  on  the  basis  of  information  submitted  to  the  commissioner  by  the
                  appropriate  boards,  the  ADM  of  students  residing  in  such  affected  area,  involved  in
                  such  shift.
                  (2)  The  commissioner  shall  make  such  adjustments  in  the  ADM  as  may  be  necessary
                  to  effectuate  an  equitable  distribution  and  division  of  funds  as  between  the  LEAs
                  operating  a  system  of  public  schools  therein;  and  such  adjusted  ADM  shall  be  used
                  in  making  the  apportionment  and  distribution  of  state  education  funds.  6


                  Tenn.  Code  Ann.  ¤  49-3-317  contemplates  the  type  of  situation  outlined  in  your  request:  a
            move  of  a  significant  number  of  students  from  one  LEA  to  another  because  of  school  closings,
            openings  or  other  reasons. In  the  situation  you  outlined,  an  LEA  has  assumed  responsibility  for
            educating  all  the  students  in  a  high  school  for  which  it  did  not  have  responsibility  the  previous  year.
            If  the  Commissioner  did  not  adjust  the  current  yearÕs  BEP  distribution,  the  City  would  be  forced  to
            operate  without  enough  money  to  educate  these  new  students.  Meanwhile,  the  County  would  receive



            Page  3













































                   When  interpreting  statutes,  interpreters  should  avoid  any  Òforced  or  subtle  constructionÓ  that  might  artificially  7

            limit  or  extend  the  meaning  of  the  language.  Tuggle  v.  Allright  Parking  Sys.,  Inc.,  922  S.W.2d  105,  107  (Tenn.  1996).
            Where  the  statutory  language  is  plain,  clear,  and  unambiguous,  one  must  avoid  any  interpretation  or  construction  that
            departs  from  the  words  of  the  statute.  Tuggle,  922  S.W.2d  at  107.  a  significant  amount  of  BEP  funds  meant  to  pay  for  educating  students  no  longer  attending  its
            schools.  The  plain  language  of  Tenn.  Code  Ann.  ¤  49-3-317  grants  the  Commissioner  the  authority
            to  adjust  the  distribution  of  BEP  funds  in  these  kinds  of  situations.7



                                                       __________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       __________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       __________________________________ 
                                                       RICHARD  F.  HAGLUND  III
                                                       Assistant  Attorney  General

            Requested  by:
                  Lana  C.  Seivers,  Ed.  D.
                  Commissioner
                  Department  of  Education
                  9th  Floor,  Andrew  Johnson  Tower
                  710  James  Robertson  Parkway
                  Nashville,  TN  37243-0375



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                         July  27,  2004
                                      Opinion  No.04-124
          Effect  of  Tenn.  Code  Ann.  ¤  40-6-215  on  Type  of  Process  Available  to  Initiate  Contempt  Proceeding
          for  Non-Payment  of  Court-Ordered  Fine

                                         QUESTION

                Does  the  enactment  of  Tenn.  Code  Ann.  ¤  40-6-215  eliminate  the  option  of  issuing  a
          Òcontempt  warrantÓ  when  a  defendant  has  failed  to  pay  fines  that  he  or  she  has  been  ordered  to  pay
          by  the  court?


                                         OPINION

                No.  The  provisions  of  Tenn.  Code  Ann.  ¤¤  40-6-210Ñ40-6-216,  which  include  ¤  40-6-215,
          do  not  apply  to  the  issuance  of  process  by  a  court  to  initiate  a  contempt  proceeding  for  the  non-payment 
                 of  a  court-ordered  fine. 


                                         ANALYSIS

                Title  40,  Part  6,  Chapter  2,  Tennessee  Code  Annotated  (¤¤  40-6-201Ñ40-6-216  (2000)),
          governs  arrest  warrants.  Section  40-6-201  defines  a  warrant  of  arrest  as  Òan  order,  in  writing,  stating
          the  substance  of  the  complaint,  directed  to  a  proper  officer,  signed  by  a  magistrate,  and  commanding
          the  arrest  of  the  defendant.Ó The  succeeding  statutes  in  Chapter  2  address  various  technical
          requirements  for  arrest  warrants.  Two  of  these  statutes  provide,  under  certain  circumstances,  for  a
          criminal  summons  in  lieu  of  an  arrest  warrant.  Section  40-6-205  provides:

                     If  the  magistrate  is  satisfied  from  the  written  examination  that  there
                     is  probable  cause  to  believe  the  offense  complained  of  has  been
                     committed  and  that  there  is  probable  cause  to  believe  the  defendant
                     has  committed  it,  then  the  magistrate  shall  issue  a  warrant  of  arrest.
                     The  finding  of  probable  cause  shall  be  based  on  evidence,  which  may
                     be  hearsay  in  whole  or  in  part;  provided,  there  is  a  substantial  basis
                     for  believing  the  source  of  the  hearsay  to  be  credible  and  for  believing
                     that  there  is  a  factual  basis  for  the  information  furnished.  If  the  affiant
                     is  not  a  law  enforcement  officer,  as  defined  by  ¤  39-11-106(21),  or  if



            Page  2
                        none of the affiants in the case of multiple-affiants is a law
                        enforcement  officer,  as  defined  by  ¤  39-11-106(21),  then  a  criminal
                        summons  as  provided  in  ¤  40-6-215  shall  issue  instead  of  a  warrant
                        of  arrest;  provided,  however,  that  in  the  case  of  multiple-affiants,  if
                        one  or  more  of  the  affiants  is  a  law  enforcement  officer  as  defined  by
                        ¤  39-11-106(21),  then  the  magistrate  may  issue  a  warrant  of  arrest;
                        provided,  further,  that  if,  after  examination  of  the  affiant  and  the
                        affidavit  of  complaint,  the  magistrate  has  probable  cause  to  believe
                        that the issuance of a warrant of arrest rather than a criminal
                        summons  is  necessary  to  prevent  an  immediate  threat  of  imminent
                        harm  to  a  victim  as  defined  in  ¤  36-3-601(8),  and  makes  a  written
                        finding  of  fact  that  an  arrest  warrant  rather  than  a  criminal  summons
                        is necessary, the magistrate may issue a warrant of arrest
                        notwithstanding  the  fact  that  the  affiant  is  not  a  law  enforcement
                        officer,  or,  in  the  case  of  multiple-affiants,  that  none  of  the  affiants  is
                        a  law  enforcement  officer. 

            Section  40-6-215,  to  which  the  opinion  request  refers,  also  provides,  in  pertinent  part:

                        (a)  As  an  alternative  to  a  warrant  of  arrest  as  provided  in  ¤¤  40-6-
                        201Ñ  40-6-214,  the  magistrate,  judge  or  clerk  may  issue  a  criminal
                        summons  instead  of  a  warrant  of  arrest  except  when  an  affiant  is  not
                        a  law  enforcement  officer  as  defined  by  ¤  39-11-106(21),  or  none  of
                        the  affiants  in  the  case  of  multiple-affiants  is  a  law  enforcement
                        officer as defined by ¤ 39-11-106(21), in which instance the
                        magistrate,  judge  or  clerk  shall  issue  a  summons;  provided,  however,
                        that  if,  after  examination  of  the  affiant  and  the  affidavit  of  complaint,
                        the  magistrate  or  judge  has  probable  cause  to  believe  that  the  issuance
                        of  a  warrant  of  arrest  rather  than  a  criminal  summons  is  necessary  to
                        prevent  an  immediate  threat  of  imminent  harm  to  a  victim  as  defined
                        in  ¤  36-3-601(8),  and  makes  a  written  finding  of  fact  that  an  arrest
                        warrant  rather  than  a  criminal  summons  is  necessary,  the  magistrate
                        or  judge  may  issue  a  warrant  of  arrest  notwithstanding  the  fact  that
                        the  affiant  is  not  a  law  enforcement  officer,  or,  in  the  case  of
                        multiple-affiants,  that  none  of  the  affiants  is  a  law  enforcement
                        officer.

                  This  series  of  statutes  (¤¤  40-6-201Ñ40-6-216)  clearly  contemplates  an  arrest  warrant  or
            summons  for  a  person  suspected  of  committing  a  criminal  offense.  For  example,  ¤  40-6-201  refers
            to  the  subject  of  the  warrant  as  Òthe  defendant.Ó  And  ¤¤  40-6-203Ñ40-6-205  require  the  preparation
            of  an  affidavit  of  complaint;  a  presentation  to,  and  an  examination  by,  a  magistrate;  and  a  finding
            of  probable  cause  before  a  warrant  is  issued.  Most  of  these  requirements  are  echoed  in  the  Rules  of



            Page  3
            Criminal  Procedure,  see  Rule  4,  Tenn.R.Crim.P.,  which  apply  only  to  Òcriminal  proceedings.Ó  See

            Rules  1  and  2,  Tenn.R.Crim.P.
                  But  a  contempt  proceeding  is  not  a  criminal  prosecution.  Bowdon  v.  Bowdon,  198  Tenn  143,
            146-47,  278  S.W.2d  670  (1955)  (Òcontempt  proceedings  are  sui  generisÑneither  a  civil  action  nor
            a  criminal  prosecution  as  ordinarily  understood.  .  .  .Ó). Furthermore,  our  contempt  statutes  do  not
            speak  in  terms  of  the  issuance  of  an  arrest  ÒwarrantÓ  for  contempt,  but  rather  of  the  issuance  of  an
            ÒattachmentÓ  of  the  person.  See,  e.g.,  Tenn.  Code  Ann.  ¤  29-9-102  (2000)  (referring  to  the  Òpower
            of  the  several  courts  to  issue  attachments[  ]  and  inflict  punishments  for  contempts  of  courtsÓ);  ¤  29-
            9-106  (providing  for  bail  Ò[u]pon  an  attachment  to  answer  for  a  contemptÓ). Although  the  order
            commanding  that  the  contemnor  be  taken  into  custody  may  be  loosely  described  as  a  ÒwarrantÓ  or
            Òbench  warrant,Ó  it  is,  strictly  speaking,  not  of  the  species  of  warrants  contemplated  by  ¤¤  40-6-
            201Ñ40-6-216. Thus,  in  all  likelihood,  the  General  Assembly  did  not  intend  those  provisions  to
            apply  to  contempt  proceedings.  Therefore,  it  is  the  opinion  of  the  office  that  Tenn.  Code  Ann.  ¤  40-
            6-201Ñ40-6-216,  including  ¤  40-6-215  to  which  the  request  refers,  do  not  apply  to  the  issuance  of
            process  by  a  court  to  initiate  a  contempt  proceeding  for  the  non-payment  of  a  court-ordered  fine.




                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       GORDON  W.  SMITH
                                                       Associate  Solicitor  General

            Requested  by:
                  The  Honorable  Curtis  Person,  Jr.
                  State  Senator
                  Thirty-first  Senatorial  District
                  Suite  308,  War  Memorial  Building
                  Nashville,  Tennessee  37243-0031



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                       OFFICE  OF  THE

                                    ATTORNEY  GENERAL
                                       P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202

                                       August  10,  2004
                                      Opinion  No.  04-125
          Authority  of  School  Board  to  Hold  Referendum  on  County  Property  Tax  Rate 

                                         QUESTION

                Does  the  Clarksville-Montgomery  County  Board  of  Education  have  authority  to  call  for  a
          referendum  election  on  the  question  of  the  appropriate  property  tax  rate  in  Montgomery  County
          pursuant  to  Section  10  of  the  Unification  Plan  for  the  Clarksville-Montgomery  County  School
          System?

                                         OPINION

                No. The  Clarksville-Montgomery  County  Board  of  Education  lacks  authority  to  hold  a
          referendum  to  establish  Montgomery  CountyÕs  property  tax  rate.

                                         ANALYSIS

                In  1994,  the  Attorney  GeneralÕs  Office  opined  that  Ò[a]ll  counties  .  .  .  must  follow  the  general
          law  concerning  the  setting  of  the  county  property  tax  rate,  which  does  not  allow  for  submitting  a  rate
          increase  to  the  votersÓ  by  referendum.  Op.  Tenn.  AttÕy  Gen.  No.  94-008  (Jan.  14,  1994).  In  support
          of  this  opinion,  we  explained:
                           Article  II,  Section  29  authorizes  the  General  Assembly  to
                     delegate  the  power  of  property  taxation  to  counties  and  cities.  The
                     General  Assembly  has  implemented  this  provision  by  a  general
                     statute  applicable  to  all  counties,  T.C.A.  ¤  67-5-102,  and  which  states
                     that  the  amount  of  the  tax  is  to  be  fixed  by  the  county  legislative
                     body. T.C.A.  ¤  67-5-510  further  specifies  the  time  at  which  such
                     property  tax  rates  are  to  be  set  by  the  county  commissions.  Numerous
                     other  code  provisions  specify  the  precise  manner  in  which  county
                     property  taxes  are  to  be  levied  and  administered,  all  under  the
                     oversight  of  the  State  Board  of  Equalization.  T.C.A.  ¤¤  67-5-1501  et
                     seq.  Imposition  of  a  requirement  of  a  public  referendum  to  increase
                     the  property  tax  rate  is  not  permitted  under  any  of  these  statutes  and



            Page  2

                        would  be  fundamentally  inconsistent  with  their  provisions. Such  a
                        referendum  requirement  would  thus  violate  the  general  law  applicable
                        to  all  95  counties.
                              In  conclusion,  our  current  statutes  require  the  county  property
                        tax rate to be set annually by the county commission.  The
                        requirement  of  a  public  referendum  for  a  rate  increase  would  conflict
                        with  the  general  statutes  and  be  invalid.
            Op.  Tenn.  AttÕy  Gen.  No.  94-008  (Jan.  14,  1994).  Relying  on  these  principles,  this  Office  concluded
            that  a  county  could  not  amend  its  charter  to  require  that  increases  in  the  property  tax  rate  be  approved
            by  referendum. Id.

                  The  1994  opinion  was  consistent  with  a  previous  Attorney  General  opinion,  issued  in  1981,
            which  similarly  indicated  that  a  county  could  not  hold  a  referendum  to  establish  the  county  property
            tax  rate,  even  where  a  private  act  of  the  Legislature  purported  to  authorize  such  a  referendum.  In  the
            1981  opinion,  we  explained:
                              T.C.A.  ¤  67-1004  [now  ¤  67-5-510]  presently  provides  that
                        Ò[i]t  shall  be  the  duty  of  the  county  courts  on  the  first  Monday  in  July,
                        or as soon thereafter as practicable, to fix the tax rates on all
                        properties within their respective jurisdiction for all county
                        purposes.Ó It  is  clear  that  a  private  act  allowing  the  Sumner  County
                        Commission  to  call  a  binding  referendum  that  would  establish  the
                        property  tax  rate  in  Sumner  County  conflicts  with  T.C.A.  ¤  67-1004,
                        which  requires  all  county  commissions  across  the  State  to  establish
                        the  property  tax  rate  on  the  first  Monday  in  July,  or  as  soon  thereafter
                        as  practicable.
            Op.  Tenn.  AttÕy  Gen.  No.  81-571  (Oct.  21,  1981). Conceiving  of  no  reasonable  basis  for  this
            discrimination,  this  Office  opined  that  a  private  act  authorizing  such  a  referendum  in  Sumner  County
            would  constitute  a  suspension  of  the  general  law  in  violation  of  Article  XI,  Section  8,  of  the
            Tennessee  Constitution. Id.

                  We  continue  to  adhere  to  the  views  expressed  in  the  foregoing  opinions. Tenn.  Code  Ann.
            ¤¤  67-5-102,  67-5-510,  and  numerous  other  code  provisions  specify  the  manner  in  which  county
            property  taxes  are  to  be  levied  and  administered.  Op.  Tenn.  AttÕy  Gen.  No.  94-008  (Jan.  14,  1994).
            Section  10  of  the  Unification  Plan,  which  authorizes  the  Clarksville-Montgomery  County  Board  of
            Education  to  initiate  a  referendum  election  to  determine  whether  additional  taxes  shall  be  levied  to
            fund  the  school  budget,  is  fundamentally  inconsistent  with  the  statutes  requiring  the  county  property
            tax  rate  to  be  set  annually  by  the  county  commission. Just  as  a  referendum  provision  contained  in



            Page  3

            a  county  charter  is  ineffective  to  avoid  application  of  the  general  law,  the  referendum  provision
            contained  in  Section  10  of  the  Unification  Plan  is  likewise  invalid.




                                                       ___________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       ___________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       ___________________________________
                                                       MARY  ELLEN  KNACK
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Kim  McMillan
                  House  Majority  Leader
                  18A  Legislative  Plaza
                  Nashville,  Tennessee 37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  11,  2004
                                      Opinion  No.  04-126
          Responsibility  to  Maintain  Records  of  State  Employee  Sick  Leave  for  Retirement  Purposes

                                         QUESTION

                When  state  employees  are  credited  with  accumulated  sick  leave  for  retirement  service
          purposes,  is  the  State  responsible  for  maintaining  such  sick  leave  records?

                                         OPINION

                Yes. The  State  is  responsible  for  maintaining,  for  purposes  of  retirement  credit,  the  sick
          leave  records  of  its  employees.  In  particular,  the  last  department  or  agency  that  employs  the  retiree
          as  a  state  employee  is  responsible  for  maintaining  the  records  necessary  to  certify  the  amount  of  sick
          leave  that  employee  has  at  the  time  of  retirement. All  state  employers  are  required  to  maintain
          contemporaneous  records  of  accumulated  sick  leave.

                                         ANALYSIS

                State  employees  who  retire  with  accumulated  sick  leave  may  receive  credit  for  that  unused
          leave  toward  their  creditable  service  in  accordance  with  Tenn.  Code  Ann.  ¤  8-34-604. The  laws
          governing  the  Tennessee  Consolidated  Retirement  System  (ÒTCRSÓ)  specify  that  Ò[t]he  last
          employing  department  or  agency  employer  shall  certify  on  a  form  prescribed  by  the  board  of  trustees
          [of  the  TCRS]  the  number  of  unused  accumulated  sick  leave  days  to  the  credit  of  such  member  at
          the  time  of  retirement.Ó  Tenn.  Code  Ann.  ¤  8-34-604(a)(1)(2002). 
                In  addition,  all  state  employers  are  required  to  maintain  records  that  substantiate  the  amount
          of  an  employeeÕs  accumulated  sick  leave  contemporaneous  with  the  periods  in  which  such  leave  is
          earned.  Tenn.  Code  Ann.  ¤  8-34-604(a)(2)(2002).  Such  employers,  therefore,  may  not  certify  the
          amount  of  an  employeeÕs  sick  leave  based  upon  records  compiled  at  a  later  date  solely  for  purposes
          of  establishing  retirement  credit.  Id. Thus,  while  state  employees  may  choose  to  maintain  their  own
          sick  leave  records,  Tennessee  law  imposes  a  responsibility  for  maintaining  such  records  on  the
          employing  departments  and  agencies.



            Page  2


                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       WYLA  M.  POSEY
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Michael  L.  Kernell
                  State  Representative
                  Suite  38,  Legislative  Plaza
                  Nashville,  TN  37243-0193



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  11,  2004
                                      Opinion  No.  04-127

          DCS  and  Juvenile  Court  Authority  Make  Decisions  About  ChildrenÕs  Extraordinary  Medical  Care

                                        QUESTIONS

                1.    Does  the  Tennessee  Department  of  ChildrenÕs  Services  (DCS)  have  authority  to  make
          decisions  about  extraordinary  medical  care,  such  as  do-not-resuscitate  orders,  removal  of  life
          support,  or  organ  donation,  for  children  who  are  in  DCS  custody  as  the  result  of  an  emergency
          hearing  or  final  adjudication,  or  for  children  who  are  in  partial  or  complete  DCS  guardianship  as  the
          result  of  a  termination  of  some  or  all  parental  rights? 
                2.    In  the  absence  of  such  decision-making  authority  in  DCS  or  some  other  person  or
          entity,  does  the  juvenile  court  have  the  authority  to  make  decisions  about  extraordinary  medical  care
          for  children  within  its  jurisdiction  under  the  circumstances  set  out  above?


                                         OPINIONS

                1.    No.
                2.    Yes.

                                         ANALYSIS


                1.    You  have  asked  whether  the  DCS  has  the  legal  authority  throughout  four  stages  of
          legal  proceedings  under  Titles  36  and  37  of  the  Tennessee  Code  to  make  decisions  about
          extraordinary  medical  care,  such  as  do-not-resuscitate  orders,  removing  life  support,  or  donating
          organs.  The  four  stages  of  legal  proceedings  include  two  custody  stages:  when  a  child  is  in  DCSÕ
          temporary  legal  custody  as  the  result  of  an  initial  emergency  hearing  or  when  a  child  is  in  DCSÕ
          temporary  legal  custody  as  a  result  of  a  final  adjudicatory  hearing.  The  four  stages  also  include  two
          guardianship  stages:  when  a  child  is  in  partial  guardianship  after  fewer  than  all  possible  parentsÕ
          rights  have  been  terminated  or  when  a  child  is  in  complete  guardianship  after  all  parentsÕ  rights  have
          been  terminated. 
                DCS  is  an  administrative  agency  of  the  state.  See  Tenn.  Code  Ann.  ¤  4-3-101(3). Its  powers



            Page  2
            are  limited:  ÒAdministrative  agencies  derive  their  authority  from  the  General  Assembly.  Thus,  their
            power  must  be  based  expressly  upon  a  statutory  grant  of  authority  or  must  arise  therefrom  by
            necessary  implication.Ó  Wayne  County  v.  Tennessee  Solid  Waste  Disposal  Control  Bd.,  756  S.W.2d
            274,  282  (Tenn.  Ct.  App.  1988).  Accordingly,  in  order  to  determine  the  scope  of  DCSÕ  authority  to
            make  decisions  about  extraordinary  medical  care  under  the  circumstances  described  above,  it  is
            necessary  to  examine  the  express  or  implied  authority  that  the  General  Assembly  has  granted  a
            custodian  or  guardian  in  those  circumstances.  That  authority  is  located  in  Title  37,  which  delineates
            custodial  authority  in  juvenile  court  proceedings,  and  in  Title  36,  which  delineates  guardianship
            authority  in  termination  of  parental  rights  proceedings  in  juvenile  court. 
                  Title  37  defines  the  terms  ÒcustodianÓ  and  ÒcustodyÓ  and  sets  out  the  authority  of  a  legal
            custodian,  which  appears  to  be  the  same  regardless  of  whether  a  child  is  in  custody  pursuant  to  an
            emergency  hearing  or  a  final  adjudication  of  the  childÕs  custody. ÒCustodian,Ó  as  relevant  to  your
            question,  is  defined  as  Òa  person,  other  than  a  parent  or  a  legal  guardian  .  .  .  to  whom  temporary  legal
            custody  of  the  child  has  been  given  by  the  order  of  a  court.Ó Tenn.  Code  Ann.  ¤  37-1-102(b)(7).
            ÒCustody,Ó  as  relevant  here,  is  defined  to  mean  Òthe  control  of  actual  physical  care  of  the  child  and
            includes  the  rights  to  provide  for  the  physical,  mental,  moral  and  emotional  well-being  of  the  child.Ó
            Tenn.  Code  Ann.  ¤  37-1-102(b)(8). A  separate  statute  more  explicitly  delineates  those  rights,
            providing,  as  relevant  here: 
                  A  custodian  to  whom  legal  custody  has  been  given  by  the  court  under  this  part  has
                  the  right  .  .  .  to  determine  the  nature  of  care  and  treatment  of  the  child,  including

                  ordinary  medical  care  .  .  .  subject  to  the  conditions  and  limitations  of  the  [custody]
                  order  and  the  remaining  rights  and  duties  of  the  childÕs  parents  or  guardian.
            Tenn.  Code  Ann.  ¤  37-1-140(a)  (emphasis  added).
                  The  Title  37  statutes  relating  to  a  custodianÕs  rights  provide  that  a  custodian  has  the  right  to
            provide  physical  care,  including medical  care. Without  more,  it  might  be  argued  that  the  right  to
            provide  medical  care  implicitly  includes  the  right  to  make  decisions  about  extraordinary  medical
            care.  That  argument,  however,  is  obviated  by  the  explicit  language  in  Tenn.  Code  Ann.  ¤  37-1-140
            limiting  the  custodianÕs  rights  to  determine  only  ordinary  medical  care,  especially  when  a  separate
            statute  explicitly  entrusts  to  the  juvenile  court,  rather  than  to  DCS,  the  authority  to  Òorder  medical
            or  surgical  treatment  of  a  child  who  is  suffering  from  a  serious  physical  condition  or  illness  which
            requires  prompt  treatment.Ó  Tenn.  Code  Ann.  ¤  37-1-128(e)  (emphasis  added).  Thus,  the  General
            Assembly  has  not  in  Title  37  provided  to  DCS  either  explicit  or  implicit  authority  to  make  decisions
            about  extraordinary  medical  care  for  children  in  its  custody.
                  Similarly,  Title  36  does  not  provide  DCS  authority  to  make  decisions  about  extraordinary
            medical  care  for  children  in  either  partial  or  complete  guardianship  after  a  termination  of  some  or
            all  parental  rights.  ÒGuardianÓ  is  defined,  as  relevant  to  your  question,  to  include  Òa  person  or  entity
            appointed  as  guardian  as  the  result  of  a  .  .  .  termination  of  parental  rights.Ó  Tenn.  Code  Ann.  ¤  36-1-
            102(1)(24)(B).  ÒGuardianshipÓ  means  Òa  person  or  entity  .  .  .  which  is  responsible  for  the  provision



            Page  3














































                   This  opinion  does  not  address  whether  the  juvenile  court  could  confer  such  additional  authority  upon  a  1

            guardian  other  than  DCS.  of  supervision,  protection,  and  assistance  to  the  person  of  a  child.Ó Tenn.  Code  Ann.  ¤  36-1-
            102(1)(24)(D).  The  powers  and  duties  of  complete  guardianship  differ  from  those  of  partial
            guardianship  in  some  respects.  However,  both  complete  and  partial  guardianship  include  the  right
            to  provide  care  pursuant  to  the  provisions  of  Tenn.  Code  Ann.  ¤  37-1-140  or  otherwise  to  the  extent
            permitted  by  court  order. Tenn.  Code  Ann.  ¤  36-1-102(1)(24)(C)(ii)  and  (D)(ii). 
                  As  noted  above,  Tenn.  Code  Ann.  ¤  37-1-140  authorizes  only  ordinary  medical  care  and  thus
            would  not  authorize  DCS,  as  a  guardian,  to  make  decisions  about  extraordinary  medical  care.  While
            Tenn.  Code  Ann.  ¤  36-1-102(1)(24)(C)(ii)  and  (D)(ii)  add  that  a  complete  or  partial  guardianÕs
            powers  to  provide  medical  care  pursuant  to  Tenn.  Code  Ann.  ¤  37-1-140  may  be  otherwise  extended
            by  court  order,  it  does  not  appear  that  a  court  could  supply  DCS  with  authority  greater  than  what  the
            General  Assembly  has explicitly  or  implicitly  supplied. See  State  v.  Medicine  Black  Bear  White
            Eagle,  63  S.W.3d  734,  769-771  (rejecting  a  trial  courtÕs  extrapolation  from  statutes  of  authority  for
            a  state  agency  to  intervene  in  a  case  when  the  statutes  did  not  explicitly  provide  for  or  necessarily
            imply  such  authority). Since  the  General  Assembly,  as  set  out  above,  has  neither  explicitly  nor
            implicitly  supplied  DCS  with  the  authority  to  make  decisions  about  extraordinary  medical  care,  the
            juvenile  court  may  not  unilaterally  confer  such  authority  upon  DCS.  1


                  2.    The  juvenile  court  has  the  statutory  authority  to  make  decisions  about  extraordinary
            medical  care  for  a  child  within  its  jurisdiction.  As  a  statutorily  created  tribunal,  a  juvenile  court  has
            Òjurisdiction  over  matters  relating  to  the  care,  control  and  custody  of  infants,  but  can  exercise  such
            jurisdiction  and  powers  only  as  have  been  conferred  on  [it]  by  the  statute  creating  [it].Ó Hyatt  v.
            Bomar,  358  S.W.2d  295,  296  (quoting  43  C.J.S.  Infants  ¤  6  p.  109  (now  found  at  43  C.J.S.  Infants

            ¤  7  (1978))). The  Tennessee  Supreme  Court  has  noted,  ÒGreat  powers  are  lodged  in  the  juvenile
            court  in  its  particular  field,  and  proceedings  there  should  be  conducted  according  to  the  mandates
            of  the  statute.Ó Juvenile  Ct.  of  Shelby  County  v.  State  ex  rel.  Humphrey,  201  S.W.  771,  773  (Tenn.
            1918). 
                  Among  those  great  powers,  the  General  Assembly  has  provided:
                        During  the  course  of  any  proceeding,  the  court  may  order  the  child  examined
                  at  a  suitable  place  by  a  physician  regarding  the  childÕs  medical  condition,  and  may
                  order  medical  or  surgical  treatment  of  a  child  who  is  suffering  from  a  serious

                  physical  condition  or  illness  which  requires  prompt  treatment,  even  if  the  parent,
                  guardian  or  other  custodian  has  not  been  given  notice  of  a  hearing,  is  not  available,
                  or  without  good  cause  informs  the  court  of  such  personÕs  refusal  to  consent  to  the
                  treatment.
            Tenn.  Code  Ann.  ¤  37-1-128(d)  (emphasis  added).  While  not  every  serious  condition  may  require
            extraordinary  medical  care,  it  is  reasonable  to  assume  that  extraordinary  medical  care  would  be



            Page  4





































                   The  juvenile  court  in  some  cases  may  have  an  obligation  to  see  that  some  such  decisions  are  made  as  to  2

            children  within  its  jurisdiction,  as  the  Court  of  Appeals  has  indicated  that  even  an  incompetent  person  has  a  fundamental
            and  inherent  right  to  refuse  medical  treatment,  pointing  to,  among  other  mechanisms  available  to  vindicate  that  right,
            judicial  appointment  of  a  conservator  pursuant  to  Title  34.  See  San  Juan-Torregosa  v.  Garcia,  80  S.W.3d  539,  541-545
            Tenn.  Ct.  App.  (2002). 
                   The  juvenile  courtÕs  decision-making  authority,  of  course,  may  be  independently  limited  by  statutes  and  3

            implementing  rules  governing  extraordinary  medical  treatment  and  procedures.  See,  e.g.,  Tenn.  Code  Ann.  ¤  68-140-
            601  et  seq.  (setting  out  procedures  for  do-not-resuscitate  orders);  Tenn.  Code  Ann.  ¤  68-30-101  et  seq.  (the  Uniform
            Anatomical  Gift  Act,  setting  out  procedures  for  organ  donation);  Tenn.  Code  Ann.  ¤  68-11-224  (governing  universal
            do-not-resuscitate  orders).  Such  limitations  are  outside  the  scope  of  this  opinion  and  involve  an  inestimable  number
            of  imaginable  factual  and  legal  scenarios. required  by  only  a  serious  condition. Accordingly,  the  statute  supplies  the  juvenile  court  with  the
            authority  to  make  decisions  about  extraordinary  medical  care  of  a  child, particularly  in  the  absence  2

            of  a  parent  or  other  person  or  entity  who  independently  holds  such  authority.  3




                                                   PAUL  G. SUMMERS
                                                   Attorney  General 



                                                   MICHAEL  E.  MOORE
                                                   Solicitor  General



                                                   DOUGLAS  E.  DIMOND
                                                   Senior  Counsel
            Requested  by:
                  Viola  P.  Miller,  Commissioner
                  Department  of  ChildrenÕs  Services
                  436  Sixth  Avenue,  North
                  7th  Floor,  Cordell  Hull  Building
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                    500  CHARLOTTE  AVENUE
                                  NASHVILLE,  TENNESSEE  37243

                                       August  11,  2004
                                      Opinion  No.  04-128
          Regulation  of  Medical  Clinics


                                         QUESTION

                What  authority  does  the  Tennessee  Board  of  Medical  Examiners  have,  if  any,  to  regulate  the
          operation  of  medical  clinics  and  their  relationships  with  individual  physicians  and  patients?


                                         OPINION

                The  Tennessee  Medical  Practice  Act  (Tenn.  Code  Ann.  ¤¤  63-6-101,  et  seq.)  contains  no
          express  language  authorizing  the  Board  of  Medical  Examiners  to  regulate  the  facilities  at  which
          physicians  practice. However,  unless  provided  otherwise  by  law  or  Board  regulation,  individual
          physician  practice  requirements  and  standards  apply  to  a  physicianÕs  practice  of  medicine  in  any
          setting,  including  a  medical  clinic. 


                                         ANALYSIS

                The  request  asks,  in  general  terms,  about  the  Board  of  Medical  ExaminersÕ  authority  to
          regulate  the  operation  of  medical  clinics  and  their  relationships  with  individual  physicians  and
          patients.  The  request  does  not  specify  any  particular  areas  of  interest  or  concern.  Therefore,  our
          response  is  also  necessarily  general.
                An  administrative  agency  such  as  the  Board  of  Medical  Examiners  (ÒBoardÓ)  possesses  no
          inherent  or  common  law  powers.  As  a  statutory  creation,  it  can  exercise  only  those  powers  conferred
          expressly  or  impliedly  upon  it  by  statute.  Any  action  of  the  agency  which  is  not  authorized  by  statute
          is  a  nullity.  General  Portland,  Inc.  v.  Chattanooga-Hamilton  County  Air  Pollution  Control  Bd.,  560
          S.W.2d  910,  913-914  (Tenn.  App.  1976).



            Page  2

































                   Tenn.  Code  Ann.  ¤¤  68-11-201,  et  seq.  place  authority  for  regulation  of  many  of  the  facilities  at  which  1

            physicians  practice  with  the  Board  for  Licensing  Health  Care  Facilities.  Included,  for  example,  are  hospitals,
            nursing  homes  and  ambulatory  surgical  treatment  centers.  Tenn.  Code  Ann.  ¤¤  68-11-201  (2003  Supp.),  68-11-209. 
            ÒMedical  clinicsÓ  are  not  listed  at  Tenn.  Code  Ann.  ¤  68-11-201  as  a  category  of  health  care  facility  regulated  by  the
            Board  for  Licensing  Health  Care  Facilities.
                   The  Legislature  has  also  conveyed  powers  to  the  Board  of  Medical  Examiners  in  other  statutes.  For  2

            example,  Tenn.  Code  Ann.  ¤¤  53-11-301  and  53-11-303  authorize  the  Board,  as  a  professional  licensing  board
            governing  persons  who  may  legally  dispense  controlled  substances,  to  promulgate  rules  relating  to  physiciansÕ
            dispensing  of  controlled  substances  within  Tennessee.  Tenn.  Code  Ann.  ¤¤  48-101-610(b)(2003  Supp.)  and  48-
            248-401(b)  (2003  Supp.)  authorize  the  Board  to  promulgate  rules,  as  ethically  necessary,  which  restrict  or  condition
            the  authority  of  medical  professional  corporations  and  medical  professional  limited  liability  companies  to  issue
            shares  to  and  have  as  members  persons  who  are  not  licensed  to  practice  medicine.
                   These  statutory  grounds  include  Òunprofessional,  dishonorable  or  unethical  conductÓ  and  Ògross  3

            malpractice,  or  a  pattern  of  continued  or  repeated  malpractice,  ignorance,  negligence  or  incompetence  in  the  course
            of  medical  practice.Ó  Tenn.  Code  Ann.  ¤¤  63-6-214(b)(1),  (4)  (2003  Supp.). The  Tennessee  Medical  Practice  Act  (Tenn.  Code  Ann.  ¤¤  63-6-101,  et  seq.) contains  no  1

            express  language  authorizing  the  Board  to  regulate  the  facilities  at  which  physicians  practice.  This
            contrasts with several other health care practitioner practice acts which do contain such
            authorization. For  example,  the  Dental  Practice  Act  requires  that  any  dental  facility  in  which  a
            licensed  dentist  administers  general  anesthesia,  deep  sedation  or  conscious  sedation  must  obtain  a
            permit  from  the  Board  of  Dentistry  and  must  meet  that  BoardÕs  regulatory  standards. Tenn.  Code
            Ann.  ¤  63-5-108(g)(2003  Supp.). The  Board  of  Dentistry  is  authorized  to  obtain  evaluations,
            including  on-site  evaluations,  of  such  facilities,  equipment  and  personnel.  Tenn.  Code  Ann.  ¤  63-5-
            105(6)(2003  Supp.).  The  Veterinary  Practice  Act  requires  that  any  person  who  owns  or  operates  any
            veterinary  facility  where  veterinary  medicine  is  practiced,  including  mobile  clinics,  must  obtain  a
            premises  permit  from  the  Board  of  Veterinary  Medical  Examiners.  Tenn.  Code  Ann.  ¤  63-12-139(a).
            In  order  to  obtain  a  premises  permit,  the  premises  must  meet  minimum  standards  established  by
            board  rules  and  regulations  as  to  sanitary  conditions  and  physical  plant.  Tenn.  Code  Ann.  ¤  63-12-
            139(c).  The  Board  of  Veterinary  Medical  Examiners  is  empowered  to  inspect  all  veterinary  facilities
            to  determine  sanitary  conditions,  physical  equipment,  methods  of  operation,  keeping  of  records,  etc.
            Tenn.  Code  Ann.  ¤  63-12-129(a)(2).
                  The  fact,  however,  that  the  Board  of  Medical  Examiners  lacks  such  specific  statutory
            directives  does  not  end  the  inquiry  entirely.  In  the  Medical  Practice  Act,  the  Legislature  has  vested
            the  Board  with  both  express  and  implied  authority  to  regulate  the  practice  of  individual  physicians.
            The  Board  is  expressly  authorized,  for  example,  to  adopt  rules  and  regulations  regulating  the
            advertising  of  practitioners  who  are  under  its  jurisdiction;  to  set  guidelines  for  the  treatment  of
            patients  under  the  ÒIntractable  Pain  Treatment  Act,Ó  Tenn.  Code  Ann.  ¤¤  63-6-1101,  et  seq.  (2003
            Supp.);  and  to  adopt  rules  and  regulations  which  establish  minimum  educational  standards  and
            criteria  for  persons  operating  x-ray  equipment  in  physiciansÕ  offices. Additionally,  because  the  2

            Legislature  has  authorized  the  Board  to  discipline  physicians  upon  a  number  of  broad  statutory
            grounds  pertaining  to  the  practice  of  medicine, it  has  vested  the  Board  with  necessarily-implied  3



            Page  3
            authority  to  define  and  establish  such  medical  practice  standards,  consistent  with  governing  statutes.

            See  Methodist  Healthcare-Jackson  Hosp.  v.  Jackson-Madison  County  General  Hosp.  Dist.,  129
            S.W.3d  57,  70  (Tenn.  App.  2003)(noting  that  an  administrative  agency's  interpretation  of  its  own
            enabling  statute  is  entitled  to  weight  and  deference). Unless  provided  otherwise  by  law  or  Board
            regulation,  these  practice  requirements  and  standards  apply  to  a  physicianÕs  practice  of  medicine  in
            any  setting,  including  a  medical  clinic.



                                                 PAUL  G.  SUMMERS
                                                 Attorney  General


                                                 MICHAEL  E.  MOORE
                                                 Solicitor  General


                                                 SUE  A.  SHELDON
                                                 Senior  Counsel

            Requested  by:
                  Mark  Norris
                  State  Senator
                  302  War  Memorial  Building
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  11,  2004
                                      Opinion  No.  04-129
          Civil  Rights  Intimidation;  Harassment

                                        QUESTIONS

                1.    Do  the  provisions  of  Tenn.  Code  Ann.  ¤  39-17-309  apply  to  persons  who  are
          intimidated  from  exercising  a  right  or  privilege  secured  by  the  Constitution  or  laws  of  the  United
          States  or  the  Constitution  or  laws  of  the  State  of  Tennessee,  even  though  such  act  of  intimidation  is
          not  related  to  race,  color,  ancestry,  religion  or  national  origin?
                2.    Under  the  provisions  of  Tenn.  Code  Ann.  ¤  4-21-701,  does  a  civil  cause  of  action  for
          malicious  harassment  exist  even  though  the  harassment  is  not  related  to  race,  color,  ancestry,  religion
          or  national  origin?


                                         OPINIONS

                1.    No. 
                2.    No.


                                         ANALYSIS

                Tenn.  Code  Ann.  ¤  39-17-309(a)  (civil  rights  intimidation)  begins  with  the  following
          sentence:
                     The  general  assembly  finds  and  declares  that  it  is  the  right  of  every
                     person  regardless  of  race,  color,  ancestry,  religion  or  national  origin,
                     to  be  secure  and  protected  from  fear,  intimidation,  harassment  and
                     bodily  injury  caused  by  the  activities  of  groups  and  individuals.
                Tenn  Code  Ann.¤  39-17-309(a)  protects  Òevery  personÓ  from  intimidation,  harassment  and
          bodily  injury  for  exercising  his  civil  rights.  For  there  to  be  a  violation  of  this  criminal  statute,  the
          intimidation  must  have  occurred  because  of  an  individualÕs  race,  color,  ancestry,  religion  or  national
          origin.  See  Surber  v.  Cannon,  No.  M1998-00928-COA-R3-CV,  2001  WL  120735,  *5  (Tenn.  App.



            Page  2





































                   In  Surber,  the  Tennessee  Court  of  Appeals  explained:  1


                        Tennessee  Code  Annotated  ¤  39-17-309,  which  provides  the  elements  necessary
                        to  establish  malicious  harassment,  specifically  addresses  the  legislatureÕs  concern
                        about  ÔintimidationÕ  arising  from  Ôrace,  color,  ancestry,  religion  or  national  origin.Õ
                        This  language  identifies  the  statute  as  an  Ôethnic  intimidationÕ  or  Ôhate  crimesÕ
                        statute,  similar  to  those  passed  in  a  number  of  states.  .  .  .  In  general,  conviction
                        under  such  statutes  requires  proof  of  the  defendantÕs  specific  intent  to  assault  or
                        commit  other  specified  acts  due  to  the  defendantÕs  perception  of  the  victimÕs  race,
                        religion,  national  origin  or  other  factor  defined  by  the  relevant  statute.
            2001  WL:  120735  at  *5. February  14,  2001). Thus,  this  criminal  statute  does  not  proscribe  intimidation  of  others  from  1

            exercising  civil  rights  if  the  act  of  intimidation  is  not  related  to  race,  color,  ancestry,  religion  or
            national  origin.  It  does  not  include  incidents  of  intimidation  unless  they  are  within  one  of  these
            protected  groups. See  Young  v.  State  Farm  Mut.  Auto.  Ins.  Co.,  868  F.Supp.  937,  943  (D.C.TN.
            1994)  (age  not  a  protected  category).
                  Tenn.  Code  Ann.  ¤  4-21-701(a)  states,  ÒThere  is  hereby  created  a  civil  cause  of  action  for
            malicious  harassment.Ó  On  its  face,  the  statute  does  not  limit  the  cause  of  action  to  incidents  related
            to  race,  color,  ancestry,  religion  or  national  origin.  The  elements  of  malicious  harassment  under
            Tenn.  Code  Ann.  ¤  4-21-701,  however,  are  derived  from  Tenn.  Code  Ann.  ¤  39-17-309,  the  criminal
            statute.  Surber,  2001  WL  120735  at  *4.  Furthermore,  Tenn.  Code  Ann.  ¤  4-21-701  is  found  in  the
            Tennessee  Human  Rights  Act,  Òwhich,  in  general,  addresses  discrimination  based  on  race,  creed,
            color,  religion,  sex,  gender  or  national  origin.Ó  Washington  v.  Robertson  Co.,  29  S.W.3d  466,  471
            (Tenn.  2000).  Thus,  when  Tenn.  Code  Ann.  ¤  4-21-701  is  read  in  context  and  as  it  relates  to  Tenn.
            Code  Ann.  ¤  39-17-309,  an  individual  would  not  have  a  cause  of  action  for  malicious  harassment
            under  Tenn.  Code  Ann.  ¤  4-21-701  unless  the  person  alleging  malicious  harassment  claimed  that  it
            occurred  because  of  her  race,  color,  ancestry,  religion  or  national  origin.  Parr  v.  Middle  Tenn.  State
            Univ.,  No.  M1999-01442-COA-R3-CV,  1999  WL  108641,  *4  Tenn.  App.  December  3,  1999). 




                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



            Page  3

                                                       KATE  EYLER
                                                       Deputy  Attorney  General

            Requested  by:
                  The  Honorable  Joe  F.  Fowlkes
                  State  Representative
                  24  Legislative  Plaza
                  Nashville,  TN  37243-0165



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  5,  2004
                                      Opinion  No.  04-013

          DUI  as  a  lesser-included  offense  of  child  endangerment  and  consecutive  sentencing  for  DUI  and
          child  endangerment.

                                        QUESTIONS

                1.    Is  DUI  a  lesser-included  offense  of  child  endangerment?
                2.    Must  a  trial  court  impose  consecutive  sentences  for  dual  convictions  of  DUI  and  child
          endangerment?
                3.    Would  consecutive  sentences  for  DUI  and  child  endangerment  violate  the  double
          jeopardy  guarantees  of  the  state  and  federal  constitution?


                                         OPINIONS

                1.    No. Even  though  the  elements  of  DUI  are  subsumed  within  the  offense  of  child
          endangerment,  the  General  Assembly  has  expressly  designated  DUI  and  child  endangerment  as
          separate,  distinct  offenses,  and  dual  convictions  for  both  offenses  does  not  violate  double  jeopardy.
                2.    No.  As  previously  stated  in  Attorney  General  Opinion  No.  99-165,  the  mandate  of
          Tenn.  Code  Ann.  ¤  55-10-414  that  a  child  endangerment  sentence  be  Òin  addition  toÓ  another
          sentence  required  by  law  does  not  necessarily  mandate  consecutive  sentencing  for  dual  DUI  and
          child  endangerment  convictions.
                3.    No.  Since  dual  convictions  for  DUI  and  child  endangerment  do  not  offend  double
          jeopardy  and  since  they  do  not  necessarily  require  consecutive  sentencing,  service  of  the  two
          sentences  consecutively,  when  authorized  by  law,  does  not  implicate  or  offend  double  jeopardy.

                                         ANALYSIS

                1.    Under  Tenn.  Code  Ann.  ¤  55-10-401,  TennesseeÕs  DUI  statute,  it  is  unlawful  for  any
          person  to  drive  or  be  in  physical  control  of  a  motor  vehicle  while  under  the  influence  of  an
          intoxicant.  The  Class  A  misdemeanor  offense  of  child  endangerment  occurs  under  Tenn.  Code  Ann.
          ¤  55-10-414(1)  if  a  person  violates  Tenn.  Code  Ann.  ¤  55-10-401  while  accompanied  by  a  child



            Page  2
            under  13  years  of  age.  If  the  child  consequently  suffers  seriously  bodily  injury  as  a  result  of  the  child
            endangerment,  then  the  offense  is  aggravated  child  endangerment,  a  Class  D  felony. Tenn.  Code
            Ann.  ¤  55-10-414(2). If  the  child  suffers  death,  then  the  offense  is  especially  aggravated  child
            endangerment,  a  Class  C  felony. Tenn.  Code  Ann.  ¤  55-10-414(3). The  elements  of  DUI  under
            Tenn.  Code  Ann.  ¤  55-10-401  are  subsumed  within  the  elements  for  child  endangerment  under  Tenn.
            Code  Ann.  ¤  55-10-414(1).  While  this  generally  would  satisfy  the  strict  elements  test  under  part  (a)
            of  the  Burns  analysis,  as  a  lesser-included  offense  of  child  endangerment,  the  General  Assembly  has
            clearly  intended  dual  convictions  for  these  two  offenses.  See  State.  v.  Burns,  6  S.W.3d  453  (Tenn.
            1999).  As  such,  both  are  separately  punishable,  and  one  is  not  a  lesser-included  offense  of  the  other.
                  The  more  telling  and  dispositive  question  here  is  whether  a  trial  court  may  constitutionally
            impose  dual  convictions  under  separate  indictments  for  DUI  and  child  endangerment. In  fact,  the
            Court  of  Criminal  Appeals  has  affirmed  dual  convictions  for  DUI  and  child  endangerment  multiple
            times  on  appeal,  although  the  legality  of  the  dual  convictions  was  not  then  challenged.  See  State  v.
            Grooms,  No.  E2002-02013-CCA-R3-CD  (Tenn.  Crim.  App.  Aug.  1,  2003);  State  v.  Partin,  No.
            E2002-00094-CCA-R3-CD  (Tenn.  Crim.  App.  Nov.  15,  2002);  State  v.  Fitzgerald,  No.  03C01-9809-
            CR-00339  (Tenn.  Crim.  App.  Sept.  20,  1999);  State  v.  Fithiam,  No.  03C01-9610-CC-00381  (Tenn.
            Crim.  App.  Oct.  28,  1997);  State  v.  Morrell,  No.  03C01-9409-CR-00355  (Tenn.  Crim.  App.  Jan.  31,
            1996);  State  v.  Fiorito,  No.  03C01-9401-CR-00032  (Tenn.  Crim.  App.  Nov.  27,  1995);  State  v.
            Reagan,  No.  03C01-9410-CR-00359,  (Tenn.  Crim.  App.  June  23,  1995);  State  v.  Reagan,  03C01-
            9407-CR-00258  (Tenn.  Crim.  App.  March  14,  1995).
                  It  is  the  opinion  of  this  Office  that  dual  convictions  for  DUI  under  Tenn.  Code  Ann.  ¤  55-10-
            401 and for child endangerment under Tenn. Code Ann. ¤ 55-10-414 are constitutionally
            permissible,  and  this  situation  is  most  analogous  to  felony  murder. Dual  convictions  for  felony
            murder  and  for  the  underlying  enumerated  felony  do  not  offend  double  jeopardy  because  Òthe  two
            statutes  are  directed  at  separate  evils.Ó  State  v.  Blackburn,  694  S.W.2d  934,  936  (Tenn.  1985).  The
            key  factor  in  determining  this  issue  is  Òwhether  the  legislature  intended  cumulative  punishment.Ó
                  In  1992,  the  General  Assembly  enacted  the  Drunk  Driving  Child  Protection  Act  and
            expressly  adopted  the  offense  of  child  endangerment.  In  so  doing,  the  legislature  left  the  offense  of
            DUI  intact  and  valid.  Furthermore,  the  legislature  expressly  mandated,  for  child  endangerment  under
            Tenn.  Code  Ann.  ¤  55-10-414(1),  a  mandatory  minimum  sentence  of  30  days  confinement  and  a
            mandatory  minimum  fine  of  $1000  Òin  addition  to  any  other  incarceration  and  fine  required  by  law.Ó
            As  such,  it  is  evident  that  the  General  Assembly,  when  it  enacted  the  Drunk  Driving  Child  Protection
            Act,  clearly  intended  and  precisely  authorized  cumulative  punishment  for  the  discrete  act  of
            committing  DUI  while  simultaneously  exposing  a  child  under  13  years  of  age  to  the  risks  associated
            with  DUI.  ÒWhere  the  Legislature  has  indicated  that  cumulative  punishment  is  intended,  the  double
            jeopardy  analysis  need  not  proceed  any  further.Ó State  v.  Goodsey,  60  S.W.3d  759,  778  (Tenn.
            2001). There  is  no  double  jeopardy  violation  under  the  state  or  federal  constitutions  for  dual
            convictions  of  DUI  and  child  endangerment. But  see  State  v.  Neal,  No.  M2001-00441-CCA-R3-CD
            (Tenn.  Crim.  App.  Dec.  19,  2002)  (app.  denied  May  5,  2003)  (merging,  on  double  jeopardy  grounds,



            Page  3
            two  child  endangerment  convictions  involving  two  victims  present  in  the  defendantÕs  vehicle  during
            one  criminal  event). 
                  2.    Both  Tenn.  Code  Ann.  ¤¤  55-10-401  and  55-10-414  individually  require  mandatory
            minimum  sentences  for  DUI  and  child  endangerment,  respectively.  This  Office  opined  in  Attorney
            General  Opinion  No.  99-165  that,  although  both  offenses  require  mandatory  minimum  sentences  of
            incarceration,  consecutive  sentencing  is  not  necessarily  required,  and  a  trial  court  may  impose
            concurrent  sentencing.  Tenn.  Code  Ann.  ¤  55-10-414  designates  child  endangerment  as  an  offense
            Òpunishable  by  a  mandatory  minimum  incarceration  of  thirty  (30)  days  and  a  mandatory  minimum
            fine  of  one  thousand  dollars  ($1,000),  which  incarceration  and  fine  shall  be  in  addition  to  any  other
            incarceration  and  fine  required  by  law.Ó (emphasis  added) As  this  Office  stated  in  Attorney
            General  Opinion  No.  99-165:
                  By  its  plain  meaning,  the  phrase  Òin  addition  toÓ  encompasses  both  concurrent  and
                  consecutive  sentencing.  ÒAdditionalÓ  means  Òthe  idea  of  joining  or  uniting  one  thing
                  to  another,  so  as  thereby  to  form  one  aggregate.Ó BlackÕs  Law  Dictionary,  35  (5th
                  Ed.  1979). In  Tenn.  Code  Ann.  ¤  55-10-414(1),  the  phrase  Òin  addition  toÓ  merely
                  shows  the  legislative  intent  to  create  two  separate  offenses  of  Child  Endangerment
                  and  DUI. And,  although  the  legislature  has  prevented  the  two  offenses  from  being
                  merged,  the  language  of  the  statute  does  not  mandate  consecutive  sentencing.
                  ÒWhen  the  language  contained  within  the  four  corners  of  a  statute  is  plain,  clear  and
            unambiguous,  the  duty  of  the  courts  is  simple  and  obvious,  to  say  six  ex  scripta,  and  obey  it."  Kradel
            v.  Piper  Industries  Inc.,  60  S.W.3d  744,  749  (Tenn.  2001).  Furthermore,  Ò[s]tatutes  relating  to  the
            same  subject  matter  are  to  be  read  together.Ó  State  through  Baugh  v.  Williamson  County  Hospital
            Trustees,  679  S.W.2d  934,  936  (Tenn.  1984). These  two  statutes,  read  together,  clarify  that  a
            conviction  and  mandatory  minimum  sentence  for  child  endangerment  shall  be  entered  Òin  addition
            toÓ  a  conviction  and  mandatory  minimum  sentence  for  DUI. This  does  not  mean  that  the  statutes
            mandate  consecutive  sentencing  for  service  of  the  two  convictions  and  sentences. Whether  or  not
            a  trial  court  may  order  consecutive  sentencing  for  the  two  convictions  is  a  separate  issue  under  Tenn.
            Code  Ann.  ¤  40-35-115. Ò[T]he  guidelines  set  forth  in  Tenn.  Code  Ann.  ¤  40-35-115  must  be
            satisfied  before  consecutive  sentences  may  be  imposed  .  .  .Ó  Attorney  General  Opinion  No.  99-165.
                  3.    As  discussed  above,  dual  convictions  for  DUI  and  for  child  endangerment  do  not
            offend  double  jeopardy,  nor  do  they  mandate  consecutive  sentencing.  Therefore,  service  of  the  two
            sentences  consecutively,  when  authorized  under  Tenn.  Code  Ann.  ¤  40-35-115,  does  not  implicate
            or  violate  constitutional  guarantees  against  double  jeopardy.



            Page  4


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       JOHN  H.  BLEDSOE
                                                       Assistant  Attorney  General 
            Requested  by:
                  Honorable  H.  Greeley  Wells,  Jr.
                  District  Attorney  General
                  Second  Judicial  District
                  P.  O.  Box  526
                  Blountville,  Tennessee  37617



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  12,  2004
                                      Opinion  No.  04-130
          Tennessee  Health  Services  and  Development  Agency  Ñ  Applicability  of  Title  VI  of  the  Civil  Rights
          Act  of  1964

                                        QUESTIONS

                1.    Whether  the  Tennessee  Health  Services  and  Development  Agency  (HSDA)  is  a
          program  or  activity  receiving  federal  financial  assistance  within  the  meaning  of  Title  VI  of  the  Civil
          Rights  Act  of  1964. 
                2.    What  actions  should  the  HSDA  take  to  ensure  compliance  with  Title  VI?


                                         OPINIONS

                1.    Because  the  HSDA  does  not  receive  federal  funds  directly  or  indirectly,  the  HSDA
          is  not  a  program  or  activity  receiving  federal  financial  assistance  within  the  meaning  of  Title  VI  of
          the  Civil  Rights  Act  of  1964.
                2.    Compliance  with  Title  VI  is  not  required  under  the  circumstances  given.


                                         ANALYSIS

                You  provided  information  on  the  Tennessee  Health  Services  and  Development  AgencyÕs
          (HSDA)  funding.  HSDA  administers  the  certificate  of  need  (CON)  process  under  Tenn.  Code  Ann.
          ¤¤  68-11-1601,  et  seq.  (The  Tennessee  Health  Services  and  Planning  Act  of  2002).  A  CON  is  a
          permit  for  the  establishment  or  modification  of  a  health  care  institution,  facility  or  service,  purchase
          of  major  medical  equipment,  or  establishment  of  certain  services  at  a  designated  location.  The  CON
          program  assures  that  health  care  projects  are  accomplished  in  an  orderly,  economical  manner,
          consistent  with  the  development  of  adequate  and  effective  healthcare  for  the  people  of  Tennessee.
          These  duties  were  previously  performed  by  the  Tennessee  Health  Facilities  Commission.  The  HSDA
          is  funded  by  CON  application  fees  and  charges  for  other  miscellaneous  services  related  to  the  CON
          process.  HDSA  states  that  it  does  not  receive  any  federal  financial  assistance.  The  Comptroller



            Page  2













































                   http://www.comptroller.state.tn.us/sa/reports/pa04026.pdf.  1


                   Because  the  ComptrollerÕs  report  covered  both  the  HSDA  and  another  entity,  this  sentence  originally  read  2

            as  follows:  ÒAccording  to  the  agencyÕs  General  Counsel,  neither  entity  has  received  any  Title  VI  complaints.Ó agrees  that  HDSA  receives  no  direct  federal  financial  aid.  See  Performance  Audit  of  Health  Services
            and  Development  Agency  and  State  Health  Planning  and  Advisory  Board,  May  2004,  page  26.  1


                  In  his  recent  performance  audit  report  of  the  HSDA,  the  Comptroller  seems  to  suggest  that
            the  HSDA  could  be  covered  by  Title  VI  and  should  be  complying  with  that  law. The  Comptroller
            states  in  the  May  2004  report  at  page  26  (Appendix  ÒTitle  VI  InformationÓ)  as  follows:
                        The  Health  Services  and  Development  Agency  does  not  receive  any
                        direct  federal  financial  assistance.  However,  the  agency  is  responsible
                        for  regulating  the  health-care  industry  through  the  certificate  of  need
                        program  and  receives  fees  from  health-care  institutions  applying  for
                        certificates of need. Those health-care institutions may be the
                        recipients  of  federal  financial  assistance.
                        The  agency  .  .  . [does]  not  report  to  any  federal  agency  concerning
                        Title  VI  and  [has]  not  prepared  a  Title  VI  plan.  (The  agency  has,
                        however, prepared Affirmative Action plans.) According to the
                        agencyÕs  General  Counsel,  [this]  entity  has  [not]  received  any  Title
                        VI  complaints. If  the  agency  .  .  .  did  receive  a  complaint,  the  General  2

                        Counsel  would  handle  the  complaint  process.
                  The  Civil  Rights  Act  of  1964  was  enacted  to  prohibit  race  discrimination  and  applies  in  all
            programs  receiving  federal  funds.  See  Gebser  v.  Lago  Vista  Indep.  Sch.  Dist.,  524  U.S.  274,  286
            (1998).  Title  VI,  42  U.S.C.  ¤  2000d  ,  reads  as  follows:
                        No  person  in  the  United  States  shall,  on  the  ground  of  race,  color,  or
                        national  origin,  be  excluded  from  participation  in,  be  denied  the
                        benefits  of,  or  be  subjected  to  discrimination  under  any  program  or
                        activity  receiving  Federal  financial  assistance.
                  Title  VI  is  a  much-litigated  federal  statute.  We  focus  in  this  opinion  on  the  concept  of
            Òreceiving  Federal  financial  assistance.Ó  The  question  is  whether  HDSA  falls  under  Title  VI,  i.e.,

            Òreceives  federal  financial  assistance,Ó  when  it  receives  no  direct  federal  aid  but  regulates  entities
            which  may  receive  federal  aid  and  uses  fees  paid  by  these  entities  to  fund  the  agency.  We  believe  this
            connection  too  remote  to  constitute  receipt  of  federal  funds  sufficient  to  place  the  HDSA  under  Title
            VI.



            Page  3
                  The  United  States  Supreme  Court  has  addressed  the  issue  of  indirect  federal  financial  aid.
            In  Grove  City  Coll.  v.  Bell,  465  U.S.  555,  563-70  (1984),  the  Supreme  Court  held  that  a  college
            receives  federal  financial  assistance  when  it  enrolls  students  who  receive  federal  funds  earmarked
            for educational expenses. The Court found Òno hintÓ that Title IX (modeled on Title VI)
            distinguishes  Òbetween  direct  institutional  assistance  and  aid  received  by  a  school  through  its
            students.Ó  Id.  at  564.
                  In  U.S.  DepÕt  of  Transp.  v.  Paralyzed  Veterans  of  America,  477  U.S.  597,  608  (1986),  the
            Supreme  Court  held  that  Òairlines  are  not  recipients  of  federal  funds  received  by  airport  operators
            for  airport  construction  projects,  even  when  the  funds  are  used  for  projects  especially  beneficial  to
            the  airlines.Ó  In  a  more  recent  case,  the  Supreme  Court  decided  that  the  National  Collegiate  Athletic
            Association  (NCAA)  is  not  subject  to  Title  IX  requirements  on  the  ground  it  receives  dues  from  its
            members  which  receive  federal  financial  assistance. NCAA  v.  Smith,  525  U.S.  459,  462  (1999).
                  Under  the  circumstances  described,  we  believe  the  HDSAÕs  situation  is  similar  to  the  cases
            cited  above,  but  the  connection  between  the  HDSA  and  any  federal  financial  situation  is  even  more
            remote  than  in  those  cases.  From  the  ComptrollerÕs  report,  we  know  that  not  only  does  HDSA  not
            receive  federal  funds  but  also  that  there  is  no  information  which  indicates  any  indirect  receipt  of  such
            funds. For  these  reasons,  we  conclude  that  HDSA  is  not  subject  to  Title  VI. 



                                                       PAUL  G. SUMMERS
                                                       Attorney  General 


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       KATE  EYLER
                                                       Deputy  Attorney  General
            Requested  by:
                  The  Honorable  Melanie  M.  Hill 
                  Executive  Director
                  Tennessee  Health  Services  and  Development  Agency
                  500  Deaderick  Street  Ñ  Suite  850
                  Nashville,  TN  37243



                  *On  August  2,  2004,  the  United  States  Supreme  Court  granted  certiorari  in  two  federal  sentencing  guideline
            cases--United  States  v.  Booker,  __F.3d  __,  2004  WL  1535858  (7th  Cir.  2004),  cert.  granted,  __U.S.__,  2004  WL
            1713654  (2004)  (No.  04-104),  and  Fanfan  v.  United  States,  2004  WL  1723114  (D.  Me.  2004),  cert.  granted,  __U.S.__,
            2004  WL  1713655  (2004)  (No.  04-105)--both  addressing  BlakelyÕs  impact  on  the  federal  sentencing  guidelines.  The
            court  set  an  expedited  briefing  schedule  and  set  oral  argument  for  Monday,  October  4,  2004. S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                              OFFICE  OF  THE

                                           ATTORNEY  GENERAL
                                              P.O.  BOX  20207
                                       NASHVILLE,  TENNESSEE  37202

                                              August  13,  2004
                                            Opinion  No.  04-131

            Impact  of  Blakely  v.  Washington  on  TennesseeÕs  Sentencing  Scheme

                                               QUESTION

                  In  light  of  Blakely  v.  Washington,  does  TennesseeÕs  sentencing  scheme,  Tenn.  Code  Ann.
            ¤40-35-101,  et  seq.,  violate  a  defendantÕs  Sixth  Amendment  right  to  trial  by  jury  as  applied  to  the
            States  via  the  Due  Process  Clause  of  the  Fourteenth  Amendment?

                                                OPINION

                  Yes,  in  part.  Those  portions  of  Tenn.  Code  Ann.  ¤40-35-101,  et  seq.,  that  allow  a  trial  court
            to enhance a defendantÕs sentence above the presumptive minimum through application of
            enhancement  factors--other  than  the  fact  of  a  prior  conviction  or  any  factor  admitted  by  the
            defendant--are  constitutionally  invalid.  However,  as  more  fully  explained  below,  significant  features
            of  TennesseeÕs  sentencing  scheme  remain  unaffected  by  Blakely.

                                               ANALYSIS

                  In  Blakely  v.  Washington,  542  U.S.  ___,  124  S.Ct.  2531  (2004), the  United  States  Supreme  *

            Court  applied  the  rule  expressed  in  Apprendi  v.  New  Jersey,  530  U.S.  466  (2000),  to  reverse  the
            judgment  of  WashingtonÕs  intermediate  appellate  court.  That  court  had  affirmed  the  imposition  of
            a  ÒdepartureÓ  sentence  for  Blakely  under  WashingtonÕs  sentencing  scheme  based  on  the  trial  courtÕs
            finding  that  Blakely  had  committed  his  offense  with  Òdeliberate  cruelty.Ó
                  Blakely  pled  guilty  to  a  reduced  charge  of  second  degree  kidnapping,  a  Class  B  felony,  for
            the  violent  and  brutal  kidnapping  of  his  wife. Blakely,  124  S.Ct.  at  2535. Under  WashingtonÕs
            sentencing  scheme,  a  Class  B  felony  carries  a  maximum  confinement  period  of  ten  years. Id.

            Blakely,  as  a  standard  offender,  faced  a  sentence  between  49  and  53  months. But,  WashingtonÕs



            Page  2
            statute  also  provided  a  trial  judge  the  discretion  to  sentence  above  the  standard  range  if  the  court
            found  Òsubstantial  and  compelling  reasons  justifying  an  exceptional  sentence;Ó  the  statute  then  gave
            a  non-exhaustive  list  of  factors  upon  which  a  departure  sentence  could  be  based.  After  hearing  Mrs.
            BlakelyÕs  testimony  at  the  sentencing  hearing,  BlakelyÕs  judge  utilized  one  of  the  statutory  departure
            factors--finding  that  Blakely  treated  his  victim  with  exceptional  cruelty--to  impose  a  departure
            sentence  of  90  months.
                  In  reversing  BlakelyÕs  sentence,  the  United  States  Supreme  Court  applied  the  rule  expressed
            in  Apprendi  v.  New  Jersey  that,  Ò[o]ther  than  the  fact  of  a  prior  conviction,  any  fact  that  increases
            the  penalty  for  a  crime  beyond  the  prescribed  statutory  maximum  must  be  submitted  to  a  jury,  and
            proved  beyond  a  reasonable  doubt.Ó The  Apprendi  rule  emanates  from  the  Sixth  AmendmentÕs
            guarantee  of  the  right  to  trial  by  jury,  made  applicable  to  the  States  through  the  Due  Process  Clause
            of the Fourteenth Amendment.  Apprendi v. New Jersey, 530 U.S. 466, 476-477 (2000).
            WashingtonÕs  prosecutors  argued  that  ApprendiÕs  rule  had  not  been  violated  because  the  relevant
            statutory  maximum  was  ten  years,  the  maximum  confinement  period  for  a  Class  B  felony. The
            Supreme  Court  rejected  that  argument  and  concluded  that  the  statutory  maximum  for  Sixth
            Amendment  purposes  was  not  the  maximum  sentence  a  judge  could  impose  after  finding  additional
            facts,  but  the  maximum  a  judge  could  impose  without  any  additional  findings. Blakely,  124  S.Ct.
            at  2537.  The  Court  relied  on  its  previous  cases  to  make  clear  that  the  Òstatutory  maximumÓ  for  Sixth
            Amendment  purposes  is  Òthe  maximum  sentence  a  judge  may  impose  solely  on  the  basis  of  the  facts
            reflected  in  the  jury  verdict  or  admitted  by  the  defendant.Ó  Id.  (emphasis  supplied).  Thus,  BlakelyÕs
            90-month  departure  sentence  violated  the  Sixth  Amendment,  because  it  exceeded  the  maximum  (48
            to  53  months)  that  the  Washington  statute  authorized  based  solely  on  the  facts  reflected  in  the  juryÕs
            verdict  of  guilt.
                  While  TennesseeÕs  sentencing  scheme  differs  in  certain  respects  from  the  Washington
            guideline  sentencing  scheme  at  issue  in  Blakely,  the  differences  do  not  appear  to  be  constitutionally
            significant. Under  WashingtonÕs  scheme,  rather  than  providing  a  presumptive  sentence,  the
            legislature  provided  a  range  of  sentences  for  each  class  of  offense;  the  trial  judge  was  free  to  impose
            any  sentence  within  that  range.  A  trial  judge  also  had  the  authority  to  depart  from  that  range  and  to
            impose  a  sentence  up  to  the  statutory  maximum  for  the  class  of  offense  if  the  court  found  appropriate
            reasons  justifying  an  exceptional  sentence. Like  WashingtonÕs  legislature,  the  Tennessee  General
            Assembly  has  set  out  ranges  of  sentencing  for  each  of  five  classifications  of  felony  offenses;  the
            ranges  are  based  on  prior  criminal  convictions. See  Tenn.  Code  Ann.  ¤¤40-35-105  through  112.
            Tenn.  Code  Ann.  ¤40-35-110(c)  provides  the  presumptive  minimum  sentence  for  each  class  of
            offense.  A  Tennessee  judge  is  never  authorized  to  impose  a  sentence  above  the  maximum  sentence
            provided  for  the  defendantÕs  class  of  offense  and  sentencing  range. It  was  this  lack  of  authority  to
            impose  a  ÒdepartureÓ  sentence  that  had  previously  led  the  Tennessee  Supreme  Court  to  conclude  that
            TennesseeÕs  sentencing  scheme  did  not  violate  the  rule  expressed  in  Apprendi.  See  Graham  v.  State,

            90  S.W.3d  687,692  (Tenn.  2002)  (because  petitioner  received  a  sentence  within  the  statutory  range
            for  each  offense,  the  trial  court  was  within  its  constitutional  authority  to  consider  enhancing  factors
            without the assistance of the jury; Apprendi provides petitioner no relief).  But Blakely v.
            Washington,  by  clarifying  the  definition  of  Òstatutory  maximum,Ó  makes  clear  that  the  portions  of



            Page  3
            TennesseeÕs  sentencing  scheme  that  allow  a  trial  judge  to  enhance  a  defendantÕs  sentence  above  the
            presumptive  starting  point--the  only  sentence  authorized  by  the  juryÕs  verdict  standing  alone--are
            constitutionally  invalid  unless  the  enhancement  is  based  on  prior  convictions  or  on  factors  admitted
            by  the  defendant.
                                   Tennessee  Provisions  Affected  by  Blakely

                  The  only  portions  of  Tenn.  Code  Ann.  ¤40-35-101,  et  seq.,  that  are  constitutionally  invalid
            under  Blakely  v.  Washington  are  Tenn.  Code  Ann.  ¤40-35-210(d)  and  (e)--the  provisions  that  require
            a  trial  judge  to  begin  with  the  presumptive  sentence  and  then  authorize  the  judge  to  increase  the
            sentence  based  on  enhancement  factors.  Since,  under  TennesseeÕs  statute,  the  only  sentence  that  a
            trial  judge  may  impose  based  solely  on  the  juryÕs  verdict  is  the  presumptive  sentence,  until  the
            legislature  amends  Title  40,  a  trial  judge  may  not  impose  any  sentence  above  the  presumptive
            sentence  unless  the  defendant  has  previous  convictions  beyond  those  necessary  to  establish  the
            sentencing  range,  or  unless  the  defendant  admits  to  the  presence  of  any  other  statutory  enhancement
            factor.
                                 Tennessee  Provisions  Not  Affected  by  Blakely

                  Those  portions  of  TennesseeÕs  sentencing  statutes  setting  out  the  sentence  ranges  for  each
            classification  of  felony  offenses,  Tenn.  Code  Ann.  ¤¤40-35-105  through  109,  are  not  affected  by

            Blakely  because  the  ranges  are  based  on  prior  criminal  convictions,  which  are  specifically  exempted
            from  the  rule  in  Apprendi  and  Blakely.  Similarly,  sentencing  a  defendant  as  a  repeat  violent  offender
            is  also  based  solely  on  a  finding  of  prior  criminal  convictions  and  thus  is  not  affected  by  Blakely.

            Tenn.  Code  Ann.  ¤40-35-120. Furthermore,  the  trial  court  must  make  the  repeat  violent  offender
            finding  beyond  a  reasonable  doubt. Id.

                  Several  provisions  of  TennesseeÕs  sentencing  statute  already  involve  the  jury  in  sentencing
            decisions  and  thus  meet  BlakelyÕs  requirements.  Under  Art.  VI,  ¤14,  of  the  Tennessee  Constitution,
            in  any  case  where  the  range  of  punishment  involves  a  fine  in  excess  of  $50.00,  the  jury  finding  the
            defendant  guilty  of  the  offense  also  fixes  the  amount  of  the  fine;  the  judge  then  imposes  a  fine  not
            to  exceed  the  amount  set  by  the  jury. Tenn.  Code  Ann.  ¤40-35-301.
                  Tennessee  Code  Ann.  ¤40-35-121  provides  for  enhanced  sentencing  where  the  defendant  is
            a  gang  member,  is  a  gang  leader,  or  is  being  initiated  into  a  gang  by  committing  the  offense.
            Enhanced  sentencing  pursuant  to  this  statute  requires  notice  to  the  defendant  in  a  separate  count  of
            the  indictment  and  requires  a  finding  by  the  jury,  in  a  bifurcated  proceeding,  that  the  defendant  meets
            the  statutory  definition  of  a  gang  member  prior  to  imposition  of  the  enhanced  sentence. While  the
            statute  is  silent  as  to  the  applicable  burden  of  proof,  so  long  as  a  jury  is  instructed  that  it  must  make
            the  factual  findings  of  gang  membership  beyond  a  reasonable  doubt,  this  enhanced  sentencing
            provision  clearly  meets  Blakely  standards.



            Page  4
                  Similarly,  Tenn.  Code  Ann.  ¤40-35-203(e)  meets  BlakelyÕs  requirements.  According  to  its
            provisions,  if  the  criminal  offense  provides  enhanced  punishment  for  second  or  subsequent  offenses,
            the  defendant  is  to  be  notified  of  such  enhanced  charge  in  a  separate  count  of  the  indictment.  Upon
            a  finding  of  guilt  of  the  underlying  offense,  the  jury,  in  a  bifurcated  hearing,  then  must  find  beyond
            a  reasonable  doubt  that  the  defendant  has  been  convicted  the  requisite  number  of  times  before
            enhanced  sentencing  is  proper.
                  TennesseeÕs  misdemeanor  sentencing  provision,  Tenn.  Code  Ann.  ¤40-35-302,  is  not  affected
            by  Blakely  because  the  statute  simply  requires  the  trial  judge  to  impose  the  sentence  within  the
            appropriate  range. While  a  trial  judge  may  take  enhancing  and  mitigating  factors  into  account  in
            setting  the  sentence,  the  judge  is  not  required  to  do  so.  Thus,  for  a  misdemeanor  offense,  the  juryÕs
            verdict  of  guilt,  standing  alone,  authorizes  any  sentence  up  to  the  statutory  maximum.
                  While  not  a  part  of  the  Tennessee  Sentencing  Reform  Act  of  1989  and  thus  not  specifically
            included  within  the  request,  this  Office  would  also  note  that  sentencing  a  defendant  to  community
            corrections  pursuant  to  Tenn.  Code  Ann.  ¤40-36-106  is  also  not  implicated  by  Blakely.  Tennessee
            Code  Ann.  ¤40-36-106(e)(2)  provides  a  trial  court  with  authority,  in  sentencing  an  eligible  defendant
            to  any  community-based  alternative  to  incarceration,  to  set  the  duration  of  the  sentence  at  any  period
            of  time  up  to  the  maximum  sentence  within  the  appropriate  sentencing  range. Thus,  just  as  in  the
            misdemeanor  sentencing  context,  upon  a  guilty  verdict  alone,  a  trial  court  has  authority  to  sentence
            a  defendant  up  to  the  statutory  maximum  for  community-based  alternatives  to  incarceration.
                  Finally,  it  is  the  opinion  of  this  Office  that  consecutive  sentencing  pursuant  to  Tenn.  Code
            Ann.  ¤40-35-115  is  not  affected  by  BlakelyÕs  holding.  Tennessee  law  makes  a  distinction  between
            imposition  of  sentence  and  manner  of  service  of  sentence.  See,  e.g.,  Tenn.  Code  Ann.  ¤40-35-205(d)
            (statute  lists  both  length  of  sentence  and  manner  of  service  of  sentence  as  two  distinct  portions  of
            a  sentencing  decision  upon  which  prosecution  and  defense  might  reach  plea  agreement). In  our
            view,  the  rule  of  Apprendi  and  Blakely  applies  only  to  imposition  of  the  sentence  and  not  to  the
            manner  in  which  the  sentence  is  served.  While  the  imposition  of  consecutive  sentences,  in  practice,
            lengthens  the  actual  amount  of  time  a  defendant  serves,  it  does  not  increase  the  punishment  for  any
            individual  offense. At  least  one  appellate  court,  post-Blakely,  has  reached  this  same  conclusion.
                  In  People  v.  Sykes,  2004  WL  1682060  (Cal.  App.  2  Dist.  2004),  the  California  intermediate
            appellate  court  held  that  neither  Blakely  nor  Apprendi  purported  to  create  a  jury  trial  right  for
            purposes  of  determining  whether  sentences  should  be  served  concurrently  or  consecutively. The
            court  noted  that  the  intent  of  both  Apprendi  and  Blakely  was  to  vindicate  a  defendantÕs  Sixth
            Amendment  right  to  trial  by  jury.  In  Apprendi  v.  New  Jersey,  530  U.S.  466,  483-484  (2000),  Justice
            Stevens  explained  that,  while  trial  practices  can  change  over  the  course  of  time  and  yet  remain  true
            to  the  FramersÕ  intent,  trial  practices  must,  at  a  minimum,  adhere  to  the  basic  principles  undergirding
            the  requirement  of  trying  to  a  jury  all  facts  necessary  to  constitute  a  statutory  offense,  and  requiring
            those  facts  to  be  proven  beyond  a  reasonable  doubt. A  determination  as  to  whether  multiple
            sentences  should  be  served  concurrently  or  consecutively  does  not  involve  Òfacts  necessary  to
            constitute  a  statutory  offense.Ó People  v.  Sykes,  1682060  WL  at  *8. In  fact,  a  consecutive



            Page  5
            sentencing  decision  can  only  be  made  after  a  defendant  has  already  either  pled  guilty  or  been  found
            guilty  of  each  offense  by  a  jury  beyond  a  reasonable  doubt.  Id. Thus,  a  defendantÕs  due  process  and
            jury  trial  rights  have  already  been  vindicated  for  each  offense  before  a  consecutive  sentencing
            decision  is  even  possible. Id.

                                        Tennessee  Appellate  Courts
                  While  the  Tennessee  Supreme  Court  has  not  yet  had  an  opportunity  to  address  BlakelyÕs

            impact  on  TennesseeÕs  sentencing  scheme,  the  court  has  granted  an  application  for  permission  to
            appeal  pursuant  to  Tenn.  R.  App.  P.  11 in  State  v.  Stephen  L.  Denton,  McMinn  County,  Supreme
            Court  No.  E2000-02615-SC-R11-CD,  which  raises  Blakely  issues. The  case  is  currently  being
            briefed  and  is  scheduled  for  argument  before  the  Supreme  Court  in  Knoxville  in  September  2004.
            The  Court  of  Criminal  Appeals  has  had  several  opportunities  to  address  Blakely  and  has  concluded
            that  Blakely,  at  a  minimum,  calls  into  question  the  continued  validity  of  a  trial  judgeÕs  use  of  any
            enhancement  factors--other  than  the  fact  of  a  prior  conviction  or  an  enhancement  factor  admitted  by
            the  defendant--to  impose  any  sentence  beyond  the  presumptive  sentence. For  example,  in  State  v.
            Stinson,  No.  E2003-01720-CCA-R3-CD  (Tenn.  Crim.  App.  2004),  the  Court  of  Criminal  Appeals
            modified  sentences  of  24  years  each  for  three  rape-of-a-child  convictions  to  21  years  each.  The  trial
            court  had  applied  six  enhancement  factors  to  each  conviction.  The  Court  of  Criminal  Appeals  found
            three  of  those  factors  inappropriate  based  on  either  insufficient  evidence  or  legal  inapplicability.  As
            to  the  remaining  three  factors,  the  court  found  that  Blakely  v.  Washington  prohibited  application  of
            Tenn.  Code  Ann.  ¤40-35-114(12)  because  it  required  a  finding  that  the  offense  involved  the  threat
            of  death  or  bodily  injury  to  another  person,  and  a  finding  that  the  defendant  had  previously  been
            convicted  of  a  felony  that  resulted  in  death  or  bodily  injury.  But  the  court  found  that  application  of
            the prior conviction enhancement factor was proper under the specific exception for prior
            convictions  in  both  Apprendi  and  Blakely. Finally,  the  court  held  that  application  of  a  factor
            conceded  applicable  by  the  defendant  on  appeal  was  harmless  beyond  a  reasonable  doubt.  State  v.
            Stinson,  supra,  slip  op.  at  p.  8.


                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       AMY  L.  TARKINGTON
                                                       Deputy  Attorney  General



            Page  6



            Requested  by:
                  James  T.  Cannon
                  Assistant  District  Attorney  General
                  P.  O.  Box  218
                  414  South  Fourth  Street
                  Union  City,  Tennessee  38281



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  16,  2004
                                      Opinion  No.  04-132

          Authority  to  Guarantee  Student  Loans

                                         QUESTION

                Would  any  Òeligible  lender,Ó  as  defined  in  the  Higher  Education  Act  of  1965,  pt.  B,  ¤  435(d),
          20  U.S.C.  ¤  1085(d)(1)  (1999)  and  as  defined  in  the  Federal  Student  Financial  Aid  Regulations  in
          34  C.F.R.  ¤  682.200(b)  (2004),  qualify  as  an  Òapproved  Tennessee  lenderÓ  under  Tenn.  Code  Ann.
          ¤  49-4-203(1)  (2002),  thereby  qualifying  as  a  lender  for  which  the  Tennessee  Student  Assistance
          Corporation  (TSAC)  is  authorized  to  guarantee  student  loans?


                                         OPINION

                No.  An  eligible  lender  would  be  limited  to  an  approved  Tennessee  lender  under  Tenn.  Code
          Ann.  ¤  49-4-203(1)  (2002).


                                        ANALYSIS 
                                             I.

                Under  the  provisions  of  Tenn.  Code  Ann.  ¤  49-4-203  (2002),  the  Tennessee  Student
          Assistance  Corporation  (hereinafter  ÒTSACÓ)  has  the  authority  to  guarantee  student  loans  under  the
          Higher  Education  Act  of  1965.  Specifically,  this  statute,  in  part,  provides:
                     Loans  may  be  guaranteed  for  nonresidents  of  Tennessee  if  they  are
                     enrolled  in  an  eligible  educational  institution  located  in  Tennessee  or
                     parents  of  dependent  nonresidents  enrolled  in  an  eligible  educational
                     institution  located  in  Tennessee.  Loans  may  also  be  guaranteed  under
                     the  Higher  Education  Act  of  1965,  as  amended,  for  students  who  are
                     non-residents  of  Tennessee  or  their  parents  if  they  are  made  through
                     an  approved  Tennessee  lender.

          (Emphasis  added.)



            Page  2















































                   See  also,  20  U.S.C.  ¤  1085  (d)(1)  and  34  C.F.R.  ¤  682.200(b).  1The  emphasized  language  was  added  May  19,  1995. 1995  Tenn.  Pub.  Acts,  ch.  255.
            ÒTennessee  lenderÓ  and  Òapproved  Tennessee  lenderÓ  are  not  defined  in  the  Tennessee  Code  or  in
            applicable Tennessee Rules and Regulations.  Of course, neither term is defined in the
            aforementioned  federal  statutes  and  regulations.  However,  Òeligible  lenderÓ  is  defined  in  applicable
            Tennessee  Rules  and  Regulations  as  follows:
                        A  national  or  state  chartered  bank,  a  savings  and  loan  association,  or
                        a  credit  union  which  is  subject  to  examination  and  supervision  by  an
                        agency  of  the  United  States  or  the  State  of  Tennessee  and  which  does
                        not  have  as  its  primary  consumer  credit  function  the  making  or
                        holding  of  loans  made  to  students  under  the  Guaranteed  Student  Loan
                        Program.
            Tenn.  Comp.  R.  &  Regs.  ¤  1640-1-2-.01(d)  (2004).  Hence,  an  eligible  lender  is  defined  broadly  and
            is  not  limited  to  a  ÒTennessee  lenderÓ  or  an  Òapproved  Tennessee  lender;Ó  although,  an  eligible
            lender  might  also  be  a  ÒTennessee  lender.Ó1


                  As  a  general  rule,  a  statute  such  as  Tenn.  Code  Ann.  ¤  49-4-203(1)  (2002)  is  construed  as  an
            entirety,  giving  all  words  used  their  natural  and  ordinary  meaning.  See,  e.g.,  Tenn.  Growers,  Inc.  v.
            King,  682  S.W.2d  203,  205  (Tenn.  1984)  (ÒLegislative  intent  is  derived  from  construing  the  statute
            in  its  entirety,  and  it  should  be  assumed  the  Legislature  used  each  word  purposely  and  that  those
            words  convey  some  intent  and  have  a  meaning  and  a  purpose.Ó). Courts  should  look  first  to  the
            language  of  the  statute  to  determine  legislative  purpose. Neff  v.  Cherokee  Ins.  Co.,  704  S.W.2d  1,
            3  (Tenn.  1986).
                  However,  where  a  statute  is  ambiguous  or  when  it  is  not  clear  what  the  legislature  intended,
            courts  may  look  to  the  legislative  history  to  determine  the  meaning  of  the  statute.  See,  e.g.,  Lucius
            v.  Bayside  First  Mfg.,  Inc.,  43  F.  Supp.  2d  868,  871  (W.D.  Tenn.  1999). Here,  the  meaning  of
            Òapproved  Tennessee  lenderÓ  is  subject  to  interpretation  and  may  be  ascribed  a  number  of  meanings
            and,  thus,  may  be  deemed  ambiguous,  thereby  necessitating  resort  to  the  legislative  history  of  the
            aforementioned  amendment  to  Tenn.  Code  Ann.  ¤  49-4-203(1)  (2002).
                  A  review  of  the  legislative  history  and  debate  surrounding  the  enactment  of  1995  Tenn.  Pub.
            Acts,  ch.  255  (H.B.  1118)  reveals  that  the  term  ÒTennessee  lenderÓ  or  Òapproved  Tennessee  lenderÓ
            was  not  defined  during  discussion  or  debate. House  Comm.  on  Calendar  &  Rules,  Education,  and
            Session,  Discussion  of  H.B.  1118  (Mar.  25,  1995)  (Tape  Nos.  1  and  H-34).  However,  interpreting
            the  terms  Òapproved  Tennessee  lenderÓ  or  ÒTennessee  lenderÓ  to  mean  Òany  eligible  lenderÓ  would
            render  these  terms  superfluous  counter  to  the  rules  of  statutory  construction. 
                  Under  the  provisions  of  20  U.S.C.  ¤  1085(d)(1)  and  34  C.F.R.  ¤  682.200(b),  loans  guaranteed
            by  TSAC  under  the  provisions  of  the  Higher  Education  Act  must  have  been  made  through  an



            Page  3














































                   There  is  no  evidence  or  indication  that  Federal  enactments  have  preempted  the  field  in  any  way  that  would  2

            prevent  TennesseeÕs  Legislature  from  limiting  eligible  lenders  in  this  regard. Òeligible  lenderÓ  to  be  entitled  to  federal  re-insurance.  In  addition,  under  the  requirements  of  Tenn.
            Code  Ann.  ¤  49-4-203,  TSACÕs  authority  to  guarantee  loans  under  the  Higher  Education  Act  is
            limited  to  loans  made  through  an  Òapproved  Tennessee  lender.Ó  As  the  legislature  chose  to  use  the
            term  Òapproved  Tennessee  lenderÓ  rather  than  Òeligible  lenderÓ  as  provided  in  the  Higher  Education
            Act,  a  Tennessee  lender  or  approved  Tennessee  lender  must  be  recognized  as  a  subset  of  eligible
            lenders.  Hence,  an  eligible  lender  as  defined  in  the  federal  statutes  and  regulations  and  in  Tennessee
            rules  and  regulations  would  be  limited  to  an  Òapproved  Tennessee  lenderÓ  for  loans  under  the  Higher
            Education  Act  of  1965  (as  amended).2



                                                       _____________________________________
                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       ____________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ____________________________________
                                                       WARREN  A.  JASPER
                                                       Assistant  Attorney  General
            Requested  by:
                  Michael  C.  Roberts
                  Executive  Director
                  Tennessee  Student  Assistance  Corporation
                  Suite  1950,  Parkway  Towers
                  404  James  Robertson  Parkway
                  Nashville,  TN  37243-0820



                         Chapter  111,  ¤  3,  refers  to  assistant  district  attorneys  general  and  assistant  public  defenders. For  convenience,  1

                we  refer  to  them  collectively  as  Òattorney  staff.Ó S  T  A  T  E  O  F  T  E  N  N  E  S  S  E  E

                                                            OFFICE  OF  THE

                                                        ATTORNEY  GENERAL
                                                             PO  BOX  20207
                                                   NASHVILLE,  TENNESSEE  37202

                                                            August  20,  2004
                                                          Opinion  No.  04-133
                Private  Act  Ñ  General  Sessions  Judgeship  Ñ  Funding

                                                             QUESTION

                        Chapter  111  of  the  Private  Acts  of  2004  creates  a  fourth  section  of  the  Blount  County  General
                Sessions  Court. May  the  county  add  the  fourth  section  without  providing  funds  for  an  assistant
                district  attorney  general  and  assistant  public  defender  if  the  cases  assigned  to  the  Court  do  not  require
                the  attendance  or  services  of  such  officials?

                                                               OPINION

                        A  fourth  General  Sessions  Court  may  be  added  in  Blount  County  if  the  county  legislative
                body  approves  Chapter  111  by  a  two-thirds  vote  and  funds  any  costs  associated  with  the  new
                judgeship.

                                                              ANALYSIS

                        Chapter  111  of  the  Private  Acts  of  2004  (ÒChapter  111Ó)  allows  Blount  County  to  have  an
                additional  general  sessions  court  upon  meeting  certain  conditions. Your  question  deals  with  the
                funding  condition,  which  reads  as  follows:
                        This  act  shall  take  effect  only  if  the  cost  of  providing  any  additional  assistant  district
                        attorney general, assistant public defender, or other costs associated with the
                        judgeship  created  by  this  act  are  funded  by  Blount  County,  Tennessee,  and  such
                        funding  continues  for  the  term  of  the  judgeship  created  by  this  act. 
                2004  Tenn.  Priv.  Acts  ch.  111,  ¤  3. The  opinion  request  suggests  the  possibility  that  the  presiding
                judge  could  assign  the  new  court  only  civil  cases  that  do  not  require  additional  attorney  staff.  The  1

                implication  of  this  arrangement  is  that  additional  attorney  staff  would  be  unnecessary. Chapter  111
                does  not  address  the  assignment  of  cases,  but  it  provides  that  Ò[s]ection  4  of  the  General  Sessions
                Court  shall  have  concurrent  jurisdiction  with  Sections  No.  1,  No.  2  and  No.  3.Ó 2004  Tenn.  Priv.
                Acts  ch.  111,  ¤  1(c). Even  if  the  fourth  section  were  only  assigned  civil  cases,  there  could  still  be



            Page  2
            a  need  for  additional  attorney  staff  associated  with  the  new  judgeship  if  manipulation  of  the  fourth
            sectionÕs  caseload  reduced  the  civil  cases  assigned  to  the  other  three  sections  and  increased  their
            number  of  criminal  cases.  We  think  the  real  question  is  whether  Chapter  111  requires  Blount  County
            to  fund  additional  attorney  staff  before  adding  the  fourth  court,  regardless  of  need,  or  whether  it
            requires  the  county  to  fund  additional  attorney  staff  as  they  become  necessary  because  of  the  fourth
            court. In  our  opinion,  the  latter  interpretation  is  the  more  correct  reading  of  the  statute. 
                  As  noted  above,  Section  3  states  Ò[t]his  act  shall  take  effect  only  if  the  cost  of  providing  any

            additional  assistant  district  attorney  general,  assistant  public  defender,  or  other  costs  associated  with
            the  judgeship  created  by  the  act  are  funded  by  Blount  County,  Tennessee  .  .  .  .Ó  (Emphasis  added).
            The  use  of  the  word  ÒanyÓ  modifying  assistant  district  attorney  and  assistant  public  defender  makes
            no  sense  in  this  context,  except  ÒanyÓ  such  personnel  that  may  be  required. If  none  are  required,
            there  are  not  ÒanyÓ  that  need  to  be  funded.  Further,  given  that  the  sentence  uses  the  word  Òor,Ó  we
            do  not  think  funding  for  additional  attorney  staff  is  automatically  required  before  the  judge  may
            assume  office. Chapter  111  requires  a  determination  of  all  the  costs  associated  with  a  fourth
            judgeship,  and  it  also  requires  the  county  to  fund  those  costs,  including  additional  attorney  staff,  as
            needed.  But  the  statute  is  not  itself  a  determination  that  additional  attorney  staff  will  be  needed.  As
            a  practical  matter,  the  appropriate  county  officials  should  consult  on  staffing  needs  with  the  District
            Attorney  General, the  District  Public  Defender,  and  the  Presiding  Judge  of  the  General  Sessions
            Court  before  approving  Chapter  111  and  assuming  its  funding  requirements.




                                                       _________________________________

                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       _________________________________

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       _________________________________

                                                       GINA  J.  BARHAM
                                                       Deputy  Attorney  General
            Requested  by:
                  The  Honorable  Bill  Clabough
                  State  Senator
                  309  War  Memorial  Bldg.
                  Nashville,  TN  37243-0208



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  20,  2004
                                      Opinion  No.  04-134
          ÒUtility  Water  ServiceÓ  under  Tenn.  Code  Ann.  ¤  6-51-301(a)(1)

                                         QUESTION

                Under  Tenn.  Code  Ann.  ¤  6-51-301(a)(1),  no  city  may  render  Òutility  water  serviceÓ  outside
          its  boundaries  when  all  of  the  area  to  be  served  is  included  within  the  scope  of  a  certificate  from  an
          appropriate  regulatory  agency  authorizing  some  other  person,  firm,  or  corporation  to  render  utility
          water  service.  Does  a  cityÕs  provision  of  sewer  service  come  within  the  meaning  of  Òutility  water
          serviceÓ  under  this  statute  in  light  of  Lynnwood  Utility  Company  v.  Franklin,  No.  89-360-II,  1990
          WL  38358  (M.S.  Tenn.Ct.App.  April  6,  1990)?

                                         OPINION

                In  Lynwood,  the  Court  of  Appeals  expressly  declined  to  hold  that  the  term  Òutility  water
          serviceÓ  as  used  in  the  statute  included  sewer  service.  This  case,  therefore,  does  not  provide  binding
          legal  authority  for  including  sewer  service  within  that  term.  Because  Tennessee  statutes  generally
          list  water  and  sewer  service  as  separate  services,  a  court  is  likely  to  conclude  that  the  term  Òutility
          water  serviceÓ  as  used  in  Tenn.  Code  Ann.  ¤  6-51-301(a)  does  not  include  a  sanitary  sewer  system.
          But  other  statutes,  including  Tenn.  Code  Ann.  ¤  7-51-401(c)  and  Tenn.  Code  Ann.  ¤  7-82-301(a),
          could  also  prohibit  a  city  from  extending  sewer  service  beyond  its  city  boundaries.

                                         ANALYSIS

                This  opinion  concerns  the  definition  of  Òutility  water  serviceÓ  as  used  in  the  following
          statute:
                     Notwithstanding  any  other  law,  public  or  private,  to  the  contrary,  no
                     municipality  may  render  utility  water  service  to  be  consumed  in  any
                     area  outside  its  municipal  boundaries  when  all  of  such  area  is
                     included within the scope of a certificate or certificates of
                     convenience  and  necessity  or  other  similar  orders  of  the  Tennessee
                     regulatory authority or other appropriate regulatory agency
                     outstanding  in  favor  of  any  person,  firm  or  corporation  authorized  to
                     render  such  utility  water  service.



            Page  2
            Tenn.  Code  Ann.  ¤  6-51-301(a). The  request  refers  to  an  unpublished  opinion  of  the  Tennessee
            Court  of  Appeals  for  the  Middle  Section,  Lynnwood  Utility  Company  v.  Franklin,  No.  89-360-II,
            1990  WL  38358  (M.S.  Tenn.Ct.App.  April  6,  1990).  That  case  actually  addressed  a  cityÕs  obligation
            to  pay  damages  suffered  by  a  sewer  company  when  the  city  annexed  land  within  the  companyÕs
            service  territory  and  decided  to  provide  sewer  service  to  the  area. That  requirement  is  in  the  third
            sentence  of  Tenn.  Code  Ann.  ¤  6-51-301(a)(1),  which  is  not  quoted  above.  The  Court  stated  that  it
            would  Òassume  without  holdingÓ  that  the  term  Òutility  water  serviceÓ  in  the  statute  included  sewer
            service  provided  by  the  company. But  the  Court  found  that  the  utility  company  had  suffered  no
            damages  under  the  statute  because  it  did  not  provide  service  to  the  annexed  area. The  Court,
            therefore,  expressly  declined  to  hold  that  the  term  Òutility  water  serviceÓ  as  used  in  the  statute
            included  sewer  service.  This  case,  therefore,  does  not  provide  binding  legal  authority  for  including
            sewer  service  within  that  term.
                  The  term  Òutility  water  serviceÓ  is  not  used  in  any  other  Tennessee  statute. Other  statutes
            expressly  mention  water  and  sewer  service,  reflecting  an  assumption  that  the  two  types  of  services
            are  different. For  example,  Tenn.  Code  Ann.  ¤  6-51-102,  also  a  part  of  the  statutory  annexation
            scheme,  refers  to  a  plan  of  services  that  must  include,  among  others,  Òwater  serviceÓ  and  Òsanitary
            sewer  service.Ó Tenn.  Code  Ann.  ¤  6-51-102(b)(2). Tenn.  Code  Ann.  ¤  7-35-201(1)  authorizes  a
            city  Òalso  providing  water  servicesÓ  to  a  property  to  terminate  water  service  to  a  customer  that
            refuses  to  connect  to  a  city  sanitary  sewer  system.  Under  Tenn.  Code  Ann.  ¤  6-54-122(f),  a  statute
            on  eminent  domain  procedure  does  not  apply  to  eminent  domain  by  a  city  to  acquire  property
            interests  to  be  used  to  benefit  a  municipal  utility,  including  Òwater  utility  servicesÓ  and  Òsewer  utility
            services.Ó  Based  on  these  statutes,  a  court  is  likely  to  conclude  that  the  term  Òutility  water  serviceÓ
            as  used  in  Tenn.  Code  Ann.  ¤  6-51-301(a)  does  not  include  a  sanitary  sewer  system. 
                  Depending  on  the  facts  and  circumstances,  other  statutes  would  also  be  relevant  to  this  issue.
            Under  Tenn.  Code  Ann.  ¤  7-51-401(a),  with  one  exception,  a  city  is  authorized  to  extend  its  sewage
            collection  and  treatment  services  outside  its  boundaries  to  customers  desiring  the  service. But
            subsection  (c)  of  the  statute  provides:
                        No  such  .  .  .  municipality  .  .  .  shall  extend  its  services  into  sections  of
                        roads  or  streets  already  occupied  by  other  public  agencies  rendering
                        the  same  service,  so  long  as  such  other  public  agency  continues  to
                        render  such  service.
            Tenn.  Code  Ann.  ¤  7-51-401(c)  (emphasis  supplied). The  statute  does  not  define  the  term  Òpublic
            agency,Ó  but  it  clearly  includes  a  utility  district  operating  under  Tenn.  Code  Ann.  ¤¤  7-82-101,  et
            seq.,  and  arguably  includes  a  utility  company  holding  a  certificate  of  authority  from  the  Tennessee
            Regulatory  Authority.  Under  this  statute,  therefore,  a  city  would  be  prohibited  from  extending  sewer
            service  to  an  area  outside  its  boundaries  that  is  already  being  served  by  a  public  agency.  In  addition,
            a  utility  district  is  the  sole  public  corporation  empowered  to  furnish  authorized  services  in  its
            territory,  Òunless  and  until  it  has  been  established  that  the  public  convenience  and  necessity  requires
            other  or  additional  services[.]Ó Tenn.  Code  Ann.  ¤  7-82-301. Under  this  statute,  a  city  would  be



            Page  3
            prohibited  from  extending  sewer  service  to  an  area  outside  its  boundaries  and  within  the  service  area
            of  a  utility  district  authorized  to  furnish  sewer  services,  unless  it  were  established  that  the  public
            convenience  and  necessity  requires  other  or  additional  services. This  Office  has  concluded  that  a
            city  may  petition  the  county  executive  to  limit  the  service  area  of  a  utility  district  or  otherwise  allow
            the  municipality  to  serve  the  area. Op.  Tenn.  AttÕy  Gen.  02-110  (October  4,  2002).



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Bill  Clabough
                  State  Senator
                  309  War  Memorial  Building
                  Nashville,  TN  37243-0208



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  23,  2004
                                      Opinion  No.  04-135
          Recall  Election  for  City  Officials

                                        QUESTIONS

                1.    Does  an  individual  or  an  association,  committee,  or  other  group  advocating  the  recall
          of  one  or  more  local  elected  officials  have  to  register  with  a  county  election  commission  as  a  single
          measure  committee  or  a  political  action  committee?
                2.    If  the  answer  to  Question  1  is  yes,  what  penalties  or  sanctions  apply  to  an  individual,
          association,  committee,  or  other  group  failing  to  register?
                3.    This  Office  has  previously  concluded  that  Tenn.  Code  Ann.  ¤  6-53-108(a)  supersedes
          conflicting  recall  petition  requirements  found  in  the  Chattanooga  City  Charter.  Op.  Tenn.  AttÕy  Gen.
          87-138  (August  11,  1987).  Do  the  requirements  for  recall  petitions  contained  in  Tenn.  Code  Ann.
          ¤  6-53-108(a)  supersede  all  municipal  charter  provisions  addressing  such  petitions?
                4.    If  the  answer  to  Question  3  is  yes,  then,  Tenn.  Code  Ann.  ¤  6-53-108(a)  requires
          recall  petitions  to  include  Òone  or  more  specific  grounds  for  removal.Ó  Would  a  petition  containing
          a  statement  that  a  local  elected  official  Òshould  be  recalled  because  of  his/her  abuse  of  official  power
          and  his/her  disregard  for  the  best  interest  of  city  residentsÓ  satisfy  the  requirement  under  Tenn.  Code
          Ann.  ¤  6-53-108(a)?
                5.    Court  rulings  suggest  that  an  elected  official  subject  to  recall  cannot  file  suit  to
          challenge  the  validity  of  a  recall  election.  Rulings  also  suggest  that  county  election  commissioners
          may  not  be  subject  to  suit  for  certifying  a  potentially  invalid  recall  election.  Once  recall  petitions
          have  been  accepted  by  an  election  commission,  who  has  standing  to  file  suit  challenging  the  validity
          of  a  recall  election,  and  who  would  be  named  as  defendant?
                6.    May  an  elected  official  who  is  named  in  a  recall  petition  assert  in  court  that  his  or  her
          respective  municipal  charter  concerning  recall  petitions  is  superseded  by  state  law  when  this  official
          has  received  the  benefits  conferred  by  the  charter,  or  would  the  official  be  estopped  from  challenging
          the  charter  provision  on  equitable  grounds?
                7.    Would  the  Declaratory  Judgment  Act,  Tenn.  Code  Ann.  ¤¤  29-14-101,  et  seq.,

          provide  a  cause  of  action  for  an  elected  official  who  is  subject  to  a  recall  election,  when  the  issue
          raised  is  the  applicability  of  the  requirement  for  recall  petitions  contained  in  Tenn.  Code  Ann.  ¤  6-



            Page  2
            53-108(a)  in  a  municipal  election  where  the  municipal  charter  requires  only  a  statement  of  general
            grounds  for  recall?

                                               OPINIONS

                  1.    Disclosure  rules  do  not  apply  to  an  individual  advocating  the  recall  of  one  or  more
            local  officials.  A  group  or  corporation  that  makes  expenditures  or  receives  contributions  to  support
            or  oppose  a  measure  within  the  meaning  of  Tenn.  Code  Ann.  ¤¤  2-10-101,  et  seq.,  is  subject  to
            disclosure  requirements.  The  recall  of  an  elected  official  is  a  ÒmeasureÓ  within  the  meaning  of  this
            statutory  scheme. The  Registry  of  Election  Finance  has  the  jurisdiction  to  administer  and  enforce
            the  disclosure  requirements. Questions  regarding  the  applicability  of  the  disclosure  requirements
            to  any  particular  group  should  be  referred  to  the  Registry.
                  2.    Because  the  disclosure  requirements  do  not  apply  to  an  individual,  no  penalties  or
            sanctions  for  an  act  that  would  otherwise  be  a  violation  would  apply  to  an  individual. A  county
            administrator  of  elections  may  impose  civil  penalties  for  certain  Òclass  1  offenses,Ó  including
            violations  of  the  disclosure  requirements,  as  set  forth  in  Tenn.  Code  Ann.  ¤  2-10-110(a)(1). The
            county  administrator  of  elections  must  notify  the  Registry  of  Election  Finance  of  Òclass  2  offensesÓ
            as  described  in  Tenn.  Code  Ann.  ¤  2-10-110(a)(2),  and  the  Registry  may  impose  sanctions  under  that
            statute. Under  the  statute,  it  is  not  entirely  clear  that  the  Registry  of  Election  Finance  may  levy  a
            penalty  for  a  class  2  offense  against  a  single-issue  political  campaign  committee. Because  the
            Registry  has  the  jurisdiction  to  administer  and  enforce  the  disclosure  requirements,  questions  about
            applicable  penalties  should  be  referred  first  to  that  agency. 
                  3.    Whether  Tenn.  Code  Ann.  ¤  6-53-108  supersedes  a  municipal  charter  provision  on
            recall  depends  on  whether  the  municipal  charter  conflicts  with  it.  The  statute  supersedes  any  charter
            provision  that  conflicts  with  it. 
                  4.    We  think  a  court  would  conclude  that  a  petition  stating  that  an  official  Òshould  be
            recalled  because  of  his/her  abuse  of  official  power  and  his/her  disregard  for  the  best  interest  of  city
            residentsÓ  satisfies  the  requirement  that  the  petition  state  specific  grounds  for  recall. 
                  5.    Questions  5,  6,  and  7  all  concern  a  theoretical  lawsuit  in  which  this  Office  may
            represent  one  or  more  of  the  parties.  This  opinion  is  not  intended  to  be  an  outline  of  the  position  this
            Office  may  take  in  any  lawsuit. Our  decisions  regarding  litigation  strategy  will  be  based  on  the
            particular  complaint,  the  parties  named,  and  all  other  relevant  facts,  circumstances,  and  law. 
                  Under  Tennessee  cases,  it  is  not  clear  whether  an  official  who  is  the  subject  of  the  petition,
            or,  in  fact,  any  voter  in  the  city,  has  standing  to  bring  an  action  to  determine  whether  a  recall  petition
            for  a  city  official  complies  with  the  requirements  of  Tenn.  Code  Ann.  ¤  6-53-108. In  a  lawsuit  to
            challenge  the  county  election  commissionÕs  decision  to  place  a  recall  issue  on  the  ballot,  it  seems
            that  the  county  election  commission  would  be  a  logical  defendant. See,  e.g.,  Tenn.  Code  Ann.  ¤¤
            27-9-101,  et  seq.  (review  of  boards  and  commissions). But  the  Tennessee  Supreme  Court  has



            Page  3
            refused  to  enjoin  a  county  election  commission  from  holding  a  recall  election  against  a  challenge  that
            the  commissioners  had  not  properly  performed  certain  discretionary  duties.  It  should  also  be  noted
            that  the  Tennessee  Coordinator  of  Elections  has  the  duty  to  Ò[a]uthoritatively  interpret  the  election
            laws  for  all  persons  administering  them.Ó Where  the  Coordinator  is  made  a  party,  a  court  is  likely
            to  defer  to  that  officialÕs  interpretation  of  the  requirements  for  the  petition. Other  appropriate
            defendants  would  depend  on  the  terms  of  the  complaint  and  the  relief  sought. 
                  6.    Depending  on  the  terms  of  the  complaint  and  the  relief  sought,  we  think  a  court  would
            conclude  that  a  city  official  is  not  estopped  from  asserting  a  claim  that  the  recall  provision  in  the  city
            charter  is  superseded  by  general  state  law. As  discussed  above,  however,  it  is  not  clear  whether  a
            Tennessee  court  would  find  that  an  official  has  standing  to  challenge  the  decision  of  a  county
            election  commission  to  place  a  recall  issue  on  the  ballot. 
                  7.    A  definitive  answer  to  this  question  could  only  be  provided  by  a  court  of  law  and
            would  depend  on  the  terms  of  the  complaint  and  the  relief  sought.  For  example,  the  Tennessee  Court
            of  Appeals  has  found  that  a  declaratory  judgment  action  against  a  state  official  may  be  barred  by
            sovereign  immunity. Spencer  v.  Cardwell,  937  S.W.2d  422  (Tenn.  Ct.  App.  1996),  p.t.a.  denied

            (1996).

                                               ANALYSIS

                  1.    Registering  as  a  Political  Campaign  Committee
                  The  first  question  is  whether  an  individual  or  an  association,  committee,  or  other  group
            advocating  the  recall  of  one  or  more  local  elected  officials  has  to  register  with  a  county  election
            commission  as  a  single  measure  committee  or  a  political  action  committee.  Disclosure  requirements
            for  political  action  committees  appear  in  Tenn.  Code  Ann.  ¤¤  2-10-101,  et  seq.  Under  Tenn.  Code
            Ann.  ¤  2-10-105(b):
                        Each candidate for local public office or political campaign
                        committee  for  a  local  election  shall  file  with  each  county  election
                        commission  of  the  county  where  the  election  is  held  a  statement  of  all
                        contributions  received  and  all  expenditures  made  by  or  on  behalf  of
                        such  candidate  or  such  committee. The  .  .  .  statement  of  a  political
                        campaign  committee  for  a  local  election  shall  include  the  date  of  each
                        expenditure  which  is  a  contribution  to  a  candidate. 
            These  rules  do  not  apply  to  an  individual  who  is  not  a  candidate  for  local  public  office.  Whether  an
            organization  or  group  must  comply  with  the  disclosure  requirements  depends  on  whether  it  falls
            within  the  definitions  contained  in  the  statutory  scheme. The  term  ÒelectionÓ  means  Òany  general,
            special  or  primary  election  or  run-off  election,  held  to  approve  or  disapprove  a  measure  or  nominate
            or  elect  a  candidate  for  public  office[.]Ó Tenn. Code  Ann.  ¤  2-10-102(5)  (emphasis  added). It  is
            the  opinion  of  this  Office  that  a  proposition  on  the  ballot  directing  the  recall  of  an  elected  official



            Page  4
            would  qualify  as  a  ÒmeasureÓ  within  the  meaning  of  this  statute. Thus  a  political  campaign
            committee  for  a  local  election  to  approve  or  disapprove  a  measure  is  required  to  file  a  report  of  all
            contributions  received  and  all  expenditures  made  by  or  on  behalf  of  the  committee. Under  Tenn.
            Code  Ann.  ¤  2-10-102(12),  Òpolitical  campaign  committeeÓ  means:
                              (A)  A  combination  of  two  (2)  or  more  individuals,  including
                        any  political  party  governing  body,  whether  state  or  local,  making
                        expenditures,  to  support  or  oppose  any  candidate  for  public  office  or

                        measure,  but  does  not  include  a  voter  registration  program;
                              (B) Any corporation or other organization making
                        expenditures,  except  as  provided  in  subdivision  (4),  to  support  or
                        oppose  a  measure;  or
                              (C) Any committee, club, association or other group of
                        persons which receives contributions or makes expenditures to
                        support  or  oppose  any  candidate  for  public  office  or  measure  during
                        a  calendar  quarter  in  an  aggregate  amount  exceeding  two  hundred
                        fifty  dollars  ($250)[.]
            (emphasis  added).  ÒExpenditureÓ  means  a  Òpurchase,  payment,  distribution,  loan,  advance,  deposit
            or  gift  of  money  or  anything  of  value  made  for  the  purpose  of  influencing  a  measure  or  the
            nomination  for  election  or  election  of  any  person  to  public  office[.]Ó Tenn.  Code  Ann.  ¤  2-10-
            102(6)(A). ÒContributionÓ  includes  Òany  advance,  conveyance,  deposit,  distribution,  transfer  of
            funds,  loan,  loan  guaranty,  personal  funds  of  a  candidate,  payment,  gift,  pledge  or  subscription  of
            money  or  like  thing  of  value,  and  any  contract,  agreement,  promise  or  other  obligation,  whether  or
            not  legally  enforceable,  made  for  the  purpose  of  influencing  a  measure  .  .  .  .Ó  Tenn.  Code  Ann.  ¤  2-
            10-102(4).  Several types of services and activities are excluded from the definition of
            Òcontribution.Ó 
                  The  definition  of  Òpolitical  campaign  committeeÓ  cited  above  contains  some  ambiguities.
            The  Registry  of  Election  Finance  has  the  jurisdiction  to  administer  and  enforce  the  disclosure
            requirements. Tenn.  Code  Ann.  ¤  2-10-205(1). Questions  regarding  the  applicability  of  the
            disclosure  requirements  to  any  particular  group  should  be  referred  to  the  Registry.
                  2.    Penalties  for  Violating  the  Disclosure  Requirements
                  The  next  question  is  what  sanctions  and  penalties  apply  to  an  individual  or  group  that  violates
            the  disclosure  requirements.  Because  the  disclosure  requirements  do  not  apply  to  an  individual  who
            advocates  for  the  recall  of  a  local  elected  official,  that  individual  is  not  subject  to  any  penalties  for
            failing  to  observe  them.  A  county  administrator  of  elections  may  impose  civil  penalties  for  certain
            Òclass  1  offenses,Ó  including  violations  of  the  disclosure  requirements,  as  set  forth  in  Tenn.  Code
            Ann.  ¤  2-10-110(a)(1). The  county  administrator  of  elections  must  notify  the  Registry  of  Election
            Finance  of  Òclass  2  offensesÓ  as  described  in  Tenn.  Code  Ann.  ¤  2-10-110(a)(2),  and  the  Registry



            Page  5
             may  impose  sanctions  under  that  statute. The  treasurer  of  a  multicandidate  political  campaign
            committee  is  personally  liable  for  any  civil  penalty  levied  by  the  Registry  of  Election  Finance. 
                  Under  the  statute,  it  is  not  entirely  clear  that  the  Registry  of  Election  Finance  may  levy  a
            penalty  for  class  2  offenses  against  a  single-issue  political  campaign  committee. Because  the
            Registry  has  the  jurisdiction  to  administer  and  enforce  the  disclosure  requirements,  questions  about
            applicable  penalties  should  be  referred  first  to  that  agency. 
                  3.    Effect  of  Tenn.  Code  Ann.  ¤  6-53-108
                  The  next  question  is  whether  Tenn.  Code  Ann.  ¤  6-53-108  supersedes  all  municipal  charter
            provisions  addressing  such  recall  petitions. This  statute  provides:
                              (a) The charter of any municipality to the contrary
                        notwithstanding,  any  petition  or  petitions  required  to  be  filed  under
                        a  municipal  charter  in  order  to  cause  a  recall  election  of  whatever  type
                        or  kind,  whether  in  the  nature  of  a  new  municipal  election  prior  to  the
                        next  regular  election  or  otherwise,  shall  contain  one  (1)  or  more
                        specific  grounds  for  removal.
                              (b) This  section  shall  be  construed  to  be  remedial  and  shall
                        be  given  a  liberal  and  retroactive  effect  where  legally  permissible.
                  It  should  be  noted  that,  as  a  general  matter,  any  governmental  entity  having  a  charter
            provision  for  a  petition  for  recall  must  also  meet  the  requirements  of  Tenn.  Code  Ann.  ¤  2-5-151.
            A  contrary  charter  provision  of  a  municipality  or  county  that  is  enacted  after  July  1,  1997,  will
            control  with  respect  to  the  minimum  number  of  signatures  required  in  a  petition  and  to  provisions
            relating  to  the  seventy-five-day  deadline  for  filing  of  a  petition  after  final  certification  by  the  county
            election  commission. Tenn.  Code  Ann.  ¤  2-5-151(j). Whether  either  of  these  statutes  supersedes
            a  municipal  charter  provision  on  recall  depends  on  whether  the  municipal  charter  conflicts  with
            either  of  these  statutes. Any  charter  provision  that  conflicts  with  Tenn.  Code  Ann.  ¤  6-53-108  is
            superseded  by  that  statute.  Op.  Tenn.  AttÕy  Gen.  87-138  (August  11,  1987).
                  4.    Requirement  for  Specific  Grounds  for  Recall  under  Tenn.  Code  Ann.  ¤  6-53-108
                  The  next  question  is  whether  a  petition  containing  a  statement  that  a  local  elected  official
            Òshould  be  recalled  because  of  his/her  abuse  of  official  power  and  his/her  disregard  for  the  best
            interest  of  city  residentsÓ  satisfies  the  requirement  under  Tenn.  Code  Ann.  ¤  6-53-108(a).  Under  this
            statute,  a  petition  for  recall  Òshall  contain  one  (1)  or  more  specific  grounds  for  removal.Ó  This  Office
            has  concluded  that  this  statute  does  not  limit  the  grounds  for  removal  that  must  be  stated  in  the  recall
            petition  to  any  particular  type.  Op.  Tenn.  AttÕy  Gen.  87-138  (August  11,  1987).  Thus,  any  reasons
            that  the  petitioners  believe  justify  recall  are  sufficient. For  this  reason,  we  think  a  court  would
            conclude  that  a  petition  stating  that  an  official  Òshould  be  recalled  because  of  his/her  abuse  of  official



            Page  6
            power  and  his/her  disregard  for  the  best  interest  of  city  residentsÓ  satisfies  the  requirement  that  the
            petition  state  specific  grounds  for  recall. 
                  5. Standing  to  Challenge  Recall  Petition
                  Questions  5,  6,  and  7  all  concern  a  theoretical  lawsuit  in  which  this  Office  may  represent  one
            or  more  of  the  parties. See  Tenn.  Code  Ann.  ¤  2-12-101  (Attorney  General  or  attorney  chosen  by
            Attorney  General  represents  county  election  commissioners  in  legal  proceedings  attacking  a  state  law
            or  presenting  a  question  concerning  state  or  federal  election);  Tenn.  Code  Ann.  ¤  2-11-202(a)(4)  (the
            Tennessee  Coordinator  of  Elections  shall  Ò[a]uthoritatively  interpret  the  election  laws  for  all  persons
            administering  themÓ).  This  opinion  is  not  intended  to  be  an  outline  of  the  position  this  Office  may
            take  in  any  lawsuit. Our  decisions  regarding  litigation  strategy  will  be  based  on  the  particular
            complaint,  the  parties  named,  and  all  other  relevant  facts,  circumstances,  and  law. 
                  The  next  question  concerns  who  has  standing  to  file  suit  challenging  the  validity  of  a  recall
            election  once  a  recall  petition  has  been  accepted  by  a  county  election  commission  and  who  should
            be  named  as  the  defendant. The  request  states  that  court  rulings  suggest  that  an  elected  official
            subject  to  recall  cannot  file  suit  to  challenge  the  validity  of  a  recall  election. The  request  does  not
            state  to  which  rulings  it  refers. The  only  case  on  the  subject  appears  to  be  Roberts  v.  Brown,  43
            Tenn.App.  567,  310  S.W.2d  197  (1957),  p.t.a.  denied  (1958). In  that  case,  some  individuals  who
            had  signed  a  recall  petition  sued  the  city  clerk  for  a  writ  of  mandamus  when  she  refused  to  certify
            it  to  the  county  election  commissioners.  The  commissioner  whose  recall  was  sought  intervened  as
            a  defendant. The  commissioner  raised  two  constitutional  challenges  to  the  recall  provision  in  the
            city  charter. The  Court  found  that  neither  the  city  clerk  nor  the  commissioner  could  raise
            constitutional  challenges  to  the  city  charter,  since  they  had  accepted  the  benefit  of  holding  office
            under  it.  310  S.W.2d  at  212.  The  Court  stated,  Ò[c]onsequently,  they  cannot  be  heard  to  contest  the
            validity  of  that  part  of  it  which  is  objectionable  to  them,  even  if  such  contest  could  be  successfully
            made  by  someone,  not  prohibited,  as  they  are,  from  making  such  contest.Ó  Id.  But  the  Court  did  not
            state  that  the  commissioner  and  the  clerk  lacked  standing  to  raise  other  issues  with  regard  to  the
            petition.  In  fact,  the  Court  found  that  the  individuals  who  brought  the  lawsuit,  city  voters  who  had
            signed  the  recall  petition,  were  not  required  to  show  any  special  interest  in  the  subject  matter  of  the
            litigation  in  order  to  bring  it. 
                  A  court  is  unlikely  to  find  that,  under  Roberts  v.  Brown,  an  official  who  is  the  subject  of  a
            recall  petition  cannot  bring  an  action  challenging  its  compliance  with  applicable  statutes.  In  Roberts,

            the  Court  found  that  a  city  official  could  not  challenge  the  constitutional  validity  of  the  very  charter
            under  which  he  had  accepted  office. But  the  Court  did  not  rule  that  the  commissioner  could  not
            challenge  the  petition  on  other  grounds.  On  the  other  hand,  in  State  ex  rel.  Hammond  v.  Wimberly,

            184  Tenn.  132,  196  S.W.2d  561  (Tenn.  1946),  the  Tennessee  Supreme  Court  refused  to  enjoin  a
            recall  election  on  several  grounds,  including  that  voters  ordinarily  have  no  special  interest  in  the
            matter  as  to  justify  their  seeking  an  injunction  against  an  election.  The  Court  noted  that  Òno  one  can
            tell  what  the  result  of  an  election  will  be  and  no  complainant  can  say  that  he  will  be  adversely
            affected  by  an  election.Ó 196  S.W.2d  at  562,  quoting  Buena  Vista  School  District  v.  Board  of



            Page  7

            Election  Commissioners  of  Carroll  County,  173  Tenn.  198,  116  S.W.2d  1008  (1938);  see  also
            Moyers  v.  Sherrod,  525  S.W.2d  126  (Tenn.  1978).  For  this  reason,  it  is  not  clear  whether  an  official
            who  is  the  subject  of  the  petition,  or,  in  fact,  any  voter  in  the  city,  has  standing  to  bring  an  action  to
            determine  whether  a  recall  petition  for  a  city  official  complies  with  the  requirements  of  Tenn.  Code
            Ann.  ¤  6-53-108. 
                  The  request  also  states  that  rulings  suggest  that  county  election  commissioners  may  not  be
            subject  to  suit  for  certifying  a  potentially  invalid  recall  election.  Again,  the  request  does  not  specify
            to  which  rulings  this  statement  refers. The  concern  appears  to  stem  from  the  case  of  State  ex  rel.
            Hammond  v.  Wimberly,  184  Tenn.  132,  196  S.W.2d  561  (Tenn.  1946).  In  that  action,  the  Tennessee
            Supreme  Court  refused  to  issue  an  injunction  to  restrain  the  Knox  County  Election  Commission  from
            conducting  a  recall  election  in  Knoxville. The  plaintiffs  in  the  action  claimed  that  the  election
            commissioners  had  failed  adequately  to  perform  several  functions  with  regard  to  the  recall  petition,
            including  removing  defective  pages  and  signatures. The  Court  found  that  courts  of  equity  in
            Tennessee  ordinarily  will  not  enjoin  the  holding  of  an  election.  The  Court  noted,  further,  that  at  least
            some  of  the  duties  were  discretionary  and  that  the  commissioners  were  the  proper  judges  of  the
            sufficiency  of  the  recall  petition. The  Court  declined,  therefore,  to  review  the  commissionersÕ
            certification.
                  Depending  on  the  particular  charter  provision  involved,  a  court  could  reach  a  similar
            conclusion  with  regard  to  any  lawsuit  challenging  the  decision  of  a  county  election  commission  to
            place  a  recall  issue  on  the  ballot.  Further,  under  Tenn.  Code  Ann.  ¤  2-11-202(a)(4),  the  Coordinator
            of  Elections  must  Ò[a]uthoritatively  interpret  the  election  laws  for  all  persons  administering  them.Ó
            (Emphasis  added).  Where  the  Coordinator  is  made  a  party  to  a  lawsuit  challenging  a  recall  petition,
            a  court  is  likely  to  defer  to  that  officialÕs  interpretation  of  the  requirements  for  the  petition. 
                  6. Claim  that  City  Charter  has  been  Superseded
                  The  next  question  is  whether  a  city  official  may  assert  in  court  that  the  recall  provision  in  the
            charter  under  which  the  official  holds  office  is  superseded  by  general  state  law. This  concern
            appears to stem from the ruling in Roberts prohibiting city officials from challenging the
            constitutionality  of  a  recall  provision  in  the  city  charter  under  which  they  held  office.  A  claim  that
            the  city  charter  has  been  superseded  by  general  law,  however,  is  not  a  challenge  to  the  validity  of  the
            statute.  Instead,  it  is  part  of  a  lawsuit  regarding  the  proper  interpretation  of  recall  election  laws.  For
            this  reason,  we  think  a  court  would  conclude  that  a  city  official  is  not  estopped  from  asserting  a
            claim  that  the  recall  provision  in  the  city  charter  is  superseded  by  general  state  law. As  discussed
            above,  however,  it  is  not  clear  whether  a  Tennessee  court  would  find  that  an  official  has  standing  to
            challenge  the  decision  of  a  county  election  commission  to  place  a  recall  issue  on  the  ballot. 
                  7. Action  under  the  Declaratory  Judgment  Act
                  The  last  question  is  whether  Tenn.  Code  Ann.  ¤¤  29-14-101,  et  seq.,  provides  a  cause  of
            action  for  an  elected  official  who  is  subject  to  a  recall  election,  when  the  issue  raised  is  the



            Page  8
            applicability  of  the  requirement  for  recall  petitions  in  Tenn.  Code  Ann.  ¤  6-53-108(a). Again,  a
            definitive  answer  to  this  question  could  only  be  provided  by  a  court  of  law  and  would  depend  on  the
            terms  of  the  complaint  and  the  relief  sought. For  example,  the  Tennessee  Court  of  Appeals  has
            found  that  a  declaratory  judgment  action  against  a  state  official  may  be  barred  by  sovereign
            immunity. Spencer  v.  Cardwell,  937  S.W.2d  422  (Tenn.  Ct.  App.  1996),  p.t.a.  denied  (1996).


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Robert  S.  McKee
                  State  Representative
                  206  War  Memorial  Building
                  Nashville,  TN  37243-0123



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  24,  2004
                                      Opinion  No.  04-136
          Volunteer  Parent-Drivers  Transporting  Students  to  School  Sporting  Events

                                         QUESTION

                Are  parents  who  volunteer  to  transport  student  team  members  to  school  sporting  events  at
          other  schools  required  to  have  the  same  insurance  liability  coverage  as  the  school  system  does  for
          transporting  its  students?


                                         OPINION

                We  have  found  no  statute  that  requires  volunteer  parent-drivers  to  carry  the  same  amount  of
          liability  insurance  coverage  as  the  school  system.  Because  the  local  school  board,  however,  has
          responsibility  and  control  over  all  schools  in  its  system,  we  believe  that  it  would  be  within  the  school
          boardÕs  discretion  to  establish  a  policy  requiring  volunteer  parent-drivers  to  have  a  specific  amount
          of  liability  insurance  when,  under  the  auspices  of  the  school  involved,  they  volunteer  to  transport
          students  to  ÒawayÓ  sporting  or  other  similar  events.


                                         ANALYSIS

                These  are  the  facts  upon  which  we  base  this  opinion.  A  public  high  school  has  a  soccer  team
          but  does  not  provide  transportation  for  team-member  students  to  and  from  soccer  matches  with  other
          schools.  Parents  provide  transportation  for  team  members  on  a  voluntary  basis.  We  further  assume
          for  purposes  of  this  opinion  that  the  parents  who  volunteer  for  this  duty  do  so  with  the  knowledge
          and  encouragement  of  school  officials  and  are  transporting  students  other  than  their  own  children.
          The  Tennessee  Governmental  Tort  Liability  Act  (TGLA),  Tenn.  Code  Ann.  ¤¤  29-20-101,  et  seq.,

          authorizes  governmental  entities,  such  as  a  public  school  system,  to  purchase  insurance  to  cover  their
          liability.  Tenn.  Code  Ann.  ¤  29-20-102(3)  and  ¤  29-20-403(a).  After  July  1,  2002,  but  before  July
          1,  2007,  the  TGLA  sets  minimum  requirements  on  such  policies  as  follows: 

                     Minimum  limits  of  not  less  than  two  hundred  fifty  thousand  dollars
                     ($250,000)  for  bodily  injury  or  death  of  any  one  (1)  person  in  any  one
                     (1)  accident,  occurrence  or  act,  and  not  less  than  six  hundred
                     thousand  dollars  ($600,000)  for  bodily  injury  or  death  of  all  persons



            Page  2














































                   Special  considerations  for  transportation  of  some  students  with  disabilities  may  be  required.  See  Tenn.  Code  1

            Ann.  ¤  49-6-2101(c);  49-6-2114;  49-10-107(3);  Tenn.  Admin.  Rules,  State  Board  of  Education,  0520-1-5-.02(2). in  any  one  (1)  accident,  occurrence  or  act,  and  eighty-five  thousand
                        dollars  ($85,000)  for  injury  or  destruction  of  property  of  others  in  any
                        one  (1)  accident,  occurrence  or  act.  The  provisions  of  this  subdivision
                        shall  apply  to  any  action  arising  on  or  after  July  1,  2002,  but  before
                        July  1,  2007.

            Tenn.  Code  Ann.  ¤  29-20-403(b)(3).  Drivers  of  personal  cars,  e.g.,  volunteer  parent-drivers,  must
            carry  liability  insurance  as  follows: 

                  If  proof  [of  financial  responsibility]  is  required  after  December  31,  1989,  such  proof
                        means:
                  (i)  A  written  proof  of  liability  insurance  coverage  provided  by  a  single  limit  policy
                        with  a  limit  of  not  less  than  sixty  thousand  dollars  ($60,000)  applicable  to
                        one  (1)  accident;
                  (ii)  A  split-limit  policy  with  a  limit  of  not  less  than  twenty-five  thousand  dollars
                        ($25,000)  for  bodily  injury  to  or  death  of  one  (1)  person,  not  less  than  fifty
                        thousand  dollars  ($50,000)  for  bodily  injury  to  or  death  of  two  (2)  or  more
                        persons  in  any  one  (1)  accident,  and  not  less  than  ten  thousand  dollars
                        ($10,000)  for  damage  to  property  in  any  one  (1)  accident;
                  (iii)  A  deposit  of  cash  with  the  commissioner  in  the  amount  of  sixty  thousand
                        ($60,000);  or
                  (iv)  The  execution  and  filing  of  a  bond  with  the  commissioner  in  the  amount  of  sixty
                        thousand  dollars  ($60,000).

            Tenn.  Code  Ann.  ¤  55-12-102(12)(C).  Thus,  the  statutory  requirement  of  liability  insurance  for
            motor  vehicle  drivers  generally  is  much  lower  than  the  amount  of  coverage  a  school  system  would
            carry  under  the  TGLA.
                  Local  school  boards  have  broad  authority  over  the  administration  of  the  schools  in  their
            systems  and  reasonable  discretion  in  carrying  out  their  duties.  See  Tenn.  Code  Ann.  ¤  49-2-
            203(a)(2);  State  ex  rel.  Bobo  v.  County  of  Moore,  207  Tenn.  622,  341  S.W.2d  746  (1960).  With  the
            possible  exception  of  students  with  disabilities, local  school  boards  do  not  have  to  provide  1

            transportation  for  public  school  students.  Tenn.  Code  Ann.  ¤  49-6-2101(a). 
                  If  the  local  board  does  provide  transportation,  it  must  use  reasonable  and  ordinary  care  under
            the  circumstances.  See  Hawkins  Co.  v.  Davis,  216  Tenn.  262,  391  S.W.2d.  658,  663  (1965).  Also,



            Page  3
            if  it  does,  it  must  adopt  a  policy  to  govern  the  overall  operation  of  the  pupil  transportation  program.
            Tenn.  Admin.  Rule,  State  Board  of  Education,  0520-1-5-.01(6).  While  the  education  statutes  do  not
            require  local  school  boards  to  supervise  volunteer  transportation  that  is  not  state-funded,  we  believe
            that a school board has sufficient authority to adopt a policy governing liability insurance
            requirements  for  volunteer  parent-drivers  in  the  circumstances  described  above.
                  The  request  mentions  2004  Public  Acts,  ch.  299,  and  suggests  that  this  statute  has  been
            interpreted  to  require  that  parent-drivers  have  the  same  liability  insurance  coverage  as  the  school
            system  itself  does.  We  have  reviewed  this  act  and  can  find  nothing  in  it  that  requires  such  coverage.
                  We  conclude  that  state  statutes  do  not  place  liability  insurance  requirements  on  volunteer
            parent-drivers  different  from  those  that  apply  to  any  other  motor  vehicle  driver.  A  local  school  board,
            however,  could  exercise  its  discretion  and  adopt  a  policy  to  govern  liability  insurance  requirements
            for  volunteer  parent-drivers  in  the  circumstances  described  in  this  request.  If  the  local  school  boardÕs
            adoption  of  such  a  policy  is  challenged,  the  courts  will  be the  final  arbiters  of  whether  the  board
            exercised  its  discretion  properly.  State  ex  rel.  Bobo,  341  S.W.2d  at  632.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       KATE  EYLER
                                                       Deputy  Attorney  General
            Requested  by:
                  The  Honorable  Charlotte  Burks
                  State  Senator
                  Suite  9,  Legislative  Plaza
                  Nashville,  TN  37243-0215



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  24,  2004
                                      Opinion  No.  04-137
          Extraterritorial  ÒSpot  ZoningÓ  under  Growth  Plan

                                        QUESTIONS

                1.    Do  cities  have  the  authority  to  implement  Òspot  zoningÓ  outside  the  cityÕs  municipal
          boundaries  but  within  the  cityÕs  urban  growth  boundary?
                2.    If  the  answer  to  Question  1  is  yes,  is  the  county  required  to  give  its  consent?

                                         OPINION

                1.  and  2.    As  a  general  matter,  courts  have  concluded  that  ordinances  that  adopt  Òspot
          zoning,Ó  as  courts  interpret  that  term,  are  invalid  because  they  do  not  bear  a  substantial  relationship
          to  the  public  health,  safety,  morals,  and  general  welfare  and  are  out  of  harmony  and  in  conflict  with
          the  comprehensive  zoning  ordinance  of  the  particular  municipality. No  city,  therefore,  may
          implement  spot  zoning  as  Tennessee  courts  define  that  term,  whether  inside  or  outside  its
          boundaries. Assuming  the  ordinance  in  question  is  not  invalid  Òspot  zoning,Ó  a  city  may  zone
          outside  its  corporate  boundaries  and  within  its  urban  growth  boundaries  with  respect  to  territory  for
          which  it  has  been  designated  a  Òregional  planning  commissionÓ  by  the  Tennessee  Department  of
          Economic  and  Community  Development,  if  the  territory  has  not  been  zoned  by  the  county.  In  that
          case,  the  countyÕs  approval  is  not  necessary,  but  if  the  county  later  adopts  zoning  ordinances  with
          respect  to  the  territory,  county  ordinances  will  supersede  the  city  ordinances.  Where  a  city  has  not
          been  designated  a  regional  planning  commission  with  respect  to  property  within  its  urban  growth
          boundaries,  a  city  may  provide  zoning  for  that  area  only  with  respect  to  territory  that  the  county  has
          not  zoned  and,  then,  only  with  the  approval  of  the  county  commission. 

                                         ANALYSIS

                This  opinion  concerns  the  authority  of  a  city  to  implement  Òspot  zoningÓ  in  land  outside  its
          corporate  boundaries  but  within  its  urban  growth  boundaries  under  the  county  growth  plan. The
          request  does  not  define  the  term  Òspot  zoning.Ó  Courts  have  defined  spot  zoning  as  the  process  of
          singling  out  a  small  parcel  of  land  for  use  classification  totally  different  from  that  of  the  surrounding
          area,  for  the  benefit  of  the  owner  of  such  property,  and  to  the  detriment  of  other  owners.  Crockett
          v.  Rutherford  County,  M2000-01405-COA-R3-CV,  slip  op.  (M.S.  Tenn.Ct.App.  July  25,  2002),
          citing  Rodgers  v.  Village  of  Tarrytown,  302  N.Y.  115,  96  N.E.2d  731  (1951),  cited  in  Fallin  v.  Knox
          County  Board  of  Commissioners,  656  S.W.2d  338  (Tenn.  1983).  The  law  is  well  settled  that  Òspot



            Page  2
            zoning,Ó  as  properly  known  and  understood,  and  Òspot  zoningÓ  ordinances,  as  properly  identified,
            are  invalid  on  the  general  ground  that  they  do  not  bear  a  substantial  relationship  to  the  public  health,
            safety,  morals,  and  general  welfare  and  are  out  of  harmony  and  in  conflict  with  the  comprehensive
            zoning  ordinance  of  the  particular  municipality. Fallin,  656  S.W.2d  at  343,  quoting  2  Yokley,

            Zoning  Law  and  Practice,  ¤  13-3,  207  (4th  ed.  1978). No  city,  therefore,  may  implement  spot
            zoning  as  Tennessee  courts  define  that  term,  whether  inside  or  outside  its  boundaries.  This  opinion
            will  assume  the  ordinance  in  question  is  not  invalid  Òspot  zoningÓ  as  defined  by  Tennessee  courts.
                  This  Office  has  addressed  the  effect  of  a  growth  plan  on  a  cityÕs  zoning  authority  in  territory
            within  its  urban  growth  boundaries  in  Op.  Tenn.  AttÕy  Gen.  99-218  (November  4,  1999)  and Op.
            Tenn.  AttÕy  Gen.  99-227  (December  6,  1999).  The  statutes  have  not  been  materially  amended  since
            then.  Briefly,  the  scope  of  this  authority  depends  on  whether  the  city  has  been  designated  a  regional
            planning  commission  with  respect  to  the  territory  in  question.  Once  a  county  growth  plan  is  adopted,
            a  municipal  planning  commission  designated  as  a  regional  planning  commission  may  continue  to
            exercise  its  authority  over  territory  with  respect  to  which  it  has  been  designated  a  regional  planning
            commission  outside  the  corporate  limits  but  within  the  urban  growth  boundaries  for  that  city
            designated  in  the  county  growth  plan. The  countyÕs  approval  for  the  zoning  is  not  necessary. But
            if  a  county  adopts  zoning  with  respect  to  this  area,  then  the  cityÕs  zoning  ordinances  will  be
            automatically  superseded  under  Tenn.  Code  Ann.  ¤  13-7-306. See  Tenn.  Code  Ann.  ¤  6-58-
            112(a)(3)  (ÒA  county  may  establish  separate  zoning  regulations  within  a  planned  growth  area,  for
            territory  within  an  urban  growth  boundary  or  within  a  rural  area.Ó)  (emphasis  added). 
                  A  city  whose  municipal  planning  commission  has  not  been  designated  a  regional  planning
            commission  with  respect  to  territory  outside  its  city  limits  may  provide  extraterritorial  zoning  and
            subdivision  regulation  beyond  its  corporate  limits  only  with  respect  to  property  that  the  county  has
            not  zoned,  and  only  with  the  approval  of  the  county  legislative  body.  See  Tenn.  Code  Ann.  ¤  6-58-
            106(d)  (Òin  a  county  without  county  zoning,  a  municipality  may  provide  extraterritorial  zoning  and
            subdivision  regulation  beyond  its  corporate  limits  with  the  approval  of  the  county  legislative  body.Ó).



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



            Page  3


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Robert  S.  McKee
                  State  Representative
                  206  War  Memorial  Building
                  Nashville,  TN  37243-0123



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  24,  2004
                                      Opinion  No.  04-138
          Legal  Relationship  Between  Tennessee  Commission  of  Indian  Affairs  and  Tennessee  Native
          American  Convention  and  Advisory  Council  of  the  Tennessee  Indian  Affairs


                                         QUESTION

                Under  Tenn.  Code  Ann.  ¤¤  4-34-101  to  -108  (Supp.  2003),  do  the  statutes  establish  a  legal
          relationship  between  the  Tennessee  Commission  of  Indian  Affairs  and  the  Advisory  Council  of  the
          Tennessee  Indian  Affairs  (ACTIA)  and  Tennessee  Native  American  Convention  (TNNAC)  that
          requires  reports  from  them  at  each  meeting  of  the  Commission? 


                                         OPINION

                No.  The  statutes  do  not  establish  any  legal  relationship  between  the  Tennessee  Commission
          of  Indian  Affairs  and  ACTIA  or  TNNAC  that  requires  them  to  present  reports  to  the  Commission.
          If  they  choose  to  do  so,  ACTIA  and  TNNAC  may  address  the  Commission  under  Tenn.  Code  Ann.
          ¤  4-34-105(l)  which  provides  the  public  an  opportunity  to  be  heard  before  a  Commission  meeting
          is  adjourned.


                                         ANALYSIS

                The  Tennessee  Commission  of  Indian  Affairs  (Commission)  was  created  by  Tenn.  Code  Ann.
          ¤¤  4-34-101  to  -108  (Supp.  2003).  Under  Tenn.  Code  Ann.  ¤  4-34-105(m),  the  Commission  shall
          establish  a  rules  committee  to  develop  procedural  and  operating  rules  for  the  Commission. The
          rules  committee  is  creating  standing  rules  for  the  Commission,  and  proposed  standing  rule  #4
          provides  as  follows: 
                4.    Reports  from  the  commissioners,  committees,  (ACTIA)  Advisory  Council  of
                     the  Tennessee  Indian  Affairs  and  TNNAC  (TN  Native  American  Convention)
                     shall  be  heard  at  each  meeting.
                     a.    commissioners  are  accountable  to  the  state's  constituency  and  should
                          report  quarterly  on  their  activities  on  behalf  of  the  Indian  community
                     b.    Commission  committees  are  accountable  to  the  Commission  and
                          should  report  quarterly  on  their  activities  on  behalf  of  the  Indian



            Page  2
                               community
                        c.    confirms  the  Commission's  working  relationship  with  ACTIA  whose
                               duties  include  studying  and  researching  issues  for  the  Commission
                               and  to  advise  the  Commission  on  future  issues
                        d.    confirms  the  Commission's  oversight  relationship  to  all  organizations
                               involving Indian Affairs, including TNNAC as the election
                               organization  of  the  Indian  community

                  The  question  presented  is  whether  the  Commission  is  legally  required  to  provide  in  its
            procedural  and  operating  rules  that  reports  from  ACTIA  and  TNNAC  will  be  received  at  each
            Commission  meeting.  The  enabling  statutes  for  the  Tennessee  Commission  of  Indian  Affairs  do  not
            establish  any  legal  relationship  between  the  Commission  and  ACTIA  or  TNNAC.  Tenn.  Code  Ann.
            ¤  4-34-101  et  seq. ACTIA  is  not  mentioned  in  any  part  of  the  statutes. The  only  mention  of
            TNNAC is in Tenn. Code Ann. ¤ 4-34-104, which provides for the appointment of the
            commissioners. Tenn.  Code  Ann.  ¤  4-34-104(b)  requires  TNNAC  to  submit  a  list  of  not  less  than
            two  (2)  names  for  each  position  on  the  Commission  to  be  appointed.  The  Speakers  of  the  Senate  and
            the  House  and  the  Governor  appoint  the  commissioners  from  the  names  that  TNNAC  submits. The
            Commission  has  no  oversight  authority  over  TNNAC,  nor  does  it  have  any  other  relationship  with
            TNNAC  grounded  in  the  statutes. Nothing  in  the  enabling  statutes  requires  ACTIA  or  TNNAC  to
            provide  reports  to  the  Commission  at  each  meeting. 
                  Tenn.  Code  Ann.  ¤  4-34-105(l)(1)  provides  that  ÒCommission  meetings  shall  not  be
            adjourned  until  members  of  the  public  attending  such  meeting  have  had  an  opportunity  to  address
            the  commission.Ó  For  purposes  of  this  statute,  TNNAC  and  ACTIA  may  be  considered  Òmembers
            of  the  public.Ó  In  light  of  Tenn.  Code  Ann.  ¤  4-34-105(l)(1),  a  representative  of  TNNAC  or  ACTIA
            may  make  comment  during  the  public  comment  portion  of  Commission  meetings,  although,  as
            indicated  above,  neither  organization  is  legally  obligated  to  do  so. 







                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



            Page  3


                                                       SOHNIA  W.  HONG
                                                       Assistant  Attorney  General
            Requested  by:
                  Tennessee  Commission  on  Indian  Affairs
                  c/o  Tennessee  Dept.  of  Environment  and  Conservation
                  401  Church  Street,  20th  Floor  L&C  Tower
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  24,  2004
                                      Opinion  No.  04-139
          Judicial  Residence

                                         QUESTION

                In  a  judicial  district  composed  of  four  counties  served  by  four  circuit  judges  elected  by  the
          voters  of  the  district,  may  the  General  Assembly  constitutionally  require  that  one  of  the  judges  reside
          in  at  least  one  of  three  specific  counties  within  the  district?

                                         OPINION

                No.

                                         ANALYSIS

                The  opinion  request  asks  us  to  assume  the  existence  of  a  four-county  judicial  district  in  which
          all  the  voters  of  the  district  elect  four  circuit  court  judges. The  question  is  whether,  for  the  next
          judicial  election  in  August  2006,  the  General  Assembly  may  require  that  at  least  one  of  the  judges
          reside  in  one  of  three  specific  counties  within  the  district. It  is  our  opinion  that  such  legislation
          would  violate  Article  VI,  Section  4,  of  the  Tennessee  Constitution,  which  provides:
                The  Judges  of  the  Circuit  and  Chancery  Courts,  and  of  other  inferior  Courts,  shall  be
                elected  by  the  qualified  voters  of  the  district  or  circuit  to  which  they  are  to  be
                assigned.  Every  Judge  of  such  Courts  shall  be  thirty  years  of  age,  and  shall  before
                his  election,  have  been  a  resident  of  the  State  for  five  years  and  of  the  circuit  or
                district  one  year.  His  term  of  service  shall  be  eight  years.
          (Emphasis  supplied).  As  pertains  to  this  question,  then,  the  Tennessee  Constitution  requires  that  a
          circuit  court  judge  be  a  resident  of  the  circuit  or  district  to  which  the  judge  is  assigned.
                The  Tennessee  Supreme  Court  has  previously  determined  that  legislation  changing  the
          residency  requirement  to  a  particular  county  within  a  judicial  district  is  unconstitutional.  State  ex
          rel.  Rudolph  v.  Powell,  No.  84-36-I,  (Tenn.  July  10,  1984)  (per  curiam  order)  (copy  attached).  In
          that  case,  Chapter  931  of  the  Public  Acts  of  1984  added  a  third  judgeship  to  the  Nineteenth  Judicial
          District  consisting  of  Montgomery  County  and  Robertson  County.  The  Act  provided:  ÒThe  circuit
          court  judge  elected  in  1984  to  serve  Part  I  of  the  circuit  court  of  the  Nineteenth  Judicial  District  shall
          be  a  resident  of  Robertson  County  but  shall  serve  the  entire  district.Ó  1984  Tenn.  Pub.  Acts  ch.  931,



            Page  2
            ¤  6(19)(a). Thus,  the  1984  legislation  provided  that  at  least  one  of  the  circuit  judges  to  be  elected
            for  the  two-county  judicial  district  must  reside  in  one  particular  county. The  Supreme  Court
            concluded  that  the  county  residency  requirement  violated  the  Tennessee  Constitution:
                  Chapter  931  of  Tennessee  Public  Acts  of  1984  is  declared  to  be  invalid  and
                  unconstitutional  insofar  as  it  purports  to  require  that  the  circuit  court  judge  elected
                  in  1984  to  serve  Part  I  of  the  Circuit  Court  of  the  Nineteenth  Judicial  District  must
                  be  a  resident  of  Robertson  County. The  Court  is  of  the  opinion  that  this  provision
                  conflicts  with  Article  VI,  ¤  4  of  the  Tennessee  Constitution.

            State  ex  rel.  Rudolph  v.  Powell,  No.  84-36-I,  (Tenn.  July  10,  1984)  (per  curiam  order)  (copy
            attached).
                  Based  on  the  CourtÕs  decision,  it  is  our  opinion  that  the  legislation  proposed  in  the  opinion
            request  would  also  violate  Article  VI,  Section  4,  by  imposing  a  county  residency  requirement  for  a
            circuit  court  judge  to  be  assigned  to  a  four-county  judicial  district.  The  Tennessee  Constitution  only
            requires  the  judge  to  be  a  resident  of  the  circuit  or  district  that  the  judge  is  to  serve.


                                                       _________________________________

                                                       PAUL  G. SUMMERS
                                                       Attorney  General

                                                       _________________________________

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       _________________________________

                                                       GINA  J.  BARHAM
                                                       Deputy  Attorney  General
            Requested  by:
                  The  Honorable  Joe  Fowlkes
                  State  Representative
                  32  Legislative  Plaza
                  Nashville,  TN  37243-0165



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                   425  FIFTH  AVENUE  NORTH
                                  NASHVILLE,  TENNESSEE  37243

                                       February  5,  2004
                                      Opinion  No.  04-014
          Responsibility  for  Maintenance  of  Reelfoot  Running  Bayou 


                                         QUESTION

                Which  governmental  agency  is  legally  responsible  for  maintaining  the  Reelfoot  Running
          Bayou  and  for repairing  and  replacing  any  and  all  bridges  across  that  water  body,  which  runs
          through  three  West  Tennessee  counties?


                                         OPINION

                It  is  the  opinion  of  this  Office  that  the  West  Tennessee  River  Basin  Authority  is  the  entity
          responsible  for  maintaining  and  coordinating  drainage  work  and  flood  control  in  the  Reelfoot
          Running  Bayou,  subject  to  the  review  of  a  state  task  force.  Any  necessary  bridge  work  affecting  the
          bayou  that  the  Basin  Authority  might  propose  would  have  to  be  performed  by  either  TDOT  or  the
          relevant  county  in  which  the  bridge  is  located. 


                                         ANALYSIS

                You  have  inquired  about  which  governmental  agency  or  agencies  are  responsible  for
          maintaining  the  Reelfoot  Running  Bayou,  a  watercourse  that  runs  south  from  the  spillway  of
          Reelfoot  Lake  through  Lake  and  Obion  Counties  and  ends  at  the  Obion  River  in  Dyer  County,
          Tennessee. We  understand  that  improvements  to  this  bayou  were  authorized  by  an  act  of  Congress
          in  1954,  based  on  flood  control  recommendations  from  the  United  States  Army  Corps  of  Engineers.
          River  and  Harbor  Act,  Pub.  L.  No.  780  (1954). One  year  later,  in  response  to  this  congressional
          action,  the  Tennessee  General  Assembly  enacted  special  legislation  authorizing  the  dredging  and
          maintenance  of  Reelfoot  Running  Bayou  in  Lake,  Obion,  and  Dyer  Counties.  1955  Tenn.  Pub.  Acts,
          ch.  133.  This  Tennessee  law  stated  in  pertinent  part:
                     That  in  consideration  of  the  United  States  Corps  of  Engineers
                     dredging  the  stream  above  mentioned  as  aforesaid,  the  State
                     of  Tennessee,  through  its  Department  of  Highways  and  Public
                     Works,  shall  maintain  such  dredging  after  the  conclusion  of
                     the  original  performance  thereof  in  as  reasonably  good  condition
                     as  it  exists  at  the  completion  of  such  original  dredging  operations,



            Page  2

                        and  shall  likewise  assume  full  responsibility  for  costs  of  repairing,
                        maintaining,  and  relocating  any  or  all  bridges  across  such  stream,
                        replacement  of  which  is  occasioned  by  the  work  herein
                        contemplated  .  .  .  . 
            1955  Tenn.  Pub.  Acts,  ch.  133,  ¤  1.  This  act  further  contemplated  that  the  counties  of  Lake,  Obion,
            and  Dyer  would  procure  any  necessary  rights  of  way  to  facilitate  this  operation. We  understand,
            based  on  the  documents  provided  with  this  request,  that  in  the  summer  of  1955  each  of  these
            counties  executed  assurances  pledging  to  provide  the  necessary  land  and  easements  for  the
            construction  of  this  project. 
                  A  few  years  later,  the  legislature  passed  another  special  act  authorizing  the  Department  of
            Highways  and  Public  Works  to  oversee  improvements  for  flood  control  and  drainage  in  the  Obion
            and  Forked  Deer  Rivers  and  their  tributaries  in  West  Tennessee. 1959  Tenn.  Pub.  Acts,  ch.  129.
            Like  Chapter  133  of  the  Public  Acts  of  1955,  this  law  designated  the  Department  of  Highways  and
            Public  Works  to  be  the  responsible  sponsoring  agency  that  would  provide  the  necessary  local
            cooperation and assume continuing obligations with respect to flood control and drainage
            improvements  after  the  original  project  was  completed  by  the  Corps. 
                  Although  never  codified,  these  two  pieces  of  special  legislation  have  been  amended  twice.
            First,  in  1973,  the  General  Assembly  amended  both  laws  by  deleting  the  words  ÒDepartment  of
            Highways  and  Public  WorksÓ  and  substituting  therefore  the  words  ÒDepartment  of  Agriculture.Ó
            1973  Tenn.  Pub.  Acts,  ch.  38,  ¤¤  2  and  5.  Then,  in  1974,  the  legislature  amended  them  yet  again  by
            substituting  the  ÒObion-Forked  Deer  Basin  AuthorityÓ  in  place  of  the  Department  of  Agriculture  as
            the  entity  responsible  for  continuing  obligations  respecting  flood  control  and  drainage  improvements
            in  the  Obion-Forked  Deer  Basin  and  the  Reelfoot  Running  Bayou  .  1974  Tenn.  Pub.  Acts,  ch.  415,
            ¤¤  3  and  5. 
                  Two  years  later,  the  Tennessee  General  Assembly  enacted  the  statutes  that  defined  the
            purposes  and  powers  of  the  Obion-Forked  Deer  Basin  Authority. 1976  Tenn.  Pub.  Acts,  ch.  448
            (then  codified  as  Tenn.  Code  Ann.  ¤¤  66-1-401  through  66-1-410). In  so  doing,  the  legislature
            recognized  in  its  preamble  to  the  enactment  that  the  following  had  to  be  one  of  the  lawÕs  express
            goals: 
                        Whereas,  a  sponsoring  agency  to  carry  out  on  a  continuing  basis
                        the  obligations  assumed  by  the  state  of  Tennessee  must  be  created 
                        and  funded  directly  to  fulfill  the  governmental  function  of  the
                        state  of  Tennessee,  as  any  other  department  thereof,  to  comply
                        with  the  requirements  of  Chapter  133  of  the  Public  Acts  of  1955

                        as  amended  and  Chapter  129,  Public  Acts  of  1959,  as  amended;  .  .  .  .
            1976  Tenn.  Pub.  Acts,  ch.  448  (emphasis  supplied).  This  law  further  specified  that  the  Basin 



            Page  3


            Authority  was  to  carry  out  the  planning  and  operation  for  proper  development  of  the  Obion  and
            Forked  Deer  River  Basins  in  several  West  Tennessee  counties,  including  Lake,  Dyer,  and  Obion.
            1976  Tenn.  Pub.  Acts,  ch.  448,  ¤  1  (previously  codified  as  Tenn.  Code  Ann.  ¤  66-1-401(b)). 
                  But  beginning  with  this  enactment  in  1976,  the  legislature  made  a  series  of  changes  with
            respect  to  the  Basin  AuthorityÕs  obligations  for  the  maintenance  and  construction  of  bridges.  Despite
            the  clear  delegation  of  authority  in  Chapter  133  of  the  Public  Acts  of  1955  concerning  the  repair  and
            maintenance  of  bridges,  the  1976  law  expressly  stated  that  Òthe  Authority  shall  not  be  responsible
            for  the  maintenance  or  construction  of  roads,  highways,  bridges  or  utility  lines.Ó  1976  Tenn.  Pub.
            Acts,  ch.  448,  ¤  3  (previously  codified  as  Tenn.  Code  Ann.  ¤  66-1-403(2)(F)).  In  1980,  the  General
            Assembly  amended  this  specific  provision  by  adding  the  following  language  in  pertinent  part:
                        The  authority  shall  be  responsible  for  the  routine  maintenance
                        and  restoration  of  existing  bridges  necessary  to  maintain  such 
                        bridges  for  active  use.  .  .  .  The  authority  shall  not  be  responsible
                        for  any  new  bridge  construction  or  bridge  replacement. The
                        authority  shall  not  be  responsible  for  routine  maintenance  or
                        restoration  of  existing  bridges  on  state  and  federal  highways.
            1980  Tenn.  Pub.  Acts,  ch.  588,  ¤  2.  We  assume  this  last  sentence  was  inserted  in  recognition  of  the
            preexisting  statutes  in  Title  54  authorizing  the  Tennessee  Department  of  Transportation  (TDOT)  to
            designate  and  maintain  a  state  system  of  highways,  including  roads  and  bridges. See  Tenn.  Code
            Ann.  ¤¤  54-5-101  and  54-5-103. 
                  Finally,  in  1996,  the  legislature  amended  the  statutes  governing  the  Obion-Forked  Deer  Basin
            Authority  (by  then  transferred  to  Title  64,  Chapter  1,  Part  4)  by  replacing  that  authority  with  a  new
            one,  now  attached  to  the  Department  of  Environment  and  Conservation  and  called  the  West
            Tennessee  River  Basin  Authority.  1996  Tenn.  Pub.  Acts,  ch.  890,  codified  at  Tenn.  Code  Ann.  ¤¤
            64-1-1101  to  64-1-1111. This  last  legislation  specified  that  the  new  Basin  Authority  was  being
            created  Òto  preserve  the  natural  flow  and  function  of  the  Hatchie,  Obion  and  Forked  Deer  River
            basinsÓ  and  to  Òprovide  regional  and  local  leadership  for  the  conservation  and  sustainable  utilization
            of  these  river  basins.Ó  Tenn.  Code  Ann.  ¤  64-1-1101(b)(4).  It  also  clarified  that  these  activities  were
            to  be  accomplished  in  a  seventeen  county  area,  including  Lake,  Dyer  and  Obion  Counties. Id.

            Therefore,  we  believe  the  new  Basin  Authority  is  still  responsible  for  maintaining  and  coordinating
            drainage  work  and  flood  control  in  the  affected  river  basins,  which  include  the  Reelfoot  Running
            Bayou.
                  But  the  1996  enactment  also  amended  the  previous  statutes  governing  the  Obion-Forked  Deer
            Basin  Authority  by  deleting  every  one  of  those  sections  in  their  entirety,  except  for  the  provisions
            concerning  the  powers  and  duties  of  the  Basin  Authority  and  the  provision  on  financing.  These  latter
            statutes,  Tenn.  Code  Ann.  ¤¤  64-1-403  and  64-1-404,  were  transferred  to  Tenn.  Code  Ann.  ¤¤  64-1-



            Page  4

            1103  and  64-1-1104  and  amended  by  the  1996  act. 
                  Significantly,  in  amending  the  powers  and  duties  provisions,  the  legislature  essentially
            deleted  the  language  inserted  by  the  1980  amendment,  concerning  responsibility  for  bridge
            maintenance,  and  restored  the  1976  language,  so  that  Tenn.  Code  Ann.  ¤  64-1-1103(12)  now
            provides:
                        The  powers,  duties  and  functions  of  the  board  are  as  follows:
                        .  .  . 
                        (12) Arrange  with  any  city,  county,  state  or  supplier  of  utilities  for
                        the  abandonment,  relocation,  or  other  adjustment  of  roads, 
                        highways  and  utility  lines,  but  the  authority  is  not  responsible  for 
                        the  maintenance,  construction,  or  removal  of  roads,  highways,
                        bridges  or  utility  lines; 
            (Emphasis  supplied.) Similarly,  the  1996  amendment  completely  deleted  the  following  language
            from  subsection  (a)  of  the  financing  provision  of  the  1976  act  (formerly  Tenn.  Code  Ann.  ¤  64-1-
            404(a)(4)):
                        (4) The  authority  is  a  state  entity  and  shall  carry  out  and  perform
                        the  requirements  and  obligations  imposed  on  the  state  by  Acts  1955, 
                        ch.  133  and  Acts  159,  ch.  129,  as  amended,  with  the  United
                        States  government,  in  addition  to  the  other  duties  provided  for
                        in  this  part,  and  the  state  shall  fund  the  authority  by  direct 
                        appropriations  as  it  is  obligated  to  do  by  Acts  1955,  ch.  133
                        and  Acts  1959,  ch.  129,  as  amended,  the  department  of 
                        transportation  and  successor  agencies  and  the  department  of 
                        agriculture  in  carrying  out  and  performing  these  functions.
            (Emphasis  supplied.) 
                  This  1996  legislation  leads  us  to  believe  that  the  special  legislation  in  Chapter  133  of  the
            Public  Acts  of  1955  concerning  Reelfoot  Running  Bayou  has  been  repealed  by  implication,  because
            the  1955  act  specifically  authorized  the  state  to  repair,  maintain  and  relocate  any  and  all  bridges
            across  that  watercourse.  Furthermore,  the  1955  law  has  not  been  amended  since  1996  to  substitute
            the  West  Tennessee River  Basin  Authority  in  place  of  the  Obion-Forked  Deer  Basin  Authority  as
            the  entity  responsible  for  continuing  obligations  respecting  flood  control  and  drainage  improvements.
                  The  legislature  is  always  presumed  to  know  of  its  prior  enactments  and,  although  repeal  of
            an  earlier  statute  or  law  by  implication  is  disfavored,  the  courts  will  recognize  such  a  repeal  only
            when  statutes  cannot  be  construed  harmoniously  and  a  conflict  between  the  acts  is  inescapable.  State
            v.  Hicks,  55  S.W.3d  515,  523  (Tenn.  2001);  Knox  County  Education  Association  v.  Knox  County 



            Page  5


            Board  of  Education,  60  S.W.3d 65,  74  (Tenn.  Ct.  App.  2001). Prior  special  statutes  may  be
            repealed  by  implication  through  the  enactment  of  a  later  general  law  when  the  legislative  intent  to
            effect  the  repeal  is  clearly  expressed. Trotter  v.  City  of  Maryville,  235  S.W.2d  13,  191  Tenn.  510
            (1950). 
                  We  believe  the  General  Assembly  made  its  intent  clear  in  1996  that  the  1955  special
            legislation  was  no  longer  pertinent  to  the  obligations  of  the  new  Basin  Authority.  But  this  does  not
            mean  that  a  void  exists  for  the  maintenance,  construction  and  replacement  of  bridges  over  the
            Reelfoot  Running  Bayou. As  indicated  above,  TDOT  is  statutorily  responsible  for  constructing  and
            maintaining  those  roads  and  bridges  that  it  has  designated  as  being  on  the  state  system  of  highways
            or  interstate  highways. Tenn.  Code  Ann.  ¤¤  54-1-126  and  54-5-101. Counties  are  similarly
            authorized  to  build,  maintain,  and  repair  bridges  on  all  county  roads,  as  classified  by  county
            legislative  bodies. Tenn.  Code  Ann.  ¤¤  54-10-102  and  54-10-103. 
                  Your  inquiry  also  referenced  a  consent  decree  entered  in  some  federal  litigation  that  may
            have  an  impact  on  the  Basin  AuthorityÕs  duties  and  responsibilities  regarding  flood  control  and
            drainage  improvements  in  the  Obion  River  basin,  part  of  which  includes  the  Reelfoot  Running
            Bayou. Our  review  of  the  1985  consent  decree  entered  in  National  Ecological  Foundation  v.
            National  Wildlife  Federation,  et al.,  United  States  District  Court,  Western  District  of  Tennessee,
            No.  78-2548,  indicates  that  the  Basin  Authority  is  to  perform  all  future  work  in  the  Obion-Forked
            Deer  River  Basin  for  each  reach  of  the  streams  in  that  basin,  subject  to  the  review  of  a  state  task
            force  appointed  by  the  governor.  This  task  force  is  comprised  of  the  Commissioners  of  Agriculture
            and  Environment  and  Conservation,  the  Executive  Director  of  the  Tennessee  Wildlife  Resources
            Agency and  the  Executive  Director  of  the  Basin  Authority. The  consent  decree  expressly  reflects
            that  one  of  the  governing  objectives  of  the  Basin  Authority  is  to  facilitate  drainage  and  reduce  flood
            damage  to  existing  farm  land  and  urban  areas. 
                  In  conclusion,  it  is  the  opinion  of  this  Office  that  the  West  Tennessee  River  Basin  Authority
            is  the  entity  responsible  for  maintaining  and  coordinating  drainage  work  and  flood  control  in  the
            Reelfoot  Running  Bayou,  subject  to  the  review  of  the  task  force. Any  necessary  bridge  work
            effecting  the  bayou  that  the  Basin  Authority  might  propose  would  have  to  be  performed  by  either
            TDOT  or  the  relevant  county  in  which  the  bridge  is  located. 




                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter



            Page  6




                                                       __________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       __________________________________
                                                       ELIZABETH  P.  McCARTER
                                                       Senior  Counsel

            Requested  by:
                  Roy  B.  Herron 
                  State  Senator
                  10A  Legislative  Plaza
                  Nashville,  TN  37243-0024



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                       OFFICE  OF  THE

                                    ATTORNEY  GENERAL
                                       P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202

                                       August  26,  2004
                                      Opinion  No.  04-140
          Sales  Tax  Exemption  for  Energy  Fuels  Sold  Directly  to  Consumer  for  Residential  Use 

                                         QUESTION

                Is  the  sales  tax  exemption  set  forth  in  Tenn.  Code  Ann.  ¤  67-6-334,  providing  for  an
          exemption  for  energy  fuels  sold  directly  to  a  consumer  for  residential  use,  available  to  residents  of
          a  multiple-unit  condominium  building  where  the  buildingÕs  residential  units  are  not  separately
          metered?

                                         OPINION

                No.  By  its  express  terms,  the  sales  tax  exemption  set  forth  in  Tenn.  Code  Ann.  ¤  67-6-334
          is  available  to  residents  of  multiple-unit  dwellings,  such  as  condominium  and  apartment  buildings,
          only  if  the  residentsÕ  units  are  separately  metered  or  measured.

                                         ANALYSIS

                Tenn.  Code  Ann.  ¤  67-6-334  creates  a  sales  tax  exemption  for  Òenergy  fuels  sold  directly  to
          the  consumer  for  residential  use.Ó Tenn.  Code  Ann.  ¤  67-6-334(a)  (2003). The  exemption  is
          available  to  Òsingle  private  residences,  including  the  separate  private  units  of  apartment  houses  and
          other  multiple  dwellings,  actually  used  for  residential  purposes,  which  are  separately  metered  or
          measured.Ó Tenn.  Code  Ann.  ¤  67-6-334(b)(1)  (2003). In  accordance  with  these  provisions,  the
          sales  tax  exemption  is  available  to  residents  of  multiple-unit  dwellings,  such  as  condominium
          buildings  and  apartment  buildings,  but  only  if  the  residentsÕ  individual  units  are  separately  metered
          or  measured.
                Your  opinion  request  refers  to  a  multiple-unit  condominium  building  that  has  only  one  meter
          to  measure  each  of  the  energy  fuels  used  by  residents  of  the  building.  That  is,  the  building  has  one
          meter  that  measures  gas  usage,  one  meter  that  measures  electricity  usage,  and  one  meter  that
          measures  water  consumption.  Under  these  circumstances,  the  sales  tax  exemption  set  forth  in  Tenn.
          Code  Ann.  ¤  67-6-334  would  not  be  available  because  the  buildingÕs  residential  units  are  not
          separately  metered  as  required  by  the  statute.



            Page  2




                                                       ___________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       ___________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       ___________________________________
                                                       MARY  ELLEN  KNACK
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Stephen  I.  Cohen
                  State  Senator
                  8  Legislative  Plaza
                  Nashville,  Tennessee 37243
                  The  Honorable  Beverly  Marrero
                  State  Representative
                  109  War  Memorial  Building
                  Nashville,  Tennessee  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       August  31,  2004
                                      Opinion  No.  04-141
          ÒUnclaimedÓ  Return-Receipt  Letters

                                        QUESTIONS

                1.    May  the  Registry  of  Election  Finance  consider  an  assessment  letter  or  notice  sent
          return  receipt  requested  under  Tenn.  Code  Ann.  ¤  2-10-110  as  personally  served  or  received  for
          purposes  of  subsections  (a)(1)(E)  or  (a)(2)  if  the  letter  is  returned  Òunclaimed?Ó 
                2.    Does  the  answer  to  the  former  question  depend  on  whether  the  letter  was  sent  within
          Tennessee  or  out  of  Tennessee?

                                         OPINIONS

                1.    Yes. 
                2.    No. 

                                         ANALYSIS

                The  Registry  of  Election  Finance  has  jurisdiction  to  administer  the  Campaign  Financial
          Disclosure  Law  compiled  in  Title  2,  Chapter  10,  Part  1,  of  the  Tennessee  Code.  Tenn.  Code  Ann.
          ¤  2-10-205(1). To  enforce  the  Act,  the  Registry  may  impose  civil  penalties  for  violations  under
          Tenn.  Code  Ann.  ¤  2-10-110(a)(1)(E)  and  (a)(2),  providing  in  part:
                (a)  The  registry  of  election  finance  .  .  .  may  impose  a  civil  penalty  for  a  violation  of
                this  part  as  provided  in  this  section.
                     (1)  "Class  1  offense"  means  the  late  filing  of  any  report  or  statement  required
                by  this  part.  A  Class  1  offense  shall  be  punishable  by  a  civil  penalty  of  not  more  than
                twenty-five  dollars  ($25.00)  a  day  up  to  a  maximum  of  seven  hundred  fifty  dollars
                ($750). 
                                           *  *  *  * 
                           (E)  For  state  public  offices,  the  registry  of  election  finance  shall  have
                personally  served  upon,  or  send  by  return  receipt  requested  mail,  an  assessment  letter
                to  any  candidate  or  committee  upon  the  registry  or  its  appropriate  staff  discovering
                that  a  due  report  has  not  been  filed.  A  civil  penalty  of  twenty-five  dollars  ($25.00)
                a  day  shall  begin  to  accrue  five  (5)  days  after  personal  service  or  receipt  of  the  letter



            Page  2















































                   Hankla  v.  Governing  Board  of  Roseland  Sch.  District.,  120  Cal.Rptr.  827,  834  (Cal.App.  1975).  1and  will  continue  to  accrue  until  the  report  is  filed  or  for  thirty  (30)  days,  whichever
                  occurs  first. 
                                                 *  *  *  *
                        (2)  ÒClass  2  offenseÓ  means  failing  to  file  a  report  required  by  this  part  within
                  thirty-five  (35)  days  after  service  of  process  or  receipt  of  notice  by  registered  or
                  certified  mail  of  an  assessment  or  any  other  violation  of  the  requirements  of  this  part.
                  A  Class  2  offense  is  punishable  by  a  maximum  penalty  of  not  more  than  ten  thousand
                  dollars  ($10,000)  or  fifteen  percent  (15%)  of  the  amount  in  controversy,  if  fifteen
                  percent  (15%)  of  the  amount  in  controversy  is  greater  than  ten  thousand  dollars
                  ($10,000).
            Tenn.  Code  Ann.  ¤  2-10-110(a)(1)(E)  &  (a)(2). Thus,  it  is  the  personal  service  or  receipt  of  an
            assessment  letter  or  notice  that  triggers  whether  penalties  may  be  imposed  by  the  Registry  of  Election
            Finance. Because  the  statute  provides  that  notice  may  be  sent  by  return-receipt  mail,  notices  also
            may  be  returned  as  Òunclaimed.Ó The  issue,  then,  is  whether  the  U.S.  Postal  Service  notation  of
            ÒunclaimedÓ  may  be  treated  as  a  refusal  to  accept  delivery  and  equivalent  to  service  or  receipt.
                  We  think  a  Tennessee  court  would  look  to  the  Rules  of  Civil  Procedure  in  answering  this
            question. Effective  July  1,  2004,  Tenn.R.Civ.P.  4.04(11)  provides  that  a  properly  addressed
            registered  or  certified  letter  that  is  returned  by  the  U.  S.  Postal  Service  as  Òunclaimed,Ó  or  any  other
            similar  notation,  is  sufficient  evidence  of  the  defendantÕs  refusal  to  accept  delivery.  The  Advisory
            Commision  Comment  to  the  1997  Amendment  to  Rule  4.05  notes  that  Ò[c]ourts  are  virtually
            unanimous  in  holding  that  service  of  process  is  not  defeated  by  the  defendantÕs  refusal  to  accept  a
            certified  or  registered  letter.Ó  It  has  also  been  held  that  one  cannot  assert  failure  of  service  when  he
            willfully  disregarded  postal  service  notice  to  pick  up  certified  mail,  and  it  can  be  reasonably  inferred
            that  the  addressee  was  aware  of  the  nature  of  the  correspondence. Arguably,  those  who  receive  1

            notice  of  return-receipt  letters  from  the  Registry  of  Election  Finance  are  aware  of  the  nature  of  the
            correspondence. There  is  also  a  significant  interest  in  ensuring  that  candidates  and  political
            campaign  committees  do  not  delay  or  subvert  the  administrative  process  by  willfully  evading  notice
            in  order  to  avoid  filing  required  forms  or  paying  penalties. 
                  The  new  subsection  to  Rule  4.04  is  clear:
                  When  service  of  a  summons,  process,  or  notice  is  provided  for  or  permitted  by
                  registered  or  certified  mail  under  the  laws  of  Tenessee  and  the  addressee  or  the
                  addresseeÕs  agent  refuses  to  accept  delivery  and  it  is  so  stated  in  the  return  receipt  of
                  the  United  States  Postal  Service,  the  written  return  receipt  if  returned  and  filed  in  the
                  action  shall  be  deemed  an  actual  and  valid  service  of  the  summons,  process,  or
                  notice. Service  by  mail  is  complete  upon  mailing. For  purposes  of  this  paragraph,
                  the  United  States  Postal  Service  notation  that  a  properly  addressed  registered  or



            Page  3










































                   Toyota  Motor  Credit  Corporation  v.  State  of  Tennessee  Department  of  Safety,  No.  M2003-00147-COA-R3-  2

            CV,  2003  WL  22519810,  slip  op.  (Tenn.Ct.App.  Nov.  7,  2003).

                   Id.  3


                    Id.,  citing  Helms  v.  Tennessee  DepÕt  of  Safety,  987  S.W.2d  545  (Tenn.  1999).  4certified  letter  is  Òunclaimed,Ó  or  other  similar  notation,  is  sufficient  evidence  of  the
                  defendantÕs  refusal  to  accept  delivery.
            Tenn.R.Civ.P.  4.04(11). Therefore,  it  is  important  to  determine  whether  return-receipt  letters  that
            are  returned  as  ÒunclaimedÓ  were  properly  addressed. The  designation  ÒunclaimedÓ  necessarily
            implies  that  the  address  is  valid.  So  long  as  a  letter  is  properly  addressed,  ÒunclaimedÓ  mail  may
            be  treated  as  received.
                  Adequate  notice  is  an  essential  element  of  due  process,  which  the  Registry  of  Election
            Finance  must  satisfy  to  impose  valid  penalties  under  Tenn.  Code  Ann.  ¤  2-10-110. Under
            traditional  notice  requirements  for  service  of  process,  however,  due  process  may  be  satisfied  even
            if  the  potential  claimant  does  not  actually  receive  the  notice. Where  return-receipt  mail  is  returned  2

            with  Òaddress  no  longer  valid,Ó  and  the  new  address  is  easily  obtainable,  such  is  not  adequate  notice.3

            Further,  returned  letters  with  any  indication  such  as  Òundeliverable  as  addressed,Ó  or  Òmail
            forwarding has  expired,Ó  obviously  cannot  be  considered  received. But,  Ò[a]n  otherwise  valid
            notice  that  has  been  mailed  is  effective  even  if  the  addressee  has  not  actually  received  or  read  the
            notice.  .  .  .  Thus,  notice  by  certified  mail  is  sufficient  even  if  the  addressee  fails  or  refuses  to  accept
            the  notice.Ó Return-receipt  letters  returned  as  ÒunclaimedÓ  may,  therefore,  be  treated  as  refused.  4


                  ÒUnclaimedÓ  return-receipt  letters  may  be  treated  as  received  regardless  whether  the  letter
            was  sent  within  Tennessee  or  out  of  Tennessee.  Rule  4.04(11)  now  conforms  service  on  Tennessee
            residents  to  that  of  nonresidents  under  Rule  4.05(5). Under  Rule  4.05(5),  the  U.S.  Postal  Service
            notation  that  a  properly  addressed  registered  or  certified  letter  is  Òunclaimed,Ó  or  other  similar
            notation,  is  sufficient  evidence  of  the  defendantÕs  refusal  to  accept  delivery,  and  a  refusal  shall  be
            deemed  an  actual  and  valid  service  of  the  notice. 



            Page  4



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       MARNEE  L.  BAKER
                                                       Assistant  Attorney  General


            Requested  by:
                  Drew  Rawlins
                  Executive  Director
                  Registry  of  Election  Finance
                  404  James  Robertson  Parkway,  Suite  1614
                  Nashville,  TN  37243-1360



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        P.O.  Box  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       September  1,  2004
                                      Opinion  No.  04-142

          State  Agency  Rule-Making  Authority  and  the  Right  to  Counsel  in  Child  Support  Contempt  Cases

                                        QUESTIONS

                1.    May  a  state  agency  use  its  rule-making  authority  to  authorize  the  expenditure  of  state
          dollars  not  appropriated  by  the  legislature? 
                2.    May  a  state  agency  use  its  rule-making  authority  to  require  the  expenditure  of  county
          dollars  for  a  state-mandated  program  where  the  state  legislature  has  not  provided  for  it  in  the  budget?
                3.    Does  a  state  agency  through  its  rule-making  authority  have  the  right  to  promulgate
          a  rule  that  requires  the  judicial  branch  to  include  specific  language  or  specific  attachments  to  its  court
          orders? 
                4.    At  what  point  in  hearings  to  establish  or  enforce  a  child  support  obligation  does  a
          defendant  have  a  right  to  counsel?


                                         OPINIONS

                1.    No.  A  state  agency  may  not  make  an  expenditure  of  funds  from  the  state  treasury
          which  has  not  been  appropriated  by  the  legislature.  A  statutory  grant  of  rule-making  authority  which
          is  not  itself  an  appropriation  may  not  be  used  to  circumvent  this  constitutional  and  statutory
          restriction.
                2.    Yes.  A  state  agency  may  use  its  rule-making  authority  to  promulgate  regulations  that
          have  the  effect  of  imposing  new  costs  on  county  governments  in  order  to  comply  with  a  state-mandated 
                  program,  even  though  the  state  legislature  has  not  provided  any  funds  for  the  program  in
          the  state  budget. 
                3.    Yes.  A  state  agency  may  promulgate  a  rule,  pursuant  to  an  appropriate  legislative
          grant  of  rule-making  authority,  that  requires  the  judicial  branch  to  include  specific  language  or
          specific  attachments  to  its  court  orders. 



            Page  2











































                   This  provision  has  the  effect  of  invalidating  any  noncompliant  legislation.  While  it  is  clearly  applicable  to  1

            acts  of  the  legislature,  its  literal  language  does  not  appear  to  apply  to  administrative  rules  and  regulations.  Nevertheless,
            the  legislature  could  not  use  a  statutory  grant  of  rule-making  authority  to  delegate  authority  to  the  executive  branch  to
            do  what  this  provision  prohibits  the  legislative  branch  from  doing.  Nor  could  a  state  agency  force  the  legislature  or  the
            treasury  to  violate  these  restrictions  by  enacting  rules  that  obligate  the  state  to  spend  funds  at  a  level  beyond  that  which
            the  legislature  appropriates  or  the  level  of  the  StateÕs  revenues  and  reserves. 4.    An  indigent  defendant  in  an  action  to  enforce  a  child  support  obligation  has  a  right
            to  counsel  when  there  is  a  threat  of  incarceration  within  the  meaning  of  Tennessee  Supreme  Court
            Rule  13(d).


                                               ANALYSIS

                                                   I.
                  A  state  agency  may  not  spend  public  funds  without  an  appropriation  from  the  legislature.
            There  are  both  state  statutory  and  constitutional  provisions  that  restrict  the  expenditure  of  public
            funds  without  appropriation  from  the  legislature.  Tenn.  Code  Ann.  ¤  9-4-601(a)  provides  that  Ò[n]o
            money  shall  be  drawn  from  the  state  treasury  except  in  accordance  with  appropriations  duly
            authorized  by  law.Ó The  first  paragraph  of  Article  II,  Section  24,  of  the  Constitution  of  Tennessee
            provides  that  Ò[n]o  public  money  shall  be  expended  except  pursuant  to  appropriations  made  by  law.Ó
            The  third  paragraph  of  Article  II,  Section  24,  provides  that  Ò[a]ny  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.Ó  1


                  When  construing  a  constitutional  provision,  a  court  must  give  effect  to  the  intent  of  the
            people  who  adopted  it. Gaskin  v.  Collins,  661  S.W.2d  865  (Tenn.  1983);  Hatcher  v.  Bell,  521
            S.W.2d  799  (Tenn.  1974).  "[I]f  the  language  used  is  clear  and  unambiguous,  the  meaning  and  intent
            of  the  provision  is  to  be  ascertained  from  the  instrument  itself  by  construing  the  language  as  it  is
            written." Hatcher  v.  Bell,  521  S.W.2d  at  803. The  terms  used  must  be  given  their  ordinary  and
            inherent  meaning. Gaskin  v.  Collins,  supra. The  proceedings  of  the  Constitutional  Convention
            which  adopted  the  provision,  while  not  controlling,  are  relevant  if  an  ambiguity  exists. Shelby
            County  v.  Hale,  200  Tenn.  503,  292  S.W.2d  745  (1956);  McCulley  v.  State,  102  Tenn.  509,  53  S.W.
            134  (1899). Collectively,  these  provisions  were  intended  to  prevent  deficit  spending  and  to  force
            the  legislature  to  fund  any  new  programs  that  it  implements. Journal  and  Debates  of  the  1977
            Limited Constitutional Convention, 1112-13 (Report of the Limitations on State Spending
            Committee,  remarks  by  Mr.  Burson). This  Office  has  previously  interpreted  these  restrictions  as
            generally  preventing  the  State  from  spending  money  without  an  appropriation,  whether  the  money
            was  generated  by  the  StateÕs  own  taxing  powers  or  received  from  other  sources,  such  as  the  federal
            government.  Op.  Tenn.  AttÕy.  Gen.  00-083  (May  4,  2000).  This  Office  has  previously  indicated  that
            the  third  paragraph  of  Article  II,  Section  24,  does  not  apply  if  funding  is  not  necessary  in  the  first
            year  after  the  actÕs  passage,  or  if  the  law  is  implemented  with  an  agencyÕs  existing  appropriated
            funds.  Ops.  Tenn.  AttÕy.  Gen.  00-083  (May  4,  2000);  97-67  (May  12,  1997);  88-87  (April  19,  1988).



            Page  3











































                   Furthermore,  Article  II,  Sec.  24,  has  been  construed  to  apply  only  to  laws  of  general  application  which  directly  2

            or  expressly  require  counties  and  cities  to  make  expenditures.  See  Swafford  v.  City  of  Chattanooga,  743  S.W.2d  174,
            178  (Tenn.  Ct.  App.  1987);  Op.  Tenn.  AttÕy.  Gen.  No.  87-79  (April  30,  1987);  Op.  Tenn.  AttÕy.  Gen.  No.  80-148
            (March  11,  1980),  at  2.  Any  legislative  cost  shifting  in  this  instance  would  appear  to  be  Òtoo  indirect  and  speculative
            to  trigger  the  state-share  mechanism  of  Article  II,  Section  24.Ó  Knox  County  v.  City  of  Knoxville,  1987  WL  31640,  *6
            (Tenn.  Ct.  App.)  Because  these  restrictions  are  both  statutory  and  constitutional,  a  state  agency  cannot  use  a  legislative
            grant  of  rule-making  authority  to  circumvent  them.
                                                   II.
                  A  state  agency  may  use  its  rule-making  authority  to  promulgate  regulations  that  have  the
            effect  of  causing  the  expenditure  of  county  dollars  for  a  state-mandated  program  even  though  the
            state  legislature  has  not  provided  for  it  in  the  budget. Article  II,  Section  24,  of  the  Constitution  of
            Tennessee  contains  a  measure  of  fiscal  protection  for  the  counties  which  prohibits  the  State  from
            shifting  all  of  the  costs  of  a  particular  state-mandated  program  to  local  governments. The  fourth
            paragraph  of  Article  II,  Section  24,  provides  that  Ò[n]o  law  of  general  application  shall  impose
            increased  expenditure  requirements  on  cities  or  counties  unless  the  General  Assembly  shall  provide
            that the state share in the cost.Ó  According to the Court of Appeals, Òthe Legislature is
            constitutionally  empowered  to  elect  what  the  share  of  the  State  shall  be  in  the  subject  expenses.Ó

            Morris  v.  Snodgrass,  886  S.W.2d  761,  763  (Tenn.  Ct.  App.  1994).  In  fact,  the  Tennessee  Supreme
            Court  has  recognized  that  ÒArticle  II,  Section  24,  the  State  Spending  Clause,  gives  the  General
            Assembly  the  widest  discretion  in  assigning  the  relative  shares  of  responsibility  of  the  state  and  local
            governments  for  funding  state  mandated  services.Ó  Tennessee  Small  School  Systems  v.  McWherter,

            851  S.W.2d  139,  156  (Tenn.  1993). Nevertheless,  Article  II,  Section  24,  does  not  apply  to
            administrative  rules  or  regulations  because  they  do  not  constitute  a  Òlaw  of  general  applicationÓ
            within  the  meaning  of  this  provision. Op.  Tenn.  AttÕy.  Gen.  No.  87-195  (December  18,  1987).
            Thus,  this  provision  does  not  prohibit  state  agencies  from  promulgating  rules  which  have  the  effect
            of  increasing  expenditures  for  local  governments.  2


                                                   III.
                  Pursuant  to  an  appropriate  legislative  grant  of  rule-making  authority,  a  state  agency  may
            promulgate  a  rule  that  requires  the  judicial  branch  to  include  specific  language  in  its  court  orders  or
            specific  attachments  to  its  court  orders.  With  respect  to  child  support  orders,  Tenn.  Code  Ann.  ¤  36-
            5-101(e)(1)(a)  (Supp.  2003)  already  requires  trial  courts  to  include  certain  factual  findings  in  their
            orders  when  they  deviate  from  the  Tennessee  Child  Support  Guidelines,  including  Òthe  amount  of
            support  that  would  have  been  ordered  under  the  child  support  guidelines  and  a  justification  for  the
            variance  from  the  guidelines.Ó  The  legislatureÕs  grant  of  rule-making  authority  for  the  promulgation
            of  child  support  guidelines  is  set  forth  in  Tenn.  Code  Ann.  ¤¤  36-5-101(e)(2)  (Supp.  2003)  and  71-1-
            132(a)(1).  The  Tennessee  Supreme  Court  has  recently  held  that  the  legislatureÕs  delegation  of  rule-making 
                  authority  to  the  Department  of  Human  Services  to  promulgate  child  support  guidelines  was
            constitutional. Gallaher  v.  Elam,  104  S.W.3d  455,  465  (Tenn.  2003). Clearly,  it  is  also  broad



            Page  4
            enough  to  permit  the  Department  to  require  that  child  support  guidelines  worksheets  be  attached  to
            judicial  child  support  orders. Whether  such  a  requirement  in  an  administrative  rule  is  permissible
            under  the  doctrine  of  separation  of  powers  between  the  legislative  and  judicial  branches  requires
            further  analysis.
                  As  the  Tennessee  Supreme  Court  stated  in  Gallaher: 

                        The  separation  of  powers  doctrine,  as  set  forth  in  article  II,  sections
                        1  and  2  of  the  Tennessee  Constitution,  "is  a  fundamental  principle  of
                        American  constitutional  government." Underwood  v.  State,  529
                        S.W.2d  45,  47  (Tenn.1975). Article  II,  section  1  of  the  Tennessee
                        Constitution  provides:  "The  powers  of  the  government  shall  be
                        divided  into  three  distinct  departments:  legislative,  executive,  and
                        judicial." Article  II,  section  2  requires  that  "[n]o  person  or  persons
                        belonging  to  one  of  these  departments  shall  exercise  any  of  the
                        powers  properly  belonging  to  either  of  the  others,  except  in  the  cases
                        herein  directed  or  permitted." However,  we  have  observed  that  the
                        doctrine  of  separation  of  powers  is  not  absolute. See  State  v.  King,

                        973  S.W.2d  586,  588  (Tenn.1998).  Instead,  the  functions  of  the  three
                        branches  of  government  often  overlap. See  id.
            Gallaher  v.  Elam,  104  S.W.3d  at  463.
                  In  Underwood  v.  State,  529  S.W.2d  45  (Tenn.  1975),  the  Tennessee  Supreme  Court  upheld
            the  constitutionality  of  the  statutes  providing  for  the  expungement  of  criminal  records.  In  so  doing,
            the  Court  formulated  the  test  to  guide  any  determination  of  separation  of  powers  issues  between  the
            legislative  and  judicial  branches  of  government.  According  to  the  Court,  "[a]  legislative  enactment
            which  does  not  frustrate  or  interfere  with  the  adjudicative  function  of  the  courts  does  not  constitute
            an  impermissible  encroachment  upon  the  judicial  branch  of  government."  529  S.W.2d  at  47.  In  this
            instance,  neither  the  executive  branch  nor  the  legislature  are  dictating  to  a  court  what  its  judgment
            must  be,  nor  are  they  frustrating  or  interfering  with  an  adjudicative  function  of  the  courts.  It  appears
            that  they  are  merely  standardizing  the  information  that  must  be  included  in  child  support  orders.
            This  does  not  constitute  an  impermissible  encroachment  upon  the  judicial  branch  of  government  or
            a  violation  of  the  separation  of  powers  provisions  of  the  Tennessee  Constitution.
                                                   IV.
                  An  indigent  defendant  in  an  action  to  enforce  a  child  support  obligation  through  contempt
            of  court  proceedings  has  a  right  to  counsel  if  the  defendant  is  in  jeopardy  of  incarceration.  Tennessee
            Supreme  Court  Rule  13(d)(1)(B)  (amended  July  1,  2004). Rule  13(d)(1)(B)  provides  that:
                        [i]n  the  following  cases,  and  in  all  other  cases  required  by  law,  the
                        court  or  appointing  authority  shall  advise  any  party  without  counsel



            Page  5
                        of  the  right  to  be  represented  throughout  the  case  by  counsel  and  that
                        counsel will be appointed if the party is indigent and requests
                        appointment  of  counsel. 
                                                  *  *  *
                        (B)  Contempt  of  court  proceedings  in  which  the  defendant  is  in
                        jeopardy  of  incarceration; 
                  Pursuant  to  state  and  federal  law,  a  party  seeking  to  establish,  modify  or  enforce  a  child
            support  obligation  may  apply  for  services  from  the  stateÕs  Title  IV-D  agency,  which  in  Tennessee
            is  the  Department  of  Human  Services. See  42  U.S.C.  ¤  654(4),  (6);  42  U.S.C.  ¤  666(a)(10);  Tenn.
            Code  Ann.  ¤  71-3-124(a)  and  (c). The  Department  is  required  to  provide  such  services  to  Ò[e]ach
            applicant  or  recipient  who  receives  or  authorizes  payment  of  public  or  temporary  assistance  pursuant
            to  Title  IV-A  or  IV-E  of  the  Social  Security  Act  or  any  successor  program  providing  temporary
            assistance  or  foster  care  or  adoption  assistance.Ó  Tenn.  Code  Ann.  ¤  71-3-124(a).  The  Department
            is  also  required  to  provide  similar  services  to  individuals  who  file  an  application  and  who  are  not
            otherwise  eligible  for  support  services.  Tenn.  Code  Ann.  ¤  71-3-124(c).  Generally,  these  provisions
            require  child  support  services  to  be  provided  to  minor  children  who  are  owed  a  duty  of  support  and
            to  their  custodial  parents  or  caretakers. Finally,  even  non-custodial  parents  may  apply  for  and
            receive  child  support  services  to  obtain  a  modification  of  their  child  support  obligations  in
            appropriate  cases.  Tenn.  Code  Ann.  ¤  36-5-103(f)(1)  (2001).  In  each  instance,  the  services  provided
            may  include  the  assistance  of  a  Title  IV-D  attorney  who  has  an  attorney-client  relationship  only  with
            the  State. This  Office  is  unaware  of  any  other  statutory  or  constitutional  requirement  that  counsel
            be  provided  to  parents  in  child  support  cases. 



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General



                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       STUART  F.  WILSON-PATTON
                                                       Senior  Counsel



            Requested  by:
                   Honorable  Curtis  Person,  Jr.
                   State  Senator
                   31st  Senatorial  District  of  Shelby  County
                   Suite  308,  War  Memorial  Building
                   Nashville,  TN  37243-0031



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       September  1,  2004
                                      Opinion  No.  04-143
          Convicted  Felon  Serving  as  an  Agent  to  a  Bail  Bondsman

                                        QUESTIONS

                1.    May  an  individual  who  has  been  convicted  of  a  felony  continue  to  act  as  an  agent  of
          a  professional  bondsman  if  he  was  ÒgrandfatheredÓ  in  as  an  agent  prior  to  the  repeal  of  Tenn.  Code
          Ann.  ¤40-11-314  in  1999,  or  is  he  disqualified  from  acting  as  an  agent  for  a  professional  bondsman
          by  Tenn.  Code  Ann.  ¤40-11-128?
                2.    If  the  individual  is  restored  to  his  rights  of  citizenship,  may  he  serve  as  an  agent  for
          a  professional  bail  bondsman,  or  is  he  still  disqualified  by  Tenn.  Code  Ann.  ¤40-11-128  from  serving
          as  an  agent  of  a  professional  bail  bondsman?

                                         OPINIONS

                1.    Under  Tenn.  Code  Ann.  ¤40-11-128,  an  individual  who  has  been  convicted  of  a
          felony  may  not  continue  to  act  as  an  agent  of  a  professional  bail  bondsman,  even  if  he  was  permitted
          to  do  so  by  the  prior  law.
                2.    Restoration  of  rights  of  citizenship  pursuant  to  Tenn.  Code  Ann.  ¤40-29-101  et  seq.

          would  enable  a  felon  to  serve  as  an  agent  for  a  professional  bail  bondsman. However,  if  any  of  the
          individualÕs  convictions  were  for  a  crime  of  violence,  he  cannot  possess  a  handgun.

                                         ANALYSIS

                In  a  previous  opinion  issued  by  this  office,  we  stated:
                     A  person  who  has  been  convicted  of  a  felony  may  not  serve  as  a
                     surety  individually  or  as  an  agent  for  a  professional  bonding  company
                     pursuant  to  Tenn.  Code  Ann.  ¤40-11-128.
          Op.  Tenn.  AttÕy  Gen.  91-65  (July  3,  1991)  (copy  attached).
                Restoration  of  rights  of  citizenship  pursuant  to  Tenn.  Code  Ann.  ¤40-29-101  et  seq.  would
          enable  a  felon  to  serve  as  an  agent  for  a  professional  bondsman. Tennessee  has  "specific  disability
          statutes,"  which  "designate  a  particular  civil  disability  that  occurs  upon  the  conviction  and  remains



               in  effect  throughout  the  defendant's  life  unless  restored  by  a  specific  statutory  procedure."  Cole  v.
               Campbell,  968  S.W.  2d  274,  276  (Tenn.1998)  (citing  Special  Project,  The  Collateral  Consequences
               of  a  Criminal  Conviction,  23  Vand.  L.Rev.  929,  951  (1970)). Specific  disability  statutes  include
               the  loss  of  the  right  to  vote,  see  Tenn.Code  Ann.  ¤  40-20-112  (1997);  the  loss  of  the  right  to  hold
               public  office,  see  id.  ¤  40-20-114;  the  loss  of  the  right  to  serve  as  a  fiduciary,  see  id.  ¤  40-20-115;
               the  loss  of  the  right  to  possess  a  handgun,  see  id.  ¤  39-17-1307(b);  and  the  loss  of  right  to  serve  as
               an  agent  for  a  professional  bondsman.
                       Tenn.Code Ann. ¤40-29-101 provides a procedure through which "[p]ersons rendered
               infamous  or  deprived  of  the  rights  of  citizenship  by  the  judgment  of  any  state  or  federal  court  may
               have  their  full  rights  of  citizenship  restored  by  the  circuit  court." The  requirements  for  restoration
               of  citizenship  rights  depend  upon  the  date  of  the  conviction.  For  convictions  after  July  1,  1986,  but
               before  July  1,  1996,  a  person  may  petition  for  restoration  based  on  a  pardon,  service  or  expiration
               of  the  maximum  sentence  for  the  offense,  or  "final  release"  from  incarceration  or  supervision.  See
               id.  ¤  40-29-105(b). For  convictions  after  July  1,  1996,  a  petition  may  be  based  on  a  pardon  or
               expiration  of  the  maximum  sentence,  and  the  petitioner  must  also  show  that  the  petitioner  "merits
               having  full  rights  of  citizenship  restored."  See  id.  ¤  40-29-105(c).
                       It  is  the  opinion  of  this  office  that  Tenn.  Code  Ann.  ¤40-11-128  disqualifies  a  convicted  felon
               from  serving  as  an  agent  for  a  professional  bail  bondsman,  unless  his  rights  of  citizenship  are
               restored pursuant to Tenn. Code Ann. ¤40-29-101 et seq.  However, an individual who was
               convicted  of  a  felony  involving  the  use  or  attempted  use  of  force,  violence,  or  a  deadly  weapon
               cannot  possess  a  handgun  even  though  his  or  her  citizenship  rights  have  been  restored. See  State  v.
               Johnson,  79  S.W.  3d  522,  527  (Tenn.  2002).


                                                                     PAUL  G. SUMMERS
                                                                     Attorney  General

                                                                     MICHAEL  E.  MOORE
                                                                     Solicitor  General

                                                                     RENEE  W.  TURNER
                                                                     Assistant  Attorney  General
               Requested  by:
                       The  Honorable  C.  Phillip  Bivens
                       District  Attorney  General
                       P.O.  Box  Drawer  E
                       115  E.  Market  Street
                       Dyersburg,  Tennessee  38025



                                        S  T  A  T  E O  F T  E  N  N  E  S  S  E  E
                                     OFFICE  OF  THE  ATTORNEY  GENERAL
                                                P.  O.  BOX  20207
                                        NASHVILLE,  TENNESSEE 37202

                                              September  2,  2004
                                             Opinion  No.  04-144



            Tenn.  Code  Ann.  ¤40-35-321(d)(1)  -  Applicability  to  Persons  on  Pretrial  and  Judicial  Diversion


                                                QUESTION

                   Whether  Tenn.  Code  Ann.  ¤  40-35-321(d)(1),  which  requires  that  all  convicted  felons
            provide  a  biological  specimen  for  DNA  analysis,  applies  to  persons  on  pretrial  and  judicial  diversion.

                                                 OPINION

                   No.  Pursuant  to  Tenn.  Code  Ann.  ¤  40-35-321(d)(1),  a  person  is  required  to  provide  a
            biological  specimen  for  DNA  analysis  only  when  that  person  has  been  convicted  of  a  felony.
            Persons  on  pretrial  and  judicial  diversion  have  not  yet  been  convicted.


                                                 ANALYSIS

                   Tenn.  Code  Ann.  ¤  40-35-321(d)(1)  provides,  in  relevant  part,  as  follows:
                   When  a  court  sentences  a  person  convicted  of  any  felony  offense  committed  on  or
                   after  July  1,  1998,  it  shall  order  the  person  to  provide  a  biological  specimen  for  the
                   purpose  of  DNA  analysis  as  defined  in  subsection  (a). 
            Based  on  the  plain  language  of  this  statute,  it  is  only  after  a  person  is  convicted  of  a  felony  that  the
            sentencing  court  is  authorized  to  order  such  person  to  provide  a  biological  specimen  for  DNA
            analysis. 
                   One  who  has  been  granted  pretrial  diversion  or  judicial  diversion  for  a  charged  offense  has
            not  yet  been  convicted  of  that  offense. Tenn.  Code  Ann.  ¤¤  40-15-105(e);  40-35-313(a)(1)(A).
            When  a  person  is  granted  pretrial  diversion,  prosecution  of  the  underlying  charge  is  suspended
            pending  the  outcome  of  the  diversion  period. Tenn.  Code  Ann.  ¤¤  40-15-105(a)(1);  40-15-
            105(b)(1);  See  State  v.  Spears,  780  S.W.2d  776,  777  (Tenn.  Crim.  App.  1989)  (pretrial  diversion
            statute  authorizes  suspension  of  the  prosecution).  In  the  case  of  judicial  diversion,  the  court  defers



            Page  2
            entry  of  the  judgment  of  conviction  pending  the  outcome  of  the  diversion  probation  period.  Tenn.
            Code  Ann.  ¤  40-35-313(a)(1)(A);  State  v.  Johnson,  15  S.W.3d  515,  517  (Tenn.  Crim.  App.  1999),

            appeal  denied  (Tenn.  2000)  (proceedings  are  deferred  without  entry  of  conviction);  State  v.  Jesse
            Ross  Tolbert,  No.  E1999-02326-CCA-R3-CD,  2000  WL  1172344  (Tenn.  Crim.  App.  Aug.  18,  2000)
            (when  judicial  diversion  is  granted,  a  judgment  of  conviction  is  not  entered  in  the  record  and  all
            proceedings  against  the  defendant  are  stayed);  See  Op.  Tenn.  AttÕy  Gen.  02-099  (Sept.  16,  2002).
                  If  the  person  successfully  completes  the  diversion  probation,  the  underlying  criminal  charge
            is  dismissed.  Tenn.  Code  Ann.  ¤¤  40-35-313(b);  40-15-105(e).  Thus,  a  judgment  of  conviction  is
            never  entered. The  effect  is  to  restore  the  person  to  the  status  occupied  before  the  offense  upon
            successful  completion  of  the  diversion.  Tenn.  Code  Ann.  ¤¤  40-35-313(b);  40-15-105(e).  If,  on  the
            other  hand,  the  person  fails  to  comply  with  the  conditions  imposed  under  judicial  diversion,  the
            judgment  of  conviction  is  entered.  Tenn.  Code  Ann.  ¤  40-35-313(a)(2);  State  v.  Doyle  R.  Stevens,

            No.  E1999-02097-CCA-R3-CD,  2000  WL  1661490,  at  *2  (Tenn.  Crim.  App.  Nov.  6,  2000).  If  the
            person  does  not  successfully  complete  pretrial  diversion,  the  person  must  then  be  tried  and  found
            guilty  before  a  judgment  of  conviction  may  be  entered.  Tenn.  Code  Ann.  ¤  40-15-105(d);  Id.

                  In  either  case,  it  is  only  after  the  judgement  of  conviction  has  been  entered  that  the  sentencing
            court  may  require  that  a  biological  specimen  be  provided  for  DNA  analysis.  Consequently,  it  is  the
            opinion  of  this  office  that  persons  on  pretrial  diversion  and  judicial  diversion  are  not  subject  to  the
            requirements  of  Tenn.  Code  Ann.  ¤  40-35-321(d).




                                                       PAUL  G. SUMMERS
                                                       Attorney  General 


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       HELENA  W.  YARBROUGH
                                                       Assistant  Attorney  General



            Page  3
                  Requested  by:

                        Honorable  Donna  Blackburn
                        Executive  Director
                        Board  of  Probation  and  Paroles
                        404  James  Robertson  Parkway
                        Suite  1300
                        Nashville,  Tennessee  37243-0850



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       September  2,  2004
                                      Opinion  No.  04-145
          Authority  to  Suspend  a  Professional  Bondsman

                                        QUESTIONS

                1.    Does  a  general  sessions  court  have  the  authority  to  suspend  a  professional  bondsman
          from  making  bonds  for  cases  originating  from  that  court? 
                2.    Does  a  circuit  court  have  the  power  to  enact  a  local  rule  prohibiting  a  general  sessions
          court  from  suspending  a  bondsman?

                                         OPINIONS

                1.    Yes. Tenn.  Code  Ann.  ¤  40-11-125(a)  gives  any  court  the  authority  to  withhold,
          withdraw,  or  suspend  the  approval  of  a  professional  bondsman  for  misconduct  specified  in  the
          statute.
                2.    No.  Only  the  Tennessee  Supreme  Court  can  make  rules  governing  the  procedure  in
          other  courts.

                                         ANALYSIS

                1.    Courts  have  statutory,  as  well  as  inherent,  authority  to  regulate  bail  bondsmen  who
          operate  in  their  courts.  Tenn.  Code  Ann.  ¤  40-11-125(a)  provides:
                     In  addition  to  the  requirements  of  part  3  of  this  chapter  regulating
                     professional  bondsmen,  approval  of  a  professional  bondsman  or  other
                     surety  may  be  withheld,  withdrawn,  or  suspended  by  any  court,  if
                     after  investigation,  it  appears  that  a  bondsman:
                     (1)  Has  been  guilty  of  violating  any  of  the  laws  of  this  state  relating
                     to  bail  bonds;
                     (2)  Has  a  final  judgment  of  forfeiture  entered  against  such  bondsman
                     which  remains  unsatisfied;  or
                     (3)  Is  guilty  of  professional  misconduct  as  described  in  ¤  40-11-126.
                The  subsequent  subsections  of  the  statute  set  out  the  procedure  to  be  followed  in  suspending
          a  bondsman. 



            Page  2
                  In  addition,  courts  have  the  inherent  power  to  make  reasonable  rules  for  the  regulation  of  the
            bail  bond  business. ÒA  trial  court  has  full  authority  to  determine  who  should  be  allowed  to  make
            bonds  in  its  courts.Ó  Hull  v.  State,  543  S.W.2d  611,  612  (Tenn.  Crim.  App.  1976)  (citing  Gilbreath
            v.  Ferguson,  195  Tenn.  528,  260  S.W.2d  276  (1953)). The  fact  that  the  legislature  has  enacted
            certain  statutes  concerning  the  regulation  of  bail  bondsmen  does  nothing  to  diminish  the  trial  courtÕs
            inherent  powers  to  act  in  addition  to  the  statutes.  In  Taylor  v.  Waddey,  206  Tenn.  497,  334  S.W.2d
            733  (1960),  the  Tennessee  Supreme  Court  recognized  the  right  of  a  general  sessions  court  to  Òsee
            that  the  courts  over  which  they  preside  are  conducted  in  an  honest  and  upright  manner,Ó  including
            the  right  to  suspend  a  bondsman.  Id.  at  736. Therefore,  Òthe  trial  court  is  given  wide  discretion  in
            its  regulation  of  bail  bondsmen  and  its  action  will  not  be  overturned  absent  a  showing  that  they  were
            arbitrary,  capricious  or  illegal.Ó  In  re  International  Fid.  Ins.  Co.,  989  S.W.2d  726,  728  (Tenn.  Crim.
            App.  1998). 
                  2.    Tenn.  Code  Ann.  ¤  16-3-402  recognizes  the  authority  of  the  Supreme  Court  to
            prescribe  rules  governing  the  practice  and  procedure  in  all  inferior  courts  of  this  state. The
            rulemaking authority  of  all  other  courts  is  limited  to  Òadditional  or  supplemental  rules  of  practice
            and  procedure  not  inconsistent  with  or  in  conflict  with  the  rules  prescribed  by  the  Supreme  Court.Ó
            Tenn.  Code  Ann.  ¤  16-3-407.  In  State  v.  Best,  614  S.W.2d  791,  793  (Tenn.  1981),  the  Court  found
            that  it  is  Òclearly  implicit  in  the  statutes,  Tenn.  Code  Ann.  ¤¤  16-3-401  [to]  16-3-407,  that  no  court
            other  than  the  Supreme  Court  can  make  rules  governing  the  procedure  in  other  courts.Ó  Therefore,
            it  is  the  opinion  of  this  office  that  a  circuit  court  cannot  make  rules  that  govern  procedure  in  a
            general  sessions  court,  including  rules  concerning  the  suspension  of  a  bondsmanÕs  authority  to  make
            bonds  in  the  general  sessions  court. Moreover,  such  a  rule  would  contradict  the  plain  language  of
            Tenn.  Code  Ann.  ¤  40-11-125(a),  which  expressly  authorizes  Òany  courtÓ  to  suspend  a  bondmanÕs
            authority  to  make  bonds  in  that  court  when  the  statutory  conditions  for  such  action  are  present. 





                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       RACHEL  E.  WILLIS
                                                       Assistant  Attorney  General



            Page  3



            Requested  by:
                  John  P.  Damron
                  Judge
                  P.O.  Box  678
                  Pulaski,  TN  38478



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       September  2,  2004
                                      Opinion  No.  04-146
          Juvenile  Serving  on  a  Jury

                                         QUESTION

                May  a  juvenile  serve  on  a  jury  in  Tennessee?


                                         OPINION

                No.  Pursuant  to  Tenn.  Code  Ann.  ¤  22-1-101,  a  person  under  the  age  of  eighteen  (18)  is  not
          qualified  to  serve  as  a  juror.

                                         ANALYSIS

                Tenn.  Code  Ann.  ¤  22-1-101  sets  forth  the  basic  qualifications  for  jury  duty.  ÒEvery  person
          eighteen  (18)  years  of  age,  being  a  citizen  of  the  United  States,  and  a  resident  of  the  State  of
          Tennessee,  and  of  the  county  in  which  the  person  may  be  summoned  for  jury  service  for  a  period  of
          twelve  (12)  months  next  preceding  the  date  of  such  summons,  is  legally  qualified  to  act  as  a  grand
          or  petit  juror,  if  not  otherwise  incompetent  under  the  express  provisions  of  the  code.Ó
                This  statute  expressly  states  that  potential  jurors  must  be  eighteen  (18)  years  of  age;  therefore,
          any  person  under  the  age  of  eighteen  (18)  is  not  qualified  to  serve  as  a  juror.


                                                PAUL  G.  SUMMERS
                                                Attorney  General

                                                MICHAEL  E.  MOORE
                                                Solicitor  General

                                                SETH  P.  KESTNER
                                                Assistant  Attorney  General



            Page  2
            Requested  by: 
                        Michael  L.  Kernell
                        State  Representative
                        93rd  District
                        3583  Allandale
                        Memphis,  TN  38111-5601



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       September  2,  2004
                                      Opinion  No.  04-147
          Federal  Administrative  Law  JudgeÕs  Authority  to  Perform  Marriage

                                         QUESTION

                Does  a  federal  Administrative  Law  Judge  have  authority  under  Tenn.  Code  Ann.  ¤  36-3-301
          to  perform  a  marriage?


                                         OPINION

                No.  A  federal  Administrative  Law  Judge  does  not  have  authority  under  Tenn.  Code  Ann.
          ¤  36-3-301  to  perform  a  marriage.


                                         ANALYSIS

                In  Tennessee,  the  law  of  marriage  is  not  controlled  by  the  common  law  but  rather  is  a  matter
          of  statute.  Bryant  v.  Townsend,  188  Tenn.  630,  221  S.W.2d  949  (1949).  Accordingly,  a  marriage
          ceremony  must  be  performed  by  a  person  authorized  under  Tennessee  law  in  order  to  be  valid.  Smith
          v.  North  Memphis  Savings  Bank,  115  Tenn.  12,  89  S.W.  392  (1905).
                The  Legislature  has  designated  the  persons  who  may  solemnize  marriages.  Tenn.  Code  Ann.
          ¤  36-3-301(a).  This  list  includes  judges  of  this  state.  Id.  In  particular,  this  statute  provides:
                     For  the  purposes  of  this  section,  the  several  judges  of  the  United
                     States  courts,  including  United  States  magistrates  and  United  States
                     bankruptcy  judges,  who  are  citizens  of  Tennessee  are  deemed  to  be
                     judges  of  this  state.

          Id.

                This  statute  does  not  specifically  recognize  the  authority  of  a  federal  Administrative  Law
          Judge  to  perform  a  marriage. While  federal  Administrative  Law  Judges  perform  some  judicial
          functions,  such  officials  are  employees  of  the  Executive  Branch  and  are  not  judges  of  the  United
          States  courts.  5  U.S.C.  ¤  556.  See  also  Butz  v.  Economou,  438  U.S.  478,  98  S.Ct.  2894,  57  L.Ed.2d



            Page  2
            895  (1978). Therefore,  a  federal  Administrative  Law  Judge  does  not  have  authority  under  Tenn.
            Code  Ann.  ¤  36-3-301  to  perform  a  marriage.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General



                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       DIANNE  STAMEY  DYCUS
                                                       Deputy  Attorney  General
            Requested  by:
                  Honorable  Bob  Patton
                  State  Representative
                  7th  Legislative  District
                  215  War  Memorial  Building
                  Nashville,  TN  37243-0112



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       September  7,  2004
                                      Opinion  No.  04-148
          Stop  and  ID

                                         QUESTION

                Does  a  court  officer  serving  civil  papers  have  the  same  authority  enjoyed  by  police  officers
          to  approach  a  person  in  a  public  place  and  ask  the  person  to  identify  himself?


                                         OPINION

                Yes.  A  court  officer  serving  civil  papers  may  ask  a  person  to  voluntarily  identify  himself;
          however,  the  court  officer  has  no  authority  to  compel  the  person  to  comply  with  the  request  unless
          the  officer  has  a  reasonable  suspicion  that  the  person  is  engaged  in  criminal  wrongdoing.


                                         ANALYSIS

                The  Fourth  Amendment  to  the  United  States  Constitution  provides  that  the  people  shall  Òbe
          secure  in  their  persons,  houses,  papers,  and  effects,  against  unreasonable  searches  and  seizures.Ó
          U.S.  Const.  Amend.  IV.  Similarly,  Article  1,  section  7,  of  the  Tennessee  Constitution  guarantees
          Òthat  the  people  shall  be  secure  in  their  persons,  houses,  papers  and  possessions,  from  unreasonable
          searches  and  seizures.Ó  Tenn.  Const.  art.  1,  ¤  7.  These  constitutional  protections  Òare  implicated
          only  when  a  police  officerÕs  interaction  with  a  citizen  impermissibly  intrudes  upon  the  privacy  or
          personal  security  of  the  citizen.Ó  State  v.  Daniel,  12  S.W.3d  420,  424  (Tenn.  2000).
                Without  question,  before  a  police  officer  may  seize  an  individual,  that  officer  must  have  at
          least  reasonable  suspicion,  supported  by  specific  and  articulable  facts,  to  believe  that  the  individual
          has  been  or  is  about  to  be  involved  in  criminal  activity.  See  id.;  Brown  v.  Texas,  443  U.S.  47,  50-52
          (1979).  An  officer  may  not  stop  an  individual  and  Òdemand[]  identification  without  any  specific
          basis  for  believing  he  is  involved  in  criminal  activity.Ó  Brown,  443  U.S.  at  52.  However,  once  an
          individual  has  been  lawfully  stopped  based  upon  reasonable  suspicion  of  criminal  activity,  a  police
          officer  may  ask  a  suspect  to  identify  himself  or  herself  if  the  request  to  identify  is  reasonably  related
          to  the  circumstances  justifying  the  stop.  See  Hibel  v.  Sixth  Judicial  District  Court  of  Nevada,  __
          U.S.  __,  124  S.  Ct.  2451,  2458-60  (2004). 
                While  a  police  officer  has  no  authority  to  seize  an  individual  and  demand  identification



            Page  2
            without  any  reasonable  suspicion  of  wrongdoing,  an  officer  Òmay  approach  an  individual  in  a  public
            place  and  ask  questions  without  implicating  constitutional  protections.Ó  Daniel,  12  S.W.3d  at  425.
            The  Supreme  Court  has  explained  that
                  law enforcement officers do not violate the Fourth Amendment by merely
                  approaching  an  individual  on  the  street  or  in  another  public  place,  by  asking  him  if
                  he  is  willing  to  answer  some  questions,  by  putting  questions  to  him  if  the  person  is
                  willing  to  listen  or  by  offering  in  evidence  in  a  criminal  prosecution  his  voluntary
                  answers  to  such  questions. Nor  would  the  fact  that  the  officer  identifies  himself  as
                  a  police  officer,  without  more,  convert  the  encounter  into  a  seizure  requiring  some
                  level  of  objective  justification. The  person  approached,  however,  need  not  answer
                  any  question  put  to  him;  indeed,  he  may  decline  to  listen  to  the  questions  at  all  and
                  may  go  on  his  way.  He  may  not  be  detained  even  momentarily  without  reasonable,
                  objective  grounds  for  doing  so;  and  his  refusal  to  listen  or  answer  does  not,  without
                  more,  furnish  those  grounds.
            Florida  v.  Royer,  460  U.S.  491,  497  (1983)  (plurality  opinion)  (emphasis  added). Thus,  a  police
            officer  may  approach  an  individual  and  ask  for  identification  so  long  as  the  police  conduct  would
            not  convey  to  a  reasonable  person  that  he  or  she  was  not  free  to  decline  the  request.  See  id.  at  440;

            Daniel,  12  S.W.3d  at  425-27. A  court  officer  serving  civil  papers  would  have  the  same  ability  to
            approach  an  individual  and  ask  for  identification,  as  it  is  a  consensual  encounter  between  the  officer
            and  the  citizen;  however,  that  court  officer,  like  a  police  officer,  would  have  no  authority  to  seize
            the  individual  and  demand  identification.


                                                       PAUL  G. SUMMERS
                                                       Attorney  General

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       KATHY  D.  ASLINGER
                                                       Assistant  Attorney  General
            Requested  by:
                  Tim  Burchett
                  State  Senator
                  Suite  310A  War  Memorial  Building
                  Nashville,  TN 37243-0207



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                       OFFICE  OF  THE

                                    ATTORNEY  GENERAL
                                       P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202

                                        October  1,  2004
                                      Opinion  No.  04-149
          Amendment  of  County  Tax  Rates 

                                         QUESTION

                In  view  of  Op.  Tenn.  AttÕy  Gen.  No.  92-3  (Jan.  14,  1992),  may  a  county  board  of
          commissioners,  having  approved  a  tax  rate  in  June  2004  for  fiscal  year  2004-05,  amend  said  tax  rate
          by  (1)  deciding  to  levy  a  property  tax  increase  for  the  purpose  of  funding  transportation  for  public
          education;  or  (2)  lowering  the  general  fund  tax  rate  and  raising  the  education  tax  rate  by  an  equal
          and  corresponding  amount;  or  (3)  lowering  the  portion  of  the  Business  Tax  (Tenn.  Code  Ann.  ¤¤
          67-4-701  to  -730)  that  is  allocated  to  the  general  fund  and  raising  the  allocation  to  the  education
          fund  by  an  equal  and  corresponding  amount  and  supplementing  the  general  fund  by  an  appropriation
          from  the  fund  balance  account  (rainy  day  fund),  in  order  to  provide  additional  money  to  fund
          transportation  for  the  public  school  system,  all  prior  to  the  mailing  of  tax  bills  to  property  owners?

                                         OPINION

                Yes.  A  county  board  of  commissioners,  having  previously  approved  a  tax  rate  for  fiscal  year
          2004-05,  may  amend  the  countyÕs  tax  rate,  provided  the  new  rate  is  fixed  before  taxes  become  due
          on  the  first  Monday  in  October.  The  various  methods  for  raising  tax  rates  described  in  your  request
          appear  to  be  appropriate  alternatives  for  raising  revenue  to  fund  education. All  of  the  proposed
          methods  specifically  levy  taxes  for  school  purposes,  and  none  of  the  alternatives  purport  to
          improperly  divert  revenues  collected  for  general  county  purposes  to  educational  purposes.

                                         ANALYSIS

                Pursuant  to  Tenn.  Code  Ann.  ¤  67-5-510,  county  legislative  bodies  have  the  duty  Òto  fix  the
          tax  rates  on  all  properties  within  their  respective  jurisdictions  for  all  county  purposesÓ  on  the  first
          Monday  in  July,  Òor  as  soon  thereafter  as  practicable.Ó  Tenn.  Code  Ann.  ¤  67-5-510  (2003).  As  a
          general  rule,  county,  school,  and  all  property  taxes  are  Òdue  and  payable  on  the  first  Monday  in
          October  of  each  year.Ó Tenn.  Code  Ann.  ¤  67-1-702(a)  (2003);  see  also  Tenn.  Code  Ann.
          ¤  67-1-701(a)  (2003). Unpaid  property  taxes  become  delinquent  on  March  1. Tenn.  Code  Ann.
          ¤  67-5-2010(a)(1)  (2003).



            Page  2

                  In  Op.  Tenn.  AttÕy  Gen.  No.  92-3  (Jan.  14,  1992),  this  Office  opined  that  a  county  legislative
            body  lacked  the  authority  to  alter  the  countyÕs  property  tax  rates  in  mid-fiscal  year. Citing  the
            foregoing  statutory  provisions,  we  reasoned  that
                        Tennessee  statutes  expressly  contemplate  that  tax  rates  be  fixed  Òon
                        the  first  Monday  in  July,  or  as  soon  thereafter  as  practicable.Ó  T.C.A.
                        ¤  67-5-510. Certainly,  that  provision  is  intended  to  mesh  with  the
                        provision  that  property  taxes,  for  both  general  county  purposes  and
                        for  school  purposes,  become  due  and  payable  on  the  first  Monday  in
                        October. T.C.A.  ¤  67-1-702(a). In  addition,  with  the  delinquency
                        date for property taxes set by statute for March 1 (T.C.A.
                        ¤  67-5-2010),  a  mid-fiscal  year  change  in  tax  rates,  if  authorized,
                        could  lead  to  taxes  becoming  delinquent  as  soon  as  they  are  levied,
                        an  untenable  result.  .  .  . [O]ther  than  certain  very  limited  express
                        exceptions,  no  statutes  authorize  county  legislative  bodies  to  set
                        different  dates  for  property  taxes  to  become  due  or  delinquent.
            Op.  Tenn.  AttÕy  Gen.  No.  92-3  (Jan.  14,  1992).
                  In  Opinion  No.  92-3,  this  Office  specifically  addressed  a  county  legislative  bodyÕs  attempt
            to  alter  the  tax  rate  in  mid-fiscal  year.  In  addressing  this  issue,  however,  we  suggested  that  alteration
            of  the  tax  rate  would  be  permissible  if  such  amendment  were  accomplished  prior  to  the  first  Monday
            in  October,  when  taxes  become  due.  In  discussing  Badgett  v.  Broome,  219  Tenn.  264,  409  S.W.2d
            354  (1966),  a  case  in  which  the  courts  upheld  an  amended  tax  levy,  we  noted  Òthat  the  rate  was
            firmly  fixed  on  September  27,  1965,  before  taxes  became  due  on  the  first  Monday  in  October.Ó  Op.
            Tenn.  AttÕy  Gen.  No.  92-3  (Jan.  14,  1992). Although  a  county  legislative  body  lacks  authority  to
            amend  its  tax  rates  in  the  middle  of  a  fiscal  year,  nothing  prevents  the  county  from  amending  a
            previously  established  tax  rate,  provided  it  does  so  within  the  time  limitations  set  forth  in  the
            foregoing  statutes. This  conclusion  is  in  keeping  with  the  general  rule  Òthat  the  exercise  of  the
            taxing  power  one  time  is  not  final  or  conclusive,  so  as  to  prevent  the  levy  from  afterwards  being
            amended.Ó Southern  Ry.  Co.  v.  Hamblen  County,  117  Tenn.  327,  333,  97  S.W.  455,  456  (1906).
                  Your  opinion  request  addresses  raising  the  tax  rate  in  order  to  fund  transportation  for  the
            countyÕs  public  school  system. By  statute,  a  county  legislative  body  is  required  to  levy  sufficient
            taxes  to  fund  the  county  school  system.  See  Tenn.  Code  Ann.  ¤  49-2-101(6)Ñ(8)  (2002).  As  long
            as  the  increased  taxes  are  properly  levied  for  school  purposes,  such  a  course  of  action  does  not
            violate  the  other  principle  discussed  in  Opinion  No.  92-3  Ñ  that  Òa  county  legislative  body  cannot
            lawfully  divert  revenues  collected  for  general  county  purposes,  or  other  non-education  purposes,  and
            apply  those  moneys  to  education  purposes.Ó Op.  Tenn.  AttÕy  Gen.  No.  92-3  (Jan.  14,  1992). This
            principle  likewise  is  not  violated  where  the  county  legislatively  adjusts  its  tax  rates  so  that  a  larger
            portion  of  the  tax  rate  goes  toward  education. Such  legislative  action  does  not  improperly  divert
            revenues  that  have  been  collected  for  general  county  purposes  to  education. Instead,  it  merely



            Page  3

            prospectively  alters  the  portion  of  taxes  that  will  be  collected  for  general  county  purposes  as
            opposed  to  special  purposes  like  education.
                  In  accordance  with  the  foregoing  authorities,  a  county  board  of  commissioners,  having
            previously  approved  a  tax  rate  for  fiscal  year  2004-05,  may  amend  the  countyÕs  tax  rate,  provided
            the  new  rate  is  fixed  before  taxes  become  due  on  the  first  Monday  in  October. Moreover,  the
            various  methods  for  raising  tax  rates  described  in  your  request  appear  to  be  appropriate  alternatives
            for  raising  revenue  to  fund  education. As  described  in  your  request,  all  of  the  proposed  methods
            specifically  levy  taxes  for  school  purposes,  and  none  of  the  alternatives  purport  to  improperly  divert
            revenues  collected  for  general  county  purposes  to  educational  purposes.




                                                       ___________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       ___________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       ___________________________________
                                                       MARY  ELLEN  KNACK
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Ward  Crutchfield
                  Senate  Majority  Leader
                  13  Legislative  Plaza
                  Nashville,  Tennessee 37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  5,  2004
                                      Opinion  No.  04-015
          Compensation  of  Members  of  County  Legislative  Body  During  Term  of  Office 

                                        QUESTIONS

                1.    May the members of a county legislative body increase or decrease their
          compensation  during  their  term  of  office? 
                2.    May  a  member  of  a  county  legislative  body  accept  less  pay  than  the  amount  of
          compensation  approved  by  the  county  legislative  body? 


                                         OPINIONS

                1.    Members  of  a  county  commission  may  raise  or  lower  their  compensation  during  their
          term  of  office,  as  long  as  they  do  not  go  below  the  statutory  minimum  and  are  not  covered  by  the
          population  restrictions  of  ¤  5-5-107(b)(2). 
                2.    No,  a  member  of  a  county  legislative  body  may  not  accept  less  than  the  amount  of
          compensation  approved  by  the  county  legislative  body. 


                                         ANALYSIS

                1.    Your  question  asks  whether  members  of  county  legislative  bodies  may  increase  or
          decrease  the  compensation  of  its  members  during  its  present  term.  Unless  there  is  a  constitutional
          or  statutory  prohibition,  the  compensation  of  public  officers  may  be  raised  or  lowered  during  a  term
          of  office.  Blackwell  v.  Quarterly  County  Court  of  Shelby  County,  622  S.W.2d  535,  540  (Tenn.  1981)
          (salaries  of  public  employees  may  be  raised  or  lowered  absent  constitutional  prohibition).  As  this
          office  noted  in  1988,  the  compensation  of  members  of  a  county  legislative  body  is  governed  solely
          by  statute  and  there  is  no  applicable  constitutional  provision  on  this  issue.  Op.  Tenn.  Atty.  Gen.  88-
          54  (March  11,  1988). 
                By  statute,  the  General  Assembly  has  given  county  legislative  bodies  the  power  to  fix  the
          compensation  of  their  membership,  with  minimum  amounts  set  for  most  counties.  Tenn.  Code  Ann.
          ¤¤  5-5-107(a),  -107(b)(1)(2003  supp.)  Different  standards  are  set  for  counties  Òhaving  a  population
          of  not  less  than  two  hundred  eighty-five  thousand  (285,000)  nor  more  than  two  hundred  eighty-six



            Page  2
            thousand  (286,000)  according  to  the  1990  federal  census  or  any  subsequent  census.Ó  Tenn.  Code
            Ann.  ¤  5-5-107(b)(2)(2003  Supp.) In  those  counties,  the  legislature  authorized  the  county  legislative
            body  in  1999  to  set  the  salary  of  the  body,  following  which  Òthe  compensation  for  members  of  the
            county  legislative  body  shall  be  adjusted  to  reflect  the  same  [annual]  percentage  increase  the  county
            mayor  of  such  county  is  to  receive.Ó  Id.  (emphasis  added). It  is  a  well  known  rule  of  statutory
            construction  that  the  word  ÒshallÓ  when  used  in  a  statute  imposes  a  mandatory  obligation. Stubbs
            v.  State,  216  Tenn.  567,  393  S.W.2d  150  (1965). Thus,  the  salaries  of  county  commissioners  in
            counties  covered  by  ¤  5-5-107(b)(2)  must  be  adjusted  in  accordance  with  the  provisions  of  that
            section.
                  However,  members  of  county  legislative  bodies  not  covered  by  that  section  may  raise  or
            lower  salaries  during  a  present  term  with  one  exception. Op.  Tenn.  Atty.  Gen.  88-54  (March  11,
            1988).  The  exception  is  set  forth  in  Tenn.  Code  Ann. ¤  5-5-107(b)(1),  which  states  that  Òthe
            compensation  fixed  by  the  members  of  the  county  legislative  body  for  attending  sessions  of  the  body

            shall  in  no  case  be  less  thanÓ  the  applicable  minimums  listed  in  the  statute.  (emphasis  added). 
                  Thus,  it  is  the  opinion  of  this  office  that  a  county  commission  may  raise  or  lower  the
            compensation  of  its  members  during  the  present  term,  as  long  as  they  maintain  the  statutory
            minimum  and  are  not  covered  by  the  population  restrictions  of ¤  5-5-107(b)(2). 
                  2.    Your  second  question  asks  whether  a  county  commissioner  may  accept  a  lower  salary
            than  that  authorized  by  the  county  legislative  body. It  is  the  opinion  of  this  office  that  a  county
            commissioner  may  not  do  so. 
                  The  general  rule  in  Tennessee  is  that  when  the  compensation  of  a  public  official  is
            established  by  law,  he  or  she  cannot  accept  a  lesser  amount. Carter  v.  Jett,  370  S.W.2d  576  (Tenn.
            Ct.  App.  1963).  The  state  supreme  court  has  specifically  noted  with  regard  to  county  officials  that
            the  waiver  of  a  statutory  salary  by  a  public  officer  is  void  as  against  public  policy  and  that  the  salary
            attaches  to  the  office  by  law. Carmichael  v.  Hamby,  217  S.W.2d  934,  938  (Tenn.  1948)  (agreeing
            to  a  lower  salary  than  authorized  may  be  seen  as  a  form  of  bribery  on  the  electorate). 
                  Further,  the  statute  authorizing  the  payment  of  salaries  to  members  of  the  county  legislative
            body  appears  to  be  mandatory: 
                  (b)(1)  [T]he  compensation  fixed  by  the  county  legislative  body  for  attending  sessions  of  the
                  body  shall  in  no  case  be  less  than  the  applicable  amount  reflected  herein.  .  .  .
                        .  .  .  . 
                        (c)  The  amount  provided  in  this  section,  or  a  greater  amount  provided  by  resolution
                  duly  adopted  by  the  county  legislative  body,  shall  be  paid  to  the  members  for  each  day's
                  attendance  at  meetings  of  the  body  or  any  duly  authorized  committee  thereof,  or  a  greater
                  amount  provided  by  resolution  duly  adopted  by  the  county  legislative  body  as  a  stated  salary
                  per  month.
                        (d)  The  compensation  fixed  by  the  county  legislative  body  for  attending  duly



            Page  3
                  authorized  committee  meetings  of  such  body  shall  be  one  half  (  1/2  )  of  the  compensation
                  paid  for  attending  regular  sessions  of  the  body.
            Tenn.  Code  Ann. ¤¤  5-5-107(b)(1),  -107(c),  -107(d)  (emphases  added). 
                  In  construing  statutes,  the  legislative  intent  or  purpose  is  to  be  ascertained  from  the  natural
            and  ordinary  meaning  of  the  language  used  when  read  in  the  context  of  the  entire  statute  and  without
            any  forced  or  subtle  construction  to  limit  or  extend  the  import  of  the  language. Natural  Gas
            Distributors,  Inc.  v.  State,  804  S.W.2d  66,  67  (Tenn.  1991). As  noted  above,  the  use  of  the  word
            ÒshallÓ  in  a  statute  is  generally  considered  mandatory  and  not  discretionary. Stubbs  v.  State,  216
            Tenn.  567,  393  S.W.2d  150  (1965);  Gable  v.  Lerma,  812  S.W.2d  580,  582  (Tenn.  1990). Therefore,
            a  member  of  a  county  legislative  body  may  not  accept  an  amount  less  than  that  set  by  the  majority
            of  the  body. 





                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       RUTH  A.  THOMPSON
                                                       Assistant  Attorney  General 
            Requested  by:
                  Doug  Overbey
                  State  Representative
                  110  War  Memorial  Building 
                  Nashville,  TN  37243-0120



                  An  Òirrevocable  trustÓ  is  a  Òtrust  which  may  not  be  revoked  after  its  creation  as  in  the  case  of  a  deposit  of  1

           money  by  one  in  the  name  of  another  as  trustee  for  the  benefit  of  a  third  person  (beneficiary).Ó  BlackÕs  Law  Dictionary,

           page  1511  (6th  ed.  1990).      S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                            OFFICE  OF  THE

                                         ATTORNEY  GENERAL
                                            PO  BOX  20207
                                     NASHVILLE,  TENNESSEE  37202

                                           October  1,  2004
                                          Opinion  No.  04-150
           Change  in  Use  or  Withdrawal  of  DonorÕs  Contribution  to  Chairs  of  Excellence  Endowment  Fund

                                            QUESTIONS

                 1.    May  income  earned  by  the  Chairs  of  Excellence  Endowment  Fund  (Endowment)  be
           used  for  scholarships  instead  of  supporting  the  activities  of  Chairs  of  Excellence?
                 2.    Does  the  EndowmentÕs  Board  of  Trustees  have  the  authority  to  approve  a  request
           from  a  private  donor  to  withdraw  funds  contributed  by  the  private  donor  to  establish  a  Chair  of
           Excellence?
                 3.    If  the  answer  to  questions  #2  is  yes,  then  under  what  conditions  may  the  Board  of
           Trustees  approve  such  a  request?

                                             OPINIONS

                 1.    No.  Tenn.  Code  Ann.  ¤  49-7-501(f)  states  that  income  from  the  Endowment  may  be
           used  for  the  sole  purpose  of  funding  Chairs  of  Excellence.
                 2.    The  Endowment  is  an  irrevocable  trust.  We  have  found  no  authority  for  the
           EndowmentÕs  Board  of  Trustees  to  approve  a  donorÕs  request  to  withdraw  all  or  part  of  his
           contribution  to  the  Endowment.
                 3.    We  know  of  no  conditions  under  which  the  Board  could  approve  such  a  request.


                                            ANALYSIS

                 The  Chairs  of  Excellence  Endowment  Fund  (Endowment)  is  an  irrevocable  trust  fund.  Tenn.  1

           Code  Ann.  ¤  49-7-501(b).  The  State  Treasurer  is  chair  of  the  EndowmentÕs  Board  of  Trustees  and
           is  the  administrator  of  the  Endowment.  Tenn.  Code  Ann.  ¤  49-7-501(b)  and  (c).  The  Tennessee
           Higher  Education  Commission  has  an  advisory  role  regarding  the  location  of  chairs  recommended



            Page  2
















































                   The  statute  makes  one  limited  exception:  income  may  be  spent  on  investment  expenses.  Tenn.  Code  2

            Ann.  ¤  49-7-501(f). by  the  University  of  Tennessee  and  the  Tennessee  Board  of  Regents.  Tenn.  Code  Ann.  ¤  49-7-
            502(e).
                  Tenn.  Code  Ann.  ¤  49-7-501(f)  is  clear  that  the  corpus  of  the  Endowment  may  not  be  spent
            for  any  purpose.  Income  from  the  Endowment,  however,  may  be  spent  to  fund  Chairs  of  Excellence,
            but  for  no  other  purpose. Tenn.  Code  Ann.  ¤  49-7-501(f).  Nowhere  in  the  statute  creating  the  2

            Endowment  is  there  authority  to  spend  trust  corpus  or  income  on  scholarships.  Nor  does  the  statute
            permit  a  donor  to  reserve  a  power  of  revocation. 
                  The  powers  of  public  officials  are  defined  by  law.  21  Tenn.Jur,  Public  Officers  ¤  36.  Statutes
            define  the  Board  of  TrusteesÕ,  the  TreasurerÕs  and  THECÕs  authority  and  duties  regarding  the
            Endowment,  and  they  do  not  give  any  of  them  the  authority  to  approve  a  donorÕs  request  to
            withdraw  all  or  part  of  his  contribution.  Tenn.  Code  Ann.  ¤¤  49-7-501  and  49-7-502.  These  statutes
            also  do  not  give  the  Treasurer,  the  EndowmentÕs  Board  of  Trustees  or  THEC  the  authority  to
            approve  a  donorÕs  request  to  redirect  the  use  of  a  donation  to  the  Endowment.
                  Therefore,  neither  the  Treasurer,  the  EndowmentÕs  Board  of  Trustees  nor  THEC  may  spend
            Endowment  corpus  or  income  on  scholarships,  and  we  have  found  no  statute  setting  out  conditions
            under  which  they  could  approve  a  donorÕs  request  to  withdraw  his  contribution  or  to  alter  its
            intended  use.


                                                       PAUL  G. SUMMERS
                                                       Attorney  General 

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       KATE  EYLER
                                                       Deputy  Attorney  General
            Requested  by:
                  The  Honorable  Richard  Rhoda
                  Executive  Director
                  Tennessee  Higher  Education  Commission
                  Parkway  Towers,  Suite  1900
                  Nashville,  Tennessee  37243-0830



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        P.O.  Box  20207
                                NASHVILLE,  TENNESSEE  37202-0207

                                        October  5,  2004
                                      Opinion  No.  04-151
          Use  of  tobacco  products  in  local  jail  facilities

                                         QUESTION

                Does  the  Tennessee  Code  regulate  the  use  of  tobacco  products  in  local  jail  facilities  housing
          local,  state  and  federal  inmates?


                                         OPINION

                No.  Cities,  counties,  and  counties  having  a  metropolitan  form  of  government  are  authorized
          to  regulate  the  use  of  tobacco  products  in  buildings  owned  or  leased  by  such  entities,  including  local
          jail  facilities.


                                         ANALYSIS

                In  Tenn.  Code  Ann.  ¤39-17-1551  the  General  Assembly  voided  all  laws  and  regulation  of
          tobacco  products  enacted  or  promulgated  after  March  15,  1994,  by  any  agency  or  political
          subdivision  of  the  state.  The  Code  does  permit  cities,  counties,  and  counties  having  a  metropolitan
          form  of  government  to  regulate  the  use  of  tobacco  products  in  buildings  owned  or  leased  by  such
          entities.  Tenn.  Code  Ann.  ¤39-17-1551. 
                Use  of  tobacco  products  is  regulated  in  the  state  youth  development  centers.  Tenn.  Code
          Ann.  ¤¤39-17-1603(9)  &  (10);  37-5-201(a).  There  is  no  comparable  code  provision  regulating  the
          use  of  tobacco  products  in  local  jail  facilities  housing  juveniles  except,  of  course,  that  tobacco
          products  may  not  be  sold  or  distributed  to  minors.  Tenn.  Code  Ann.  ¤39-17-1504. 


                                                PAUL  G.  SUMMERS
                                                Attorney  General 

                                                MICHAEL  E.  MOORE
                                                Solicitor  General



            Page  2
                                                       KIMBERLY  J.  DEAN
                                                       Deputy  Attorney  General

            Requested  by:
                  Dewayne  Bunch
                  State  Representative
                  24th  Legislative  District
                  107  War  Memorial  Bldg.
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        October  7,  2004
                                      Opinion  No.  04-152

          Application  of  Mineral  Severance  Tax  to  ÒTennessee  Mountain  StoneÓ 



                                         QUESTION

                Is  ÒTennessee  mountain  stoneÓ  subject  to  the  mineral  severance  tax,  Tenn.  Code  Ann. 
          ¤¤  67-7-201  et  seq. 


                                         OPINION

                The  local  option  mineral  severance  tax  applies  only  to  sand,  gravel,  sandstone,  chert,  and
          limestone.  If  ÒTennessee  mountain  stoneÓ  is  one  of  these  types  of  minerals,  it  is  subject  to  tax  in
          counties  that  have  decided  to  impose  the  mineral  severance  tax. It  appears  that  ÒTennessee
          mountain  stoneÓ  may  be  a  type  of  sandstone  and  thus  subject  to  the  tax.


                                         ANALYSIS

                Tenn.  Code  Ann.  ¤  67-7-201  lists  several  types  of  minerals  upon  which  a  county  may  impose
          a  mineral  severance  tax.
                          Any  county  legislative  body,  by  resolution,  is  authorized  to
                     levy  a  tax  on  all  sand,  gravel,  sandstone,  chert  and  limestone  severed
                     from  the  ground  within  its  jurisdiction.  The  tax  shall  be  levied  for  the
                     use  and  benefit  of  the  county  only,  to  be  allocated  and  applied  to  its
                     county  road  fund,  and  all  revenues  collected  from  the  tax  except
                     deductions  for  administration  and  collection  provided  for  in  this  part
                     shall  be  allocated  to  the  county.
                While  this  tax  is  imposed  by  the  county  for  its  exclusive  benefit,  it  is  collected  and
          administered  by  the  Commissioner  of  Revenue,  in  accordance  with  Tenn.  Code  Ann.  ¤  67-7-204.



            Page  2
            The  five  substances  listed  in  ¤  67-7-201  are  the  only  ones  that  may  be  taxed  under  the  mineral
            severance  tax  law. Tenn.  Code  Ann.  ¤  67-7-202  further  clarifies  which  substances  are  taxable,
            declaring  that  Ò[s]and,  gravel,  sandstone,  chert  and  limestoneÓ  means  Òsand,  gravel,  sandstone,  chert
            and  limestone  severed  from  the  earth  in  the  process  of  producing  a  salable  product  by  whatever
            means  of  severance  used.Ó That  section  goes  on  to  enumerate  several  types  of  substances  that  are
            not  subject  to  the  tax,  none  of  which  would  appear  to  include  Tennessee  mountain  stone.
                  ÒTennessee  mountain  stoneÓ  appears  to  be  a  trade  name  and  is  not  discussed  under  that  name
            in  general  scientific  and  geological  literature.  It  appears,  however,  that  ÒTennessee  mountain  stone,Ó
            as  found  in  several  counties  along  the  Cumberland  Plateau,  may  be  a  type  of  sandstone.  It  is  not  the
            function  of  this  Office,  however,  to  make  factual  and  scientific  determinations  in  its  opinion  letters.
            Suffice  it  to  say  that  if  ÒTennessee  mountain  stoneÓ  is  a  type  of  sandstone,  then  it  would  come  within
            Tenn.  Code  Ann.  ¤  67-7-201  and  be  subject  to  the  mineral  severance  tax  in  those  counties  that  have
            adopted  the  tax  by  local  option.





                                                       PAUL  G.  SUMMERS
                                                       Attorney  General



                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       DEBORAH  A.  TOON
                                                       Assistant  Attorney  General

            Requested  by:
            The  Honorable  Bill  Harmon
            Assistant  Majority  Whip
            109  War  Memorial  Building
            Nashville,  Tennessee  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                   425  FIFTH  AVENUE  NORTH
                                  NASHVILLE,  TENNESSEE  37243

                                        October  7,  2004
                                      Opinion  No.  04-153

          HIPAA

                                        QUESTIONS

                1.    If  a  physician  in  an  office  was  examining  a  patient  and  the  patient  dropped  from  his
          pocket  a  crack  pipe,  could  the  physician  call  authorities  to  turn  over  the  drug  paraphernalia  without
          being  in  violation  of  HIPAA? 
                2.    If  a  patient  in  an  emergency  room  was  unconscious  and  the  nurse  was  searching  for
          documentation  of  identity  and  ran  across  a  terrorist  plot,  could  she  notify  authorities  without
          violating  HIPAA?
                3.    If  a  patient  falsified  information  such  as  a  Social  Security  number  and/or  other
          identifying  information  to  an  admitting  nurse,  could  the  nurse  turn  the  information  over  to
          authorities  without  violating  HIPAA?


                                         OPINIONS

                1.    Yes.  If  the  covered  entity  had  a  good  faith  belief  that  the  crack  pipe  was  evidence
          that  a  crime  had  occurred  on  the  covered  entityÕs  premises,  the  physician  could  call  authorities  to
          turn  over  the  drug  paraphernalia  without  being  in  violation  of  HIPAA.
                2.    Yes.  If  the  nurse  concluded  that  the  terrorist  plot  constituted  a  serious  and  imminent
          threat  to  the  health  or  safety  of  the  public,  the  nurse  could  notify  law  enforcement  officials  without
          violating  HIPAA.
                3.    Yes.  If  the  covered  entity  believed  in  good  faith  that  the  falsification  of  information
          constituted  a  crime  which  occurred  on  the  covered  entityÕs  premises,  the  admitting  nurse  could  turn
          the  information  over  to  authorities  without  violating  HIPAA.



            Page  2















































                   This  opinion  presumes  that  the  subject  physician  and  nurse(s)  are  either  covered  entities  or  employees  or  1

            agents  of  a  covered  entity  required  to  comply  with  HIPAA. ANALYSIS

                  1.    The  Privacy  Rule  of  the  Health  Insurance  Portability  and  Accountability  Act  of  1996
            (ÒHIPAAÓ)  prohibits  covered  entities  from  using  or  disclosing  protected  health  information  (ÒPHIÓ)
            except  as  permitted  or  required  by  the  Privacy  Rule. 45  C.F.R.  ¤  164.502(a). Covered  entities
            include  health  care  providers  Òwho  transmit  any  health  information  in  electronic  form  in  connection
            with  a  transaction  covered  by  this  subchapter.Ó 45  C.F.R.  ¤  160.103.  Health  information  includes:  1


                  any  information,  whether  oral  or  recorded  in  any  form  or  medium,  .  .  .  created  or
                  received  by  the  health  care  provider,  .  .  .  [which]  relates  to  the  past,  present  or  future
                  physical  or  mental  health  or  condition  of  .  .  . or  the  provision  of  health  care  to  an
                  individual.

            Id. PHI  is  individually  identifiable  health  information,  including  demographic  information. Id. 

                  The  Privacy  Rule  permits  covered  entities  to  disclose  an  individualÕs  PHI  to  law  enforcement
            officials  pursuant  to  a  valid  authorization  signed  by  the  individual  or  the  individualÕs  personal
            representative. 45  C.F.R.  ¤¤  164.502(a)(1)(iv)  and  164.508. Without  the  individualÕs  written
            authorization,  a  covered  entity  may  only  disclose  the  individualÕs  PHI  to  law  enforcement  officials
            to  the  extent  that  the  use  or  disclosure  is  permitted  or  required  by  law  and  the  use  or  disclosure
            complies  with  and  is  limited  to  the  relevant  requirements  of  that  law.  45  C.F.R.  ¤  164.502(a)(1)(vi).
                  Disclosures  for  law  enforcement  purposes  are  permitted  to  comply  with  state  laws  that
            require  the  reporting  of  wounds  or  physical  injuries.  45  C.F.R.  ¤164.512(f)(1)(i).  The  Privacy  Rule
            also  permits  disclosures  of  PHI necessary  to  comply  with  a  court  order  or  court-ordered  warrant,
            a  subpoena  or  summons  issued  by  a  judicial  officer,  a  grand  jury  subpoena,  or  an  administrative
            request,  including  an  administrative  subpoena  or  investigative  demand,  from  a  law  enforcement
            official. 45  C.F.R.  ¤  164.512(f)(1)(ii)(A)-(C). Disclosures  for  law  enforcement  purposes  are  also
            permitted  to  respond  to  a  law  enforcement  officialÕs  request  for  PHI  for  purposes  of  identifying  or
            locating  a  suspect,  fugitive,  material  witness  or  missing  person,  although  the  types  of  PHI  that  may
            be  provided  are  limited. 45  C.F.R.  ¤  164.512(f)(2). A  covered  entity  does  not  violate  the  Privacy
            Rule  when  a  victim  who  is  a  member  of  the  covered  entityÕs  workforce  discloses  this  limited PHI
            about  a  suspected  perpetrator  of  a  crime  to  law  enforcement.  45  C.F.R.  ¤  164.502(j)(2).  A  covered
            entity  may  also  disclose  this  limited  PHI  when  the  covered  entity  has  a  good  faith  belief  that the
            disclosure  is  necessary  for  law  enforcement  officials  to  identify  or  apprehend  an  individual  who  has
            admitted  participation  in  a  violent  crime  that  the  covered  entity  reasonably  believes  may  have  caused
            serious  physical  harm  to  a  victim,  provided  that  the  admission  was  not  made  in  the  course  of  or
            based  on  the  individualÕs  request  for  therapy,  counseling,  or  treatment  related  to  the  propensity  to
            commit  the  violent  act. 45  C.F.R.  ¤  164.512(j)(1)(ii)(A),  (j)(2)-(3). 



            Page  3
                  The  Privacy  Rule  also  permits  the  disclosure  of  PHI  to  law  enforcement  officials  concerning
            a  victim  or  suspected  victim  of  a  crime;  child  or  adult  abuse,  neglect,  or  domestic  violence;  and
            decedents,  under  certain  specified  circumstances.  45  C.F.R.  ¤¤  164.512(c),  164.512(f)(3)  -  (4),  and
            164.512(g)(1).  A  covered  entity  may  also  disclose  to  law  enforcement  officials  PHI  that  the  covered
            entity  in  good  faith  believes  to  be  evidence  of  a  crime  that  occurred  on  the  covered  entityÕs  premises.
            45  C.F.R.  ¤  164.512(f)(5).  Disclosure  of  PHI  is  also  permitted  in  response  to  a  request  for  PHI  by
            a  correctional  institution  or  a  law  enforcement  official  having  lawful  custody  of  an  inmate  and  to
            identify  or  apprehend  an  individual  who  appears  to  have  escaped  from  lawful  custody.  45  C.F.R.  ¤¤
            164.512(j)(1)(ii)(B) and 164.512(k)(5).  A covered entity may also disclose PHI to a law
            enforcement  official  reasonably  able  to  prevent  or  lessen  a  serious  and  imminent  threat  to  the  health
            or  safety  of  an  individual  or  the  public,  and  to  federal  officials  authorized  to  conduct  intelligence,
            counter-intelligence,  and  other  national  security  activities  under  the  National  Security  Act  or  to
            provide  protective  services  to  the  President  and  others  and  conduct  related  investigations.  45  C.F.R.
            ¤¤  164.512(j)(1)(i)  and  164.512(k)(2)  -  (3).
                  Tenn.  Code  Ann.  ¤  39-17-425(a)(1)  makes  it  Òunlawful  for  any  person  to  use,  or  to  possess
            with  intention  to  use,  drug  paraphernalia.Ó Therefore,  to  the  extent  that  a  covered  entity  believed
            in  good  faith  that  the  crack  pipe  in  the  patientÕs  pocket  constituted  evidence  of  a  crime  which  had
            occurred  on  the  covered  entityÕs  premises,  the  physician  could  call  authorities  to  turn  over  the  drug
            paraphernalia  without  being  in  violation  of  HIPAA.
                  2.    As  noted  above,  a  covered  entity  may  disclose  PHI  to  a  law  enforcement  official
            reasonably  able  to  prevent  or  lessen  a  serious  and  imminent  threat  to  the  health  or  safety  of  an
            individual  or  the  public.  45  C.F.R.  ¤  164.512(j)(1)(i).  If  the  terrorist  plot  constituted  a  serious  and
            imminent  threat  to  the  health  or  safety  of  the  public,  the  nurse  could  notify  law  enforcement  officials
            without  violating  HIPAA.
                  3.    As  noted  above,  a  covered  entity  may  disclose  to  law  enforcement  officials  PHI  that
            the  covered  entity  in  good  faith  believes  to  be  evidence  of  a  crime  that  occurred  on  the  covered
            entityÕs  premises.  45  C.F.R.  ¤  164.512(f)(5).  Therefore,  if  the  covered  entity  had  a  good  faith  belief
            that  the  falsification  of  information  constituted  a  crime  which  occurred  on  the  covered  entityÕs
            premises,  the  admitting  nurse  could  turn  the  information  over  to  authorities  without  violating
            HIPAA.




                                                       PAUL  G.  SUMMERS
                                                       Attorney  General 



            Page  4
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General




                                                       PAMELA  A.  HAYDEN-WOOD
                                                       Senior  Counsel
            Requested  by:
                   Honorable  Randy  McNally
                   State  Senator
                   307  War  Memorial  Building
                   Nashville,  TN  37243-0205



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                       OFFICE  OF  THE

                                    ATTORNEY  GENERAL
                                       P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202

                                       October  11,  2004
                                      Opinion  No.  04-154
          Occupations  Subject  to  Professional  Privilege  Tax 

                                         QUESTION

                Does  the  Professional  Privilege  Tax  levied  pursuant  to  Tenn.  Code  Ann.  ¤  67-4-1702  violate
          the  due  process  or  equal  protection  provisions  of  the  United  States  or  Tennessee  constitutions  by
          including  within  the  taxÕs  scope  audiologists  and  speech  pathologists  while  excluding  more  highly
          paid  healthcare  professionals? 

                                         OPINION

                No. In  enacting  the  Professional  Privilege  Tax,  the  Legislature  had  broad  discretion  to
          determine  which  classes  of  professionals  to  include  within  the  taxÕs  scope.  The  tax  does  not  violate
          due  process  or  equal  protection  principles  simply  because  certain  professionals  excluded  from  the
          taxÕs  application  may  on  average  earn  more  than  other  classes  of  professionals  to  whom  the  tax
          applies.

                                         ANALYSIS

                This  Office  has  previously  opined  that  the  Professional  Privilege  Tax  does  not  violate  due
          process  or  equal  protection  principles  simply  because  it  includes  within  its  application  certain
          licensed  professions  while  omitting  others.  In  reaching  this  conclusion,  we  reasoned  that
                          [t]he  general  rule  concerning  tax  laws  is  that  the  Legislature
                     has  very  broad  powers  in  raising  revenues,  and  the  courts  will  not
                     interfere  if  any  good  reason  conceivably  justifies  a  classification.  See
                     Shields  v.  Williams,  159  Tenn.  349,  19  S.W.2d  261  (1929). The
                     Legislature  has  wide  discretion  in  the  selection  and  classification  of
                     the  subjects  of  taxation,  and  its  choices  will  be  upheld  so  long  as  they
                     are  reasonable  and  bear  a  valid  relation  to  the  subject  of  the  statute.
                     No  valid  constitutional  objection  to  a  tax  is  stated  because  it  exempts
                     from  taxation,  or  is  not  made  applicable  to,  particular  classes  of
                     individuals. See  Lawrence  v.  MacFarland,  209  Tenn.  376,  354
                     S.W.2d  78  (1962). The  right  to  select  the  measure  and  subject  of



            Page  2

                        taxation  lies  within  the  discretion  of  the  Legislature;  in  passing  upon
                        its  enactments,  courts  do  not  assume  that  the  Legislature  intentionally
                        passed  an  invalid  act.  See  Bank  of  Commerce  &  Trust  Co.  v.  Senter,

                        149  Tenn.  569,  260  S.W.  144  (1923). Indeed,  the  Legislature  may
                        decide  that  certain  privileges  or  activities  should  be  taxable  rather
                        than others that might seem to be equally desirable objects of
                        taxation,  and  this  decision  is  purely  one  of  legislative  discretion,  so
                        long  as  no  invidious  discrimination  is  evident.
                              Under  these  guiding  principles,  it  is  clear  that  the  General
                        Assembly  acted  well  within  its  powers  in  selecting  the  objects  of
                        taxation  under  Chapter  No.  529  [of  the  Public  Acts  of  1992]. Each
                        of  the  vocations  subject  to  tax  by  Section  8  [of  the  Act]  is  a  more  or
                        less  lucrative  occupation  in  which  the  State  has  evidenced  a  particular
                        interest  and  need  to  regulate. While  other  desirable  objects  of
                        taxation might be suggested, the Legislature is not required to
                        exhaust  its  power  to  designate  privileges  in  order  to  tax  certain
                        enumerated  ones.
                              Therefore,  it  is  the  opinion  of  this  Office  that  imposition  of
                        the  taxes  levied  by  Chapter  No.  529  falls  well  within  the  power  of  the
                        General  Assembly.  The  tax  is  not  impermissibly  discriminatory
                        within  the  meaning  of  the  principles  of  Equal  Protection  and  Due
                        Process  embodied  in  the  state  and  federal  constitutions.
            Op.  Tenn.  AttÕy  Gen.  No.  92-48  (July  6,  1992).
                  In  accordance  with  these  principles,  the  Professional  Privilege  Tax  does  not  violate  due
            process  or  equal  protection  principles  simply  because  it  does  not  apply  to  certain  licensed  healthcare
            professionals  who  may  on  average  earn  more  than  professionals  to  whom  the  tax  does  apply. As
            the  United  States  Supreme  Court  has  explained,  Ò[l]egislatures  have  especially  broad  latitude  in
            creating  classifications  and  distinctions  in  tax  statutes.Ó  Regan  v.  Taxation  with  Representation,  461
            U.S.  540,  547,  103  S.  Ct.  1997,  2002,  76  L.  Ed.  2d  129  (1983).  ÒInherent  in  the  power  to  tax  is  the
            power  to  discriminate  in  taxation,Ó  Leathers  v.  Medlock,  499  U.S.  439,  451,  111  S.  Ct.  1438,  1446,
            113  L.  Ed.  2d  494  (1991). The  Legislature  may  impose  different  taxes  upon  different  trades  and
            professions  without  violating  principles  of  equal  protection. See  Allied  Stores,  Inc.  v.  Bowers,  358
            U.S.  522,  527,  79  S.  Ct.  437,  441-42,  3  L.  Ed.  2d  480  (1959).
                  In  creating  tax  classifications,  the  Legislature  Òis  not  required  to  resort  to  close  distinctions
            or  to  maintain  a  precise,  scientific  uniformity.Ó Allied  Stores,  358  U.S.  at  527,  79  S.  Ct.  at  442.
            There  is



            Page  3

                        no  precise  application  of  the  rule  of  reasonableness  of  classification,
                        and  the  rule  of  equality  permits  many  practical  inequalities. And
                        necessarily  so. In  a  classification  for  governmental  purposes  there
                        cannot  be  an  exact  exclusion  or  inclusion  of  persons  and  things.

            Magoun  v.  Illinois  Trust  &  Sav.  Bank,  170  U.S.  283,  296,  18  S.  Ct.  594,  599,  42  L.  Ed.  1037  (1898)
            (cited  in  State  ex  rel.  Condon  v.  Maloney,  108  Tenn.  82,  91,  65  S.W.  871,  873  (1901)).
                  This  Office  adheres  to  the  opinion  that  the  Legislature  Òacted  well  within  its  powers  in
            selecting  the  objects  of  taxationÓ  under  the  Professional  Privilege  Tax. Op.  Tenn.  AttÕy  Gen.  No.
            92-48  (July  6,  1992). Although  other  healthcare  professions  might  seem  to  be  Òequally  desirable
            objections  of  taxation,Ó  the  decision  to  apply  the  tax  to  particular  classes  of  individuals,  and
            conversely  not  to  apply  the  tax  to  other  classes,  Òis  purely  one  of  legislative  discretion.Ó Id.





                                                       ___________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       ___________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       ___________________________________
                                                       MARY  ELLEN  KNACK
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Doug  Jackson
                  State  Senator
                  6A  Legislative  Plaza
                  Nashville,  Tennessee 37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                             SECOND  FLOOR  CORDELL  HULL  BUILDING
                                   425  FIFTH  AVENUE  NORTH
                                NASHVILLE,  TENNESSEE  37243-0488


                                       October  13,  2004
                                      Opinion  No.  04-155
          Drug  Testing  as  a  Condition  of  Pre-trial  Release  on  Bail 


                                        QUESTIONS

                1.    Does  requiring  criminal  defendants  who  are  released  on  bail  to  submit  to  drug  screens
          as  a  condition  of  their  release  violate  any  federal  or  state  constitutional  prohibitions  upon
          unreasonable  searches?
                2.    May  the  trial  court  deny  setting  bail  in  the  case  of  a  criminal  defendant  who  refuses
          to  participate  in  a  drug  screen  program  as  a  condition  of  release?
                3.    In  setting  the  amount  of  a  criminal  defendantÕs  bail,  may  the  trial  court  set  a  higher
          bail  for  a  criminal  defendant  who  refuses  to  submit  to  random  drug  screens?
                4.    In  setting  the  amount  of  a  criminal  defendantÕs  bail,  may  the  trial  court  require  a
          criminal  defendant  to  answer  questions  under  oath  regarding  illicit  drug  activities  when  the
          information  will  be  used  in  determining  whether  the  defendant  is  likely  to  use  drugs  while  released
          on  bail?
                5.    When  submission  to  drug  testing  is  required  as  a  condition  of  release  on  bail,  is
          consent  to  such  testing,  or  the  waiver  of  the  Fourth  AmendmentÕs  protection,  voluntary? 
                6.    Does  a  criminal  defendantÕs  failure  to  object  to  the  condition  of  release  at  the  time
          they  are  imposed  by  the  trial  court  constitute  consent  to  the  conditions  or  a  waiver  of  any  objection
          to  the  conditions? 
                7.    If  the  imposition  of  drug  testing  as  a  condition  of  release  on  bail  violates  a  criminal
          defendantÕs  constitutional  rights,  is  the  trial  judge  individually  liable  for  any  resulting  damages? 


                                         OPINIONS

                1.    No.  Requiring  criminal  defendants  to  submit  to  drug  testing  as  a  condition  of  release
          on  bail  does  not  constitute  an  unreasonable  search  in  violation  of  the  state  and  federal  constitutions.



            Page  2

                  2.    No. The  trial  court  may  not  refuse  to  set  bail  for  a  criminal  defendant  who  refuses
            to  submit  to  drug  testing  as  a  condition  of  release. However,  the  trial  court  may  refuse  to  release
            a  criminal  defendant  on  bail  if  the  criminal  defendant  refuses  to  abide  by  the  conditions  of  release.
                  3.    Yes.  The  trial  court  may  consider  a  criminal  defendantÕs  unwillingness  to  submit  to
            drug  screens  as  a  condition  of  release  in  determining  the  appropriate  amount  of  bail.
                  4.    No.  The  trial  court  may  not  require  a  criminal  defendant  to  answer  questions  under
            oath regarding illicit drug activity without violating the defendantÕs privilege against self-incrimination. 

                  5.    Criminal  defendants  seeking  pretrial  release  on  bail  have  reduced  expectations  of
            privacy  such  that  the  voluntariness  of  consent  under  the  Fourth  Amendment  to  the  conditions  of
            release  is  not  implicated.
                  6.    No. A  criminal  defendantÕs  failure  to  object  to  the  imposition  of  a  particular
            condition  of  release  does  not  constitute  a  waiver  of  the  issue. However,  Rule  8  of  the  Rules  of
            Appellate  Procedure  requires  a  criminal  defendant  to  file  a  written  motion  in  the  trial  court  before
            seeking  appellate  review  of  the  conditions  set  by  the  trial  court. 
                  7.    No. The  trial  judge  is  immune  from  civil  liability  for  official  acts  done  within  the
            trial  courtÕs  jurisdiction. 

                                               ANALYSIS
                  1.    A  trial  court  does  not  violate  the  state  and  federal  constitutionsÕ  prohibitions  of
            unreasonable  searches  in  requiring  a  criminal  defendant  to  submit  to  drug  testing  as  a
            condition  of  pretrial  release  on  bail.

                  Generally,  all  criminal  defendants  charged  with  non-capital  offenses  have  a  constitutional
            and  statutory  right  to  bail  by  sufficient  sureties  before  trial. Tenn.  Const.  art.  I,  ¤  15;  Tenn.  Code
            Ann.  ¤  40-11-102.  Admission  to  bail  is  governed  by  the  Release  from  Custody  and  Bail  Reform  Act
            of  1978  (ÒBail  Reform  ActÓ). See  Tenn.  Code  Ann.  ¤  40-11-101  et  seq. The  Bail  Reform  Act
            empowers  trial  courts  to  set  conditions  that  a  criminal  defendant  must  follow  upon  release  and  to
            revoke  bail  when  such  conditions  are  not  met. Tenn.  Code  Ann.  ¤  40-11-112,  -116,  and  -120.
            Section  116  establishes  the  parameters  within  which  the  conditions  of  release  on  bail  may  be  set.
            That  section  states,  in  pertinent  part:  ÒIf  conditions  on  release  are  found  necessary,  the  magistrate
            may  .  .  .  [i]mpose  reasonable  restrictions  on  the  activities,  movements,  associations,  and  residences
            of  the  defendant.Ó Tenn.  Code  Ann.  ¤  40-11-116(b)(2). In  accordance  with  this  provision,  a  trial
            court  is  statutorily  authorized  to  restrict  a  criminal  defendantÕs  illicit  drug  activities  while  released
            on  bail. 
                  In  Wallace  v.  State,  the  Tennessee  Supreme  Court  recognized  the  authority  of  a  trial  court



            Page  3
            to  supervise  criminal  defendants  released  on  bail  pending  trial. 193  Tenn.  182,  245  S.W.2d  192
            (1952);  see  Op.  Tenn.  AttÕy  Gen.  95-057. In  Wallace,  the  Court  stated: 
                  The  primary  purpose  of  bail  in  a  criminal  case  is  .  .  .  to  combine  the  administration
                  of  criminal  justice  with  the  convenience  of  a  person  accused  but  not  proved  to  be
                  guilty. Its  object  is  to  relieve  the  accused  of  imprisonment,  and  the  state  of  the
                  burden  of  keeping  him,  pending  the  trial,  and  at  the  same  time,  to  put  the  accused  as
                  much  under  the  power  of  the  court  as  if  he  were  in  custody  of  the  proper  officer,  and
                  to  secure  the  appearance  of  the  accused  so  as  to  answer  the  call  of  the  court  and  do
                  what  the  law  may  require  of  him.

            Id.  at  187;  245  S.W.2d  at  194.  Relying  on  Wallace,  this  Office  previously  opined  that,  although  the
            right  to  bail  in  non-capital  cases  is  mandatory  and  without  exception,  the  right  is  violated  only  if  a
            criminal  defendant  is  denied  the  opportunity  to  make  bail.  Op.  Tenn.  AttÕy  Gen.  95-057.  Further,
            this  Office  opined  that  the  constitutional  right  to  bail  Òdoes  not  preclude  a  trial  court  from  placing
            reasonable  restrictions  on  what  an  individual  released  out  on  bail  may  or  may  not  do  while  in  the
            community.Ó Id. 

                  Regarding search and seizure issues, the Fourth Amendment to the United States
            Constitution  and  Article  I,  Section  7,  of  the  Tennessee  Constitution  do  not  provide  a  general
            constitutional  right  to  privacy. Katz  v.  United  States,  389  U.S.  347,  350,  88  S.Ct.  511,  19  L.Ed.2d
            576  (1967). Rather,  the  purpose  and  intent  of  those  constitutional  provisions  is  to  Òsafeguard  the
            privacy  and  security  of  individuals  against  the  arbitrary  invasions  of  government  officials.Ó State
            v.  Simpson,  968  S.W.2d  776,  779  (Tenn.  1998)  (quoting  Camara  v.  Municipal  Court,  387  U.S.  523,
            528,  87  S.Ct.  1727,  1730,  18  L.Ed.2d  930  (1967)).  An  inquiry  into  the  reasonableness  of  a  search
            pursuant  to  those  provisions  involves  two  separate  components. First,  it  must  be  determined
            whether  the  individual  had  an  actual,  or  subjective,  expectation  of  privacy. Then,  it  must  be
            determined  whether  society  is  willing  to  view  the  individualÕs  subjective  expectation  of  privacy  as
            reasonable  and  justifiable  under  the  circumstances.  State  v.  Munn,  56  S.W.3d  486  (Tenn.  2001)
            (citing  Smith  v.  Maryland,  442  U.S.  735,  740,  99  S.Ct.  2577,  61  L.Ed.2d  220  (1979)). 
                  Applying  this  test,  courts  have  determined  that  an  incarcerated  individualÑan  individual  Òin
            custody  of  the  proper  officerÓÑdoes  not  have  a  reasonable  expectation  of  privacy. See  Hudson  v.
            Palmer,  468  U.S.  517,  104  S.Ct.  3194,  82  L.Ed.2d  393  (1984)  (inmate  had  no  reasonable  expectation
            of  privacy  in  his  prison  cell  entitling  him  to  protection  of  Fourth  Amendment);  Lanza  v.  New  York,

            370  U.S.  139,  143,  82  S.Ct.  1218,  1221-22,  8  L.Ed.2d  384  (1962)  (a  public  jail  cell  is  not  the
            equivalent  of  oneÕs  home  wherein  one  may  find  constitutional  protection,  nor  does  a  jail  cell  share
            any  of  Òthe  attributes  of  privacy  of .  .  .  an  automobile,  an  office,  or  a  hotel  roomÓ);  State  v.
            Williams,  690  S.W.2d  517,  524  (Tenn.  1985)  (an  expectation  of  privacy  in  a  jail  cell  is  not
            reasonably  justified);  see  also  State  v.  Dulsworth,  781  S.W.2d  277,  284  (Tenn.  Crim.  App.  1989)
            (Ò[t]he  Fourth  Amendment  proscription  against  unreasonable  searches  and  seizures  does  not  apply
            within  the  confines  of  a  prison  cellÓ).



            Page  4
                  Although  this  issue  has  not  been  addressed  by  any  court  in  Tennessee,  because  a  criminal
            defendant  released  on  bail  is  subject  to  the  supervision  of  the  trial  court  to  the  same  extent  as  an
            incarcerated  prisoner,  it  is  the  opinion  of  this  Office  that  a  criminal  defendant  released  on  bail  does
            not  have  a  reasonable  expectation  of  privacy  that  would  prevent  the  trial  court  from  imposing
            reasonable  regulationsÑsuch  as  a  prohibition  of  illicit  drug  activity  enforced  through  mandatory
            drug  testingÑas  conditions  of  release.  It  is  the  opinion  of  this  Office  that  such  conditions  on  release
            are  not  unreasonable. 
                  Other  jurisdictions  have  reached  similar  conclusions. In  State  v.  Ullring,  741  A.2d  1065
            (Me.  1999),  the  Supreme  Judicial  Court  of  Maine  concluded  that  a  bail  condition  authorizing
            random  searches  of  the  home  of  a  defendant  charged  with  a  drug  offense  was  authorized  by  the  state
            bail  statuteÕs  catch-all  provision  and  was  not  unconstitutional  as  applied  to  the  defendant. In  In  re
            York,  9  Cal.  4th  1133,  40  Cal.  Rptr.  2d  308,  892  P.2d  804  (1995),  the  California  Supreme  Court
            concluded  that  the  imposition  of  warrantless  drug  testing  and  warrantless  searches  as  conditions  of
            release  does  not  violate  the  Fourth  Amendment. Notably,  the  court  in  York  equated  the  rights  of  a
            defendant  released  on  recognizance  with  the  rights  of  a  defendant  unable  to  make  bail: 
                  Because  an  incarcerated  individual  generally  is  subject  to  random  drug  testing  and
                  warrantless  search  and  seizure  in  the  interest  of  prison  security,  the  conditions
                  challenged  do  not  place  greater  restrictions  upon  an  OR  releaseeÕs  privacy  rights  than
                  the  releasee  would  have  experienced  had  he  or  she  not  secured  OR  release.

            Id.  at  1149, 40  Cal.  Rptr.  2d  at  317,  892  P.2d  at  814. The  York  Court  concluded  that,  rather  than
            violating  the  releaseeÕs  constitutional  rights,  Òthe  conditions  simply  define  the  degree  of  liberty  that
            the  court  or  magistrate,  in  his  or  her  discretion,  has  determined  is  appropriate  .  .  .  .Ó  Id.  at  1149-50,
            40  Cal.  Rptr.  2d  at  317,  892  P.2d  at  814.  Similarly,  in  Oliver  v.  United  States,  682  A.2d  186  (1996),
            the  District  of  Columbia  Court  of  Appeals  concluded  that  drug  testing  required  as  a  condition  of
            pretrial  release  was  reasonable  under  the  Fourth  Amendment.  The  Oliver  Court  based  its  decision,
            in  part,  upon  the  correlation  between  the  use  of  illicit  drugs  while  on  pretrial  release  and  a  releaseeÕs
            failure  to  appear. Id.  at  191-92. 
                  Accordingly,  it  is  the  opinion  of  this  Office  that  requiring  a  criminal  defendant  who  is
            released  on  bail  to  submit  to  drug  testing  as  a  condition  of  release  does  not  violate  the  state  and
            federal  constitutions. 

                  2.    The  trial  court  may  not  refuse  to  set  bail  for  a  criminal  defendant  who  refuses
            to  submit  to  drug  testing  as  a  condition  of  release. 

                  As  previously  discussed,  in  Tennessee,  criminal  defendants  have  a  constitutional  and
            statutory  right  to  pretrial  bail  in  non-capital  cases.  For  this  reason,  the  trial  court  may  not  refuse  to
            set  bail  under  any  circumstances.  However,  criminal  defendants  only  have  a  right  to  the  opportunity
            to  make  bail.  They  do  not  have  a  right  to  release  on  bail.  Accordingly,  because  the  trial  court  may
            impose  conditions  of  release,  it  is  the  opinion  of  this  Office  that  the  trial  court  may  revoke  a  criminal
            defendantÕs  bail  for  failure  to  cooperate  with  any  conditions  legitimately  imposed.  Furthermore,  it



            Page  5
            is  the  opinion  of  this  Office  that  the  trial  court  may  refuse  to  release  a  criminal  defendant  on  bail  if
            the  criminal  defendant  refuses  to  abide  by  the  conditions  established  by  the  trial  court  because  a
            defendantÕs  failure  to  agree  to  the  conditions  for  release  is  tantamount  to  a  failure  to  post  bail. 

                  3.    The  trial  court  may  not  consider  a  criminal  defendantÕs  unwillingness  to  submit
            to  random  drug  screens  in  determining  the  appropriate  amount  of  bail.

                  The  Bail  Reform  Act  establishes  the  considerations  that  may  be  taken  into  account  by  a  trial
            court  when  determining  the  appropriate  amount  of  bail. See  Tenn.  Code  Ann.  ¤  40-11-118(b).
            Section  118  requires  the  trial  court  to  determine  the  amount  of  bail  necessary  to  assure  the
            defendantÕs  appearance  based  upon  the  following  factors:
                  (1)  The  defendantÕs  length  of  residence  in  the  community;
                  (2)  The  defendantÕs  employment  status  and  history  and  the  defendantÕs  financial
                  condition;
                  (3)  The  defendantÕs  family  ties  and  relationships;
                  (4)  The  defendantÕs  reputation,  character,  and  mental  condition;
                  (5) The defendantÕs prior criminal record and record of appearance at court
                  proceedings or of flight to avoid prosecution or failure to appear at court
                  proceedings;
                  (6)  The  nature  of  the  offense  and  the  apparent  probability  of  conviction  and  the  likely
                  sentence;
                  (7)  The  defendantÕs  prior  criminal  record  and  the  likelihood  that  because  of  such
                  record  the  defendant  will  pose  a  risk  of  danger  to  the  community;
                  (8)  The  identity  of  responsible  members  of  the  community  who  will  vouch  for  the
                  defendantÕs  reliability  .  .  .
                  (9)  Any  other  factors  indicating  the  defendantÕs  ties  to  the  community  or  bearing  on
                  the  risk  of  the  defendantÕs  willful  failure  to  appear.
            Tenn.  Code  Ann.  40-11-118(b). 
                  The  final  factor  enumerated  by  the  legislature  permits  the  trial  courtÕs  determination  of  the
            amount  of  bail  to  include  factors  concerning  the  likelihood  that  the  defendant  will  purposefully
            abscond. A  criminal  defendantÕs  refusal  to  participate  in  a  drug  testing  program  as  a  condition  of
            his  pre-trial  release  on  bail  is  a  factor  that  may  have  a  correlation  with  the  likelihood  that  the
            defendant  will  fail  to  appear.  See,  e.g.,  Oliver  v.  United  States,  682  A.2d  186  (1996).  Thus,  it  is  the
            opinion  of  this  Office  that  a  trial  court  may  impose  a  higher  bail  for  criminal  defendants  who  refuse
            to  submit  to  drug  testing  as  a  condition  of  release.



            Page  6

                  4.    The  trial  court  may  not  require  a  criminal  defendant  to  answer  questions  under
            oath  regarding  drug  use  under  any  circumstances. 

                  The  Self-Incrimination  Clause  of  the  Fifth  Amendment  to  the  United  States  Constitution,
            made  applicable  to  the  states  by  the  Fourteenth  Amendment,  provides  that  Ò[n]o  person  .  .  .  shall  be
            compelled  in  any  criminal  case  to  be  a  witness  against  himself.Ó See Malloy  v.  Hogan,  378  U.S.
            1,  6,  84  S.Ct.  1489,  12  L.Ed.2d  653  (1964).  The  Tennessee  Constitution  contains  a  similar  provision
            in  Article  I,  Section  9,  which  guarantees  that  Òin  all  criminal  prosecutions,  the  accused  .  .  .  shall  not
            be  compelled  to  give  evidence  against  himself.Ó  These  constitutional  protections  prohibit  Òofficially
            coerced  self-accusation.Ó United  States  v.  Washington,  431  U.S.  181,  187,  97  S.Ct.  1814,  1818
            (1977). 
                  Although  no  court  has  addressed  the  applicability  of  the  prohibition  against  compulsory  self-incrimination 
                       in  the  context  of  a  pretrial  bail  proceeding,  the  United  States  Supreme  Court  has  stated
            that  the  right  can  be  asserted  in  any  civil,  criminal,  administrative,  or  judicial  proceeding,  whether
            investigatory  or  adjudicatory,  where  the  answers  might  incriminate  the  defendant  in  future  criminal
            proceedings. Kastigar  v.  United  States,  406  U.S.  441,  444-445,  92  S.Ct.  1653,  32  L.Ed.2d  212
            (1972);  Lefkowitz  v.  Turley,  414  U.S.  70,  77,  94  S.Ct.  316,  38  L.Ed.  2d  274  (1973).  In  the  scenario
            currently  under  consideration,  the  trial  court  purports  to  question  a  criminal  defendant  who  is  in
            custody  under  oath  regarding  the  defendantÕs  illicit  drug  use  for  the  purpose  of  determining  the
            conditions  governing  that  defendantÕs  release  on  bail. Under  such  circumstances,  it  is  the  opinion
            of  this  Office  that  such  questioning  implicates  Òthe  cruel  trilemma  of  self-accusation,  perjury  or
            contempt.Ó  Michigan  v.  Tucker,  417  U.S.  433,  445,  94  S.Ct.  2357,  41  L.Ed.2d  182  (1974)  (quoting

            Murphy  v.  Waterfront  CommÕn  of  N.Y.  Harbor,  378  U.S.  52,  55,  84  S.Ct.  1594,  12  L.Ed.2d  678
            (1964)).  Accordingly,  it  is  the  opinion  of  this  Office  that  a  trial  court  may  not  compel  a  criminal
            defendant  to  answer  questions  under  oath  regarding  incriminating  information  during  a  bail
            proceeding.

                  5.    Under  the  Fourth  Amendment,  the  voluntariness  of  consent  to  a  search  is  a
            question  of  fact  that  can  only  be  determined  upon  a  consideration  of  all  of  the  attendant
            circumstances.

                  As  previously  discussed,  this  Office  is  of  the  opinion  that  the  Fourth  AmendmentÕs
            proscription  of  unreasonable  searches  is  not  implicated  by  the  imposition  of  conditions  of  release
            on  bail  because  of  the  diminished  expectation  of  privacy. It  is  well-settled  that  an  individual  can
            assert  a  claim  of  Fourth  Amendment  protection  only  if  the  individual  had  a  reasonable  expectation
            of  privacy  in  the  objects  of  the  search.  Katz  v.  United  States,  389  U.S.  347,  88  S.Ct.  507,  19  L.Ed.2d
            576  (1967).  Because  the  Fourth  Amendment  is  not  implicated,  the  issue  of  consent  is  not  implicated
            either.  State  v.  Bartram,  925  S.W.2d  227,  230  (Tenn.1996)  (citing  Schneckloth  v.  Bustamonte,  412
            U.S.  218  (1973))  (consent  is  an  exception  to  the  warrant  requirement). 



            Page  7

                  6.    Rule  8  of  the  Rules  of  Appellate  Procedure  requires  a  criminal  defendant  to  file
            a  written  motion  in  the  trial  court  before  seeking  appellate  review. 

                  Rule  8  of  the  Rules  of  Appellate  Procedure  governs  release  in  criminal  cases. That  rule
            provides  for  the  appeal  of  release  orders  either  before  or  after  conviction. However,  Òas  a
            prerequisiteÓ  to  appellate  review,  a  criminal  defendant  must  challenge  an  Òorder  entered  by  the  trial
            court  .  .  .  granting,  denying,  setting,  or  altering  conditions  of  defendantÕs  releaseÓ  by  filing  a  written
            motion  in  the  trial  court. Tenn.  R.  App.  P  8(a). More  particularly,  the  Tennessee  Supreme  Court
            has  said  that  a  defendantÕs  only  effective  remedy  for  challenging  the  conditions  of  release  is  to  seek
            review  pursuant  to  Rule  8  promptly  rather  than  wait  until  after  conviction. State  v.  Melson,  638
            S.W.2d  342,  358  (Tenn.  1982). Accordingly,  it  is  the  opinion  of  this  Office  that  a  criminal
            defendantÕs  failure  to  challenge  the  conditions  of  release  on  bail  in  a  written  motion  in  the  trial  court
            constitute  a  waiver  of  the  issue. 

                  7.    The  trial  court  is  immune  from  civil  liability  for  official  acts  done  within  the
            exercise  of  legitimate  judicial  authority. 

                  The  doctrine  of  judicial  immunity  affords  judges,  acting  within  their  judicial  capacities,
            absolute  immunity  from  civil  liability.  The  United  States  Supreme  Court  has  recognized  that  this
            doctrine  extends  to  suits  brought  against  judges  for  constitutional  violations. Pierson  v.  Ray,  386
            U.S.  547,  554,  87  S.Ct.  1213,  1218,  18  L.Ed.2d  288  (1967). Similarly,  the  Tennessee  Supreme
            Court  has  stated:  ÒIt  is  generally  recognized  that  a  judge  is  immune  from  civil  liability  for  bona  fide
            acts done within the exercise of his judicial function while acting within the limits of his
            jurisdiction.Ó Harris  v.  Witt,  552  S.W.2d  85  (Tenn.  1977). If  the  trial  court  commits  error  in
            imposing  conditions  upon  a  criminal  defendant  who  is  released  on  bail,  the  defendantÕs  relief  from
            such  conditions  is  by  way  of  an  appeal  from  the  ruling,  not  by  an  action  for  damages  against  the  trial
            judge. Id.;  Tenn.  R.  App.  8(a). Because  the  imposition  of  conditions  of  release  is  a  discretionary
            judicial  function  within  the  trial  courtÕs  jurisdiction,  it  is  the  opinion  of  this  Office  that  the  trial
            judge  is  immune  from  liability  for  any  constitutional  violations  that  arise  in  that  context.

                                                       _______________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General
                                                       _______________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General
                                                       _______________________________
                                                       MARK  A.  FULKS 
                                                       Assistant  Attorney  General 



            Page  8
            Requested  by:
            Hon.  Edward  L.  Hardister
            Assistant  District  Attorney  General
            P.O.  Box  145
            Trenton,  Tennessee  38382 



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  5,  2004
                                      Opinion  No.  04-016
          Conflict  of  Interest:  Sale  of  County  CommissionerÕs  Property

                                        QUESTIONS

                1.    May  a  county  commissioner  legally  sell  land  to  the  county  highway  department,
          which  will  not  purchase  such  land  without  county  commission  approval,  provided  he  abstains  from
          voting  on  the  transaction  and  states  his  interest,  or  would  the  transaction  violate  a  criminal  law?
                2.    Would  the  transaction  be  excluded  from  Tenn.  Code  Ann.  ¤  12-4-101  because  it
          concerns  a  single  sale  of  real  property?
                3.    Would  the  sale  of  the  property  be  voidable  or  subject  to  rescission  upon  application
          of  any  party,  person,  or  entity?
                4.    Would  the  county  commissioner  be  disqualified  from  voting  on  a  budget  funding  the
          purchase?
                5.    Would  the  county  commissioner  be  disqualified  or  rendered  ineligible  to  continue  to
          serve  as  a  county  commissioner?

                                         OPINIONS

                1.    The  proposed  transaction  is  prohibited  under  Tenn.  Code  Ann.  ¤  12-4-101(a)(1),  but
          violation  of  the  statute  is  not  a  crime.
                2.    No.
                3.    Under  Tenn.  Code  Ann.  ¤  12-4-102,  an  officer  who  enters  into  a  contract  in  violation
          of  Tenn.  Code  Ann.  ¤  12-4-101  must  forfeit  compensation  under  the  contract.  A  suit  to  enforce  this
          provision  is  a  quo  warranto  action  that  ordinarily  must  be  brought  by  the  District  Attorney  General.
                4.    Because  the  proposed  transaction  is  entirely  prohibited,  this  question  is  moot. 
                5.    Under  Tenn.  Code  Ann.  ¤  12-4-102,  an  officer  who  is  directly  interested  in  a  contract
          in  violation  of  Tenn.  Code  Ann.  ¤  12-4-101(a)(1)  is  to  be  dismissed  from  office  and  is  ineligible  to
          serve  in  the  same  or  similar  position  for  ten  years.



            Page  2


                                               ANALYSIS

                  1.    Sale  of  Property  to  County
                  This  request  concerns  a  possible  sale  of  land  owned  by  a  county  commissioner. The  land
            adjoins  property  owned  by  the  county  highway  department  and,  because  of  its  location,  is  uniquely
            suitable  for  highway  department  purposes. Before  entering  into  the  purchase,  the  highway
            department  would  require  a  resolution  from  the  county  commission  to  approve  the  purchase.  On  any
            vote  before  the  county  commission  relating  to  the  property,  the  county  commissioner  would  state  his
            interest  in  the  transaction  and  abstain  from  participating  in  the  vote. The  purchase  price  of  the
            property  would  be  reasonable.
                  The  first  question  is  whether  this  transaction  would  violate  any  criminal  laws. Tenn.  Code
            Ann.  ¤  12-4-101(a)  provides  in  relevant  part:
                        (a)  (1)  It  is  unlawful  for  any  officer,  committee  member,  director,  or
                        other  person  whose  duty  it  is  to  vote  for,  let  out,  overlook,  or  in  any
                        manner  to  superintend  any  work  or  any  contract  in  which  any
                        municipal  corporation,  county,  state,  development  district,  utility
                        district,  human  resource  agency,  or  other  political  subdivision  created
                        by  statute  shall  or  may  be  interested,  to  be  directly  interested  in  any
                        such  contract. ÒDirectly  interestedÓ  means  any  contract  with  the
                        official  personally  or  with  any  business  in  which  the  official  is  the
                        sole proprietor, a partner, or the person having the controlling
                        interest. ÒControlling  interestÓ  includes  the  individual  with  the
                        ownership  or  control  of  the  largest  number  of  outstanding  shares
                        owned  by  any  single  individual  or  corporation.  The  provisions  of  this
                        subdivision shall not be construed to prohibit any officer,
                        committeeperson,  director,  or  any  person,  other  than  a  member  of  a
                        local  governing  body  of  a  county  or  municipality,  from  voting  on  the
                        budget, appropriation resolution, or tax rate resolution, or
                        amendments  thereto,  unless  the  vote  is  on  a  specific  amendment  to
                        the  budget  or  a  specific  appropriation  or  resolution  in  which  such
                        person  is  directly  interested. 
            (Emphasis  added). Under  this  provision,  a  county  commissioner  may  not  be  directly  interested  in
            a  contract  that  he  or  she  has  a  duty  to  vote  for  or  supervise  in  any  manner.  A  county  commissioner
            is  directly  interested  in  a  contract  for  the  sale  of  his  or  her  land.  The  opinion  request  states  that  the
            county  highway  department  will  not  purchase  the  land  without  the  county  commissionÕs  approval.
            Thus,  under  the  proposed  transaction,  the  county  commissioner  would  have  a  duty  to  vote  for  or
            superintend  in  some  manner  the  contract.  Accordingly,  the  contract  is  prohibited  under  Tenn.  Code
            Ann.  ¤  12-4-101(a)(1).  A  violation  of  the  statute  carries  the  penalties  set  forth  in  Tenn.  Code  Ann.



            Page  3

            ¤  12-4-102.  A  suit  to  enforce  these  penalties  is  in  the  nature  of  a  quo  warranto  proceeding  brought
            through  the  District  Attorney  General.  State  ex  rel.  Odom  v.  Ridley,  730  S.W.2d  318  (Tenn.  1987);

            State  ex  rel.  Abernathy  v.  Anthony,  206  Tenn.  597,  335  S.W.2d  832  (Tenn.  1960).  But  violation  of
            the  statute  is  not  a  criminal  offense.
                  2.    Exceptions  from  the  Statute
                  The  second  question  is  whether  Tenn.  Code  Ann.  ¤  12-4-101  would  prohibit  a  one-time  sale
            of  real  estate  from  a  county  commissioner  to  the  county  or  the  county  highway  department.  As  set
            forth  above,  Tenn.  Code  Ann.  ¤  12-4-101(a)(1)  prohibits  an  official  from  being  directly  interested
            in  Òany  contractÓ  that  he  or  she  has  a  duty  to  vote  on  or  supervise. 
                  An  exception  appears  in  Tenn.  Code  Ann.  ¤  12-4-101(b). That  statute  provides:
                        (b) It  is  unlawful  for  any  officer,  committee  member,  director,  or
                        other  person  whose  duty  it  is  to  vote  for,  let  out,  overlook,  or  in  any
                        manner  to  superintend  any  work  or  any  contract  in  which  any
                        municipal  corporation,  county,  state,  development  district,  utility
                        district,  human  resource  agency,  or  other  political  subdivision  created
                        by  statute  shall  or  may  be  interested,  to  be  indirectly  interested  in  any
                        such  contract  unless  the  officer  publicly  acknowledges  such  officer's
                        interest. "Indirectly  interested"  means  any  contract  in  which  the
                        officer  is  interested  but  not  directly  so,  but  includes  contracts  where
                        the  officer  is  directly  interested  but  is  the  sole  supplier  of  goods  or
                        services  in  a  municipality  or  county. 

            (Emphasis  added). Under  the  last  sentence  in  this  provision,  an  officer  may  be  directly  interested
            in  a  contract  that  he  or  she  votes  on  or  supervises,  so  long  as  the  officer  is  the  Òsole  supplier  of  goods
            or  servicesÓ  in  a  municipality  or  county. The  statute  contains  no  exception  for  land  sales. Tenn.
            Code  Ann.  ¤  12-4-101(a)(1),  therefore,  prohibits  a  county  commissioner  from  voting  on  or
            supervising  a  contract  for  the  sale  of  his  or  her  land.
                  3.    Enforceability  of  Contract  Entered  into  in  Violation  of  Tenn.  Code  Ann.  ¤  12-4-101
                  The  next  question  is  whether  a  sale  that  violates  the  conflict  of  interest  provisions  would  be
            voidable  or  subject  to  rescission  upon  application  of  any  party,  person,  or  entity.  Under  Tenn.  Code
            Ann.  ¤  12-4-102,  an  official  who  enters  into  a  contract  in  violation  of  Tenn.  Code  Ann.  ¤  12-4-101
            must  forfeit  compensation  received,  be  removed  from  office,  and  barred  from  holding  similar  office
            for  ten  years.  These  penalties  have  been  a  part  of  the  statute  since  it  was  first  enacted  in  1870.  1869-
            70  Tenn.Pub.Acts  Ch.  92  (XCII).  A  suit  to  enforce  these  penalties  is  in  the  nature  of  a  quo  warranto

            proceeding  brought  through  the  District  Attorney  General.  State  ex  rel.  Odom  v.  Ridley,  730  S.W.2d
            318  (Tenn.  1987);  State  ex  rel.  Abernathy  v.  Anthony,  206  Tenn.  597,  335  S.W.2d  832  (Tenn.  1960).



            Page  4

            Tennessee  courts  have  found  that  an  official  who  makes  a  contract  in  violation  of  earlier  versions
            of  the  statute  may  not  recover  payment  under  the  contract  and  is  liable  to  pay  back  any  compensation
            he  or  she  received  under  the  contract. Crass  v.  Walls,  36  Tenn.  App.  546,  259  S.W.2d  670  (Tenn.
            Ct.  App.  1953)  (services  for  street  repair  and  garbage  pickup  by  partnership  of  which  the  mayor  was
            one  of  two  partners);  State  ex  rel.  Kirkpatrick  v.  Tipton,  670  S.W.2d  224  (Tenn.  Ct.  App.  1984)
            (mayor  was  required  to  pay  back  the  salary  the  mayorÕs  construction  company  paid  mayor
            attributable  to  construction  contract  with  the  city).  The  Tennessee  Supreme  Court  has  also  implied
            that  a  sale  of  land  by  a  city  commissioner  to  the  city  could  be  declared  void  just  like  a  service
            contract.  State  ex  rel.  v.  Perkinson,  159  Tenn.  442,  19  S.W.2d  254  (Tenn.  1929).  Since  that  was  an
            ouster  action,  however,  the  Court  did  not  directly  rule  on  the  issue.
                  4.    Authority  to  Vote  on  Budget
                  The  next  question  is  whether  the  county  commissioner  would  be  prohibited  from  voting  on
            the  budget  funding  the  purchase. Because  the  proposed  transaction  is  entirely  prohibited  as
            discussed  above,  this  question  is  moot.
                  5. Disqualification  from  Office
                  The  last  question  is  whether  the  county  commissioner  would  be  disqualified  or  rendered
            ineligible  to  continue  to  serve  as  a  county  commissioner  if  the  transaction  is  completed.  Tenn.  Code
            Ann.  ¤  12-4-102  states:
                        Should any person, acting as such officer, committee member,
                        director,  or  other  person  referred  to  in  ¤  12-4-101,  be  or  become
                        directly  or  unlawfully  indirectly  interested  in  any  such  contract,  such
                        person  shall  forfeit  all  pay  and  compensation  therefor. Such  officer
                        shall  be  dismissed  from  such  office  the  officer  then  occupies,  and  be
                        ineligible  for  the  same  or  a  similar  position  for  ten  (10)  years. 

            (Emphasis  added). An  officer  who  is  directly  interested  in  a  contract  in  violation  of  Tenn.  Code
            Ann.  ¤  12-4-101(a)(1),  therefore,  is  to  be  dismissed  from  office  and  is  ineligible  to  serve  in  the  same
            or  similar  position  for  ten  years.



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter



            Page  5




                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Garry  Brown
                  District  Attorney  General
                  113  West  Eaton  Street,  P.O.  Box  145
                  Trenton,  TN  38381



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  9,  2004
                                      Opinion  No.  04-017
          Allocation  of  Portion  of  Business  Tax  Revenues  to  the  State

                                         QUESTION

                Is  it  permissible  for  the  Legislature  to  allocate  to  the  State  a  portion  of  the  revenues  from
          business  taxes  imposed  by  cities  and  counties,  with  the  result  that  from  businesses  located  within
          a  city  the  State  receives  revenues  based  on  both  city  and  county  business  tax  rates,  while  from
          businesses  located  outside  any  municipality  the  State  receives  revenues  based  on  only  the  county
          business  tax  rate?


                                         OPINION

                Yes.  There  are  no  constitutional  problems  presented  by  such  a  business  tax  structure.


                                         ANALYSIS

                Tennessee  law  authorizes  each  county  and  incorporated  municipality  to  impose  a  tax  on  the
          gross  receipts  of  businesses  within  its  borders.  Tenn.  Code  Ann.  ¤  67-4-704.  The  maximum  rates
          that  each  locality  may  impose  are  set  out  in  Tenn.  Code  Ann.  ¤  67-4-709(b).  But  it  is  clear  from  the
          wording  of  ¤  67-4-704  that  localities  may  choose  to  impose  lesser  rates.  Op.  Tenn.  Atty.  Gen.  No.
          02-084  (Aug.  2,  2002).
                Traditionally,  15%  of  all  business  tax  collections  have  been  paid  over  by  the  local  collectors
          to  the  Commissioner  of  Revenue  and  allocated  to  the  StateÕs  general  fund,  in  accordance  with  Tenn.
          Code  Ann.  ¤  67-4-724(a)(1). In  addition,  if  the  local  collector  fails  to  collect  the  tax  and  it  is
          delinquent  for  more  than  six  months,  the  Commissioner  has  the  duty  to  step  in  and  collect  the  tax
          and  allocate  it  to  State  purposes.  Tenn.  Code  Ann.  ¤  67-4-719(c)-(e).
                The  State  component  of  the  tax  became  much  more  significant,  however,  with  the  passage
          of  the  2002  amendments  to  the  tax.  Chapter  No.  856  of  the  2002  Public  Acts,  section  9,  increased
          the  maximum  rates  by  50%  to  the  levels  now  specified  in  Tenn.  Code  Ann.  ¤  67-4-709(b).  Further,
          that  Act  provided  that  the  increase  in  revenues  be  allocated  entirely  to  the  State.  Thus,  Tenn.  Code
          Ann.  ¤  67-4-724(a)(2)  now  directs:



            Page  2
                        Each  local  collector  of  each  county  and/or  incorporated  municipality
                        shall pay the Commissioner all increased revenues directly
                        attributable  to  the  2002  amendments  to  ¤  67-4-709(b),  provided  by
                        Public  Chapter  856,  ¤9a.
            Thus,  the  State  now  receives  a  significant  portion  of  business  tax  revenues.  The  mechanics  of  this
            distribution  are  set  out  in  some  detail  in  Op.  Tenn.  Atty.  Gen.  No.  02-084  (Aug.  2,  2002).
                  The  2002  amendments,  however,  do  not  alter  the  basic  operation  of  the  business  tax.
            Previously,  the  State  received  15%  of  both  city  and  county  business  tax  collections;  now  it  receives
            that  same  amount,  plus  all  of  the  revenue  from  the  increase  in  rates.  A  feature  of  both  these  regimes,
            before  and  after  the  2002  amendments,  is  that  the  State  receives  its  revenue  components  from  both
            the  county  and  city  collections.  Thus,  essentially,  businesses  located  in  an  incorporated  municipality
            pay  two  business  taxes,  one  to  the  city  and  one  to  the  county,  while  businesses  located  in  the
            unincorporated  areas  of  a  county  pay  only  the  county  tax. The  State  accordingly  receives  two  tax
            payments  from  businesses  located  in  cities  that  levy  the  tax,  one  funneled  through  the  county
            collector  and  one  funneled  through  the  city  collector. Meanwhile,  the  State  receives  only  one
            business  tax  payment  from  businesses  located  in  the  portion  of  a  county  outside  any  municipality.
            While  the  exact  amounts  may  differ  because  of  the  various  local  tax  rates,  businesses  located  in  cities
            are  generally  contributing  about  twice  as  much  in  business  taxes  to  State  coffers  as  businesses
            located  outside  city  limits.
                  The  instant  question  is  whether  this  arrangement  presents  any  constitutional  problems.  This
            Office  believes  that  it  does  not.  With  very  few  limitations,  the  structure  of  the  StateÕs  tax  system  is
            a  policy  choice  for  the  General  Assembly. As  Òthe  right  to  tax  is  essential  to  the  existence  of
            government,  and  is  particularly  a  matter  for  the  Legislature,Ó  one  seeking  to  challenge  a  Tennessee
            revenue  statute  Òbears  a  heavy  burden.Ó  Nolichuckey  Sand  Co.,  Inc.  v.  Huddleston,  896  S.W.2d  782,
            788  (Tenn.  Ct.  App.  1994),  quoting  Vertress  v.  State  Board  of  Elections,  141  Tenn.  645,  214  S.W.
            737,  740  (1919). Facing  such  a  challenge,  a  court  need  only  to  be  able  to  envision  a  legitimate
            justification  upon  which  the  Legislature  could  have  acted.  Civil  Service  Merit  Board  v.  Burson,  816
            S.W.2d  725  (Tenn.  1991).  And  as  the  Supreme  Court  recently  summed  up  in  City  of  Chattanooga
            v.  Davis,  54  S.W.3d  248,  276  (Tenn.  2001),
                        unless the classification Òinterferes with the exercise of a
                        Ôfundamental  rightÕ  or  operates  to  the  peculiar  disadvantage  of  a
                        Ôsuspect  class,ÕÓ  Article  XI,  section  8  requires  only  that  the  legislative
                        classification  be  rationally  related  to  the  objective  it  seeks  to  achieve.
                  The  disparate  impact  of  the  StateÕs  component  of  the  business  tax  is  a  result  of  the  local
            nature  of  the  tax  and  the  overlapping  of  local  government  jurisdictions  in  Tennessee.  These  features
            of  Tennessee  government  obviously  serve  many  legitimate  purposes,  prominent  among  them  being
            affording  a  measure  of  self-government  to  localities  across  the  state.  This  structure,  in  and  of  itself,
            does not present problems of double taxation or concerns that would otherwise rise to a



            Page  3
            constitutional  level. Op.  Tenn.  Atty.  Gen.  No.  03-103  (Aug.  19,  2003). By  its  2002  amendments,
            the  General  Assembly  essentially  increased  the  business  tax  by  50%  and  allocated  all  of  that  increase
            to  State  purposes.  Viewed  from  this  perspective,  the  LegislatureÕs  action  had  a  rational  basis.  The
            law  simply  requires  that  a  significant  portion  of  locally  collected  business  tax  revenues  now  flow  to
            the  State. The  Legislature  often  distributes  money  to  cities  and  counties  under  different  formulas,
            and  it  is  just  as  reasonable  for  it  to  take  money  from  localities  in  a  way  that  may  impact  businesses
            in  cities  and  counties  differently.
                  It  is  unusual  for  a  State  tax  to  bear  differently  in  some  parts  of  the  state  than  in  others.  But,
            even  if  this  arrangement  is  characterized  as  a  legislative  scheme  that  results  in  double  taxation  of  city
            businesses,  there  are  many  conceivable  reasons  why  the  Legislature  might  deem  city  businesses  more
            proper  subjects  of  taxation  than  county  businesses.  In  the  first  place,  as  discussed  in  Op.  Tenn.  Atty.
            Gen.  No.  03-103,  double  taxation  does  not  violate  the  Constitution  if  the  Legislature  plainly  intended
            that  result.  Cities  generally  have  more  commercial  activity  and  are  more  lucrative  sources  of  revenue
            than  rural  areas. Thus,  the  Legislature  might  have  thought  city  businesses  better  able  to  bear  the
            burden  of  business  taxes. Cities  generally  have  more  powers  and  more  centralized  governmental
            structures  than  counties,  and  the  Legislature  might  reasonably  have  deemed  them  better  able
            financially  to  contribute  to  the  StateÕs  needs.
                  These  and  innumerable  other  rational  bases  are  more  than  sufficient  to  justify  the  business
            tax  structure  in  Tennessee,  even  with  its  increased  State  component  resulting  from  the  2002
            amendments.  Therefore,  it  is  the  opinion  of  this  Office  that  the  present  business  tax  structure  readily
            passes  constitutional  muster.





                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter



                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



                                                       CHARLES  L.  LEWIS
                                                       Deputy  Attorney  General



            Page  4

            Requested  by:
                  The  Honorable  Paul  R.  Stanley
                  State  Representative
                  113  War  Memorial  Building
                  Nashville,  TN  37243-0196



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  9,  2004
                                      Opinion  No.  04-018
          Subdivision  Regulations

                                        QUESTIONS

                1.    Under  Tenn.  Code  Ann.  ¤  62-18-102(3),  the  term  Òpractice  of  land  surveyingÓ
          includes  Òthe  platting  and  layout  of  lands  and  subdivisions  thereof,  including  the  topography,
          drainage,  alignment  and  grades  of  streets  .  .  ..Ó
                     a.    Within  the  definition,  what  does  the  term  ÒdrainageÓ  mean?
                     b.    Does  the  statute  allow  land  surveyors  to  conduct  and  perform  drainage  design
          and  calculations  required  for  the  construction  of  subdivisions,  including  determining  the  detention
          and  retention  of  storm  water  as  well  as  determining  the  size  of  ponds,  basins,  pipes  and  culverts
          which  will  hold  and  through  which  storm  water  will  flow?
                2.    a.    Does  a  county  or  municipality  such  as  the  Town  of  Arlington  have  the  right
          to  impose  regulations  on  the  zoning,  subdivision  and  development  of  land  within  its  boundaries  that
          are  additional  to  and  more  stringent  than  those  imposed  by  the  State?
                     b.    If  the  answer  to  question  2.a.  is  yes,  may  a  city  impose  regulations  that  require
          a  licensed  engineer  to  perform  any  drainage  design  and  calculations  required  for  a  subdivision  or  a
          site  plan  even  if  it  is  determined  that  licensed  surveyors  may  perform  drainage  design  and
          calculations  in  the  performance  of  their  profession?

                                         OPINIONS

                1.    a.    As  used  in  the  statute,  we  think  this  term  refers  to  the  components  of  a  land
          drainage  system,  including  storm  and  wastewater  drainage. 
                     b.    A  licensed  land  surveyor  who  is  not  a  registered  engineer  may  not  conduct  and
          perform  drainage  design  and  calculations  required  for  the  construction  of  subdivisions,  including
          determining  the  detention  and  retention  of  storm  water  as  well  as  determining  the  size  of  ponds,
          basins,  pipes  and  culverts  which  will  hold  and  through  which  storm  water  will  flow. 
                2.    In  this  case,  the  subdivision  regulation  does  not  appear  to  conflict  with  state  law
          governing  the  practice  of  land  surveying  and  engineering.  Even  if  a  minor  conflict  exists,  we  think



            Page  2
            where,  as  here,  there  is  some  ambiguity,  a  city,  in  the  exercise  of  its  land  planning  authority,  is  not
            bound  by  the  minimum  standards  governing  the  practice  of  land  surveying  and  engineering.  In  this
            instance,  therefore,  we  think  a  city  may  require  an  engineer  to  perform  functions  that,  arguably,  may
            be  performed  by  a  land  surveyor.  In  any  case,  we  think  a  court  would  conclude  that  city  subdivision
            regulations  may  require  that  any  subdivision  plan  that  includes  drainage  design  and  calculation  must
            be  prepared  by  a  registered  engineer.

                                               ANALYSIS

                  1.    Scope  of  Practice  of  Land  Surveying
                  This  opinion  concerns  a  subdivision  regulation  in  effect  in  the  Town  of  Arlington.  Arlington
            is  a  city  in  Shelby  County  organized  under  the  mayor-aldermanic  charter,  Tenn.  Code  Ann.  ¤¤  6-1-
            101,  et  seq. Zoning  and  subdivision  regulations  are  in  effect  in  the  city. This  Office  has  not
            reviewed  these  regulations.  The  request  indicates  that  these  regulations  provide  for  certain  steps  to
            be  taken  and  documents  produced  in  the  subdivision  and  development  of  land  within  the  city
            boundaries. Some  of  these  documents,  such  as  plats  and  plans,  must  be  produced  and  sealed  by  a
            licensed  land  surveyor,  and  others  by  a  licensed  engineer. Under  the  subdivision  regulations,
            drainage  design  and  calculations  must  be  performed  by  a  licensed  engineer  and  not  a  licensed
            surveyor.  We  assume  that  the  regulation  refers  to  a  drainage  system  adequate  to  meet  the  needs  of
            proposed  property  development. The  request  raises  several  questions  about  the  scope  and  legality
            of  this  requirement.
                  Under  Tenn.  Code  Ann.  ¤¤  13-4-101,  et  seq.,  the  chief  legislative  body  of  a  city  may
            establish  a  municipal  planning  commission.  The  municipal  planning  commission  may  adopt  a  plan
            for  the  development  of  the  city.  Tenn.  Code  Ann.  ¤  13-4-201.  The  municipal  planning  commission
            must  then  adopt  regulations  governing  the  subdivision  of  land  within  the  municipality.  Tenn.  Code
            Ann.  ¤  13-4-303(a). These  regulations  may  include:
                        requirements  of  the  extent  to  which  and  the  manner  in  which  streets
                        shall  be  graded  and  improved,  and  water,  sewer  and  other  utility
                        mains,  piping,  connections  or  other  facilities  shall  be  installed  as  a
                        condition  precedent  to  the  approval  of  the  plat.
            Tenn.  Code  Ann.  ¤  13-4-303(b)  (emphasis  added).  No  subdivision  plat  for  city  land  may  be  recorded
            by  the  county  register  until  it  has  been  submitted  to  and  approved  by  the  municipal  planning
            commission. Tenn.  Code  Ann.  ¤  13-4-302(c)(1). 
                  The  profession  of  land  surveying  is  governed  under  Tenn.  Code  Ann.  ¤¤  62-18-101,  et  seq.

            Under  Tenn.  Code  Ann.  ¤  62-18-101(b),  it  is  unlawful  for  any  person  to  practice  land  surveying  in
            Tennessee  unless  the  person  has  been  duly  registered  or  is  exempted  from  registration  under  the
            statute. The  statutory  scheme  defines  the  Òpractice  of  land  surveyingÓ as  follows:



            Page  3
                        ÒPractice  of  land  surveyingÓ  means  any  service  of  work,  the  adequate
                        performance  of  which  involves  the  application  of  special  knowledge
                        of  the  principles  of  mathematics,  the  related  physical  and  applied
                        sciences,  and  the  relevant  requirements  of  law  for  adequate  evidence
                        to  the  act  of  measuring  and  locating  lines,  angles,  elevations,  natural
                        and  man-made  features  in  the  air,  on  the  surface  of  the  earth,  within
                        underground  workings,  and  on  the  beds  of  bodies  of  water  for  the
                        purpose  of  determining  areas  and  volumes,  for  the  monumenting  of
                        property  boundaries,  and  for  the  platting  and  layout  of  lands  and
                        subdivisions  thereof,  including  the  topography,  drainage,  alignment
                        and  grades  of  streets,  and  for  the  preparation  and  perpetuation  of
                        maps,  records,  plats,  field  notes,  records  and  property  descriptions
                        that  represent  these  surveys[.] 
            Tenn.  Code  Ann.  ¤  62-18-102(3)  (emphasis  added). 
                  As  further  discussed  below,  there  is  some  overlap  between  the  functions  of  a  licensed
            engineer  and  those  of  a  licensed  land  surveyor.  This  Office  has  concluded  that  a  registered  engineer
            who  wishes  to  practice  land  surveying  as  defined  by  the  statute  must  register  as  a  land  surveyor  and
            place  the  Òregistered  land  surveyorÓ  seal  on  all  plats. Op.  Tenn.  Atty.  Gen.  82-453  (October  5,
            1982). The  statutes  upon  which  this  opinion  was  based  have  not  been  materially  altered  since  that
            time.  The  first  question  is  the  meaning  of  the  term  ÒdrainageÓ  as  used  in  this  statute.  We  think  this
            term  refers  to  the  components  of  a  land  drainage  system,  including  storm  and  wastewater  drainage.
            The  real  question,  however,  is  whether  a  licensed  land  surveyor  who  is  not  a  licensed  engineer  is
            authorized  to  conduct  and  perform  drainage  design  and  calculations  required  for  the  construction

            of  subdivisions,  including  determining  the  detention  and  retention  of  storm  water  as  well  as
            determining  the  size  of  ponds,  basins,  pipes  and  culverts  which  will  hold  and  through  which  storm
            water  will  flow. 
                  The  profession  of  engineering  is  governed  by  applicable  provisions  of  Tenn.  Code  Ann.  ¤¤
            62-2-201,  et  seq.  That  statutory  scheme,  however,  does  not  define  the  practice  of  engineering,  nor
            do  regulations  promulgated  by  the  Board  of  Examiners  for  Architects  and  Engineers,  which  regulates
            the  profession. In  1980,  this  Office  addressed  the  overlap  between  the  functions  of  land  surveyor
            and  engineer.  Op.  Tenn.  Atty.  Gen.  80-537  (November  10,  1980).  That  opinion  addressed  whether,
            under  Tenn.  Code  Ann.  ¤  62-2-107(a)  (then  codified  at  Tenn.  Code  Ann.  ¤  62-236),  state  and  local
            governments  could  accept  subdivision  plats  prepared  by  a  land  surveyor  who  was  not  a  registered
            engineer. That  statute  provides  in  relevant  part:
                        (a)  Neither  the  state,  nor  any  county,  city,  town  or  village,  or  other
                        political  subdivision  of  the  state,  shall  engage  in  the  construction  or
                        maintenance  of  any  public  work  involving  architecture,  engineering
                        or  landscape  architecture  for  which  the  plans,  specifications  and



            Page  4
                        estimates  have  not  been  made  by  a  registered  architect,  registered
                        engineer  or  registered  landscape  architect.
                        (b)  Nothing  in  this  section  shall  be  held  to  apply  to  such  public  work
                        wherein  the  contemplated  expenditure  for  the  complete  project  does
                        not  exceed  twenty-five  thousand  dollars  ($25,000),  and  such  work
                        does  not  alter  the  structural,  mechanical  or  electrical  system  of  the
                        project.
            Tenn.  Code  Ann.  ¤  62-2-107.  This  language  is  substantially  the  same  as  that  considered  in  our  1980
            opinion. 
                  This  statute  would  not  necessarily  apply  to  a  proposed  subdivision  that  contemplates  a
            drainage  system  to  be  built  and  paid  for  by  a  developer. But,  in  interpreting  this  requirement,  the
            Office  addressed  the  distinction  between  the  services  of  a  land  surveyor  and  those  of  a  registered
            engineer.  The  Office  concluded  that,  under  Tenn.  Code  Ann.  ¤  62-2-107  as  then  codified,  state  and
            local  governments  could  accept  subdivision  plats  prepared  by  a  registered  land  surveyor,  so  long  as
            the  plats  did  not  involve  matters  of  design  within  the  special  competency  of  engineers.  The  opinion
            also  noted  that  Ò[t]he  installation  of  sewers  almost  of  necessity  would  involve  matters  of  design
            requiring  the  services  of  an  engineer. If  the  platting  and  layout  of  a  subdivision  are  involved,  that
            engineer  must  also  be  licensed  as  a  land  surveyor.Ó The  opinion  stated  that  the  statute  governing
            public works Òshould be read to require an engineerÕs services for public works involving
            engineering  in  its  special  and  peculiar  domain,  that  is,  the  study  and  design  of  projects  involving
            more  than  the  mere  location  of  lines  and  angles.Ó (Emphasis  added). The  opinion,  therefore,
            distinguished  between  services  that  fell  within  the  definition  of  the  Òpractice  of  land  surveyingÓ
            under  Tenn.  Code  Ann.  ¤  62-18-102,  and  design  services  uniquely  within  the  domain  of  engineering
            that  must  be  performed  by  a  registered  engineer  under  Tenn.  Code  Ann.  ¤  62-2-107. 
                  The  statutes  upon  which  this  conclusion  was  based  have  not  been  materially  amended  since
            1980.  In  addition,  a  policy  issued  by  the  Board  of  Examiners  for  Architects  and  Engineers  supports
            the  same  distinction. In  1997,  the  Board  adopted  a  revised  policy  entitled  ÒDelineation  of
            Engineering  and  Surveying.Ó The  first  paragraph  states:
                        In  rural  areas  regarding  subdivision  development  of  property,  an  issue
                        has  arisen  between  surveyors  and  engineers  wherein  the  surveyors
                        feel  they  should  take  responsibility  for  engineering  design  because
                        engineering  expertise  is  not  available  and  the  importance  of  such
                        engineering  expertise  is  questionable.  Engineers  do  not  subscribe  to
                        this  extension  of  the  responsibilities  of  surveyors  into  their  practice.
            The  policy  contains  four  paragraphs  delineating  engineering  and  surveying  under  Tennessee  law.
            Paragraphs  3  and  4  provide:



            Page  5
                        3.    Culverts, storm drainage pipes, water lines, sewer lines,
                        electric  power  lines  or  other  utilities  not  existing  prior  to  development

                        shall  not  be  shown  on  a  subdivision  drawing  unless  that  drawing
                        bears  the  seal  of  the  engineer  who  designed  them. Culverts  under
                        roads,  having  open  ends,  leading  from  one  road  ditch  to  the  other,
                        which  are  prefabricated  manufactured  pipes,  may  be  shown  on  a
                        subdivision  drawing  sealed  by  either  a  surveyor  or  an  engineer.
                        4.    Drainage  design  for  special  consideration,  such  as  storm  water
                        retention  or  flood  control,  must  be  performed  by  an  engineer,  and  the
                        engineerÕs  seal  must  be  applied  to  the  drawing.
            (Emphasis  added). Thus,  under  the  BoardÕs  interpretation,  any  subdivision  plan  that  contains  new
            drainage  facilities  or  requires  drainage  design  for  special  consideration  must  bear  the  seal  of  a
            licensed  engineer. Further,  a  licensed  land  surveyor  who  is  not  a  registered  engineer  may  not
            conduct  and  perform  drainage  design  and  calculations  required  for  the  construction  of  subdivisions,
            including  determining  the  detention  and  retention  of  storm  water  as  well  as  determining  the  size  of
            ponds,  basins,  pipes  and  culverts  which  will  hold  and  through  which  storm  water  will  flow.
                  2.    Legality  of  Subdivision  Regulations
                  The  next  question  is  whether  a  city  may  adopt  regulations  on  the  zoning,  subdivision  and
            development  of  land  within  its  boundaries  that  are  additional  to  and  more  stringent  than  those
            imposed  by  the  State.  As  discussed  above,  subdivision  regulations  are  typically  adopted  locally  and
            not  at  the  state  level. We  assume  your  question  refers  to  the  requirement  that  a  licensed  engineer
            rather  than  a  land  surveyor  perform  drainage  design  and  calculation  functions  with  regard  to  a
            subdivision  plan. As  described,  the  regulation  does  not  appear  to  be  inconsistent  with  state  law
            governing  the  respective  functions  of  land  surveyors  and  engineers.  The  BoardÕs  policy  delineating
            those  functions  does  indicate  that  a  land  surveyor  may  include  a  culvert  within  a  subdivision  plan.
            It  is  not  clear,  however,  whether,  under  either  the  Board  policy  or  the  city  subdivision  regulation,
            including  a  culvert  in  a  subdivision  plan  is  part  of  drainage  design  or  drainage  design  and
            calculation.  That  question  should  be  addressed  to  the  Board.  As  described,  however,  the  regulation
            appears  to  be  consistent  with  the  BoardÕs  interpretation  of  the  relevant  state  statute. 
                  Even  if  the  city  regulation  is  somewhat  more  stringent  than  the  standards  governing  the
            profession,  we  think  that  in  this  instance  a  court  would  not  find  it  invalid.  As  the  discussion  above
            indicates,  there  is  some  uncertainty  about  the  precise  scope  of  functions  that  are  simply  land
            surveying  and  those  that  include  designing  and  must,  therefore,  be  performed  by  an  engineer. We
            think  where,  as  here,  there  is  some  ambiguity,  a  city,  in  the  exercise  of  its  land  planning  authority,
            is  not  bound  by  the  minimum  standards  governing  the  practice  of  land  surveying  and  engineering.
            In  this  instance,  therefore,  we  think  a  city  may  require  an  engineer  to  perform  functions  that,
            arguably,  may  be  performed  by  a  land  surveyor.  In  any  case,  we  think  a  court  would  conclude  that



            Page  6
            city  subdivision  regulations  may  require  that  any  subdivision  plan  that  includes  drainage  design  and
            calculation  must  be  prepared  by  a  registered  engineer. 



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  W.C.  Pleasant
                  State  Representative
                  104  War  Memorial  Building
                  Nashville,  TN  37243-0199



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202-0207

                                       February  9,  2004
                                      Opinion  No.  04-019
          Drug  and  Alcohol  Testing  of  Department  of  Correction  Employees

                                        QUESTIONS

                1.    Is  the  Tennessee  Department  of  Correction  (TDOC)  eligible  to  become  a  Òcovered
          employerÓ  under  Tenn.  Code  Ann.  ¤50-9-101Ñ  112,  the  drug-free  workplace  program?
                2.    Does  Tenn.  Code  Ann.  ¤50-9-101Ñ  112  repeal  by  implication  all  provisions  of  Tenn.
          Code  Ann.  ¤41-1-121,  relative  to  the  authority  of  the  TDOC  to  conduct  drug  testing  of  security
          personnel?
                3.    Does  the  TDOC  have  the  state  statutory  authority  to  require  employees  to  submit  to
          random  drug  and  alcohol  tests?

                                         OPINIONS

                1.    Yes,  the  TDOC  is  eligible  to  become  a  Òcovered  employer.Ó
                2.    If  the  TDOC  elects  to  implement  a  drug-free  workplace  program  in  accordance  with
          title  50,  chapter  9,  it  need  not  comply  with  Tenn.  Code  Ann.  ¤41-1-121. 
                3.    If  the  TDOC  does  not  implement  the  statutory  drug-free  workplace  program,  then
          Tenn.  Code  Ann.  ¤41-1-121(b)  prohibits  drug  testing  of  security  personnel  in  the  absence  of
          reasonable  suspicion.  Provided  such  testing  comports  with  federal  law,  all  TDOC  employees  may
          be  tested  randomly  for  alcohol,  and  all  non-security  personnel  may  be  tested  randomly  for  drugs. 
                If  the  TDOC  does  implement  the  drug-free  workplace  program,  employees  not  in  Òsafety-sensitive 
                 positionsÓ  as  defined  in  ¤50-9-103(16)  may  be  required  to  submit  to  tests  for  alcohol  only
          when  the  test  is  based  upon  Òreasonable  suspicion,Ó  as  defined  in  ¤50-9-103(15).  Tenn.  Code  Ann.
          ¤50-9-104(a).  Employees  in  safety-sensitive  positions  may  only  be  tested  for  alcohol  use  on
          occasions  described  in ¤50-9-106(a)(2)-(5). Provided  such  testing  comports  with  federal  law,
          TDOC  employees  may  be  tested  randomly  for  drugs. 



            Page  2

                                               ANALYSIS

                  Tenn.  Code  Ann.  ¤41-1-121,  passed  in  1988,  outlines  the  authority  of  the  Commissioner  of
            Correction  to  require  security  personnel  to  submit  to  tests  for  controlled  substances  and  the
            procedure  to  be  used. Tenn.  Code  Ann.  ¤¤50-9-101  Ñ  112,  was  passed  as  part  of  the  WorkerÕs
            Compensation  Reform  Act  of  1996. The  Reform  Act  provides,  in  essence,  that  if  a  covered
            employer  implements  a  drug-free  workplace  program  as  outlined  in  the  legislation,  the  employer  may
            require  employees  to  submit  to  tests  for  the  presence  of  drugs  or  alcohol  and,  under  certain
            circumstances,  terminate  employees  and  forfeit  their  eligibility  for  workersÕ  compensation  benefits
            if  drugs  or  alcohol  are  found  to  be  present  in  the  employeesÕ  systems.  Tenn.  Code  Ann.  ¤41-1-121
            and  Tenn.  Code  Ann.  ¤¤50-9-101  Ñ  112  conflict  in  a  number  of  ways,  most  particularly  that  ¤41-1-
            121(b)  prohibits  all  drug  testing  of  security  personnel  not  based  on  reasonable  suspicion. 
                  Tenn.  Code  Ann.  ¤50-9-103(5)  defines  a  Ò[c]overed  employerÓ  as  a  person  or  entity  that
            employs  a  person,  is  covered  by  the  WorkersÕ  Compensation  Law,  maintains  a  drug-free  workplace
            pursuant  to  title  50,  chapter  9  and  posts  a  specific  statement  that  the  employerÕs  drug/alcohol  policy
            is  being  implemented  pursuant  to  the  provisions  of  title  50,  chapter  9.  The  chapter  has  no  effect  on
            employers  who  do  not  meet  this  definition. The  issue  is  whether  the  TDOC  is  Òcovered  by  the
            WorkersÕ  Compensation  LawÓ  for  the  purposes  of  a  statutory  drug-free  workplace  program  since  the
            State  is  only  governed  by  the  workersÕ  compensation  law  to  the  extent  authorized  by  Tenn.  Code
            Ann.  ¤9-8-307(a)(1)(K).  The  primary  exceptions  to  the  StateÕs  workersÕ  compensation  law
            coverage  include  the  second  injury  fund,  insurance  requirements,  oversight  by  the  department  of
            labor  and  workforce  development,  the  opt  out  provisions,  and,  of  course,  the  forum  for  determination
            of  claims. These  exceptions  relate  to  the  StateÕs  unique  status  as  a  sovereign  governmental  entity.
            Since  the  State  has  chosen  to  subject  itself  to  the  benefits  portions  of  the  WorkersÕ  Compensation
            Law,  the  TDOC  is  Òcovered  by  the  WorkersÕ  Compensation  LawÓ  for  the  purposes  of  the  statutory
            drug-free  workplace  program. If  the  TDOC  meets  the  other  statutory  requirements  of  Tenn.  Code
            Ann.  ¤50-9-103(5),  it  would  be  considered  a  Òcovered  employerÓ.
                  ÒThe  cardinal  rule  of  statutory  construction  is  to  effectuate  legislative  intent,  with  all  rules
            of  construction  being  aides  to  that  end.Ó Browder  v.  Morris,  975  S.W.2d  308,  311  (Tenn.  1998). 
            Where  possible,  statutes  should  be  read  in  harmony.  Frazier  v.  East  Tennessee  Baptist  Hospital,  55
            S.W.3d  925,  928  (Tenn.  2001).  ÒStatutes  relating  to  the  same  subject  or  sharing  a  common  purpose
            must  be  construed  together  (Ôin  pari  materiaÕ)  in  order  to  advance  their  common  purpose  or  intent.Ó

            Id.  Whenever  possible,  legislative  intent  is  to  be  ascertained  from  the  natural  and  ordinary  meaning
            of  the  language  used  in  the  statute.  ÒWhere  the  plain  language  of  a  statute  does  not  directly  address
            the  issue  or  leads  to  an  absurd  result,  however,  [the  courts]  will  look  beyond  the  language  of  the
            statute  and  adopt  a  reasonable  construction  that  provides  for  harmonious  operation  of  the  laws.Ó

            Lipscomb  v.  Doe,  32  S.W.3d  840,  844  (Tenn.  2000). Further,  when  the  legislature  enacts  a  new
            statute  covering  the  entire  subject  matter  of  an  earlier  statute,  the  court  will  conclude  that  one  of  the
            purposes  of  the  new  statute  was  to  repeal  the  earlier  one. Pacific  Eastern  Corp.  v. Gulf Life  Co.,

            902  S.W.2d  946,  954  (Tenn.  App.  1995). 



            Page  3
                  If  the  TDOC  elects  to  implement  a  drug-free  workplace  program  in  accordance  with  title  50,
            chapter  9,  it  need  not  comply  with  Tenn.  Code  Ann.  ¤41-1-121.  Tenn.  Code  Ann.  ¤50-9-106(a)(3)
            provides  that  under  certain  circumstances  public  employers  may  require  scheduled,  periodic  testing
            of  employees  who  Ò[w]ork  in  direct  contact  with  inmates  in  the  custody  of  the  department  of
            correction.Ó  This  language  evidences  a  legislative  intent  for  the  provisions  of  title  50,  chapter  9  to
            supersede  the  provisions  of  Tenn.  Code  Ann.  ¤41-1-121,  which  only  authorizes  reasonable  suspicion
            drug  testing  of  security  personnel,  if  the  TDOC  elects  to  implement  the  drug-free  workplace
            program. 
                  The  final  question  is  whether  the  TDOC  has  the  authority  to  require  employees  to  submit  to
            random  drug  and  alcohol  tests,  assuming  that  such  testing  is  permitted  under  federal  law.  If  TDOC
            does  not  implement  the  statutory  drug-free  workplace  program,  then  Tenn.  Code  Ann.  ¤41-1-121(b)
            prohibits  drug  testing  of  security  personnel  in  the  absence  of  Òreasonable  suspicion  based  upon
            specific  objective  facts  that  the  employeeÕs  faculties  are  impaired  on  the  job,  and  such  impairment
            presents  a  clear  and  present  danger  to  the  physical  safety  of  the  employee,  another  employee,  or  the
            security  of  the  institution.Ó 
                  If  the  TDOC  elects  to  implement  the  drug-free  workplace  program  in  accordance  with  title
            50,  chapter  9,  employees  not  in  Òsafety-sensitive  positionsÓ  as  defined  in  ¤50-9-103(16)  may  be
            required  to  submit  to  tests  for  alcohol  only  when  the  test  is  based  upon  Òreasonable  suspicion,Ó  as
            defined  in  ¤50-9-103(15).  Tenn.  Code  Ann.  ¤50-9-104(a).  Employees  in  safety-sensitive  positions
            may  only  be  tested  for  alcohol  use  on  occasions  described  in  ¤50-9-106(a)(2)-(5),  i.e.,  job  applicant
            testing,  reasonable  suspicion  testing,  routine  fitness-for-duty  testing,  follow-up  to  treatment  testing,
            and  post-accident  testing.  Tenn.  Code  Ann.  ¤50-9-104(a). Title  50,  chapter  9  does  not  preclude  an
            employer  from  conducting  any  lawful  testing  for  drugs  that  is  in  addition  to  the  minimum  testing
            required  under  the  chapter.  Tenn.  Code  Ann.  ¤¤50-9-106(b)  &  50-9-108(e).  Consequently,  provided
            such  testing  comports  with  federal  law,  TDOC  employees  may  be  required  to  submit  to  random  drug
            tests. 



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       KIMBERLY  J.  DEAN
                                                       Deputy  Attorney  General



            Page  4

            Requested  by:
                  Commissioner  Quenton  I.  White
                  Tennessee  Department  of  Correction
                  Fourth  Floor,  Rachel  Jackson  Building
                  320  Sixth  Avenue  North
                  Nashville,  Tennessee  37243-0465



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        January  6,  2004
                                      Opinion  No.  04-002
          Conflict  of  Interest:  Lottery  Advertising

                                         QUESTION

                May  a  state  legislator  co-own  radio  stations  that  contract  with  vendors  to  advertise  for  the
          Tennessee  Education  Lottery?

                                         OPINION

                The  answer  to  this  question  depends  on  the  particular  arrangement.  Under  Tenn.  Code  Ann.
          ¤  4-51-130,  a  legislator  may  not  receive  compensation  or  any  benefit  for  advertising  services
          rendered  by  a  radio  station  that  he  or  she  owns  to  an  on-line  or  instant  ticket  lottery  vendor.  The  ban
          applies  to  benefits  from  an  on-line  or  instant  ticket  lottery  vendor  that  has  contracted  with  the
          Tennessee  Education  Lottery  Corporation  (ÒTELÓ),  or  to  such  a  vendor  seeking  to  contract  with
          TEL.  The  ban  extends  to  a  legislatorÕs  spouse  and  children  living  in  the  legislatorÕs  house.  It  should
          also  be  noted  that  a  legislator  may  not  receive  a  gift  from  a  lobbyist  or  any  person  who  employs  a
          lobbyist.  Payments  made  in  good  faith  for  advertising  services,  however,  would  not  ordinarily  be
          a  prohibited  ÒgiftÓ  subject  to  the  ban.
                Under  Tenn.  Code  Ann.  ¤  12-4-101(a)(1),  contracts  between  TEL  and  a  business  in  which
          the  legislator  owns  a  controlling  interest  would  not  generally  be  prohibited  because  the  General
          Assembly  does  not  vote  for,  let  out,  overlook,  or  superintend  TEL  contracts. But  the  legislator
          should  not  serve  on  the  Select  Committee  on  the  Tennessee  Education  Lottery  Corporation.  The
          prohibition  would  not  apply  if  the  company  is  the  sole  supplier  of  goods  or  services  in  a  city  or
          county.  In  that  case,  the  legislator  would  be  required  to  disclose  his  or  her  interest  in  the  contract
          under  Tenn.  Code  Ann.  ¤  12-4-101(b).
                Under  Tenn.  Code  Ann.  ¤  12-4-101(b),  a  legislator  must  disclose  his  or  her  interest  in  any
          contract  in  which  he  or  she  has  an  indirect  interest  and  that  he  or  she  has  a  duty  to  vote  for,  let  out,
          overlook,  or  superintend.  Since  the  General  Assembly  ordinarily  does  not  have  a  duty  to  vote  for,
          let  out,  overlook,  or  superintend  TEL  contracts,  this  provision  would  not  apply  unless  the  member
          is  on  the  Select  Committee  on  the  Tennessee  Education  Lottery  Corporation. In  any  case,  the
          legislator  could  be  required  to  disclose  the  contract  to  the  Registry  of  Election  Finance  if  it  falls
          within  any  of  the  categories  in  Tenn.  Code  Ann.  ¤  8-50-502.



            Page  2

                  Under  House  Resolution  13,  it  appears  that  a  member  of  the  House  would  not  be  prohibited
            from  voting  on  or  influencing  legislation  in  which  the  member  has  a  personal  interest  in  conflict  with
            the  memberÕs  duties  so  long  as  he  or  she  discloses  the  information  to  the  Registry  of  Election
            Finance  as  required  under  Tenn.  Code  Ann.  ¤¤  8-50-501,  et  seq.  Only  the  House  Ethics  Committee,
            however,  can  provide  a  definitive  interpretation  of  this  provision.
                  Depending  on  the  facts  and  circumstances,  a  legislator  could  be  subject  to  other  codes  of
            conduct.  The  member  should  consult  the  board  or  authority  charged  with  administering  those  codes
            to  determine  his  or  her  duties.

                                               ANALYSIS

                  This  request  concerns  conflict  of  interest  laws  as  they  apply  to  advertising  for  the  Tennessee
            Education  Lottery. The  request  indicates  that  a  legislator  co-owns  a  broadcasting  company  in
            Tennessee.  It  is  anticipated  that  radio  stations  of  this  company  may  contract  with  lottery  vendors  or
            with  the  Tennessee  Education  Lottery  Corporation  (ÒTELÓ)  to  advertise  for  the  Tennessee  Education
            Lottery. As  discussed  below,  a  definitive  answer  to  this  question  depends  on  the  particular
            arrangement.
                                            A. The  Lottery  Law
                  The  TEL  was  established  to  operate  a  lottery  under  Tenn.  Code  Ann.  ¤¤  4-51-101,  et  seq.

            Tenn.  Code  Ann.  ¤  4-51-130  places  various  restrictions  on  the  right  of  officials  to  work  for  or
            contract  with  TEL  or  lottery  businesses. Subsection  (b)  states:
                        No  member  of  the  general  assembly,  the  governor,  a  member  of  the
                        governorÕs  cabinet  or  a  cabinet-level  member  of  the  governorÕs  staff
                        shall  serve  as  an  employee,  or  otherwise  receive  compensation  or
                        other benefit for consultation or services rendered directly or
                        indirectly  through  a  partnership,  corporation  or  other  business
                        entity, from an on-line or instant ticket lottery vendor of the
                        Tennessee  Education  Lottery  Corporation  or  an  on-line  or  instant
                        ticket  lottery  vendor  seeking  to  become  a  vendor  of  the  Tennessee
                        Education  Lottery  Corporation,  while  holding  such  position  in  state
                        government. Nothing  in  this  subsection  (b)  shall  be  construed  as
                        prohibiting  continued  employment  of  such  official  by  a  partnership,
                        corporation,  or  other  business  entity  receiving  compensation  from  an
                        on-line  or  instant  ticket  lottery  vendor  if:
                               (1)  Such  official  has  no  direct  or  indirect  contact  with  an  on-line 
                            or  instant  ticket  lottery  vendor;  and



            Page  3

                               (2)  Such  official  does  not  share  in  any  compensation  or  any
                        benefit  received  from  an  on-line  or  instant  ticket  lottery  vendor.
            (Emphasis  added). The  provisions  of  the  statute  also  apply  to  any  children  residing  in  the  primary
            residence  and  the  spouse  of  any  member  of  the  General  Assembly,  the  Governor,  a  member  of  the
            GovernorÕs  cabinet  or  a  cabinet-level  member  of  the  GovernorÕs  staff. Tenn.  Code  Ann.  ¤  4-51-
            130(d). A  violation  of  the  statute  is  a  class  C  misdemeanor  punishable  by  a  fine  of  one  thousand
            dollars  ($1,000).
                  Under  this  section,  a  legislator  is  prohibited  from  receiving  compensation  for  services  from
            an  on-line  or  instant  ticket  lottery  vendor  of  the  Tennessee  Education  Lottery  Corporation  or  an  on-line 
                or  instant  ticket  lottery  vendor  seeking  to  become  such  a  vendor. This  provision,  therefore,
            would  prevent  a  company  owned  by  a  legislator  from  contracting  with  an  on-line  or  instant  ticket
            lottery  vendor  to  provide  advertising  services  for  that  vendor.  The  ban  also  applies  to  compensation
            or  other  benefits  for  consultation  or  services  rendered  directly  by  the  legislator  personally  to  the  on-line 
               or  instant  ticket  lottery  vendor  or  indirectly  through  a  partnership,  corporation  or  other  business
            entity.  Under  Tenn.  Code  Ann.  ¤  4-51-130,  therefore,  a  legislator  may  not  receive  compensation  or
            any  benefit  for  advertising  services  rendered  by  a  radio  station  that  he  owns  to  an  on-line  or  instant
            ticket  lottery  vendor.  The  ban  applies  to  benefits  from  an  on-line  or  instant  ticket  lottery  vendor  that
            has  contracted  with  TEL,  or  to  such  a  vendor  seeking  to  contract  with  TEL.
                  The  question  then  becomes  whether,  instead  of  contracting  with  a  ticket  vendor,  a  company
            owned  by  a  legislator  may  provide  advertising  services  to  TEL,  either  directly  as  a  contractor  or
            indirectly  as  a  subcontractor  of  another  advertising  company.  In  that  case,  compensation  would  not
            come  from  an  on-line  or  instant  ticket  lottery  vendor  and  the  arrangement  would  not  be  prohibited
            by  Tenn.Code  Ann.  ¤  4-51-130(b). Subsection  (a)  of  Tenn.  Code  Ann.  ¤  4-51-130  states:
                        No  member  of  the  general  assembly,  the  governor,  a  member  of  the
                        governorÕs  cabinet  or  a  cabinet  -level  member  of  the  governorÕs  staff
                        shall  serve  as  a  director  or  employee  of  the  corporation  while  holding
                        such  position  in  state  government.
            (Emphasis  added). This  provision  would  not  prohibit  a  company  owned  by  a  legislator  from
            contracting  with  TEL  as  an  independent  contractor. 
                  In  this  connection,  it  should  also  be  noted  that  a  legislator  may  not  receive  a  gift  from  a
            lobbyist  or  any  person  who  employs  a  lobbyist.  Tenn.  Code  Ann.  ¤  3-6-114. Under  the  statute,  the
            term  ÒgiftÓ  means  a  payment,  honorarium,  subscription,  loan,  advance,  forbearance,  rendering  or
            deposit  of  money  or  services,  unless  consideration  of  equal  or  greater  value  is  received.  Tenn.  Code
            Ann.  ¤  3-6-102(9). Payments  made  in  good  faith  for  advertising  services,  therefore,  would  not
            ordinarily  be  a  prohibited  Ògift.Ó



            Page  4

                        B. General  Conflict  of  Interest  Statute:  Tenn.  Code  Ann.  ¤  12-4-101
                  1. Direct  Interest
                  Tenn.  Code  Ann.  ¤  4-51-132  provides  that  the  statute  and  accompanying  amendments  to  the
            criminal  law  preempt  Òany  other  regulation  of  the  area  covered  by  this  chapter  and  title  39,  chapter
            17,  part  6.Ó We  think  the  statute,  however,  refers  to  provisions  regulating  a  state  lottery,  not  to
            conflict  of  interest  laws  governing  members  of  the  General  Assembly. The  general  conflict  of
            interest  statute  appears  at  Tenn.  Code  Ann.  ¤  12-4-101. Subdivision  (a)(1)  prohibits  an  official
            whose  duty  it  is  to  vote  for,  let  out,  or  supervise  a  contract  from  being  directly  interested  in  the
            contract. The  statute  provides:
                        (a)  (1)  It  is  unlawful  for  any  officer,  committee  member,  director,  or
                        other  person  whose  duty  it  is  to  vote  for,  let  out,  overlook,  or  in  any
                        manner to superintend any  work or any  contract in which any
                        municipal  corporation,  county,  state,  development  district,  utility
                        district,  human  resource  agency,  or  other  political  subdivision  created
                        by  statute  shall  or  may  be  interested,  to  be  directly  interested  in  any
                        such  contract. ÒDirectly  interestedÓ  means  any  contract  with  the
                        official  personally  or  with  any  business  in  which  the  official  is  the
                        sole proprietor, a partner, or the person having the controlling
                        interest. ÒControlling  interestÓ  includes  the  individual  with  the
                        ownership  or  control  of  the  largest  number  of  outstanding  shares
                        owned  by  any  single  individual  or  corporation.  The  provisions  of  this
                        subdivision shall not be construed to prohibit any officer,

                        committeeperson,  director,  or  any  person,  other  than  a  member  of  a
                        local  governing  body  of  a  county  or  municipality,  from  voting  on  the
                        budget, appropriation resolution, or tax rate resolution, or
                        amendments  thereto,  unless  the  vote  is  on  a  specific  amendment  to  the
                        budget  or  a  specific  appropriation  or  resolution  in  which  such  person
                        is  directly  interested. 

            (Emphasis  added).  Under  this  statute,  a  legislator  whose  duty  it  is  to  Ò.  .  .  vote  for,  let  out,  overlook,
            or  in  any  manner  to  superintend  any  work  or  any  contract  in  which  any  municipal  corporation,
            county,  state,  development  district,  utility  district,  human  resource  agency,  or  other  political
            subdivision  created  by  statute  shall  or  may  be  interested,Ó  may  not  be  directly  interested  in  the
            contract. The  statute  creating  TEL  describes  it  as  follows:
                        The  corporation  shall  be  a  body,  politic  and  corporate,  and  a  quasi-public 
                              instrumentality,  and  not  a  state  agency  or  department,  which
                        shall  be  deemed  to  be  acting  in  all  respects  for  the  benefit  of  the



            Page  5

                        people  of  the  state  through  the  operation  of  a  state  lottery  and  in  the
                        performance  of  other  essential  public  functions  entrusted  to  it.
            Tenn.  Code  Ann.  ¤  4-51-101(c). Under  this  definition,  TEL  is  probably  a  Òpolitical  subdivision
            created  by  statuteÓ  within  the  meaning  of  Tenn.  Code  Ann.  ¤  12-4-101(a)(1).  A  legislator  would  be
            directly  interested  in  a  contract  between  TEL  and  a  business  in  which  the  legislator  owns  a
            controlling  interest. Under  the  statute,  Òcontrolling  interestÓ  includes,  but  is  not  limited  to,  the
            individual  with  the  ownership  or  control  of  the  largest  number  of  outstanding  shares  owned  by  any
            single  individual  or  corporation. With  one  exception  in  Tenn.  Code  Ann.  ¤  12-4-101(b)  discussed
            below,  a  contract  between  TEL  and  a  company  in  which  a  legislator  owns  the  controlling  interest
            would  be  prohibited  if  the  legislator  has  a  duty  to  vote  for,  let  out,  overlook,  or  in  any  manner  to
            superintend  the  contract. But,  under  the  last  sentence  of  Tenn.  Code  Ann.  ¤  12-4-101(a)(1),  the
            contract  would  not  be  prohibited  if  the  legislator  merely  votes  on  an  appropriations  act  that  funds
            the  contract. 
                  The  state  legislature  does  not  directly  vote  on  TELÕs  annual  budget. Tenn.  Code  Ann.  ¤  4-
            51-129  (5)  &  (6). Nor  would  most  legislators  ordinarily  have  a  duty  to  vote  for,  let  out,  overlook,
            or  in  any  manner  superintend  contracts  with  TEL. But  the  statute  creates  a  legislative  committee
            known  as  the  Select  Committee  on  the  Tennessee  Education  Lottery  Corporation.  Tenn.  Code  Ann.
            ¤  4-51-133.  This  committee  is  responsible  for  inquiring  into  and  reviewing  the  operations  of  TEL.
            A  court  could  conclude  that  a  legislator  who  serves  on  the  committee  has  the  duty  to  ÒsuperintendÓ
            contracts  of  TEL.  For  this  reason,  a  legislator  with  a  controlling  interest  in  a  company  that  contracts
            with TEL should not serve on the Select Committee on the Tennessee Education Lottery
            Corporation. As  discussed  below,  these  restrictions  would  not  apply  to  a  contract  in  which  the
            legislator  is  directly  interested,  but  is  the  sole  supplier  of  goods  or  services  in  a  municipality  or
            county. In  that  case,  restrictions  governing  indirect  conflicts  of  interest  would  apply.
                  2. Indirect  Interest
                  Under  Tenn.  Code  Ann.  ¤  12-4-101(b),  a  legislator  must  publicly  acknowledge  his  or  her
            interest  in  a  contract  in  which  he  or  she  is  indirectly  interested. The  statute  provides:
                        (b) It  is  unlawful  for  any  officer,  committee  member,  director,  or
                        other  person  whose  duty  it  is  to  vote  for,  let  out,  overlook,  or  in  any
                        manner to superintend any  work or any  contract in which any
                        municipal  corporation,  county,  state,  development  district,  utility
                        district,  human  resource  agency,  or  other  political  subdivision  created
                        by  statute  shall  or  may  be  interested,  to  be  indirectly  interested  in  any
                        such  contract  unless  the  officer  publicly  acknowledges  such  officer's
                        interest. ÒIndirectly  interestedÓ  means  any  contract  in  which  the
                        officer  is  interested  but  not  directly  so,  but  includes  contracts  where



            Page  6

                        the  officer  is  directly  interested  but  is  the  sole  supplier  of  goods  or
                        services  in  a  municipality  or  county. 
            (Emphasis  added). Under  this  statute,  a  legislator  must  disclose  his  or  her  interest  in  any  contract
            in  which  he  or  she  has  an  indirect  interest  and  that  he  or  she  has  a  duty  to  vote  for,  let  out,  overlook,
            or  superintend. Since  the  General  Assembly  ordinarily  does  not  have  a  duty  to  vote  for,  let  out,
            overlook,  or  superintend  TEL  contracts,  this  provision  would  not  apply  unless  the  legislator  is  on  the
            Select  Committee  on  the  Tennessee  Education  Lottery  Corporation.  In  any  case,  the  legislator  could
            be  required  to  disclose  the  contract  to  the  Registry  of  Election  Finance  if  it  falls  within  any  of  the
            categories  in  Tenn.  Code  Ann.  ¤  8-50-502. Under  that  statute,  legislators  and  other  state  officials
            must  disclose  various  types  of  financial  interests. 
                                         C. House  Ethics  Resolution
                  House  Resolution  13  contains  ethics  provisions  governing  the  current  House  session. 
            These  provisions  are  administered  by  the  House  Ethics  Committee. See  Tenn.  Const.  Art.  II,  ¤
            12. Only  that  committee,  therefore,  can  provide  a  definitive  interpretation  of  the  resolution.
            Article  II  of  House  Resolution  13  adopted  by  the  current  House  of  Representatives  provides  in
            relevant  part:
                        SECTION  1. Unless  a  member  fails  to  comply  with  Section  3  of
                        this  Article,  a  member  has  a  personal  interest  which  is  in  conflict
                        with  the  proper  discharge  of  the  memberÕs  duties  if  the  member
                        has  reason  to  believe  or  expect  that  the  member  will  derive  a  direct
                        monetary  gain  or  any  other  advantage  or  suffer  a  direct  monetary
                        loss  by  reason  of  the  memberÕs  official  activity.
                        SECTION  2. The  integrity  and  reputation  of  the  House  will  be
                        maintained  and  enhanced  and  the  public  interest  protected  if
                        members  avoid  the  following  types  of  conduct:
                        (a) Actions  which  destroy  a  memberÕs  independence  of  judgment
                        as  a  legislator;
                        (b) Actions  which  involve  undue  influence  upon  any  state
                        department,  agency,  court,  or  governmental  subdivision;  and
                        (c) Actions  which  constitute  an  abuse  of  the  memberÕs  official
                        position  or  a  violation  of  the  memberÕs  trust;
                        SECTION  3. While  recognizing  that  members  of  the  House  serve
                        as  members  of  a  citizen  legislature  which  reflects  a  variety  of



            Page  7

                        professions  and  occupations  and  while  also  recognizing  that  some
                        degree  of  personal  interest  in  certain  legislation  is  inevitable,  a
                        member  shall  not  vote  on  or  influence  legislation  if  the  member
                        has  a  personal  interest  which  is  in  conflict  with  the  proper
                        discharge  of  the  memberÕs  duties,  unless  the  member  discloses
                        such  information  with  the  registry  of  election  finance  in  accordance
                        with  the  requirements  of  Tennessee  Code  Annotated,  Title  8,
                        Chapter  50,  Part  5.
            (Emphasis  added). Article  I  of  this  resolution  authorizes  the  House  Ethics  Committee  to
            consider  alleged  violations  of  the  code  and  to  render  advisory  opinions  to  the  members. As  noted
            above,  Title  8,  Chapter  50,  Part  5  contains  general  disclosure  requirements  that  members  of  the
            General  Assembly,  among  other  officers,  must  file  with  the  Registry  of  Election  Finance. Under
            the  provision,  it  appears  that  a  member  of  the  House  would  not  be  prohibited  from  voting  on  or
            influencing  legislation  in  which  the  member  has  a  personal  interest  in  conflict  with  the  memberÕs
            duties  so  long  as  he  or  she  discloses  the  information  to  the  Registry  of  Election  Finance  as
            required  under  Tenn.  Code  Ann.  ¤¤  8-50-501,  et  seq.

                  Depending  on  the  facts  and  circumstances,  a  legislator  could  be  subject  to  other  codes  of
            conduct. The  member  should  consult  the  board  or  authority  charged  with  administering  those
            codes  to  determine  his  or  her  duties.


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel



            Page  8

            Requested  by:
                  Honorable  Johnny  W.  Shaw
                  State  Representative
                  23  Legislative  Plaza
                  Nashville,  TN  37243-0180



                                  S  T  A  T  E O  F T  E  N  E  S  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  9,  2004
                                      Opinion  No.  04-020
          Possession  of  Firearms  on  Publicly  Owned  Property

                                        QUESTIONS

                1.    Under  what  authority  and  to  what  extent  may  the  State  of  Tennessee  or  local
          governments  prohibit  the  possession  of  handguns  on  publicly  owned  property  by  handgun  permit
          holders?
                2.    What  legal  standards,  if  any,  limit  the  discretion  of  the  State  of  Tennessee  or  local
          governments  within  Tennessee  to  prohibit  the  possession  of  long  arms  on  publicly  owned  property?
                3.    If  a  governmental  agency  prohibits  a  handgun  permit  holder  from  possessing  his  or
          her  handgun  while  on  publicly  owned  property  (including  parks),  to  what  extent  would  that  permit
          holder  have  a  claim  (under  the  Governmental  Tort  Liability  Act  or  otherwise)  against  the  state  or
          other  governmental  agency  for  damages  sustained  by  the  individual  which  possibly  could  have  been
          prevented  by  the  individual  if  armed?

                                         OPINIONS

                1.    The  State  of  Tennessee  is  granted  the  authority  to  regulate  the  possession  of  handguns
          on  publicly  owned  property  by  handgun  permit  holders  under  Article  I,  ¤26  of  the  Tennessee
          Constitution.  Local  governments  are  prohibited  from  regulating  in  the  area  of  firearms  under  the
          Tenn.  Code  Ann.  ¤  39-17-1314  but  may  prohibit  possession  of  firearms  on  property  owned  by  the
          local  government.
                2.    The  General  AssemblyÕs  authority  to  enact  legislation  prohibiting  the  possession  of
          long  arms  on  publicly  owned  property  is  limited  by  the  language  of  Article  I,  ¤  26  of  the  Tennessee
          Constitution.  Local  governments  are  prohibited  from  regulating  in  the  area  of  firearms  under  the
          Tenn.  Code  Ann.  ¤  39-17-1314,  but  may  prohibit  possession  of  firearms  on  property  owned  by  the
          local  government.
                3.    There  is  no  cause  of  action  against  the  governmental  agency  under  the  circumstances
          described.  Additionally,  the  StateÕs  liability  is  limited  by  Tenn.  Code  Ann.  ¤  9-8-307,  which  does
          not  give  the  Claims  Commission  jurisdiction  over  this  type  of  claim. The  extent  of  local
          governmental  liability  is  defined  by  Tenn.  Code  Ann.  ¤29-20-201.  Under  ¤29-20-201(a),  except  as
          otherwise  provided  in  chapter  20  of  Title  29,  all  governmental  entities  are  immune  from  suit  for  any



            Page  2
            injury  which  may  result  from  the  activities  of  such  governmental  entities  wherein  such  governmental
            entities  are  engaged  in  the  exercise  and  discharge  of  any  of  their  functions,  governmental  or
            proprietary.  Furthermore,  local  governments  are  immune  from  suits  resulting  from  the  exercise  of
            discretionary  functions,  regardless  of  whether  the  discretion  has  been  abused. Tenn.  Code  Ann.  ¤
            29-20-205(1).

                                               ANALYSIS

                  1.    Article  I,  ¤  26  of  the  Tennessee  Constitution  provides:
                        That  the  citizens  of  this  State  have  a  right  to  keep  and  to  bear  arms  for
                        their  common  defense;  but  the  Legislature  shall  have  power,  by  law,
                        to  regulate  the  wearing  of  arms  with  a  view  to  prevent  crime. 
                  The  Tennessee  Supreme  Court  has  recognized  that  the  General  Assembly  has  the  authority,
            under  this  section  of  the  Constitution,  to  enact  legislation  to  regulate  the  wearing  and  carrying  of
            arms  in  public.  Any  such  enactment,  however,  "must  be  guided  by,  and  restrained  to  this  end,  and
            bear  some  well  defined  relation  to  the  prevention  of  crime,  or  else  it  is  unauthorized  by  this  clause
            of  the  Constitution." Andrews  v.  State,  50  Tenn.  165,  181  (1871). 
                  The  Legislature  has  acted  upon  this  grant  of  authority  and  regulated  the  right  to  wear  arms
            in  various  times  and  places. As  this  office  has  previously  determined,  Tenn.  Code  Ann.  ¤  39-17-
            1359  authorizes  local,  state,  or  federal  government  entities  to  prohibit  anyone,  even  persons  with  a
            valid  handgun  carrying  permit,  from  carrying  weapons  otherwise  authorized  to  be  possessed  under
            ¤¤  39-17-1351  -  39-17-1360  at  meetings  conducted  by,  or  on  property  owned,  operated,  managed
            by  the  entity,  or  under  its  control.  Op.  Tenn.  Atty.  Gen.  00-161  (October  27,  2000)  (copy  attached).
            However,  this  prohibition  does  not  extend  to  persons  carrying  weapons  pursuant  to  their  status  as
            a  law  enforcement  officer. Id. The  Legislature  has  also  prohibited  the  possession  of  firearms  on
            school  property.
                   ÒThe  State,  no  less  than  a  private  owner  of  property,  has  the  power  to  preserve  the  property
            under  its  control  for  the  use  to  which  it  is  lawfully  dedicated.Ó  State  v.  Lyons,  802  S.W.2d  590,  593
            (Tenn.  1990). A  Òstate  or  federal  government  entity  or  agent  thereof  is  authorized  to  prohibit  the
            possession  of  weapons  by  any  person  otherwise  authorized  by  ¤¤  39-17-1351  -  39-17-1360  .  .  .  on
            property  owned,  operated,  or  managed  or  under  the  control  of  such  .  .  .  government  entity.Ó  Tenn.
            Code  Ann.  ¤  39-17-1359(a). Therefore,  under  both  the  Tennessee  Code  and  the  common  law,  the
            State  has  authority  to  prohibit  or  regulate  the  possession  and  use  of  firearms  on  property  that  it  owns.
            It  has  been  recognized  that  the  State,  like  other  property  owners,  has  the  right  to  control  the  use  of
            its  property  for  lawful  nondiscriminatory  purposes.  See  Adderley  v.  Florida,  385  U.S.  39,  87  S.Ct.
            242  (1966).  ÒThe  United  States  Constitution  does  not  forbid  a  State  to  control  the  use  of  its  own
            property  for  its  own  lawful  nondiscriminatory  purpose.Ó Adderley,  385  U.S.  at  47. States  can
            regulate  and  control  public  grounds  and  buildings  through  their  legislative  bodies  as  long  as  this
            regulation  and  control  is  within  constitutional  limitations.  Walker  v.  City  of  Birmingham,  388  U.S.



            Page  3








































                   Article  1,  ¤  17  of  the  Tennessee  constitution  provides:  1

                        That  all  courts  shall  be  open;  and  every  man,  for  an  injury  done  him  in  his  lands,
                        goods,  person  or  reputation,  shall  have  remedy  by  due  course  of  law,  and  right  and
                        justice  administered  without  sale,  denial,  or  delay.  Suits  may  be  brought  against  the
                        State  in  such  manner  and  in  such  courts  as  the  Legislature  may  by  law  direct.
                   Tenn.  Code  Ann.  ¤  9-8-307(a)(1)  includes  such  categories  as  negligent  operation  or  maintenance  of  motor  2

            vehicles;  negligent  care,  custody,  or  control  of  persons;  negligent  operation  of  machinery  or  equipment;  and  dangerous
            conditions  on  state  maintained  highways. 307  (1967).  As  a  general  rule,  the  state  as  a  property  owner  has  the  right  to  set  rules  concerning  the
            time  and  manner  that  its  property  may  be  used.  Perry  Educ.  Ass'n.  v.  Perry  Local  Educators'  Ass'n.,

            460  U.S.  37  (1983).  The  right  of  a  State  to  regulate  the  use  of  its  property  applies  to  regulations
            concerning  the  carrying  and  use  of  firearms  on  state  property. So  long  as  the  regulations  are
            nondiscriminatory,  there  are  no  limits  on  the  stateÕs  discretion.
                  Local government entities in Tennessee are prohibited from regulating the transfer,
            ownership,  possession  or  transportation  of  firearms,  ammunition  or  components  of  firearms.  Tenn.
            Code  Ann.  ¤  39-17-1314(a).  However,  under  Tenn.  Code  Ann.  ¤  39-17-1359(a),  local  governments
            have  been  granted  the  power  to  determine  if  they  wish  to  allow  weapons  on  their  property. 
                  2.    The  definitions  of  rifle  or  shotgun  (long  arms)  in  Tenn.  Code  Ann.  ¤  39-17-1301  both
            refer  to  the  weapon  as  a  ÒfirearmÓ. Thus,  they  are  also  arms  under  Article  I,  Section  26  of  the
            Tennessee  Constitution,  and  the  Legislature  can  only  restrict  the  carrying  of  them  with  laws  that  are
            enacted  with  a  view  to  prevent  crime. 
                  3.    There  is  no  such  cause  of  action  for  the  injury  to  a  permit  holder  who  was  denied  the
            right  to  carry  his  or  her  firearm,  for  the  reasons  outlined  in  the  answers  to  questions  one  and  two. 
                  Further,  the  State  of  Tennessee  is  immune  from  suits  unless  the  General  Assembly  has
            specifically  waived  the  stateÕs  sovereign  immunity.  See  Tenn.  Const.  Art.  1,  ¤  17, Tenn.  Code  Ann.  1

            ¤  20-13-102(a).  The  General  Assembly  has  waived  the  stateÕs  sovereign  immunity  through  the
            Claims  Commission  in  certain  circumstances. Tenn.  Code  Ann.  ¤  9-8-307.  If  a  claim  against  the
            State  does  not  fall  under  one  of  these  categories  enumerated  in  Tenn.  Code  Ann.  ¤  9-8-307(a)(1),2

            then  the  State  is  not  amenable  to  the  claim. No  category  under  Tenn.  Code  Ann.  ¤  9-8-307(a)(1)
            appears  to  apply  to  an  injury  to  a  permit  holder  as  a  result  of  the  holderÕs  being  denied  the  ability  to
            carry  a  firearm.  As  a  result,  the  Claims  Commission  would  not  have  jurisdiction  to  hear  such  a
            matter.
                  Local  governments  are  immune  from  suit  unless  the  General  Assembly  has  specifically
            waived  their  immunity  in  the  Tennessee  Governmental  Tort  Liability  Act. Tenn.  Code 



            Page  4










































                   Tenn.  Code  Ann.  ¤  29-20-202.  3


                   Tenn.  Code  Ann.  ¤  29-20-203.  4


                   Tenn  Code  Ann.  ¤  29-20-204.  5


                   Tenn.  Code  Ann.  ¤  29-20-205.  6 Ann.  ¤  29-20-101. The  General  Assembly  has  only  waived  sovereign  immunity  under  the  GLTA
            in  limited  cases,  such  as  injuries  resulting  from  the  negligent  operation  of  a  motor  vehicle, unsafe  3

            streets  and  highways, dangerous  structures, or  a  negligent  act  or  omission  of  a  local  government  4                 5

            employee  .  Furthermore,  the  decision  to  prohibit  weapons  under  Tenn.  Code  Ann.  ¤  39-17-1359(a)  6

            is  a  discretionary  function  of  a  local  government. Tenn.  Code  An.  ¤  29-20-205(1)  makes  local
            governments  immune  from  suits  arising  out  of  Òthe  exercise  or  performance  or  the  failure  to  exercise
            or  perform  a  discretionary  function,  whether  or  not  the  discretion  is  abused.Ó 
                  A  victim  of  a  criminal  act  may  be  eligible  for  compensation  from  the  State  if  he  or  she
            qualifies  under  the  Criminal  Injuries  Compensation  Act,  Tenn.  Code  Ann.  ¤¤  29-13-101  Ñ  29-13-
            411.




                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       LIZABETH  A.  HALE
                                                       Assistant  Attorney  General
            Requested  by:
                  Honorable  Mae  Beavers
                  State  Senator,  17th  District
                  War  Memorial  Building,  Suite  320
                  Nashville,  TN  37243-0223



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  9,  2004
                                      Opinion  No.  04-021
          Authority  of  the  Alcoholic  Beverage  Commission  to  Promulgate  Rules  Providing  for  Limited
          Denials  of  Alcohol  Server  Permits

                                         QUESTION

                Pursuant  to  Tenn.  Code  Ann.  ¤  57-3-710,  does  the  Alcoholic  Beverage  Commission  have
          the authority to promulgate regulations that would authorize it, in specifically delineated
          circumstances  where  server  permits  are  denied  under  this  chapter,  and  where  revocation  is  not
          mandatory,  to  exercise  its  discretion  under  Tenn.  Code  Ann.  ¤  57-3-214(a)  to  suspend  the  ability  to
          receive  a  server  permit  for  a  length  of  time  to  be  determined  if  denial  of  the  permit  would  impose
          too  drastic  a  penalty  under  the  circumstances? 

                                         OPINION

                No.  Neither  Tenn.  Code  Ann.  ¤57-3-710  nor  the  statute  governing  server  issuance  and  denial
          of  server  permits,  Tenn.  Code  Ann.  ¤  57-3-704,  authorizes  the  Alcoholic  Beverage  Commission  to
          promulgate  a  rule  that  would  allow  the  commission  to  grant  a  server  permit  and  immediately  suspend
          it  for  a  specific  length  of  time. 

                                         ANALYSIS

                The  Commission  has  asked  whether  it  has  the  authority  to  promulgate  rules  allowing  it  to
          grant  and  immediately  suspend  a  server  permit,  rather  than  denying  the  permit,  when  outright  denial
          would  be  too  drastic  under  the  circumstances.  While  administrative  agencies  have  discretion  in  the
          promulgation  of  rules,  that  discretion  is  subject  to  limits. Administrative  agencies  must  have
          statutory  authority  for  the  rules  they  promulgate. Tennessee  Cable  Television  Assn.  v.  PSC,  844
          S.W.2d  151  (Tenn.  App.  1992). 
                The  statute  providing  discretion  to  the  Commission  in  permit  revocation  cases  is  Tenn.  Code
          Ann.  ¤  57-3-214(a),  which  states:
                     Whenever,  under  this  chapter,  the  commission  is  authorized  to  revoke
                     a  license  or  permit  issued  by  it,  except  in  those  cases  where
                     revocation  is  mandatory,  it  may,  if,  in  its  discretion,  it  feels  that
                     revocation  of  the  license  or  permit  is  too  drastic  a  penalty,  suspend
                     the  license  or  permit,  and  the  procedure  for  such  suspension  and



            Page  2












































                   As  shown  by  other  statutes,  the  legislature  knows  how  to  provide  for  the  denial,  suspension  and  revocation  1

            of  licenses  in  a  single  statute  when  it  intends  to  do  so. See,  e.g.,  Tenn.  Code  Ann  ¤  48-2-112  (denial,  revocation,
            suspension,  cancellation  or  withdrawals  of  securities  broker-dealer,  agent  and  investment  advisor  registrations).  The
            provision  of  a  separate  statute  to  govern  the  grant  or  denial  of  such  permits  is  further  evidence  that  the  legislature  did
            not  intend  to  regulate  the  denial  of  alcohol  servers  permits  under  Tenn.  Code  Ann.  ¤  57-3-214(a)  . review  of  such  suspension  order  shall  be  the  same  as  that  prescribed
                        herein  for  revocation  of  licenses  or  permits  issued  under  this  chapter.
            By  its  terms,  that  statute  authorizes  suspensions  of  licenses  in  cases  where  revocation  would  be
            unduly  harsh. That  provision  makes  no  mention  of  denials  of  licenses  or  permits. Under  rules  of
            statutory  construction,  the  express  mention  of  one  subject  excludes  others  that  are  not  mentioned.

            State  v.  Peele,  58  S.W.3d  701  (Tenn.  2001). Since  the  statute  mentions  suspension  as  a  substitute  1

            for  revocation,  but  not  as  a  substitute  for  denial,  the  statute  gives  the  Commission  no  power  to
            impose  a  suspension  instead  of  denying  the  permit. 
                        The  request  asks  whether  the  Commission  can  use  its  broad  rule-making  authority
            to promulgate  a  rule  to  accomplish  what  the  statute  does  not  contemplate.  The  request  cites  Tenn.
            Code  Ann.  ¤  57-3-710,  which  gives  the  Commission  broad  authority  to  promulgate  rules  to
            implement  the  statutes  governing  the  issuance  of  alcohol  servers  permits.  It  is  a  fundamental
            principle  of  administrative  law  that  agencies  have  no  authority  to  promulgate  rules  that  would
            conflict  with  or  modify  the  enabling statutes. Tasco  Building  &  Development  Corp.  v.  Long,  212
            Tenn.  96,  368  S.W.2d  65  (1963). 
                  Such  a  rule  would  also  conflict  with  the  provisions  of  another  applicable  statute. Tenn.  Code
            Ann.  ¤  57-3-704  governs  the  grant  or  denial  of  servers  permits. It  states:
                        Any  individual  may  be  eligible  for  a  server  permit  by  completing  an
                        application  for  such  permit  on  the  forms  provided  by  the  commission.
                        An  applicant  for  a  server  permit  must  demonstrate  to  the  commission
                        that  the  applicant  meets  the  following  requirements: 
                        (1)  The  applicant  has  not  been  convicted  of  any  felony  within  the
                        previous  four  (4)  years; 
                        (2)  The  applicant  has  not  been  convicted  of  any  crime  relating  to  the
                        sale  of  alcoholic  beverages,  beer,  schedules  1  and  2  controlled
                        substances  or  any  sex-related  crime  or  embezzlement  within  the
                        previous  eight  (8)  years; 
                        (3)  The  applicant  has  not  had  an  employee  or  server  permit  or  similar
                        permit issued in a foreign jurisdiction revoked by any issuing
                        authority  within  the  previous  five  (5)  years; 
                        (4)  The  applicant  has  not  had  any  ownership  interest  in  any  licensee
                        or permittee, licensed or permitted pursuant to ¤ 57-3-203, ¤
                        57-3-204,  ¤  57-4-101  or  ¤  57-5-103  which  has  had  its  license  or



            Page  3
                        permit  revoked  by  the  issuing  authority  within  the  previous  eight  (8)
                        years; 
                        (5)  Within  one  (1)  year  prior  to  the  submission  of  the  application  the
                        applicant  has  successfully  completed  a  program  of  alcohol  awareness
                        training  for  persons  involved  in  the  direct  service  of  alcohol,  wine  or
                        beer  by  an  entity  certified  by  the  commission  to  have  an  adequate
                        training  curriculum  for  alcohol  awareness.  If,  in  the  determination  of
                        the  commission,  a  state  other  than  Tennessee  is  deemed  to  have  an
                        adequate  program  of  alcohol  awareness  training,  then  the  successful
                        completion  of  such  training  in  that  state  within  one  (1)  year  prior  to
                        the  submission  of  an  application  to  the  commission  for  a  server
                        permit  shall  satisfy  the  requirement  of  alcohol  awareness  training;  and
                        (6)  The  applicant  is  at  least  eighteen  (18)  years  of  age. 
                  Reading  Tenn.  Code  Ann.  ¤  57-3-704  together  with  Tenn.  Code  Ann.  ¤  57-3-710  indicates
            that  the  Commission  does  not  have  the  authority  to  promulgate  rules  to  provide  for  the  suspension
            of  the  ability  to  receive  a  permit  in  lieu  of  an  outright  denial.  Subsections  (1)  through  (4) set  forth
            grounds  for  denial  based  on  events  that  occurred  within  specific  time  periods.  The  promulgation  of
            a  rule  that  would  allow  a  person  to  receive  a  permit  before  the  expiration  of  those  time  periods  would
            modify  the  substantive  provisions  of  those subsections  and  would  therefore  be  invalid.  The  other
            two  subsections  provide  training  and  age  requirements,  and  there  is  nothing  in  those  provisions  that
            would  authorize  the  Commission  to  modify  them  by  rule. 



                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       MICHAEL  A.  MEYER
                                                       Assistant  Attorney  General
            Requested  by:
                  Shari  Danielle  Elks
                  Executive  Director
                  Alcoholic  Beverage  Commission
                  206  Capitol  Boulevard,  Suite  300
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  11,  2004
                                      Opinion  No.  04-022
          Remote-Controlled  Railroad  Locomotives

                                         QUESTION

                Under  existing  law,  are  remote-controlled  locomotives  authorized  in  Tennessee?


                                         OPINION

                Yes. Tennessee  law  relative  to  railroad  safety  has  been  largely  preempted  by  the  Federal
          Railroad  Safety  Act,  and  federal  regulations  promulgated  by  the  Secretary  of  Transportation  permit
          and  regulate  remote-controlled  locomotives.


                                         ANALYSIS

                This  opinion  addresses  whether  remote-controlled  locomotives  are  authorized  in  Tennessee
          under  existing  law. In  your  letter,  you  define  a  remote-controlled  locomotive  to  be  a  locomotive
          Òthat  through  the  use  of  a  radio  transmitter  and  receiver  can  be  operated  by  a  person  not  physically
          located  at  the  controls  within  the  confines  of  the  locomotive  cab.Ó  You  also  cite  three  state  statutes
          and  question  their  impact  on  this  issue,  such  as  the  requirement  that  a  locomotive  engineer's  operator
          permit  is  required  prior  to  lawful  operation  (Tenn.  Code  Ann.  ¤  65-6-134),  that  this  engineerÕs
          operator  permit  is  required  to  be  carried  by  the  operator  at  all  times  during  the  operation  of  the
          locomotive  (Tenn.  Code  Ann.  ¤  65-12-115),  and  that  an  engineer,  fireman  or  other  person  is  required
          to  be  located  upon  the  locomotive  as  a  precaution  for  the  prevention  of  accidents  (Tenn.  Code  Ann.
          ¤  65-12-108(3)).  The  first  two  statutes  concern  the  certification  and  licensing  of  any  person  who
          operates  a  locomotive.  Tenn.  Code  Ann.  ¤  65-6-134  provides:
                     Every  company,  association,  person  or  other  entity  which  employs  or
                     permits  any  person  to  operate  a  railroad  locomotive  shall  issue  to
                     such  person  an  engineer's  operator  permit.  Such  permit  shall  include
                     the engineer's name, address, description, date of birth and a
                     certification  that  such  person  is  qualified  as  a  locomotive  engineer. 
          Additionally,  this  engineerÕs  operator  permit  is  required  to  be  carried  by  the  operator  at  all  times
          during  the  operation  of  the  locomotive:



            Page  2

                        Every  person  who  operates  a  railroad  locomotive  in  this  state  shall
                        carry  on  such  operator's  person  while  operating  such  locomotive  an
                        engineer's  operator  permit.
            Tenn.  Code  Ann.  ¤  65-12-115. Therefore,  to  operate  a  locomotive  legally  under  these  provisions,
            whether  in  person  or  by  remote-control  (using  a  radio  transmitter  and  receiver  or  other  such  device),
            the  locomotive  operator  must  have  qualified  for,  been  issued,  and  carry  a  valid  engineer's  operator
            permit  at  all  times  during  such  operation.
                  Not  contemplating  the  possibility  of  operation  by  remote-control,  the  framers  of  these  acts
            doubtless  envisioned  that  the  operator  of  a  locomotive,  on  whose  person  the  engineer  operatorÕs
            permit  is  required  to  be  carried,  would  likewise  be  Òat  the  controls  within  the  confines  of  the
            locomotive  cab.Ó  The  statute  does  not  expressly  require  this,  however. It  is  our  understanding  that
            operators  of  remote-controlled  locomotives  function  inside  a  fairly  confined  train  yard  within  close
            proximity  of  the  locomotive  they  are  operating. An  obvious  purpose  of  ¤  65-12-115  is  to  provide
            that  a  train  inspector  will  immediately  be  able  to  identify  the  person  who  is  operating  the  train  and
            determine  that  he  is  qualified  to  do  so.  This  purpose  is  not  impeded  if  the  operator  is  not  physically
            on  the  train  but  is  in  close  enough  proximity  that  his  identity  can  be  readily  determined  and  his
            credentials  can  be  inspected  when  one  observes  the  operation  of  the  train. Accordingly,  we  do  not
            read  these  licensing  statutes  to  prohibit  an  engineer,  who  has  a  valid  engineerÕs  operator  permit  on
            his  person,  from  operating  a  train  in  close  physical  proximity  by  remote  control.
                  However,  the  third  statute  you  referenced,  Tenn.  Code  Ann.  ¤  65-12-108,  states  that  an
            engineer,  fireman  or  other  person  is  required  to  be  located  Òupon  the  locomotiveÓ  as  a  precaution  for
            the  prevention  of  accidents:
                        Every  railroad  company  shall  keep  the  engineer,  fireman,  or  some
                        other  person  upon  the  locomotive,  always  upon  the  lookout  ahead;
                        and  when  any  person,  animal,  or  other  obstruction  appears  upon  the
                        road,  the  alarm  whistle  shall  be  sounded,  the  brakes  put  down,  and
                        every  possible  means  employed  to  stop  the  train  and  prevent  an
                        accident  .  .  .  .
            Tenn.  Code  Ann.  ¤  65-12-108(3). Whether  the  locomotive  operator  is  physically  located  at  the
            controls  within  the  confines  of  the  locomotive  cab  or  operating  the  locomotive  from  outside  via
            remote-control,  this  subsection  mandates  that  somebody,  be  it  an  engineer,  fireman,  or  some  other
            person  always  be  on  the  lookout,  as  well  as  be  in  a  position  to  sound  the  alarm  whistle,  apply  the
            brakes,  and  do  whatever  else  is  necessary  to  stop  the  train  and  prevent  an  accident.  Furthermore,  this
            subsection  appears  to  require  that  such  person  Òupon  the  lookout  aheadÓ  be  located  upon  the
            locomotive.  It  is  our  understanding,  however,  that  remote-controlled  locomotives  sometimes  have
            no  one  at  all  on  board. Thus,  this  Tennessee  statute  may  present  an  additional  requirement  on  the
            remote-controlled  operation  of  locomotives,  even  though  it  does  not  expressly  forbid  such  operation.



            Page  3

                  Nevertheless,  in  the  final  analysis  these  existing  Tennessee  statutes  do  not  control  the  answer
            to  your  question. Tennessee  state  law,  regulations  and  orders  relative  to  railroad  safety  have  been
            largely  preempted  by  the  Federal  Railroad  Safety  Act  (ÒFRSAÓ),  specifically  49  U.S.C.A.  ¤  20106,
            which  states:
                        Laws,  regulations,  and  orders  related  to  railroad  safety  and  laws,
                        regulations,  and  orders  related  to  railroad  security  shall  be  nationally
                        uniform  to  the  extent  practicable. A  State  may  adopt  or  continue  in
                        force  a  law,  regulation,  or  order  related  to  railroad  safety  or  security
                        until  the  Secretary  of  Transportation  (with  respect  to  railroad  safety
                        matters),  or  the  Secretary  of  Homeland  Security  (with  respect  to
                        railroad  security  matters),  prescribes  a  regulation  or  issues  an  order
                        covering  the  subject  matter  of  the  State  requirement. A  State  may
                        adopt  or  continue  in  force  an  additional  or  more  stringent  law,
                        regulation,  or  order  related  to  railroad  safety  or  security  when  the  law,
                        regulation,  or  orderÑ
                               (1) is  necessary  to  eliminate  or  reduce  an  essentially
                               local  safety  or  security  hazard;
                               (2) is  not  incompatible  with  a  law,  regulation,  or
                               order  of  the  United  States  Government;  and
                               (3)   does not unreasonably burden interstate
                               commerce.
            49  U.S.C.A.  ¤  20106.  Furthermore,  the  Secretary  of  Transportation  has  prescribed  safety  regulations
            that  address  major  aspects  of  this  subject  matter.  For  federal  preemption  purposes,  these  regulations
            Òoccupy  the  fieldÓ  concerning  the  training,  qualification  and  certification  of  all  locomotive  engineers.
            The  section  entitled  ÒPreemptive  effect  and  constructionÓ  declares  the  specific  intent  of  these
            regulations  concerning  federal  preemption:
                        Under  49  U.S.C.  20106,  issuance  of  the  regulations  in  this  part
                        preempts  any  State  law,  regulation,  or  order  covering  the  same
                        subject  matter,  except  an  additional  or  more  stringent  law,  regulation,
                        or  order  that  is  necessary  to  eliminate  or  reduce  an  essentially  local
                        safety  hazard;  is  not  incompatible  with  a  law,  regulation,  or  order  of
                        the  United  States  Government;  and  does  not  impose  an  unreasonable
                        burden  on  interstate  commerce.
            49 C.F.R.  ¤  240.5(a). In  addition,  federal  regulations  at  49  C.F.R.  pt.  240,  relative  to  the
            ÒQualification  and  Certification  of  Locomotive  EngineersÓ  govern,  among  other  things,  all  aspects



            Page  4















































                    49  U.S.C.A.  ¤  20701.  1 of  the  training  and  licensing  of  locomotive  engineers.  This  would  obviously  include  the  training  and
            certification  of  remote-controlled  operators. These  federal  regulations  include  a  very  similar
            provision  to  the  second  Tennessee  certification  and  licensing  statute,  Tenn.  Code  Ann.  ¤  65-12-115,
            discussed  above. 49  C.F.R.  ¤  240.305(b)  provides:
                        (b)  Each  locomotive  engineer  who  has  received  a  certificate  required
                        under  this  part  shall:
                               (1)  Have  that  certificate  in  his  or  her  possession  while
                               on  duty  as  an  engineer  .  .  .  .
            This  federal  regulation  clearly  preempts  Tenn.  Code  Ann.  ¤  65-12-115,  because  it  covers  the  same
            subject  matter  and  occupies  the  field.  The  StateÕs  requirement  that  the  engineer  carry  the  engineer's
            operator  permit  on  oneÕs  person  while  operating  a  locomotive  is  virtually  identical  in  meaning,  and
            the  federal  regulation  clearly  has  not  been  construed  to  prohibit  remote-controlled  locomotives. So
            to,  Tenn.  Code  Ann.  ¤  65-6-134  has  been  essentially  preempted  by  the  certification  program,  the
            numerous  evaluation  procedures  and  the  other  training  specified  and  required  by  49  C.F.R.  ¤  240.101

            et  seq.

                  Tenn.  Code  Ann.  ¤  65-12-108(3),  entitled  ÒPrecautions  required  for  prevention  of  accidents,Ó
            presents  a  closer  call.  While  not  prohibiting  remote-controlled  operation  of  a  locomotive  per  se,  this
            subsection  could  be  read  to  require  someone  other  than  the  remote-control  operator  to  be  ÒuponÓ  the
            locomotive,  i.e.,  within  the  confines  of  the  locomotive  cab.  The  overarching  purpose  of  this  statute,
            however,  is  that  a  person,  whether  the  operator  or  someone  else,  always  be  on  the  lookout  ahead  to
            prevent  accidents. During  operation,  the  remote-control  operator  is  always  on  the  lookout  ahead,
            whether  on  the  ground  or  in  the  locomotive  cab. The  other  purpose  of  this  statute  is to  ensure  that
            a  person  is  in  a  position  to  sound  the  alarm  whistle,  apply  the  brakes  and  stop  the  train. All  three  of
            these  functions  can  be  easily  carried  out  by  the  remote-control  operator,  through  his  remote-control
            transmitter,  which  along  with  the  other  remote-control  equipment,  is  subject  to  comprehensive
            federal  regulations  (see  below).  As  such,  the  StateÕs  requirement  that  another  person  must  physically
            be  within  the  locomotive  cab  appears  to  be  preempted  by  the  following  federal  law  and  regulations.
                  The  Locomotive  Inspection  Act  (ÒLIAÓ),  codified  at  49  U.S.C.A.  ¤  20701  et  seq.,  mandates
            federal  standards  and  requirements  for  locomotives  concerning  their  safe  use,  necessary  inspections,
            repairs,  inspection  and  repair  reports,  accident  reports  and  investigations  involving  locomotive
            accidents. Only  when  a  number  of  safety  conditions  have  been  satisfied  does  the  LIA  allow  a
            railroad  to  use  a  Ò  locomotive  or  tender  and  its  parts  and  appurtenances  .  .  .  .Ó  As  used  in  49  1

            U.S.C.A.  ¤  20701,  Òparts  and  appurtenancesÓ  would  include  the  remote-control  transmitter,  remote-control 
                  receiver  and  any  other  equipment  necessary  for  remote-controlled  operation. This  section
            further  authorizes  the  Secretary  of  Transportation  to  prescribe  regulations  pertaining  to  the  proper
            condition,  the  safe  operation,  and  the  inspection  and  testing  of  all  railroad  locomotive  equipment.



            Page  5












































                   See  Control  of  locomotives,  49  C.F.R.  ¤  229.13.  ÒExcept  when  a  locomotive  is  moved  in  accordance  with  2

            ¤  229.9,  whenever  two  or  more  locomotives  are  coupled  in  remote  or  multiple  control,  the  propulsion  system,  the
            sanders,  and  the  power  brake  system  of  each  locomotive  shall  respond  to  control  from  the  cab  of  the  controlling
            locomotive  .  .  .  .Ó See  49  C.F.R.  pt.  229  relative  to  ÒRailroad  Locomotive  Safety  StandardsÓ;  in  addition  to  other  things,
            this  part  specifically  regulates  the  operation  and  inspection  of  all  locomotive  equipment,  which
            would  include  all  equipment  used  for  operation  by  remote  control.2


                  Finally, on February 1, 2001, the Federal Railroad Administration (ÒFRAÓ) of the
            Department  of  Transportation  issued  its  Notice  of  Safety  Advisory  2001-01  which  established
            recommended  minimal  guidelines  for  the  operation  of  remote-controlled  locomotives. This  Notice
            was  published  in  the  Federal  Register,  see  66  Fed.  Reg.  10340  (February  14,  2001);  a  copy  is
            attached  to  this  Opinion. The  following  paragraph  is  pertinent  to  your  question:
                        Safety  Advisory  2001-01
                        Recommendation:  Operation  of  Remote  Control  Locomotives
                        The following design criteria and operating procedures are
                        recommendations only.  Compliance is voluntary.  However,
                        railroads  are  strongly  encouraged  to  regard  these  suggested  criterion
                        as  a  minimum  from  which  to  tailor  their  own  RCL  [Remote  Control
                        Locomotive]  operations. It  should  be  noted  that  all  of  the  design
                        features  recommended  are  available  with  the  current  generation  of
                        remote  control  technology. In  certain  circumstances,  due  to  the
                        design  of  their  equipment,  or  differences  in  operating  practices,  a
                        railroad  may  not  be  able  to  obtain  complete  consistency  with  these
                        recommendations. In  those  situations  railroads  are  encouraged  to
                        develop alternative designs or practices which offer at least
                        equivalent  or  greater  levels  of  safety.  FRA  emphasizes  that  although
                        compliance  with  this  Safety  Advisory  is  voluntary,  nothing  in  this
                        Safety  Advisory  is  meant  to  relieve  a  railroad  from  compliance  with
                        all existing railroad safety regulations.   Therefore, when
                        procedures  required  by  regulation  are  cited  in  this  Safety  Advisory,
                        compliance  is  mandatory.

            66  Fed.  Reg.  10343  (February  14,  2001)  (emphasis  added).  Neither  Tennessee  state  law,  the  FRSA,
            nor  U.S.  Department  of  Transportation  rules,  regulations,  or  orders  prohibit  remote-controlled
            locomotives  per  se,  and  the  FRA  has  devoted  significant  effort  in  drafting  these  recommended
            minimal  guidelines  for  the  safe  operation  of  remote-controlled  locomotives.



            Page  6
                  While  the  federal  regulatory  scheme  controls  the  operation  of  all  locomotives,  it  specifically
            prohibits  certain  conduct  relative  to  such  operation. See  49  C.F.R.  ¤  240.305(a). Additionally,
            pursuant  to  this  federal  scheme,  the  FRA  regulates  all  locomotive  equipment  and  all  engineer
            operating  permits,  which  includes  remote-control  transmitters  and  receivers  as  well  as  permit
            certification for remote-control operators.  Accordingly, the Secretary  of Transportation has
            prescribed  regulations  on  this  subject  matter  that  appear  to  be  comprehensive  enough  to  occupy  the
            field.  Because  of  49  U.S.C.A.  ¤  20106,  49  U.S.C.A.  ¤  20701  et  seq.,  49  C.F.R.  pt.  240,  49  C.F.R.
            pt.  229,  and  the  FRA  guidelines  for  the  operation  of  remote-controlled  locomotives,  it  is  the  opinion
            of  this  Office  that  the  related  Tennessee  statutes  are  preempted.  Tennessee  may  not  adopt  a  railroad
            safety  law  concerning  the  operation  of  remote-controlled  locomotives  unless  it  is  necessary  to
            eliminate  or  reduce  an  essentially  local  safety  hazard.  This  Office  is  not  aware  of  any  safety  hazard
            peculiar  to  Tennessee  that  could  be  taken  to  justify  special  rules  concerning  the  operation  of  remote-controlled 
                     locomotives  within  this  state. Therefore,  there  is  no  prohibition  on  remote-controlled
            locomotives  in  Tennessee.






                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       GARY  R.  HOTVEDT
                                                       Assistant  Attorney  General

            Requested  by:
                  The  Honorable  Sherry  Jones
                  State  Representative
                  108  War  Memorial  Building
                  Nashville,  TN  37243-0159



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  12,  2004
                                      Opinion  No.  04-023
          Constitutionality  of  notice  requirement  for  write-in  candidates

                                         QUESTION

                Whether  subsection  (i)  of  Tenn.  Code  Ann.  ¤  2-7-133,  which  requires  a  person  attempting
          to  be  elected  by  write-in  ballots  to  complete  a  notice  requesting  such  personÕs  ballots  be  counted  in
          each  county  of  the  district  no  later  than  twenty  days  before  the  general  election,  is  constitutional?

                                         OPINION

                It  is  the  opinion  of  this  Office  that  Tenn.  Code  Ann.  ¤  2-7-133(i)  is  constitutionally
          defensible.

                                         ANALYSIS

                In  2003,  the  Legislature  amended  Tenn.  Code  Ann.  ¤  2-7-133  to  add  subsection  (i),  which
          provides  as  follows:
                     Any  person  attempting  to  be  elected  by  write-in  ballots  shall  complete
                     a  notice  requesting  such  personÕs  ballots  be  counted  in  each  county
                     of  the  district  no  later  than  twenty  (20)  days  before  the  general
                     election. Such  person  shall  only  have  votes  counted  in  counties
                     where  such  notice  was  completed  and  timely  filed.  The  notice  shall
                     be  on  a  form  prescribed  by  the  coordinator  of  elections  and  shall  not
                     require  signatures  of  any  person  other  than  the  write-in  candidate
                     requesting  ballots  be  counted. The  coordinator  of  elections  shall
                     distribute  such  form  to  the  county  election  commission.
          You  have  asked  whether  this  provision  is  constitutional,  particularly  in  light  of  the  fact  that  voters
          who  write  in  the  name  of  a  candidate  will  not  have  their  votes  counted  unless  that  individual  has
          complied  with  the  requirements  of  this  provision.
                In  2002,  this  Office  opined  that  similar  legislation  requiring  any  person  trying  to  receive  a
          party  nomination  by  write-in  ballots  to  complete  a  notice  requesting  such  personÕs  ballots  be  counted
          in  each  county  of  the  district  no  later  than  thirty  days  before  a  primary  election  was  constitutionally



            Page  2













































                   The  Legislature  subsequently  amended  Tenn.  Code  Ann.  ¤  2-8-113  in  2003  to  add  such  a  requirement  with  1

            respect  to  write-in  candidates,  except  that  it  shortened  the  time  period  for  filing  from  thirty  (30)  days  before  the  election
            to  twenty  (20)  days  before  the  election,  making  it  virtually  identical  to  the  requirements  of  Tenn.  Code  Ann.  ¤  2-7-
            113(i).  See  Tenn.  Code  Ann.  ¤  2-8-113(c). defensible.  Op.  Tenn.  Atty.  Gen.  02-076  (June  27,  2002). In  that  opinion,  we  noted  that  the  United  1

            States  Supreme  Court  has  held  that  a  state  may  constitutionally  ban  write-in  voting  provided  that  its
            electoral  scheme  provides  sufficient  ballot  access.  See  Burdick  v.  Takushi,  504  U.S.  428,  112  S.Ct.
            2059,  119  L.Ed.2d  245  (1992). In  Burdick,  the  Supreme  Court  established  a  balancing  test  for
            determining  whether  a  state  election  law  passes  constitutional  muster  under  the  First  and  Fourteenth
            Amendments:
                        [u]nder this standard, the rigorousness of our inquiry into the
                        propriety  of  a  state  election  law  depends  upon  the  extent  to  which  a
                        challenged regulation burdens First and Fourteenth Amendment
                        rights.  Thus,  as  we  have  recognized  when  those  rights  are  subjected
                        to  ÒsevereÓ  restrictions,  the  regulation  must  be  Ònarrowly  drawn  to
                        advance  a  state  interest  of  compelling  importance.Ó  But  when  a  state
                        election  law  provision  imposes  only  Òreasonable  nondiscriminatory
                        restrictionsÓ  upon  the  First  and  Fourteenth  Amendment  rights  of
                        voters, Òthe StateÕs important regulatory interests are generally
                        sufficient  to  justifyÓ  the  restrictions.

            Id.  at  434,  112  S.Ct.  at  2059  (citations  omitted). The  Supreme  Court  then  found  that  HawaiiÕs
            overall  general  election  ballot  access  scheme  provided  for  easy  access  to  the  ballot,  even  though  to
            obtain  a  position  on  the  general  election  ballot,  a  candidate  was  required  to  participate  in  HawaiiÕs
            open  primary  through  one  of  three  different  mechanisms. Id.  at  435-436,  112  S.Ct.  at  2064-65.
                  Thus,  under  this  standard  set  forth  in  Burdick,  courts  will  first  review  a  stateÕs  overall  ballot
            access  scheme  to  see  if  it  passes  constitutional  muster. Courts  then  look  to  whether  the  resulting
            presumption  that  the  ballot  access  restriction  is  valid  should  be  overcome. We  think  that  a  court
            applying  this  test  to  the  notice  requirements  of  Tenn.  Code  Ann.  ¤  2-7-133(i)  will  find  such
            provision  to  be  constitutionally  valid.  TennesseeÕs  ballot  access  laws  provide  three  alternatives  for
            a  person  to  gain  access  to  a  general  election  ballot:  as  the  certified  nominee  of  a  recognized  political
            party  (Tenn.  Code  Ann.  ¤¤  2-8-115  and  2-5-101);  as  an  independent  candidate  (Tenn.  Code  Ann.
            ¤  2-5-101(a));  and,  as  a  write-in  candidate  (Tenn.  Code  Ann.  ¤¤  2-5-207(d)(1),  2-5-209(d)  and  2-7-
            117).  In  order  to  qualify  as  an  independent  candidate  in  a  general  election,  all  that  is  required  is  the
            filing  of  a  nominating  petition  signed  by  the  candidate  and  twenty-five  or  more  registered  voters  who
            are  eligible  to  vote  by  the  appropriate  qualifying  deadline. See  Tenn.  Code  Ann.  ¤  2-5-101(a)  and
            (b). 
                  TennesseeÕs  overall  ballot  access  scheme  actually  provides  greater  access  to  a  general
            election  ballot  than  the  scheme  upheld  by  the  Supreme  Court  in  Burdick. Furthermore,  there  are  a



            Page  3
            number  of  state  interests  that  would  be  furthered  by  the  notice  filing  requirement  in  both  Tenn.  Code
            Ann.  ¤¤  2-7-133  and  2-8-113  with  respect  to  write-in  candidates. Those  interests  include  limiting
            the  general  election  to  recognized  parties  and  to  those  parties  and  candidates  that  are  well  supported
            as  evidenced  by  their  ability  to  meet  the  signature  requirements,  focusing  the  voters  on  major  issues
            and  candidates,  and  conserving  state  resources  by  reducing  the  risk  that  resources  will  be  used  to
            count  votes  for  fictitious  candidates  or  those  unwilling  or  unqualified  to  serve  in  public  office. The
            StateÕs  interest  in  voter  education  would  also  be  served  by  encouraging  candidates  and  parties  to
            publicize  their  candidacies  early  enough  to  allow  for  extended  public  debate. These  interests  have
            been  recognized  by  the  Supreme  Court  and  other  federal  courts  as  legitimate  state  interests  that
            outweigh  the  limited  burden  an  outright  ban  on  write-in  voting  places  upon  voters.  See  Burdick,  504
            U.S.  at  439-440,  112  S.Ct.  at  2066-67,  and  Coalition  for  Free  and  Open  Elections  Prohibition  Party
            v.  McElderry,  48  F.3d  493,  499  (10th  Cir.  1995). 
                  Thus,  under  the  standards  set  forth  in  Burdick,  we  think  that  a  court  would  find  that
            TennesseeÕs  ballot  access  laws  are  constitutional  and  that  the  StateÕs  interests  outweigh  the  limited
            burden  that  the  notice  filing  requirements  of  Tenn.  Code  Ann.  ¤¤  2-7-133  and  2-8-113  place  on
            voters  and  write-in  candidates.  Finally,  we  would  note  that  similar  notice  requirements  for  write-in
            candidates  have  been  upheld  as  constitutional  in  other  states. See  Chavez  v.  Hannah,  827  S.W.2d
            100,  102-103  (Tx.Ct.App.  1992)  (noting  that  the  ÒÔstate  has  an  interest,  if  not  a  duty  to  protect  the
            integrity  of  its  political  processes  from  frivolous  or  fraudulent  candidacies  for  election  to  public
            officeÕÓ  and  that  such  a  statute  prevents  Òa  secret  blitzkrieg  campaign  from  being  waged  at  the
            expense  of  the  unknowing  voters  and  honest  candidatesÓ)  and  Cross  v.  Fong  Eu,  430  F.Supp.  1036
            (N.D.Ca.  1977)  (finding  that  California  had  a  legitimate  governmental  interest  in  conserving  its  vote-counting 
                    resources  sufficient  to  require  a  bare  minimum  showing  of  candidate  interest  before  votes
            are  counted).


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       JANET  M.  KLEINFELTER
                                                       Senior  Counsel



            Page  4
            Requested  by:
                  The  Honorable  James  F.  Kyle
                  State  Senator
                  10  Legislative  Plaza
                  Nashville,  TN 37243-0028



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  12,  2004
                                      Opinion  No.  04-024

          Effect  of  Public  Chapter  No.  175  of  the  Acts  of  2003  on  Expungement  of  Records  in  Criminal  Cases.

                                         QUESTION

                Does  Public  Chapter  No.  175  of  the  Acts  of  2003,  amending  Tenn.  Code  Ann.  ¤  40-32-
          101(a)(1)  as  to  the  expungement  of  records  in  criminal  cases,  apply  only  to  Òsexual  offensesÓ  under
          Tenn.  Code  Ann.  ¤  40-39-102(5)  or  to  all  expungeable  cases?

                                         OPINION

                Public  Chapter  No.  175  applies  to  all  expungeable  cases  under  Tenn.  Code  Ann.  ¤  40-32-
          101(a)(1)  and  not  just  to  Òsexual  offensesÓ  defined  under  Tenn.  Code  Ann.  ¤  40-39-102(5).

                                         ANALYSIS

                Prior  to  the  General  AssemblyÕs  enactment  of  Public  Chapter  No.  175,  Tenn.  Code  Ann.  ¤
          40-32-101(a)(1)  read  as  follows:
                All  public  records  of  a  person  who  has  been  charged  with  a  misdemeanor  or  a  felony,
                and  which  charge  has  been  dismissed,  or  a  no  true  bill  returned  by  a  grand  jury,  or  a
                verdict  of  not  guilty  returned  by  a  jury,  and  all  public  records  of  a  person  who  was
                arrested  and  released  without  being  charged,  shall,  upon  petition  by  that  person  to  the
                court  having  jurisdiction  in  such  previous  action,  be  removed  and  destroyed  without
                cost  to  such  person;  however,  the  cost  for  destruction  of  records  shall  apply  where
                the  charge  or  warrant  was  dismissed  in  any  court  as  a  result  of  the  successful
                completion  of  diversion  program  according  to  ¤¤  40-15-102  -  40-15-105;  provided,
                that  such  cost  for  destruction  shall  not  exceed  twenty-five  dollars  ($25.00);  provided,
                that  the  records  of  a  person  who  successfully  completes  a  diversion  program  pursuant
                to  ¤¤  40-15-102  -  40-15-105  shall  not  be  removed  and  destroyed  pursuant  to  this
                section  if  the  offense  for  which  prosecution  was  suspended  was  a  sexual  offense  as
                defined  by  ¤  40-39-102(3)  [now  ¤  40-39-102(5)].
          In  Public  Chapter  No.  175  of  the  Acts  of  2003,  the  General  Assembly  added  the  following  language
          to  the  end  of  the  statute:



            Page  2
                  ;  provided  however,  when  a  defendant  in  a  case  has  been  convicted  of  any  offense  or
                  charge,  including  a  lesser  included  offense  or  charge,  the  defendant  shall  not  be
                  entitled  to  expungement  of  the  records  or  charges  in  such  case  pursuant  to  this  part.
            The  question  now  presented  is  whether  this  most  recent  amendment  applies  over  all  expungeable
            cases  under  Tenn.  Code  Ann.  ¤  40-32-101(a)(1)  or  just  to  Òsexual  offensesÓ  defined  under  Tenn.
            Code  Ann.  ¤  40-39-102(5)  and  mentioned  in  the  last  phrase  of  Tenn.  Code  Ann.  ¤  40-32-101(a)(1).
                  ÒWhen  the  language  contained  within  the  four  corners  of  a  statute  is  plain,  clear  and
            unambiguous,  the  duty  of  the  courts  is  simple  and  obvious,  to  say  six  ex  scripta,  and  obey  it."  Kradel
            v.  Piper  Industries  Inc.,  60  S.W.3d  744,  749  (Tenn.  2001). Here,  Tenn.  Code  Ann.  ¤  40-32-
            101(a)(1)  delineates  the  general  provision  of  law  that  public  records  relating  to  a  defendantÕs  arrest
            and  charge  in  a  criminal  case  are  expungeable,  at  no  cost  to  the  defendant,  if  the  case  is  dismissed,
            if  no  true  bill  of  indictment  is  returned  or  if  the  defendant  is  found  not  guilty  at  a  jury  trial. The
            statute  then  limits  this  general  rule  for  cases  dismissed  upon  a  defendantÕs  completion  of  pre-trial
            diversion,  in  which  case  a  defendant  seeking  expungement  must  pay  up  to  $25  in  costs. The  statute
            then  further  narrows  this  exception,  such  that  public  records  for  a  Òsexual  offenseÓ  dismissed  by  pre-trial 
                diversion  are  not  expungeable  at  all. Public  Chapter  No.  175  now  follows  these  limitations  to
            the  general  rule  under  Tenn.  Code  Ann.  ¤  40-32-101(a)(1)  to  state  definitively  that  a  defendant  may
            not  secure  expungement  if  the  defendant  is  convicted  of  Òany  offense  or  charge,  including  a  lesser
            included  offense  or  charge.Ó 
                  The  only  reasonable  interpretation  is  that  Public  Chapter  No.  175  pertains  to  and  further
            limits  the  general  rule  as  to  all  expungeable  offenses  and  does  not  simply  modify  the  last  phrase  of
            Tenn.  Code  Ann.  ¤  40-32-101(a)(1)  disallowing  expungement  for  Òsexual  offensesÓ  dismissed  by
            pretrial  diversion. In  fact,  there  would  be  no  need  for  Public  Chapter  No.  175  if  it  only  related  to
            Òsexual  offenses,Ó  since  present  law  expressly  forbids  expungement  if  a  defendant  is  convicted  of
            such  an  offense  or  if  a  defendant  receives  dismissal  of  such  a  case  under  pretrial  diversion. 
                  The  primary  purpose  of  statutory  construction  is  Òto  ascertain  and  give  effect  to  the  legislative
            intent  without  unduly  restricting  or  expanding  a  statute's  coverage  beyond  its  intended  scope.Ó

            Owens  v.  State,  908  S.W.2d  923,  926  (Tenn.  1995). According  to  the  Fiscal  Note  prepared  for  the
            Senate  and  House  bills  that  became  Public  Chapter  No.  175,  this  amendment  Òis  in  response  to  [the]
            Supreme  Court  decision  in  State  v.  Adler.Ó In  State  v.  Adler,  92  S.W.3d  397  (Tenn.  2002),  the
            Supreme  Court  applied  Tenn.  Code  Ann.  ¤  40-32-101  in  a  criminal  case  where  the  grand  jury
            indicted  the  defendant  of  one  offense  but  the  jury  at  trial  convicted  the  defendant  of  a  lesser  included
            offense.  The Supreme Court determined that Tenn. Code Ann. ¤ 40-32-101(a) authorizes
            expungement  of  any  records  relating  to  the  greater,  indicted  offense  if  the  defendant  is  merely
            convicted  of  the  lesser  included  offense. Public  Chapter  No.  175  now  clearly  purports  to  override
            that  decision  by  clarifying  under  Tenn.  Code  Ann.  ¤  40-32-101(a)(1)  that  the  records  in  any  criminal
            case  are  not  expungeable  if  the  defendant  is  convicted  of  any  offense  under  the  indictment,  be  it  the
            indicted  offense  or  a  lesser  included  offense.



            Page  3


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       JOHN  H.  BLEDSOE
                                                       Assistant  Attorney  General 
            Requested  by:
                  Honorable  Curtis  Person,  Jr.
                  State  Senator,  31st  District
                  War  Memorial  Building,  Suite  308
                  Nashville,  Tennessee  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  12,  2004
                                      Opinion  No.  04-025
          Protection  from  civil  or  criminal  liability  for  medical  personnel  taking  blood  samples

                                        QUESTIONS

                1.    Do  the  protections  from  criminal  and  civil  liability  that  are  afforded  medical
          personnel  who  draw  blood  for  blood-alcohol  tests  pursuant  to  Tenn.  Code  Ann.  ¤  55-10-406(a)(1)
          apply  when  the  blood  draw  is  taken  from  an  unconscious  suspect  or  taken  by  force  upon  reasonable
          grounds  to  believe  the  suspect  has  committed  aggravated  assault  or  homicide  by  use  of  a  motor
          vehicle?
                2.    If  medical  personnel  are  not  entitled  to  the  immunity  provided  for  in  Tenn.  Code  Ann.
          ¤  55-10-406(a)(1)  in  the  above-stated  circumstances,  are  they  entitled  to  the  same  qualified  immunity
          enjoyed  by  law  enforcement  officers  who  act  in  Ògood  faithÓ?

                                         OPINIONS

                1.    No.  The  statute  only  provides  immunity  for  the  blood  tests  authorized  by  the  statute.
                2.    Yes. If  the  actions  of  medical  personnel  did  not  violate  clearly  established
          constitutional  or  statutory  rights,  they  would  enjoy  qualified  immunity. 

                                         ANALYSIS

                1.    Tenn.  Code  Ann.  ¤  55-10-406  is  TennesseeÕs  Implied  Consent  Statute.  Subsection
          (a)(1)  of  the  statute  provides  that  Ò[a]ny  person  who  drives  any  motor  vehicle  in  the  state  is  deemed
          to  have  given  consent  to  a  test  for  the  purpose  of  determining  the  alcoholic  or  drug  content  of  that
          person's  blood;  provided,  that  such  test  is  administered  at  the  direction  of  a  law  enforcement  officer
          having  reasonable  grounds  to  believe  such  person  was  driving  while  under  the  influence  of  an
          intoxicant  or  drug,  as  defined  in  ¤  55-10-405.Ó Subsection  (a)(3)  permits  a  suspect  to  refuse  to
          submit  to  a  blood  test,  and  if  one  is  administered  while  the  suspect  is  unconscious,  subsection  (b)
          permits  the  suspect  to  refuse  to  consent  to  the  introduction  of  the  blood  tests  at  trial. In  either
          situation,  subsection  (a)(1)  provides  that  medical  personnel  who,  Òacting  at  the  written  request  of
          a  law  enforcement  officer,  withdraw[]  blood  from  a  person  for  the  purpose  of  making  such  test,  shall
          not  incur  any  civil  or  criminal  liability  as  a  result  of  the  withdrawing  of  such  blood,  except  for  any
          damages  that  may  result  from  the  negligence  of  the  person  so  withdrawing.Ó  This  language  clearly
          contemplates  immunity  only  for  the  types  of  blood  tests  provided  for  in  the  statute.



            Page  2













































                   Tenn.  Code  Ann.  ¤  55-10-406(e)  provides  that  Ò[n]othing  in  this  section  shall  affect  the  admissibility  in  1

            evidence,  in  criminal  prosecutions  for  aggravated  assault  or  homicide  by  use  of  a  motor  vehicle  only,  of  any  chemical
            analysis  of  the  alcoholic  or  drug  content  of  the  defendantÕs  blood  which  has  been  obtained  by  any  means  lawful  without
            regard  to  the  provisions  of  this  section.Ó In  contrast  to  55-10-406, both  federal  and  state  case  law  permit  the  drawing  of  blood  for
            blood-alcohol  testing,  even  over  the  objections  of  the  defendant  and  by  force  if  such  force  is
            objectively  reasonable,  when  a  police  officer  has  probable  cause  to  believe  that  the  accused
            committed  the  offense  of  aggravated  assault  or  vehicular  homicide. State  v.  Jordan,  7  S.W.3d  92,
            99  (Tenn.  Crim.  App.  1999)(citing  Schmerber  v.  California,  384  U.S.  757,  770,  86  S.Ct.  1826,  16
            L.Ed.2d  908  (1966)).  However,  the  Jordan  testing  provisions  are  not  incorporated in  Tenn.  Code
            Ann.  ¤  55-10-406;  in  fact,  subsection  (e)  clearly  distinguishes  Jordan  testing  from  the  blood  tests
            provided  for  in  the  statute. Accordingly,  it  is  the  opinion  of  this  office  that  the  immunity  provisions  1

            of  Tenn.  Code  Ann.  ¤  55-10-406  do  not  extend  to  blood  tests  performed  pursuant  to  State  v.  Jordan.

                  2.    However,  medical  personnel  performing  Jordan  blood  testing  would  be  entitled  to
            qualified  immunity. The  defense  of  qualified  immunity  is  available  to  public  officials  whose
            conduct  conforms  to  a  standard  of  objective  legal  reasonableness.  Harlow  v.  Fitzgerald,  457  U.S.
            800,  814,  102  S.Ct.  2727,  2736,  73  L.Ed.2d  396  (1982).  Under  this  standard,  governmental  officials
            performing  discretionary  functions  will  be  shielded  from  liability  for  civil  damages  as  long  as  their
            conduct  does  not  violate  the  clearly  established  constitutional  or  statutory  rights  of  which  a
            reasonable  person  would  have  known.  Id.,  457  U.S.  at  818,  102  S.Ct.  at  2738;  Payne  v.  Breuer,  891
            S.W.2d  200,  202  (Tenn.1994). In  order  for  a  statutory  or  constitutional  right  to  be  "clearly
            established,"  its  contours  must  be  so  clear  that  a  reasonable  official  would  understand  that  what  he
            or  she  is  doing  violates  that  right; the  unlawfulness  of  the  act  must  be  apparent  in  light  of  the
            pre-existing  law.  Malley  v.  Briggs,  475  U.S.  335,  344  45,  106  S.Ct.  1092,  1097-98  (1986).
                  Since  the  law  permits  forcible  blood  tests,  it  cannot  be  said  that  such  would  constitute  a
            violation  of  a  Òclearly  establishedÓ  right. With  regards  to  non-government  employees  performing
            blood  tests  on  behalf  of  the  state,  there  is  a  split  of  authority  regarding  whether  such  agents  enjoy  the
            same  qualified  immunity. No  Tennessee  cases  address  the  subject;  however,  the  Sixth  Circuit  has
            opined  that  agents  working  on  behalf  of  the  state  are  entitled  to  qualified  immunity  when  they  are
            Òprincipally  concerned  with  enhancing  the  public  good,Ó  as  opposed  to  acting  Òfor  the  good  of  the
            pocketbook.Ó  McKnight  v.  Rees,  88  F.3d  417,  424  (6th  Cir. 1996). Since  blood  tests  constitute
            important  evidence in  the  prosecution  of  serious  crimes  and  are  only  initiated  by  a  request  from  a
            law  enforcement  officer,  it  is  the  opinion  of  this  office  that  qualified  immunity  would  shield  private
            medical  personnel  drawing  blood  at  the  stateÕs  request.



            Page  3





                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       DAVID  H.  FINDLEY
                                                       Assistant  Attorney  General
            Requested  by:
                  Honorable  H.  Greeley  Wells,  Jr.
                  District  Attorney  General
                  P.O.  Box  526
                  Blountville,  Tennessee 37617



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202-0207

                                       February  12,  2004
                                      Opinion  No.  04-026
          Interpretation  of  Tenn.  Code  Ann.  ¤41-4-140 

                                        QUESTIONS

                1.    Does  the  Tennessee  corrections  institute (TCI)  have  the  statutory  duty  to  inspect
          detention  facilities  owned  by  political  subdivisions  of  the  state  that  hold  both  county  and  state
          prisoners  and  are  operated  by  private  companies?
                2.    Does  the  Tennessee  corrections  institute  have  the  statutory  duty  to  inspect  all  local
          detention  centers  or  only  those  holding  county  prisoners?

                                         OPINION

                Tenn. Code Ann. ¤41-4-140(a)(3) requires TCI  to inspect all local jails, lock-ups,
          workhouses,  and  detention  facilities  at  least  once  a  year,  regardless  whether  those  facilities  house
          county  prisoners,  state  prisoners,  or  both,  and  regardless  whether  those  facilities  are  operated  by
          private  companies.


                                         ANALYSIS

                Tenn.  Code  Ann.  ¤41-4-140  provides  in  pertinent  part  as  follows:
                (a)  The  Tennessee  corrections  institute  has  the  power  and  duty  to:
                                            *  *  *
                (3)  Inspect  all  local  jails,  lock-ups,  workhouses  and  detention  facilities  at  least  once
                a  year  and  publish  the  results  of  such  inspections.  .  .  .
                                           *  *  * 
                (c)(1)  The  minimum  standards  established  pursuant  to  subsection  (a)  shall  also  apply
                to  any  jail,  lock-up,  or  workhouse  used  for  the  temporary  housing  or  the  incarceration
                of  persons  convicted  or  accused  of  a  state  or  federal  criminal  offense  that  is  owned
                or  operated  in  this  state  by  a  private  person  or  corporation.



            Page  2














































                   Chapter  24  of  title  41  covers  facilities  housing  state  prisoners  operated  by  private  companies  pursuant  to  a  1

            contract  with  the  Tennessee  Department  of  Correction.  (2)  The  institute  also  has  the  duty  to  inspect,  at  least  once  a  year,  all  such  private  jails,
                  lock-ups,  and  workhouses  operating  in  this  state  that  hold  prisoners  of  any  Tennessee
                  jurisdiction  in  the  same  manner  as  is  provided  in  subsection  (a).
                                                  *  *  * 
                  (4)  It  is  a  Class  A  misdemeanor  to  operate  a  private  correctional  facility  in  violation
                  of  this  section. If  the  operator  of  a  private  correctional  facility  is  convicted  of
                  violating  this  subsection  and  the  owner  of  such  facility  is  a  person  or  corporation
                  other  than  the  operator,  such  owner  shall  be  prohibited  from  holding  any  interest  in
                  a  company  or  corporation  that  is  engaged  in  this  state  in  the  temporary  housing  or  the
                  incarceration  of  persons  convicted  or  accused  of  a  state  or  federal  criminal  offense
                  for  a  period  of  two  (2)  years.
                  (5)  The  provisions  of  this  section  shall  not  apply  to  a  private  correctional  facility
                  operated  pursuant  to  chapter  24  of  this  title,  nor  to  a  contract  with  a  political
                  subdivision  of  the  state.
                  ÒThe  cardinal  rule  of  statutory  construction  is  to  effectuate  legislative  intent,  with  all  rules
            of  construction  being  aides  to  that  end.Ó Browder  v.  Morris,  975  S.W.2d  308,  311  (Tenn.  1998). 
            Where  possible,  statutes  should  be  read  in  harmony.  Frazier  v.  East  Tennessee  Baptist  Hospital,  55
            S.W.3d  925,  928  (Tenn.  2001).  ÒStatutes  relating  to  the  same  subject  or  sharing  a  common  purpose
            must  be  construed  together  (Ôin  pari  materiaÕ)  in  order  to  advance  their  common  purpose  or  intent.Ó

            Id.  Whenever  possible,  legislative  intent  is  to  be  ascertained  from  the  natural  and  ordinary  meaning
            of  the  language  used  in  the  statute. ÒWhere  the  plain  language  of  a  statute  does  not  directly  address
            the  issue  or  leads  to  an  absurd  result,  however,  [the  courts]  will  look  beyond  the  language  of  the
            statute  and  adopt  a  reasonable  construction  that  provides  for  harmonious  operation  of  the  laws.Ó

            Lipscomb  v.  Doe,  32  S.W.3d  840,  844  (Tenn.  2000).
                  Read  alone  subsection  (c)(5)  of  Tenn.  Code  Ann.  ¤41-4-140  suggests  that  private  correctional
            facilities  operated  pursuant  to  chapter  24  of  Title  41 and  correctional  facilities  owned  or  operated  1

            by  private  companies  housing  prisoners  pursuant  to  a  contract  with  a  political  subdivision  of  the  state
            are  exempt  from  inspection  by  the  TCI.  However,  that  interpretation  would  mean  that  local  facilities
            operated  by  political  subdivisions  of  the  state  and  private  facilities  not  affiliated  with  a  political
            subdivision  are  subject  to  inspection  but  that  facilities  owned  or  operated  by  private  companies
            pursuant  to  a  contract  with  a  political  subdivision  of  the  state  are  not. This  result  is  contrary  to  the
            intent  of  the  statute  read  as  a  whole.  It  is  the  opinion  of  this  Office  that  the  exemption  in  subsection



            Page  3
            (c)(5),  viewed  against  the  backdrop  of  the  entire  statute,  the  agency  interpretation  and  the  legislative
            history,  is  simply  an  exemption  from  the  criminal  penalties  outlined  in  subsection  (c)(4),  not  an
            exemption  from  inspection  altogether. 
                  Local  facilities  have  been  subject  to  inspection  by  a  state  agency  since  July  1,  1973.  Chapter
            191  of  the  Public  Acts  of  1973.  Subsection  (c)  was  added  effective  July  1,  1987. Chap.  258  of  the
            Public  Acts  of  1987. Minor  amendments  were  made  in  1991  and  1996. Chap.  300  of  the  Public
            Acts  of  1991;  Chap.  1079  of  the  Public  Acts  of  1996. Although  subsection  (c)(5)  states  that  Ò[t]he
            provisions  of  this  section  shall  not  applyÓ  to  certain  private  facilities,  for  the  past  sixteen  (16)  years
            the  agency  has  understood  that  exemption  to  refer  only  to  subsection  (c)(4)  imposing  criminal
            penalties.  (emphasis  added). The  construction  of  a  statute  by  those  charged  with  its  administration
            is  entitled  to  substantial  deference.  Consumer  Adv.  Div.  v.  Greer,  967  S.W.2d  759,  761  (Tenn.  1998);

            Riggs  v.  Burson,  941  S.W.2d  44,  50  (Tenn.  1997). Legislative  debate  makes  clear  that  the  intent
            of  the  bill  was  to  ensure  that  the  standards  that  applied  to  public  jails  and  workhouses  also  applied
            to  private  jails  and  workhouses. Prompting  the  legislation  was  a  jail  in  Coffee  County  that  the
            General Assembly believed should be inspected. The jail, operated by a private prisoner
            transportation  company,  was  used  for  holding  prisoners  temporarily.
                  The  second  question  asked  is  whether  the  Tennessee  corrections  institute  has  the  statutory
            duty  to  inspect  all  local  detention  centers  or  only  those  holding  county  prisoners. Tenn.  Code  Ann.
            ¤41-4-140(a)(3)  &  (c)  requires  inspection  of  all  local  jails,  lock-ups,  workhouses  and  detention
            facilities  at  least  once  a  year. The  only  exemption  in  the  statute  is  for  Òstate  institutions.Ó Tenn.
            Code  Ann.  ¤41-4-140(a)(4). 




                                                       PAUL  G.  SUMMERS
                                                       Attorney  General  and  Reporter

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       KIMBERLY  J.  DEAN
                                                       Deputy  Attorney  General



            Page  4
            Requested  by:
                  C.  David  Hensley
                  Executive  Director
                  Tennessee  Corrections  Institute
                  Andrew  Jackson  Bldg.,  5th  Floor
                  500  Deaderick  Street
                  Nashville,  Tennessee  37243-1420



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  12,  2004
                                      Opinion  No.  04-027
          Constitutionality  of  S.B.  2074/H.B.  2146,  Authorizing  Coffee  County  to  Levy  a  Privilege  Tax  on
          ÒLarge  EventsÓ

                                         QUESTION

                Is  S.B.  2074/H.B.  2146,  authorizing  Coffee  County  to  levy  a  privilege  tax  on  persons  who
          attend  a  Òlarge  event,Ó  constitutional?


                                         OPINION

                Yes.  It  is  the  opinion  of  this  Office  that  the  Legislature,  by  private  act  such  as  that  proposed
          through  S.B.  2074/H.B.  2146,  may  authorize  Coffee  County  to  levy  a  privilege  tax  on  those  who
          attend  a  large  event.  The  experience  of  Coffee  County  with  such  events,  as  recited  in  the  preamble
          to  the  bill,  affords  a  reasonable  basis  for  the  Legislature  to  distinguish  Coffee  from  other  counties
          in  this  regard. It  would  be  advisable,  however,  to  define  a  Òlarge  eventÓ  by  more  objective
          standards,  since  the  bill  as  presently  written  could  be  too  vague  for  enforcement  under  certain
          circumstances.


                                         ANALYSIS

                S.B.  2074/H.B.  2146  would,  through  the  mechanism  of  a  private  act,  authorize  Coffee
          County  to  levy  a  privilege  tax  on  persons  attending  a  large  event.  The  tax,  which  could  be  imposed
          by  the  County  Commission,  would  equal  five  percent  of  the  price  of  admission  to  the  large  event
          and  would  be  collected  by  the  county  trustee  from  the  operator  of  such  an  event.  The  bill  defines
          a  Òlarge  eventÓ  as  Òany  commercial  endeavor  where  admission  is  charged  and  more  than  fifty
          thousand  (50,000)  persons  are  expected  to  attend  within  a  continuous  seven-day  period  in  Coffee
          County.Ó
                While  the  bill  places  the  incidence  of  the  tax  on  the  consumer  attending  a  large  event,  it
          would  be  collected  by  the  operator  of  the  event  and  remitted  by  him  to  the  county  trustee. The
          operation  of  the  tax  thus  closely  resembles  that  of  the  sales  tax  on  amusements  which  is  imposed  by
          Tenn.  Code  Ann.  ¤  67-6-212  on  a  statewide  basis  and  which  may  include  a  county  component
          through  the  local  option  sales  tax  provisions.  See  Tenn.  Code  Ann.  ¤¤  67-6-701  et  seq.  While  the
          incidence  of  the  sales  tax  is  clearly  on  the  vendor,  see  Beare  Co.  v.  Olsen,  711  S.W.2d  603  (Tenn.



            Page  2
            1986);  Reimann  v.  Huddleston,  883  S.W.2d  135  (Tenn.  Ct.  App.  1993),  in  practical  effect  this  tax
            would  operate  much  like  the  sales  tax.
                  Because  the  proposed  private  act  allows  Coffee  County  to  impose  a  different  and  higher  tax
            on  certain  amusements  than  is  otherwise  authorized  by  general  law,  it  must  be  measured  against  the
            standard  of  Article  XI,  ¤8  of  the  Tennessee  Constitution. Polk  County  v.  Rogers,  85  S.W.3d  781
            (Tenn.  Ct.  App.  2002);  Nolichuckey  Sand  Co.  v.  Huddleston,  896  S.W.2d  782  (Tenn.  Ct.  App.  1994);
            Op.  Tenn.  Atty.  Gen.  No.  03-134  (Oct.  8,  2003);  Op.  Tenn.  Atty.  Gen.  No.  96-032  (Apr.  10,  1996).
            That  section  provides:
                        The  Legislature  shall  have  no  power  to  suspend  any  general  law  for
                        the  benefit  of  any  particular  individual,  nor  to  pass  any  law  for  the
                        benefit  of  individuals  inconsistent  with  the  general  laws  of  the  land;
                        nor  to  pass  any  law  granting  to  any  individual  or  individuals,  rights,
                        privileges,  immunitie[s]  or  exemptions  other  than  such  as  may  be,  by
                        the  same  law  extended  to  any  member  of  the  community,  who  may
                        be  able  to  bring  himself  within  the  provisions  of  such  law.
            This  guarantee  resembles  the  Equal  Protection  Clause  of  the  Fourteenth  Amendment  of  the  federal
            Constitution.  These  provisions  foster  general  laws.  But  they  do  not  require  things  that  are  different
            to  be  treated  the  same. The  courts  have  determined  that  a  statutory  exception  to  a  general  law  is
            valid  if  the  Legislature  could  have  had  a  reasonable  basis  for  treating  the  objects  of  the  exception
            differently  from  the  general  run  of  things.  See  State  v.  Tester,  879  S.W.2d  823,  828  (Tenn.  1994);

            City  of  Memphis  v.  International  Bhd.  of  Elec.  Workers  Union  Local  1288,  545  S.W.2d  98,  102
            (Tenn.  1976);  King-Bradwall  Partnership  v.  Johnson  Controls,  Inc.,  865  S.W.2d  18,  21  (Tenn.  Ct.
            App.  1993);  Town  of  Huntsville  v.  Duncan,  15  S.W.3d  468,  472  (Tenn.  Ct.  App.  2000). The
            Supreme  Court  articulated  these  principles  in  Doe  v.  Norris,  751  S.W.2d  834,  840-42  (Tenn.  1988),
            as  follows:
                              The  concept  of  equal  protection  espoused  by  the  federal  and
                        our state constitutions guarantees that Òall persons similarly
                        circumstanced  shall  be  treated  alike.Ó Conversely,  things  which  are
                        different  in  fact  or  opinion  are  not  required  by  either  constitution  to
                        be  treated  the  same. ÒThe  initial  discretion  to  determine  what  is
                        ÔdifferentÕ  and  what  is  Ôthe  sameÕ  resides  in  the  legislatures  of  the
                        States,Ó and legislatures are given considerable latitude in
                        determining  what  groups  are  different  and  what  groups  are  the  same.

                        Id. In  most  instances  the  judicial  inquiry  into  the  legislative  choice
                        is limited to whether the classifications have a reasonable
                        relationship  to  a  legitimate  interest. (emphasis  added)
                  Consequently,  legislation  containing  particular  classifications  is  not  in  violation  of  the
            Tennessee  Constitution  if  Òany  possible  reason  can  be  conceived  to  justify  the  classification,  or  if
            the  reasonableness  be  fairly  debatable  .  .  .  .Ó  Estrin  v.  Moss,  221  Tenn.  657,  430  S.W.2d  345,  349



            Page  3
            (1968)(emphasis  added);  Nolichuckey  Sand  Co.,  supra,  896  S.W.2d  at  789. Indeed,  a  statute  that
            contravenes  or  is  inconsistent  with  the  general  law  is  invalid  only  if Òno  reasonable  basis  for  the
            special  classification  can  be  found.Ó  See  Stalcup  v.  City  of  Gatlinburg,  577  S.W.2d  439,  441  (Tenn.
            1978).  Moreover,  it  is  not  necessary  that  the  reasons  for  the  classification  appear  on  the  face  of  the
            legislation.  Id.  at  442.  Rather,  if  Òany  possible  reason  can  be  conceived  to  justify  the  classification,
            it  will  be  upheld  and  deemed  reasonable.Ó Id.  (emphasis  added);  see  also  Knoxtenn  Theatres  v.
            McCanless,  177  Tenn.  497,  151  S.W.2d  164  (1941).
                  It  is  particularly  well-established  that  challenges  to  tax  statutes  are  determined  under  the
            rational  basis  test. Brentwood  Liquors  Corp.  v.  Fox,  496  S.W.2d  454,  457  (Tenn.  1973);  City  of
            Tullahoma  v.  Bedford  County,  936  S.W.2d  408,  412  (Tenn.  1997);  Stalcup,  supra,  577  S.W.2d  at
            443;  Nolichuckey,  supra,  896  S.W.2d  at  789. As  Òthe  right  to  tax  is  essential  to  the  existence  of
            government,  and  is  particularly  a  matter  for  the  Legislature,Ó  a  plaintiff  seeking  to  challenge  the
            constitutionality  of  a  Tennessee  revenue  statute  Òbears  a  heavy  burden.Ó Id.,  896  S.W.2d  at  788
            (quoting Vertrees v. State Board of Elections, 141 Tenn. 645, 214 S.W. 737, 740)(1919)).
            Accordingly,  in  reviewing  the  proposed  tax,  the  courts  would  consider  whether  there  is  a  reasonable
            basis  for  imposing  such  a  tax  in  Coffee  but  not  other  counties. The  bill  designates  Coffee  County
            by  name,  so  the  courts  would  be  obliged  to  consider  any  features  of  that  county  that  afford  a  rational
            distinction  from  other  counties.
                  While  we  are  not  limited  to  reasons  apparent  on  the  face  of  the  legislation,  in  this  instance
            the  bill  carries  a  preamble  that  explains  why  such  a  tax  is  particularly  appropriate  for  Coffee  County:
                              WHEREAS,  Coffee  County,  Tennessee  has  in  recent  years
                        been  the  venue  of  large  events  which  attract  thousands  of  individuals;
                        and
                              WHEREAS,  the  influx  of  thousands  of  individuals  to  Coffee
                        County,  Tennessee,  that  attend  such  events  has  placed  an  increased
                        burden on the Coffee County local inhabitants to provide law
                        enforcement,  traffic  control,  first  aid  and  ambulance  services  out  of
                        proportion  to  the  needs  of  the  local  citizenry;  and
                              WHEREAS,  at  least  a  portion  of  the  expenses  of  this  greater
                        service  burden  should  be  born  by  individuals  for  whose  use  and
                        protection  the  needed  services  are  provided.
                  It  is  the  opinion  of  this  Office  that  these  reasons  are  more  than  enough  to  justify  the  tax.  In
            addition  to  the  LegislatureÕs  proposed  finding,  it  is  common  knowledge  that  in  recent  years  Coffee
            County  has  been  the  site  of  large  events  that  obviously  burden  local  government  in  many  respects.
            Moreover,  the  events  that  have  occurred  in  Coffee  County  seem  to  have  placed  a  much  greater
            demand  on  the  resources  of  that  county  than  have  large  events  in  other  counties.  As  the  bill  recites,
            the  large  events  in  Coffee  County  have  produced  unusual,  and  to  some  degree  unique,  demands  on
            the  county  for  traffic  control,  law  enforcement,  first  aid,  sanitation,  and  ambulance  services. This
            is  related  to  the  fact  that  the  events  in  Coffee  County  have  been  outdoor  concerts  held  on  premises
            without  permanent  facilities  appropriate  for  such  large  events,  and  they  have  attracted  crowds  of



            Page  4
            individuals  who  spend  several  nights  with  minimal  accommodations.  Many  features  of  the  events
            in  Coffee  County  could  be  emphasized  to  distinguish  the  burden  they  have  placed  on  that  county
            from  the  impact  of  other  large  but  more  staid  events  in  other  non-urban  counties.
                  Consequently,  it  is  the  opinion  of  this  Office  that  there  is  a  rational  basis  for  the  Legislature
            to  authorize  a  special  tax  on  large  events  in  Coffee  County.  Such  a  tax  falls  squarely  within  the  line
            of  cases  upholding  special  local  taxes  in  smaller  communities  that  sustain  the  impact  of  multitudes
            of  visitors.  See  Stalcup,  supra,  577  S.W.2d  439  (upholding  special  Gatlinburg  business  tax  because
            of  overwhelming  impact  of  tourism  on  that  city);  Polk  County,  supra,  85  S.W.3d  781  (upholding
            special  tax  on  sale  of  rafting  tickets  in  Polk  County  because  of  tremendous  influx  of  whitewater
            enthusiasts  on  the  Ocoee  River). Accordingly,  this  Office  believes  that  the  proposed  legislation
            passes  the  rational  basis  test  under  Article  XI,  ¤  8  and  would  be  upheld  by  the  courts.
                  This  Office  is  constrained,  however,  to  observe  that  administrative  difficulties  could  arise
            in  applying  the  billÕs  definition  of  a  Òlarge  event,Ó  and  that  these  difficulties  under  certain
            circumstances  could  raise  constitutional  concerns. The  bill  defines  a  Òlarge  eventÓ  as  one  where
            more  than  50,000  people  Òare  expected  to  attend.Ó This  leaves  open  the  question  of  whose
            expectations  determine  the  application  of  the  tax  and  when  those  expectations  become  operative.
            For  example,  how  does  the  county  trustee  know  that  an  event  has  met  this  standard?  If  a  new  event
            is  being  planned  and  the  organizer  cannot  accurately  predict  the  attendance,  does  he  collect  the  tax?
            What  if  initial  expectations  of  a  large  turnout  diminish  before  anyone  arrives  but  after  many  tickets
            have  been  sold?
                  A  law  that  delegates  basic  policy  matters  to  its  enforcers  may  be  Òvoid  for  vagueness.Ó

            Grayned  v.  City  of  Rockford,  408  U.S.  104,  92  S.Ct.  2294,  33  L.Ed.2d  222  (1972). Such  an
            imprecise  law  encourages  arbitrary  and  discriminatory  enforcement. See  Crites  v.  Smith,  826
            S.W.2d  459,  473  (Tenn.  Ct.  App.  1991)(Koch,  J.,  concurring  in  part  and  dissenting  in  part);

            Tennessee  Department  of  Health  v.  Boyle,  2002  Tenn.  App.  LEXIS  894  (Dec.  19,  2002).  ÒA  tax  law
            in  particular  Ômust  prescribe  a  standard  sufficiently  definite  to  be  understandable  to  the  average
            person  who  desires  to  comply  with  it.ÕÓ  State  Board  of  Equalization  v.  Wirick,  93  Cal.  App.  4th  411,
            420,  112  Cal.  Rptr.  2d  919  (2001). The  question  is  whether  the  law  Ògives  fair  notice  of  the  tax
            collection and reporting requirements and provides reasonably adequate standards to guide
            enforcement.Ó Patel  v.  City  of  Gilroy,  97  Cal.  App.  4th  483,  486,  118  Cal.  Rptr.  2d  354  (2002).
                  In  this  instance,  this  concern  is  alleviated  to  a  considerable  degree  by  the  proposed  actÕs
            delegation  of  broad  rulemaking  authority  to  the  county  trustee.  Section  4  declares  that  Ò[t]he  county
            trustee  may  promulgate  reasonable  rules  and  regulations  for  the  enforcement  and  collection  of  such
            tax,  shall  prescribe  any  necessary  forms,  and  may,  by  regulations,  set  other  reporting  and  paying
            dates  and  periods.Ó While  it  is  unusual  for  a  county  trustee  to  have  such  extensive  rulemaking
            powers,  it  is  certainly  within  the  LegislatureÕs  power  to  accord  such  powers  to  him.  But  the  bill  is



            Page  5
            so  unclear  about  the  manner  in  which  expectations  of  attendance  trigger  the  tax  that  due  process
            concerns  are  not  entirely  ameliorated.
                  Certainly  the  proposed  act  would  not  be  vague  in  all  of  its  applications. It  would  appear  to
            apply  without  question  to  events  such  as  those  that  have  occurred  in  Coffee  County  in  recent  years.
            In  a  facial  vagueness  challenge,  the  challenger  must  demonstrate  vagueness  in  all  of  the  lawÕs
            applications,  not  just  some  instances  of  uncertainty  or  ambiguity. Evangelatos  v.  Superior  Court,

            44  Cal.  3d  1188,  1201,  246  Cal.  Rptr.  629,  753  P.2d  585  (1988). So  this  proposed  act,  in  its
            immediate  application,  would  appear  to  be  valid.  But  a  situation  could  arise  in  which  its  application
            would  be  so  uncertain  that  due  process  would  prevent  its  enforcement. Of  course,  this  potential
            problem  could  easily  be  remedied  by  insertion  into  the  bill  of  definite  and  objectively  ascertainable
            standards  for  a  Òlarge  event.Ó
                  In  sum,  this  Office  believes  that  existing  Tennessee  precedents  firmly  establish  that  the
            Legislature  may  authorize  Coffee  County  to  levy  a  privilege  tax  on  large  events  through  a  private
            act. This  Office  recommends,  however,  that  more  definite  and  objective  standards  be  written  into
            the  proposed  law  so  that  operators  and  attendees  at  a  Òlarge  event,Ó  as  well  as  the  county  trustee,  will
            be  able  readily  to  discern  when  the  tax  applies.






                                                       PAUL  G. SUMMERS
                                                       Attorney  General




                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General




                                                       CHARLES  L.  LEWIS
                                                       Deputy  Attorney  General



            Page  6
            Requested  by:
                  The  Honorable  Phillip  E.  Pinion
                  State  Representative
                  24  Legislative  Plaza
                  Nashville,  TN  37243-0177



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  17,  2004
                                      Opinion  No.  04-028
          Pending  legislation  to  amend  Tenn.  Code  Ann.  ¤  36-6-306,  the  Grandparent  Visitation  Act

                                        QUESTIONS

                1.    Does  SB  2316,  as  amended,  violate  Article  I,  ¤  8  of  the  Tennessee  Constitution  as
          an  unconstitutional  invasion  of  parental  privacy  rights?
                2.    Is  the  phrase  Òsevere  emotional  harmÓ  in  SB  2316  the  correct  phrase  to  use  in  this
          bill?



                                         OPINIONS

                1.    SB  2316  does  not  violate  Article  I,  ¤  8  of  the  Tennessee  Constitution.
                2.    While  the  exact  wording  of  the  statute  is  a  matter  properly  left  to  the  legislature,  the
          phrase  Òsevere  emotional  harmÓ  may  be  read  to  erect  a  more  stringent  standard  than  that  indicated
          necessary  by  prior  case  law  analyzing  the  constitutionality  of  the  Grandparent  Visitation  Act.





                                         ANALYSIS

                1.    You  have  requested  an  opinion  regarding  the  constitutionality  of  pending  legislation
          that  would  amend  the  Grandparent  Visitation  Act,  currently  codified  at  Tenn.  Code  Ann.  ¤  36-6-306.
          While  the  constitutionality  of  various  versions  of  TennesseeÕs  Grandparent  Visitation  Act  has  been
          addressed  on  several  occasions,  the  most  useful  analysis  of  the  issue  is  found  in  the  Tennessee
          Supreme  CourtÕs  opinion  in  Hawk  v.  Hawk,  855  S.W.2d  573  (Tenn.  1993).  In  Hawk,  after  analyzing
          both  state  and  federal  case  law,  the  court  stated:
                     We  hold  that  Article  I,  Section  8  of  the  Tennessee  Constitution
                     protects  the  privacy  interest  of  these  parents  in  their  child-rearing
                     decisions,  so  long  as  their  decisions  do  not  substantially  endanger  the



            Page  2
                        welfare  of  their  children.  Absent  some  harm  to  the  child,  we  find  that
                        the  state  lacks  a  sufficiently  compelling  justification  for  interfering
                        with  this  fundamental  right. 

            Hawk,  855  S.W.2d  at  582.  Thus,  in  order  for  a  statute  granting  visitation  rights  to  grandparents  to
            be  constitutional,  it  must  require  that  a  court  make  a  finding  of  harm  to  the  child  before  addressing
            whether  visitation  would  be  in  the  childÕs  best  interest. 
                  Currently pending is legislation that would require a court to hold a hearing if the
            grandparent  and  grandchild  had  a  significant  existing  relationship  for  at  least  a  year,  that  relationship
            was  severed  by  the  parent  of  the  child  for  reasons  other  than  abuse  or  a  presence  of  a  danger  of
            substantial  harm  to  the  child,  and  the  severance  of  the  relationship  would  likely  occasion  Òsevere
            emotional  harmÓ  to  the  child. Clearly,  Òsevere  emotional  harmÓ  would  fall  within  the  harm
            contemplated  by  the  Hawk  decision  that  must  be  present  before  a  court  can  award  grandparent
            visitation. Thus,  the  legislation  is  constitutional.
                  2.    You  further  inquire  whether  the  phrase  Òsevere  emotional  harmÓ  is  the  correct  phrase
            to  use  in  the  legislation. While  the  wording  of  a  statute  is  a  matter  properly  left  to  the  legislature,
            the  phrase  Òsevere  emotional  harmÓ  seems  to  set  a  higher  standard  than  would  be  necessary  under
            the  Tennessee  Supreme  CourtÕs  decision  in  Hawk. In  Hawk  the  court  uses  the  terms  Òsubstantial
            harmÓ  and  Òsignificant  harm.Ó Hawk,  855  S.W.2d  at  577,  581. The  word  ÒsevereÓ  in  its  ordinary
            sense  would  connote  a  harm  greater  than  ÒsubstantialÓ  or  Òsignificant.Ó While  Òsevere  emotional
            harmÓ  would  certainly  fall  within  the  concept  of  substantial  harm,  it  may  set  a  higher  standard  than
            necessary  to  pass  constitutional  muster. 



                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ELIZABETH  C.  DRIVER
                                                       Assistant  Attorney  General



            Page  3
            Requested  by:
                  Honorable  Curtis  Person,  Jr.
                  State  Senator 
                  Chairman,  Senate  Judiciary  Committee
                  308  War  Memorial  Building
                  Nashville,  TN  37243-0040



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL

                                     POST  OFFICE  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  25,  2004
                                      Opinion  No.  04-029

          Highway  Storm  Drainage  Maintenance 

                                        QUESTIONS

                1.    If  a  city  has  a  fully-executed  city  maintenance  contract,  who  is  responsible  for  the
          storm  drainage  maintenance  on  state  routes  inside  city  limits?
                2.    If  a  city  does  not  have  a  fully-executed  city  maintenance  contract,  but  is  organized
          for  the  care  of  its  own  streets  (has  a  street  department),  who  is  responsible  for  the  storm  drainage
          maintenance  on  state  routes  inside  city  limits?
                3.    What  are  the  penalties  and  liabilities  that  could  be  incurred  by  the  state  should  they
          perform  storm  drainage  work  in  cities  with  fully-executed  city  maintenance  contracts?
                4.    What  are  the  penalties  and  liabilities  that  could  be  incurred  by  the  state  should  they
          perform  storm  drainage  work  in  cities  without  fully-executed  city  maintenance  contracts?



                                         OPINION

                The  Tennessee  Department  of  Transportation  has  been  authorized  and  required  to  maintain
          city  streets  used  as  state  highways.  In  most,  if  not  all,  circumstances,  that  responsibility  has  been
          delegated  to  the  municipalities. Even  in  the  circumstances  where  the  state  has  delegated  this
          responsibility  by  contract,  the  state,  in  the  discretion  of  its  officers,  can  still  perform  maintenance
          work  on  highway  storm  drainage  facilities. A  city  may  have  the  right  to  file  a  complaint  in  the
          Tennessee  Claims  Commission  against  the  State  of  Tennessee  if  monetary  losses  arise  from  a
          contract  breach. However,  the  facts  given  do  not  suggest  such  losses,  as  the  road  maintenance
          agreements  only  provide  for  the  city  to  be  reimbursed  by  the  state  for  the  cost  of  maintaining  the
          roadways.  As  long  as  the  maintenance  works  are  undertaken  by  a  state  officer  within  that  officerÕs
          power  of  discretion,  and  absent  clear  proof  of  fraud  or  corruption,  courts  of  general  jurisdiction  are
          not  empowered  to  restrain  such  works  by  way  of  injunction.



              Page  2

                                                       ANALYSIS

                      Under  the  authority  of  T.C.A.  ¤54-5-201(a),  the  Tennessee  Department  of  Transportation
               "  shall  construct,  reconstruct  and  improve  streets  and  maintain  the  streets  in  municipalities
              over  which  traffic  on  state  highways  is  routed;  or  enter  into  contracts  with  the  municipalities
              in  the  state  relative  to  the  same  ...."  [Emphasis  added] 

                      When  a  municipality  is  organized  for  the  care  of  its  own  streets,  T.C.A.  ¤54-5-203  states  that
              the  municipality  "may"  perform  its  own  maintenance  on  state  highways  within  the  municipality  and
              be  reimbursed  by  the  Department  of  Transportation,  conditioned  upon  the  DepartmentÕs  approval.
              Where  the  state  has  delegated  the  responsibility  for  highway  maintenance  to  a  city,  the  standard
              Contract  for  Maintenance  of  State  Highways  Through  Municipalities  incorporates  the  "Guidelines
              Covering  Maintenance  Of  State  Roads  Through  Municipalities". This  guidelines  document  states:
                      "The  following  items  are  the  responsibility  of  the  Municipalities  and  are  not  eligible  for  State
              maintenance  reimbursement:
                                     ...  4.   Storm  drainage".

              There  is,  then,  little  question  that  a  city  that  enters  such  a  contract  takes  up  the  responsibility  for
              maintaining  the  storm  drainage  facilities.
                      If  no  such  maintenance  contract  has  been  executed,  it  is  assumed  for  the  purpose  of  this
              opinion  that  the  state  route  has  been  constructed  or  improved  after  full  approval  of  the  standard
              written  proposals  between  the  Department  of  Transportation  and  the  municipality. Upon  acceptance
              of  that  standard  proposal,  the  municipality  assumes  responsibility  for  maintaining  all  areas  of  the
              public  way  outside  the  roadway  surface. The  Department  of  Transportation  remains  responsible  for
              maintaining  the  pavement  from  curb  to  curb  where  curbs  exist  or  the  full  width  of  the  roadway
              where  no  curbs  exist  on  Ònon-access  controlÓ  roads. However,  on  Òfull  access  controlÓ  roads,  the
              Department  of  Transportation  keeps  the  responsibility  for  maintaining  the  whole  project. Based
              upon  that  agreement,  storm  drainage  facilities  serving  the  state  route  are  to  be  maintained  by  the
              Department  of  Transportation  if  the  state  route  is  a  controlled-access  road. If  the  state  route  is  a
              non-controlled-access road, then the Department of Transportation has agreed to delegate the
              maintenance  of  items  such  as  storm  drainage  to  the  city.
                      It is foreseeable that the Department of Transportation could agree to delegate the
              responsibility  for  storm  drain  maintenance  to  a  city,  then  occasionally  direct  state  forces  to  perform
              that  work,  either  for  cause  or  by  inadvertence. The  statute  authorizing  that  contract  does  not  grant
              the  city  the  right  to  sue  the  state  or  to  make  any  claim  seeking  breach  of  contract  damages. The  city
              may  have  the  right  to  file  a  Claims  Commission  action  against  the  State  if  the  city  were  to  incur  any
              monetary  losses  based  upon  a  breach  of  the  contract. The  contracts  in  question,  though,  and  T.C.A.
              ¤54-5-203  provide  only  for  the  cityÕs  costs  to  be  reimbursed  by  the  state. If  the  state  performs  some
              of  the  maintenance  tasks  covered  in  the  agreement,  there  is  no  cost  to  the  city  to  be  reimbursed,  and



              Page  3

              the  city  suffers  no  monetary  loss. 
                      Further,  the  city  could  not  likely  get  an  injunction  restraining  the  state  from  performing  the
              described  work. The  Department  of  Transportation,  through  its  commissioner  or  officers,  has  the
              authority to  maintain  its  highways  on  its  own  or  to  allow  municipalities  to  maintain  them. T.C.A.
              ¤54-5-201-203. Whether  there  is  a  fully-executed  city  maintenance  contract  or  not,  if  a  state  officer,
              in  his  or  her discretion,  undertakes  storm  drainage  work  on  a  state  route,  a  court  cannot  intervene
              and  restrain  such  action,  absent  a  clear  showing  of  fraud,  abuse  of  power,  or  corruption. North
              British  &  Mercantile  Co.  v.  Craig,  106  Tenn.  621, 62  S.W.  155  (1901);  Barnes  v.  Ingram,  217
              Tenn.  363,  397  S.W.2d  821  (1966);  City  of  Knoxville  v.  Civil  Service  Merit  Board,  705  S.W.2d  674
              (Tenn.App.,  1985).






                                                           _____________________________ 
                                                           PAUL  G.  SUMMERS
                                                           Attorney  General  and  Reporter


                                                           _____________________________ 
                                                           MICHAEL  E.  MOORE
                                                           Solicitor  General


                                                           _____________________________ 
                                                           GEORGE  G.  BOYTE,  JR.
                                                           Senior  Counsel


              Requested  by:
              The  Honorable  Steve  K.  McDaniel
              State  Representative
              115  War  Memorial  Building
              Nashville,  Tennessee  37243-0172



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                   425  FIFTH  AVENUE  NORTH
                                  NASHVILLE,  TENNESSEE  37243

                                        January  7,  2004
                                      Opinion  No.  04-003
          Regulation  of  Fishing  Activities  on  Interstate  Waters  Bordering  Tennessee


                                         QUESTION

                Does  the  Tennessee  Wildlife  Resources  Agency  have  the  authority  to  regulate  the  possession
          of  fish  caught  in  interstate  waters  bordering  Tennessee,  when  the  fish  are  caught  by  Tennessee
          residents  using  nonresident  licenses  from  an  adjacent  state  and  then  are  transported  back  to  the
          Tennessee  side  of  the  river?


                                         OPINION

                Yes. It  is  the  opinion  of  this  Office  that  the  Tennessee  Wildlife  Resources  Agency  is
          authorized  to  enforce  wildlife  statutes  and  proclamations  regulating  the  supply  of  fish  in  interstate
          waters  against  Tennessee  residents  using  valid  nonresident  fishing  licenses,  as  long  as  Tennessee
          has  a  compact  providing  for  concurrent  criminal  jurisdiction  over  such  waters  with  the  adjacent  state
          in  question.

                                         ANALYSIS

                This  inquiry  focuses  on  TennesseeÕs  wildlife  regulations  and  proclamations,  which  make  it
          illegal  to  catch  more  than  one  catfish  over  thirty-four  inches  in  length  from  the  Mississippi  River.
          It  is  our  understanding  that  the  State  of  Arkansas  has  no  such  prohibition  and  that  it  has,  therefore,
          become  the  custom  of  some  Tennesseans  to  obtain  nonresident  fishing  licenses  from  Arkansas  in
          order  to  take  advantage  of  that  stateÕs  more  lenient  fishing  regulations  pertaining  to  the  Mississippi
          River. 
                TennesseeÕs  hunting  and  fishing  statutes  were  originally  enacted  by  the  legislature  in  1951,
          and  they  begin  with  the  axiom  that  ownership  and  title  to  wildlife  is  vested  in  the  State.  Tenn.  Code
          Ann.  ¤  70-4-101(a)  provides  as  follows:
                     The  ownership  and  title  to  all  forms  of  wildlife  within  the 
                     jurisdiction  of  the  state,  as  are  not  individual  property  under
                     the  laws  of  the  land,  are  hereby  declared  to  be  in  the  state.  No
                     wildlife  shall  be  taken  or  killed  in  any  manner  or  at  any  time
                     except  the  person  or  persons  so  taking  or  killing  the  wildlife



            Page  2


                        shall  consent  that  the  title  thereto  shall  be  and  remain  in  the
                        state  for  the  possession,  use  and  transportation  thereof  after 
                        such  taking  or  killing  as  set  forth  in  this  chapter.

            (Emphasis  supplied). The  Tennessee  Supreme  Court  has  acknowledged  this  notion  that  title  to
            wildlife  vests  in  the  State,  even  in  the  absence  of  a  statutory  provision,  finding  Òit  to  be  well  settled
            in  at  least  American  jurisprudence  that,  without  the  aid  of  a  statute,  and  as  part  of  the  common  law
            of  this  country,  the  title  of  game  animals,  birds,  and  fish  is  in  the  State  as  trustee  for  the  benefit  of
            its  citizens.Ó  Acklen  v.  Thompson,  122  Tenn.  43,  51,  126  S.W.  730  (1909);  accord  Key  v.  State,  215
            Tenn.  136,  142,  384  S.W.2d  22,  24  (1964).
                  As  the  sole  trustee  of  wildlife  within  its  borders,  the  State  also  has  the  sole  authority  to
            regulate  the  protection  and  preservation  of  that  wildlife. Article  XI,  ¤  13  of  the  Tennessee
            constitution  provides  as  follows:
                        The  General  Assembly  shall  have  the  power  to  enact  laws
                        for  the  protection  and  preservation  of  Game  and  Fish,  within
                        the  State,  and  such  laws  may  be  enacted  for  and  applied  and
                        enforced  in  particular  Counties  or  geographical  districts, 
                        designated  by  the  General  Assembly.
            In  accordance  with  this  constitutional  directive,  our  courts  have  long  recognized  that Òthe  power  of
            the  Legislature  to  enact  laws  for  the  protection  and  preservation  of  game  in  the  forest,  and  fish  in  the
            waters  of  the  State,  has  been  so  frequently  exercised,  and  .  .  .  has  been  so  uniformly  maintained,  that
            the  question  has  now  passed  beyond  the  realm  of  debate.Ó Peters  v.  State,  96  Tenn.  682,  688-89,
            36  S.W.  399  (1896)  (citations  omitted);  accord,  Bluff  City  Fish  Co.  v.  Tennessee  Fish  and  Game
            CommÕn,  220  Tenn.  242,  244,  415  S.W.2d  877,  878  (1967).
                  Tenn.  Code  Ann.  ¤  70-4-102  makes  it  illegal  to  take  or  possess  any  form  of  wildlife,  except
            as  permitted  under  the  provisions  of  the  wildlife  statutes. It  also  provides  that  violations  of  the
            proclamations  and  rules  of  the  Tennessee  Wildlife  Resources  Commission  (TWRC)  are  punishable
            as  a  crime  (Class  B  misdemeanor). Tenn.  Code  Ann.  ¤  70-4-107  specifically  governs  hunting  and
            fishing  seasons  and  bag  and  creel  limits,  and  it  authorizes  the  TWRC  to  issue  proclamations  and
            rules  for  that  purpose.  This  latter  statute  is  clearly  concerned  with  regulating  the  supply  of  game  and
            fish  generally  for  hunting  and/or  taking. In  particular,  Tenn.  Code  Ann.  ¤  70-4-107(b)  states:
                        Whenever  the  supply  of  game  and/or  fish  existing  in  any  area,
                        lake  or  stream  shall  become  adequate  to  allow  the  taking  and/or
                        hunting  thereof  without  material  danger  of  extinction  or  undue
                        depletion  of  such  game  or  fish,  then  it  is  lawful  for  any  person
                        to  hunt  and/or  fish  in  the  area,  lake  or  stream  within  the  creel,



            Page  3


                        size,  and  bag  limits,  and  in  the  manner  and  by  the  means 
                        prescribed  by  the  wildlife  resources  commission.

                  Having  addressed  the  StateÕs  ability  to  regulate  the  taking  and  possession  of  wildlife  within
            its  borders,  we  must  also  consider  the  issue  of  the  StateÕs  jurisdiction  over  the  taking  of  fish
            inhabiting  interstate  waters.  Your  inquiry  specifically  concerns  the  taking  of  fish  with  a  valid
            nonresident  license  from  an  adjacent  state,  which  has  no  size  or  creel  limits  on  the  species  in
            question. 
                  We  believe  that  the  Tennessee  Supreme  Court  spoke  on  a  somewhat  similar  issue  in  Couch
            v.  State,  203  S.W.  831  (Tenn.1918).  There,  the  court  addressed  the  criminal  liability  of  a  steamboat
            captain,  on  whose  vessel  the  sale  of  liquor  occurred  at  a  point  west  of  the  center  of  the  main  channel
            of  the  Mississippi  River. At  that  time,  Tennessee  had  a  law  criminalizing  the  sale  of  intoxicating
            liquors  within  four  miles  of  a  school  house. The  Supreme  Court  upheld  the  captainÕs  conviction,
            after  noting,  first,  that  the  States  of  Tennessee  and  Arkansas  had  entered  into  a  compact,  under  the
            consent  of  Congress  in  1909,  to  resolve  what  jurisdiction  should  be  exercised  by  those  states  over
            offenses  occurring  upon  the  Mississippi  River.  Id.  at  832-833.  Shortly  thereafter,  Arkansas  passed
            a  law  recognizing  concurrent  jurisdiction  in  Arkansas  and  Tennessee  over  the  whole  of  the  waters
            of  the  Mississippi  between  the  two  states.  In  1915,  the  Tennessee  Legislature  enacted  a  similar  law,
            Public  Chapter  123  of  the  Acts  of  1915,  extending  this  stateÕs  criminal  jurisdiction  to  the  west  bank
            of  the  Mississippi  River. Id. 

                  In  light  of  the  Couch  decision  and  the  fact  that  a  violation  of  any  of  TennesseeÕs  wildlife
            proclamations  constitutes  a  criminal  offense  under  Tenn.  Code  Ann.  ¤  70-4-102,  we  believe  that
            TennesseeÕs  wildlife  agency  has  the  authority  to  enforce  its  laws  relating  to  the  taking  and  possession
            of  fish  in  the  Mississippi  River  against  Tennessee  residents,  regardless  of  whatever  nonresident
            licenses  Tennessee  fishermen  may  hold. We  note  that  your  inquiry  reflects  that  this  situation  may
            not  be  limited  to  the  Mississippi  River,  since  Tennessee  also  shares  waters  with  other  states
            (Kentucky,  Alabama,  and  Mississippi  particularly).  Since  the  District  Attorneys  General  are  vested
            with  the  authority  to  enforce  the  criminal  statutes  concerning  the  taking  and  possession  of  wildlife,
            it  may  be  more  appropriate  to  consult  the  officials  in  the  relevant  districts  to  determine  whether
            Tennessee  has  a  compact  providing  for  concurrent  criminal  jurisdiction  with  those  states. 




                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter



            Page  4



                                                       __________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       __________________________________
                                                       ELIZABETH  P.  McCARTER
                                                       Senior  Counsel


            Requested  by:
                  William  Cox 
                  Commissioner
                  Tennessee  Wildlife  Resources  Commission
                  P.O.  Box  40747
                  Nashville,  TN  37204



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  25,  2004
                                      Opinion  No.  04-030
          Payment  of  Pledge  to  Legislator  during  Legislative  Session

                                         QUESTION

                Assume  a  citizen  pledges  to  make  a  contribution  to  a  member  of  the  General  Assembly  while
          the  General  Assembly  is  not  in  session.  May  the  legislator  accept  payment  of  the  contribution  while
          the  General  Assembly  is  in  session?

                                         OPINION

                A  legislator  may  not  accept  the  payment  of  a  pledge  from  the  convening  of  the  General
          Assembly  through  the  earlier  of  the  last  day  of  regular  session  or  June  1  in  odd  years,  and  from  the
          convening  of  the  General  Assembly  to  the  earlier  of  May  15  or  the  conclusion  of  the  annual  session
          in  even  years.

                                         ANALYSIS

                This  opinion  concerns  the  ban  on  contributions  during  the  legislative  session.  Tenn.  Code
          Ann.  ¤  2-10-310(a)(1)  provides:
                     Except  as  provided  in  subdivisions  (a)(2)  and  (3),  from  the  convening
                     of  the  general  assembly  in  organizational  session  through  the  earlier
                     of  the  last  day  of  regular  session  or  June  1  in  odd  years,  and  from  the
                     convening  of  the  general  assembly  in  regular  session  to  the  earlier  of
                     May  15  or  the  conclusion  of  the  annual  session  in  even  years,  no
                     member  of  the  general  assembly  or  a  memberÕs  campaign  committee
                     shall  conduct  a  fundraiser  or  solicit  or  accept  contributions  for  the
                     benefit  of  the  caucus,  any  caucus  member  or  member  or  candidate  of
                     the  general  assembly  or  governor.
                As  used  in  the  statute,  unless  the  context  otherwise  requires,  ÒcontributionÓ  means:
                     any  advance,  conveyance,  deposit,  distribution,  transfer  of  funds,
                     loan,  loan  guaranty,  personal  funds  of  a  candidate,  payment,  gift,
                     pledge  or  subscription  of  money  or  like  thing  of  value,  and  any
                     contract,  agreement,  promise  or  other  obligation,  whether  or  not
                     legally  enforceable,  made  for  the  purpose  of  influencing  a  measure



            Page  2
                        or  nomination  for  election  or  the  election  of  any  person  for  public
                        office  or  for  the  purpose  of  defraying  any  expenses  of  an  officeholder
                        incurred  in  connection  with  the  performance  of  the  officeholderÕs
                        duties,  responsibilities,  or  constituent  services.
            Tenn.  Code  Ann.  ¤  2-10-102(4).
                  This  question  arises  where  a  citizen  has  pledged  to  make  a  contribution  to  a  member  of  the
            General  Assembly  while  the  General  Assembly  is  not  in  session. The  question  is  whether,  under
            Tenn.  Code  Ann.  ¤  2-10-310(a)(1),  a  member  of  the  General  Assembly  may  accept  the  citizenÕs
            payment  of  the  pledge  while  the  General  Assembly  is  in  session.  The  term  ÒcontributionÓ  as  used
            in  the  statute  includes  both  a  pledge  and  an  actual  money  transfer.  A  legislator,  therefore,  may  not
            accept  the  payment  of  a  pledge  from  the  convening  of  the  General  Assembly  through  the  earlier  of
            the  last  day  of  regular  session  or  June  1  in  odd  years,  and  from  the  convening  of  the  General
            Assembly  to  the  earlier  of  May  15  or  the  conclusion  of  the  annual  session  in  even  years.


                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Drew  Rawlins
                  Executive  Director,  Tennessee  Registry  of  Election  Finance
                  404  James  Robertson  Parkway,  Suite  1614
                  Nashville,  TN 37243-1360



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                       February  25,  2004
                                      Opinion  No.  04-031
          Municipalities  Ñ  Cash  Payments  to  Officials  in  Lieu  of  Paying  Life  or  Health  Insurance  Premium

                                        QUESTIONS

                1.    May  a  municipality  make  cash  payments  to  a  city  council  member  or  municipal
          official  in  lieu  of  paying  premiums  for  employee  life  or  health  insurance?
                2.    If  yes,  would  these  payments  be  considered  additional  Òcompensation.Ó


                                         OPINIONS

                1.    A  municipality  has  no  authority  to  pay  an  official  cash  in  lieu  of  paying  an  insurance
          premium.
                2.    We  do  not  answer  this  question  because  we  answer  the  first  in  the  negative.


                                         ANALYSIS

                Municipal  corporations  are  created  by  state  law.  Local  governments  have  the  powers  and
          authority  that  the  General  Assembly  gives  them.  Southern  Constructors,  Inc.  v.  Loudon  County  Bd.
          of  Educ.,  58  S.W.3d  706,  710-12  (Tenn.  2001).  Statutes  prescribe  a  municipal  corporationÕs  powers
          and  duties.  E.g.,  Tenn.  Code  Ann.  ¤  6-2-201. 
                In  addition  to  specific  powers,  the  statutes  also  may  give  a  municipality  the  powers  that
          could  be  legally  included  in  its  corporate  charter.  E.g.,  Tenn.  Code  Ann.  ¤  6-19-201(33).  While  the
          statutes  thus  provide  municipalities  with  fairly  broad  powers,  the  statutes  do  define  those  powers.
          Municipalities  do  not  have  inherent  power.  The  municipalityÕs  powers  flow  from  the  statute.  And
          so  the  Tennessee  Supreme  Court  has  stated: 
                     [I]t  must  be  taken  for  settled  law,  that  a  municipal  corporation
                     possesses  and  can  exercise  the  following  powers  and  no  others:  First,
                     those  granted  in  express  words;  second,  those  necessarily  implied  or
                     necessarily  incident  to  the  powers  expressly  granted;  third,  those
                     absolutely  essential  to  the  declared  objects  and  purposes  of  the



            Page  2
















































                   Municipalities  may  pay  up  to  100%  of  the  premium.  Tenn.  Code  Ann.  ¤  8-27-604.  1     corporation--not  simply  convenient,  but  indispensable;  fourth,  any
                        fair  doubt  as  to  the  existence  of  a  power  is  resolved  by  the  courts
                        against  the  corporation--against  the  existence  of  the  power.

            S.  Constructors,  58  S.W.3d  at  710.  In  addition,  the  exercise  of  local  regulatory  authority  must  be
            consistent  with  state  law.  See,  e.g.,  S.  Ry.  Co.  v.  Knoxville,  442  S.W.2d  619,  621  (Tenn.  1968).
                  Municipalities  are  authorized  to  provide  medical  and  disability  insurance  for  their  employees
            and  officials.  Tenn.  Code  Ann.  ¤  8-27-601.  The  municipal  governing  body  decides  whether  to  offer
            the  coverage,  what  percentage of  the  premium  the  municipality  will  pay,  and  what  percentage,  if  1

            any,  the  official  or  employee  will  pay.  Tenn.  Code  Ann.  ¤  8-27-604.  Officials  and  employees  may
            accept  or  reject  the  coverage. Tenn.  Code  Ann.  ¤  8-27-603. 
                  In  the  situation  you  have  presented,  the  official,  presumably,  has  rejected  the  coverage,  but
            the  municipality  pays  the  official  a  cash  amount  instead  of  paying  the  premium.  We  have  found  no
            statute  that  allows  municipal  corporations  to  pay  a  city  council  member  cash  instead  of  paying  an
            insurance  premium.  In  addition,  because  the  official  has  rejected  the  coverage,  there  is  no  premium
            to  pay.  Hence,  the  municipality  has  no  legal  basis  to  pay  cash  to  the  city  official  in  lieu  of  paying
            a  life  or  health  insurance  premium.



                                                       PAUL  G. SUMMERS
                                                       Attorney  General  and  Reporter

                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       KATE  EYLER
                                                       Deputy  Attorney  General
            Requested  by:
                  The  Honorable  John  G.  Morgan
                  Comptroller  of  the  Treasury
                  State  Capitol
                  Nashville,  TN  37243-0260



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        March  3,  2004
                                      Opinion  No.  04-032
          Implementation  of  2003  Pub.  Ch.  344  (Tennessee  Commission  of  Indian  Affairs)


                                        QUESTIONS

                1.    The  state  legislature  re-established  the  Commission  of  Indian  Affairs  (Commission)
          through  2003  Pub.  Ch.  344. The  Commission  is  attached  to  the  Tennessee  Department  of
          Environment  and  Conservation  (TDEC)  for  administrative  purposes  only.  Section  6(k)  requires  the
          new  Commission  to  operate  Òwithout  dependence  on  state  appropriations.Ó  Section  8(a)  of  the  act
          states  that  fiscal  records  are  to  be  kept  by  the  Commissioner  of  TDEC  and  will  be  subject  to  audit.
          Can  the  apparent  conflict  between  the  fiscal  language  in  section  8(a)  be  reconciled  with  the  financial
          limitations  of  section  6(k),  since  the  performance  of  these  services  have  a  state  cost  involved? 
                2.    What  fiscal  responsibility  does  TDEC  have  for  administrative  oversight  of  the
          Commission?
                3.    If  the  Commission  raises  funds,  are  they  to  be  deposited  with  TDEC?
                     A.   If  so,  then  how  would  expenditures  be  accomplished  without  violating  section
                           6(k)?
                     B.   How  are  the  funds  to  be  handled?
                4.    Is  the  use  of  TDEC  employees  for  any  purpose  relative  to  the  Commission  prohibited,
          including  legal  advice  from  TDECÕs  counsel?
                5.    Is TDEC permitted and/or required to provide space or equipment for the
          Commission?


                                         OPINIONS


                1.    Yes. The  apparent  conflict  in  the  statutory  language  can  be  reconciled. The
          obligation  to  keep  the  financial  records  of  the  Commission  is  a  statutory  obligation  of  TDEC.
          Nothing  in  the  enabling  statutes  suggests  that  the  Commission  must  pay  for  those  services. 
                2.    The  statute  only  requires  the  TDEC  Commissioner  to  keep  fiscal  records  for  the



            Page  2

            Commission.
                  3.    No.  The  statutory  language  does  not  require  Commission  funds  to  be  deposited  with
            TDEC. Because  of  our  opinion  here,  questions  3A  and  3B  are  pretermitted.
                  4.    No. The  Act  requires  TDEC  to  keep  the  Commission's  fiscal  records  and  TDEC
            employees  would  have  to  provide  that  service,  including  legal  advice  relating  to  that  service.
            Although  not  required  to  do  so,  TDEC  is  not  prohibited  under  the  Act  from  using  its  employees,
            including  its  legal  counsel,  for  any  other  purpose  relative  to  the  Commission  on  such  terms  as  TDEC
            and  the  Commission  might  agree.
                  5.    The  Act  provides  that  "all  offices,  equipment,  supplies,  property,  facilities,  funds  and
            other  resources  of  any  program  under  the  Tennessee  Commission  of  Indian  [A]ffairs  shall  be
            transferred  to  the  Tennessee  Commission  of  Indian  [A]ffairs  created  by  this  act." If  any  offices,
            equipment,  etc.,  under  the  foregoing  provision  are  within  TDEC,  then  the  Department  must  provide
            them  to  the  Commission.  TDEC  is  permitted,  but  not  required,  to  provide  other  space  or  equipment
            to  the  Commission  beyond  that  designated  by  the  above  provision  on  such  terms  as  TDEC  and  the
            Commission  might  agree.



                                               ANALYSIS

                  1.    In  2003,  the  legislature  re-established  the  Tennessee  Commission  of  Indian  Affairs
            after  the  previous  Commission  terminated  on  June  30,  2001  in  accordance  with  the  sunset  laws.  See

            Tenn.  Code  Ann.  ¤¤  4-29-112,  4-29-222. Under  Tenn.  Code  Ann.  ¤  4-34-101(b),  the  legislature
            mandated  that  Òthe  Commission  shall  be  attached  to  the  department  of  environment  and  conservation
            for  administrative  purposes  only.Ó The  only  statutory  obligation  imposed  on  the  Tennessee
            Department  of  Environment  and  Conservation  (TDEC)  Commissioner  is  to  keep  fiscal  records  for
            the  Commission  that  will  be  subject  to  audit. Tenn.  Code  Ann.  ¤4-34-107(a). The  legislature
            authorized  the  Commission  to  raise  and  expend  funds  to  carry  out  the  mission  of  the  Commission,
            but  the  Commission  is  to  operate  without  dependence  on  state  appropriations. Tenn.  Code  Ann.  ¤
            4-34-105(k). 
                  It  is  a  well-established  principle  that  legislative  intent  is  derived  from  the  plain  and  ordinary
            meaning  of  the  statutory  language  without  forced  or  subtle  construction  that  would  limit  or  extend
            the  meaning  of  the  language. Chadwell  v.  Knox  County,  980  S.W.2d  378,  382  (Tenn.  Ct.  App.
            1998);  City  of  Caryville  v.  Campbell  County,  660  S.W.2d  510,  512  (Tenn.  Ct.  App.  1983). The
            plain  language  of  Tenn.  Code  Ann.  ¤  4-34-105(k)  clearly  states  that  the  Commission  Òis  to  operate
            without  dependence  on  state  appropriations.Ó  In  the  same  statute  section,  the  legislature  charged  the
            Commission  to  raise  funds  from  other  sources  by  providing,  Ò[T]he  Commission  is  authorized  to
            raise  and  expend  funds  for  the  purpose  of  carrying  out  the  mission  of  the  Commission.Ó The



            Page  3

            legislature  expects  the  Commission  to  find  outside  sources  of  funding  for  the  operation  of  the
            Commission. But  the  obligation  to  keep  the  financial  records  of  the  Commission  is  a  statutory
            obligation  of  TDEC. Nothing  in  the  enabling  statutes  suggests  that  the  Commission  must  pay  for
            those  services. The  state  dollars  expended  by  TDEC  to  perform  this  function  enable  TDEC  to
            perform  an  obligation  imposed  upon  TDEC  by  statute.  In  other  words,  the  record-keeping  expense
            created  by  Tenn.  Code  Ann.  ¤  4-34-107(a)  is  one  imposed  by  law  on  TDEC  and  is  not  an  operating
            expense  of  the  Commission. 
                  2.    Tenn.  Code  Ann.  ¤  4-34-101(b)  states  that  the  Commission  is  attached  to  TDEC  for
            administrative  purposes  only. The  only  statutory  obligation  imposed  on  TDEC  is  to  keep  fiscal
            records  for  the  Commission  that  will  be  subject  to  audit. Tenn.  Code  Ann.  ¤4-34-107(a).
                  3.    The  Commission  has  the  authority  to  administer  the  monies  it  raises,  and,  therefore,
            the  monies  do  not  need  to  be  deposited  with  TDEC. 2003  Pub.  Ch.  344  ¤12  states  in  part,  Òthe
            Tennessee  Commission  of  Indian  Affairs  created  by  this  act  has  the  authority  to  receive,  administer,
            allocate,  disburse  and  supervise  any  grants  and  funds  from  whatever  sources,  including,  but  not
            limited  to,  the  federal,  state,  county  and  municipal  governments  on  a  state,  regional,  county  or  any
            other  basis,  with  respect  to  any  programs  or  responsibilities  outlines  in  this  part  or  assigned  to  the
            Commission  by  law,  regulation  or  order.Ó 
                  4.    TDEC employees may be used relative to keeping the fiscal records of the
            Commission  and  making  those  records  available  for  audit. This  includes  the  use  of  TDECÕs  legal
            services. The  statutes  do  not  require  the  use  of  TDEC  employees  for  any  other  purpose  relative  to
            the  Commission. However,  TDEC  is  not  prohibited  under  the  Act  from  using  its  employees,
            including  its  legal  counsel,  for  any  other  purpose  relative  to  the  Commission  on  such  terms  as  TDEC
            and  the  Commission  might  agree. 
                  5.    2003  Pub.  Ch.  344  ¤11(b)  provides  that  Òall  offices,  equipment,  supplies,  property,
            facilities,  funds  and  other  resources  of  any  program  under  the  Tennessee  Commission  of  Indian
            [A]ffairs  shall  be  transferred  to  the  Tennessee  Commission  of  Indian  [A]ffairs  created  by  this  act.Ó
            If  any  offices,  equipment,  etc.,  under  the  foregoing  provision  are  within  TDEC,  then  the  Department
            must  provide  them  to  the  Commission.  TDEC  is  permitted,  but  not  required,  to  provide  other  space
            or  equipment  to  the  Commission  beyond  that  designated  by  the  above  provision  on  such  terms  as
            TDEC  and  the  Commission  might  agree.





                                                       PAUL  G. SUMMERS
                                                       Attorney  General 



            Page  4






                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General




                                                       SOHNIA  W.  HONG
                                                       Assistant  Attorney  General
            Requested  by:
                  Betsy  L.  Child
                  Commissioner
                  Tennessee  Department  Of  Environment  and  Conservation
                  401  Church  Street,  21st  Floor
                  Nashville,  TN  37243-0435



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        March  4,  2004
                                      Opinion  No.  04-033
          Constitutionality  of  legislation  prohibiting  the  issuance  or  renewal  of  license  plates  depicting  the
          confederate  flag.

                                         QUESTION

                Whether  House  Bill  3188/Senate  Bill  3204  amending  Title  55,  Chapter  4  of  the  Tennessee
          Code  Annotated,  to  prohibit  the  issuance  or  renewal  of  specialty  license  plates  depicting  or
          displaying  any  flag  of  the  Confederate  States  of  America  or  containing  the  emblem,  logo,  or  design
          based  upon  any  such  flag  is  constitutional?

                                         OPINION

                Based  upon  extant  case  authority,  House  Bill  3188/Senate  Bill  3204  is  unconstitutional.


                                         ANALYSIS

                Two  cases  have  addressed  this  issue  and  found  such  legislation  unconstitutional.  See  Sons
          of  Confederate  Veterans,  Inc.  v.  Glendening,  954  F.  Supp.  1099  (D.  Md.  1997);  Sons  of  Confederate
          Veterans,  Inc.  v.  Commonwealth  of  Virginia  Dept.  of  Motor  Vehicles,  288  F.2d  610  (4th  Cir.  2002).
          Neither  the  United  States  Sixth  Circuit  Court  of  Appeals  nor  the  Tennessee  appellate  courts  have
          ruled  on  this  issue.  To  the  extent  that  the  Sixth  Circuit  or  the  Tennessee  courts  would  find  these
          cases  to  be  persuasive,  it  is  the  opinion  of  this  office  that  such  an  amendment  would  be  ruled
          unconstitutional.




                                                PAUL  G.  SUMMERS
                                                Attorney  General  and  Reporter

                                                MICHAEL  E.  MOORE
                                                Solicitor  General



            Page  2

                                                       JIMMY  G.  CREECY
                                                       Chief  Special  Counsel
            Requested  by:
                  Honorable  Steve  K.  McDaniel
                  Representative,  State  of  Tennessee
                  115  War  Memorial  Building
                  Nashville,  TN  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        March  8,  2004
                                      Opinion  No.  04-034
          Amendment  to  Pawnbroker  Statute

                                         QUESTION

                Senate  Bill  2299  amends  Tenn.  Code  Ann.  ¤  45-6-213. As  amended,  the  statute  would
          authorize  a  law  enforcement  official  to  recover  property  from  a  pawnbroker  upon  receiving  proof
          of  ownership  from  a  party  seeking  to  recover  allegedly  stolen  property  in  the  pawnbrokerÕs
          possession. The  amendment  provides  for  notice  to  the  pawnbroker  and  an  opportunity  for  the
          pawnbroker  to  file  an  action  for  determination  of  ownership  rights  to  the  property.  The  court  would
          retain  the  property  until  the  conclusion  of  any  criminal  proceeding  if  the  property  was  used  as
          evidence  in  the  proceeding  or  for  one  year  from  the  date  of  the  hearing  if  no  criminal  proceedings
          involving  the  property  have  occurred. Would  the  statute,  as  amended,  satisfy  the  due  process
          requirements  of  the  Tennessee  and  United  States  Constitutions? 

                                         OPINION

                Provisions  of  the  amendment  authorizing  warrantless  seizure  of  the  property  without
          affording  a  hearing  are  constitutionally  defensible. Provisions  of  the  amendment  affording  a
          pawnbroker  the  right  to  notice  and  a  hearing  after  seizure  but  before  disposition  of  the  property  to
          another  claimant  are  constitutionally  defensible. But  the  proposed  bill  requires  a  court  to  hold
          property  for  a  full  year  from  the  date  of  a  hearing  to  determine  ownership,  and  after  it  has  determined
          the  rightful  owner,  even  where  no  criminal  prosecution  in  which  the  property  might  be  used  as
          evidence  is  pending. Depending  on  the  particular  facts  and  circumstances,  a  flat  one-year
          requirement  to  hold  property  without  any  determination  of  reasonableness  may  be  unreasonable  and,
          thus,  violate  due  process  of  law.  For  this  reason,  the  provision  could  be  unconstitutional  as  applied.

                                         ANALYSIS

                This  opinion  concerns  a  proposed  amendment  to  Tenn.  Code  Ann.  ¤  45-6-213  regarding  the
          recovery  of  stolen  property  from  a  pawnbroker.  This  Office  has  concluded  that  subdivision  (b)  of
          this  statute,  as  currently  written,  violates  the  due  process  protections  of  the  Tennessee  and  the  United
          States  Constitutions  because  it  does  not  provide  for  prior  notice  and  a  hearing  to  protect  the  property
          interests  of  the  pawnbroker  in  property  alleged  to  be  stolen.  Op.  Tenn.  AttÕy.  Gen.  02-090  (August
          27,  2002).  Senate  Bill  2299  deletes  the  current  subdivision  (b)  and  substitutes  a  new  version.  Under
          the  bill,  a  party  asserting  ownership  of  property  that  the  party  claims  is  stolen  and  is  in  the  possession
          of  a  pawnbroker  may  seek  to  recover  the  property  by  making  a  report  to  any  law  enforcement  agency.



            Page  2

            The  report  must  include  the  location  of  the  property  and  proof  of  ownership  of  the  property. The
            property  must  have  been  reported  stolen  within  thirty  days  after  obtaining  knowledge  of  the  theft  or
            loss,  and  the  party  asserting  ownership  must  assist  in  the  prosecution  of  the  party  pawning  the  item.
            Upon  receipt  of  proof  of  ownership,  a  law  enforcement  officer  is  authorized  to  recover  property  from
            the  pawnbroker  without  expense  to  the  rightful  owner. The  amendment  provides:
                        An  officer  recovering  the  property  shall  give  the  pawnbroker  verbal
                        notice  followed  by  written  notice  within  forty-eight  (48)  hours  of
                        recovering  the  property  that  describes  with  specificity  the  property
                        and  records  the  date  and  time  the  officer  took  possession  of  the
                        property.  The  officer  is  authorized  to  take  possession  of  the  property
                        subject  to  the  following  provisions:
                              (1) Within thirty (30) days of the written notice, the
                        pawnbroker  may  file  an  action  in  the  general  sessions  court  for  a
                        determination  of  the  ownership  rights  to  the  property.  The  court  may
                        require  a  bond  to  protect  against  meritless  claims. The  court  shall
                        hold  a  due  process  hearing  within  ten  (10)  days  of  service  of  process
                        upon  the  party  asserting  ownership  of  the  property  and  the  officer
                        retaining  possession  of  the  property  to  determine  the  owner  of  the
                        property. At  the  hearing,  the  property  shall  be  deposited  with  the
                        court.  The  court  shall  issue  a  conditional  judgment  for  the  owner  of
                        the  property  and  may  tax  costs  as  justice  requires.  However,  the  court
                        shall  retain  possession  of  the  property  and  shall  release  the  property
                        to  the  rightful  owner:
                              (A)  Following  the  conclusion  of  any  criminal  proceeding  if
                        the  property  was  used  as  evidence  in  such  proceeding;  or
                              (B)  No  earlier  than  one  (1)  year  from  the  date  of  the  hearing
                        if  no  criminal  proceedings  involving  the  property  have  occurred.
                              (2)  If  the  pawnbroker  does  not  file  an  action  in  the  appropriate
                        court  within  thirty  (30)  days  of  the  written  notice,  the  officer  may
                        return  the  property  to  the  party  asserting  ownership,  subject  to  the
                        propertyÕs  use  in  any  criminal  proceeding.
            Senate  Bill  2299,  Section  1.
                  The  question  is  whether  the  statute,  as  amended  by  this  provision,  would  satisfy  the  due
            process  requirements  of  the  United  States  and  Tennessee  Constitutions. The  Constitution  of  the
            United  States  prevents  any  state  from  depriving  Òany  person  of  life,  liberty,  or  property,  without  due



            Page  3

            process  of  law  .  .  ..Ó U.S.  Const.  Amend.  14,  ¤  1. Likewise,  Article  I,  Section  8  of  the  Tennessee
            Constitution  states  Ò[t]hat  no  man  shall  be  taken  or  imprisoned,  or  disseized  of  his  freehold,  liberties
            or  privileges,  or  outlawed,  or  exiled,  or  in  any  manner  destroyed  or  deprived  of  his  life,  liberty  or
            property,  but  by  the  judgment  of  his  peers  or  the  law  of  the  land.Ó  The  Òlaw  of  the  landÓ  provision
            of  Article  I,  Section  8  has  been  construed  as  synonymous  with  the  Òdue  process  of  lawÓ  provisions
            of  the  Fifth  and  Fourteenth  Amendments  to  the  United  States  Constitution,  although  the  Tennessee
            Supreme  Court  is  free  to  expand  the  minimum  level  of  protection  mandated  by  the  federal
            constitution. Burford  v.  State,  845  S.W.2d  204,  207  (Tenn.  1992). Due  process  requires,  at  a
            minimum,  that  absent  a  countervailing  state  interest  of  overriding  significance,  persons  forced  to
            settle  their  claims  of  right  and  duty  through  the  judicial  process  must  be  given  a  meaningful
            opportunity  to  be  heard. Little  v.  Streater,  452  U.S.  1,  5,  101  S.Ct.  2202,  2205,  68  L.Ed.2d  627
            (1981)  (citing  Boddie  v.  Connecticut,  401  U.S.  371,  91  S.Ct.  780  (1971)). 
                  As  discussed  in  Op.  Tenn.  AttÕy.  Gen.  02-090,  various  state  and  federal  courts  have
            concluded  that  pawnshops  have  a  constitutionally  protected  property  interest  in  pawned  property  of
            which  they  cannot  be  deprived  without  due  process. The  proposed  amendment  permits  police  to
            seize  property  from  a  pawnshop  without  obtaining  a  warrant  or  affording  the  pawnbroker  a  hearing.
            Instead, the amendment requires law enforcement officials to provide written notice to the
            pawnbroker  within  forty-eight  hours  after  the  property  has  been  seized. The  pawnbroker  then  has
            thirty  days  to  file  an  action  in  General  Sessions  Court  for  determination  of  ownership  of  the  property.
            The  court  may  require  a  bond  for  meritless  claims. The  court  must  hold  a  hearing  within  ten  days
            of  service  of  process  upon  the  person  claiming  ownership  and  the  law  enforcement  officer  who
            seized  the  property. At  the  hearing,  the  property  must  be  deposited  with  the  court. The  proposed
            amendment,  therefore,  gives  the  pawnbroker  notice  and  a  right  to  be  heard  regarding  ownership  of
            the  property  after  it  has  been  seized  by  the  police  but  before  it  has  been  given  to  a  third  party. We
            think  these  procedures  afford  a  pawnbroker  adequate  due  process  under  the  United  States  and
            Tennessee  Constitutions.  See,  e.g.,  Florida  Pawnbrokers  and  Secondhand  Dealers  Association,  Inc.
            v.  City  of  Fort  Lauderdale,  699  F.Supp.  888  (S.D.  Fla.  1988)  (a  statute  authorizing  police  to  dispose
            of  property  seized  from  a  pawnbroker  without  giving  the  pawnbroker  notice,  requiring  a  bond  to
            protect the pawnbroker from meritless claims, or affording a hearing before an impartial
            decisionmaker  violates  due  process);  Winters  v.  Board  of  County  Commissioners,  4  F.3d  848  (10th
            Cir.  1993),  cert.  denied,  511  U.S.  1031,  114  S.Ct.  1539,  128  L.Ed.2d  192  (1994)  (Oklahoma  statutes
            providing  pawnbrokers  notice  and  the  opportunity  to  be  heard  on  ownership  of  allegedly  stolen
            property  before  it  was  released  to  the  claimant  are  constitutional  on  their  face).
                  The  proposed  amendment  does  not  require  law  enforcement  officers  to  obtain  a  warrant
            before  seizing  property  that  a  third  party  has  alleged  to  be  stolen.  Nor  does  it  require  a  pawnbroker
            to  be  given  a  hearing  before  the  property  is  seized. As  we  noted  in  the  2002  opinion,  however,
            courts  have  found  that  law  enforcement  officials  may  seize  pawned  property  without  a  warrant  and
            without  providing  prior  notice  and  opportunity  for  a  hearing  to  obtain  evidence  in  a  criminal
            investigation.  Sanders  v.  City  of  San  Diego,  93  F.3d  1423  (9th  Cir.  1996).  Under  the  bill  as  drafted,
            seizure  of  property  is  conditioned  on  several  requirements. The  person  claiming  ownership  must



            Page  4










































                   Rule  41(g)  of  the  Federal  Rules  of  Criminal  Procedure  also  authorizes  a  person  aggrieved  by  the  deprivation  1

            of  seized  property  to  move  for  its  return.  By  contrast,  Rule  41(f)  of  the  Tennessee  Rules  of  Criminal  Procedure  provides
            for  such  a  motion  only  for  unlawfully  seized  property.
                   Under  Rule  41(f)  of  the  Tennessee  Rules  of  Criminal  Procedure,  a  person  aggrieved  by  an  unlawful  or  invalid  2

            search  or  seizure  may  move  to  suppress  the  evidence  and  for  the  return  of  the  property  unlawfully  seized.  This  provision
            does  not  appear  to  provide  relief,  however,  to  an  owner  of  lawfully  seized  property  who  wants  it  returned. submit  evidence  of  ownership;  the  property  must  have  been  reported  stolen  within  thirty  days  of  the
            time  the  loss  of  the  property  was  discovered;  and  the  person  claiming  ownership  must  assist  in  the
            prosecution  of  the  party  pawning  the  property. We  think  the  statute,  therefore,  is  constitutionally
            defensible  under  the  analysis  of  Sanders  and  general  principles  of  due  process  analysis  outlined  in

            Mathews  v.  Eldridge,  424  U.S.  319,  335,  96  S.Ct.  893,  47  L.Ed.2d  18  (1976)  and  later  cases.
                  The  proposed  amendment  requires  the  court  to  retain  possession  of  the  property  even  after
            it  has  determined  ownership.  The  court  must  retain  the  property  until  the  conclusion  of  any  criminal
            proceeding  in  which  the  property  is  used  as  evidence  and,  even  if  no  criminal  prosecution  is  pending,
            for  a  full  year  from  the  date  of  the  hearing,  if  no  criminal  proceedings  regarding  the  property  have
            occurred.  We  think  retention  of  the  property  until  the  conclusion  of  criminal  proceedings  pending
            at  the  time  ownership  is  determined  is  constitutionally  defensible.  See,  e.g.,  United  States  v.  Francis,

            646  F.2d  251  (6th  Cir.  1981),  cert.  denied,  454  U.S.  1082,  102  S.Ct.  637,  70  L.Ed.2d  616  (1981)
            (seized  property,  other  than  contraband,  should  be  returned  to  its  rightful  owner  after  criminal
            proceedings). But  requiring  the  court  to  retain  possession  of  the  confiscated  property  for  a  year  1

            from  the  date  of  the  hearing,  even  where  no  criminal  prosecution  is  pending,  is  more  problematic.
            Under  the  general  statute  governing  personal  property  confiscated  as  stolen  property  by  a  law
            enforcement  official,  the  property  cannot  be  retained  for  more  than  thirty  days  without  permission
            from  a  court.  Tenn.  Code  Ann.  ¤  40-17-118(b).  Under  that  statute,  the  officer  must  show  cause  to
            the  court,  upon  five  days  notice  to  the  property  owner,  why  the  property  should  be  further  detained.
            The  court  may  grant  or  refuse  the  requested  impounding  order  upon  such  terms  and  conditions  as
            are  adjudged  to  be  proper. 
                  The  proposed  law  provides  for  no  such  petition. Instead,  the  court  is  required  to  hold  the
            property  for  a  full  year  from  the  date  of  the  hearing  to  determine  ownership.  By  the  time  the  hearing
            is  held,  the  property  may  have  already  been  in  police  possession  for  forty  days. The  statute  of  2

            limitations  for  a  prosecution  for  a  misdemeanor  theft  is  one  year  from  the  time  the  offense  was
            committed. Tenn.  Code  Ann.  ¤  40-2-102;  Tenn.  Code  Ann.  ¤  39-14-105(1). The  proposed  law,
            therefore,  would  in  effect  require  the  court  to  hold  the  property  until  the  statute  of  limitations  for
            prosecuting  an  individual  for  the  misdemeanor  theft  of  the  property  had  expired. 
                  Federal  courts  have  found  that  a  United  States  district  court  may  require  the  return  of
            property  held  solely  as  evidence  if  the  government  has  delayed  in  bringing  a  prosecution. United
            States  v.  Premises  Known  as  608  Taylor  Ave.,  Apartment  302,  Pittsburgh,  Pennsylvania,  584  F.2d
            1297  (3d  Cir.  1978). In  that  case,  an  individual  whose  property  was  seized  petitioned  for  a  return



            Page  5

            of  property  a  few  months  after  it  was  seized  under  a  search  warrant. The  individual  claimed  that,
            by  holding  the  property  without  beginning  criminal  proceedings,  the  government  violated  his  right
            to  due  process. The  district  court  found  that  the  government  could  retain  the  seized  property  for  a
            Òreasonable  timeÓ  before  beginning  criminal  proceedings,  found  that  retaining  the  property  was
            reasonable  under  the  circumstances,  and  refused  to  order  its  return. 
                  On  appeal,  the  United  States  Court  of  Appeals  for  the  Third  Circuit  upheld  the  district  courtÕs
            use  of  the  reasonableness  standard.  The  Court  rejected  the  governmentÕs  argument  that  it  had  a  right
            to  hold  property  until  the  statute  of  limitations  on  the  crime  being  investigated  has  lapsed.  The  Court
            noted  that  recognizing  such  a  right  Òmay  in  many  cases  impose  an  impermissible  burden  on  a  citizen
            whose  property  is  potential  evidence.Ó 584  F.2d  at  1301. The  Court  found  that,  under  its  powers
            to  supervise  the  law  enforcement  officials  and  the  United  States  Attorney  within  its  jurisdiction,  the
            district  court  was  authorized  to  require  the  return  of  property  held  solely  as  evidence  if  the
            government  has  unreasonably  delayed  in  bringing  a  prosecution.  Id.  at  1302.  The  Court  noted  that,
            in  making  its  determination,  the  district  court  Òshould  carefully  balance  the  citizenÕs  interest  in  use
            of  his  property  against  the  wide-ranging  governmental  interests  in  law  enforcement.Ó  Id.  The  Court
            found,  however,  that  the  district  court  was  also  required  to  consider  the  purposes  for  which  the
            property  was  being  held  in  its  determination  of  the  reasonableness  of  the  governmentÕs  retention  of
            the  property.  Id.  at  1304.  For  example,  the  Court  noted  that  if  the  governmentÕs  interest  in  retaining
            the  property  was  for  its  use  as  evidence,  the  district  court  should  consider  whether  this  purpose  could
            be  equally  well  served  by  alternatives  other  than  retaining  possession.  The  Court  vacated  the  district
            courtÕs  order  denying  the  motion  to  return  the  property,  therefore,  and  remanded  the  case  for  further
            proceedings. 
                  As  discussed  above,  the  Court  found  the  district  courtÕs  authority  to  order  return  of  the
            property  was  based  on  its  right  to  supervise  law  enforcement  officials. In  a  concurring  opinion,
            however,  one  of  the  judges  pointed  out  the  due  process  implications  of  continued  retention  of  the
            property. The  United  States  Court  of  Appeals  for  the  Sixth  Circuit  has  also  found  that  the
            government  must  return  seized  evidence  to  its  owner  after  the  conclusion  of  criminal  proceedings
            unless  it  can  show  cause  for  continuing  to  hold  it  Ñ  for  example,  that  the  property  is  necessary  for
            a  specific  investigation. Sovereign  News  Co.  v.  United  States,  690  F.2d  569  (6th  Cir.  1982),

            rehearing  denied  (1982),  rehearing  and  rehearing  en  banc  denied  (1983);  see  also  Lathon  v.  St.
            Louis,  242  F.3d  841  (8th  Cir.  2001)  (police  refusal  to  return  seized  property  where  no  criminal
            charges  were  ever  filed  could  be  the  subject  for  an  action  for  violation  of  due  process). 
                  Thus,  absent  a  pending  criminal  proceeding,  continued  holding  of  the  property  satisfies  due
            process  of  law  only  if  the  holding  is  reasonable.  Reasonableness  depends  upon  the  particular  facts
            and  circumstances  involved,  such  as  the  time  it  ordinarily  takes  to  investigate  and  begin  a  criminal
            prosecution  and  the  value  of  the  property  in  the  investigation  and  as  evidence. Depending  on  the
            particular  facts  and  circumstances,  a  flat  one-year  requirement  to  hold  property  without  any
            determination  of  reasonableness  may  be  unreasonable  and,  thus,  violate  due  process  of  law.  For  this



            Page  6

            reason,  the  provision  could  be  unconstitutional  as  applied.



                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       ANN  LOUISE  VIX
                                                       Senior  Counsel
            Requested  by:
                  Honorable  Curtis  Person,  Jr.
                  Chairman,  Senate  Judiciary  Committee
                  308  War  Memorial  Building
                  Nashville,  TN  37243-0040



                              STATE  OF  TENNESSEE

                           OFFICE  OF  THE  ATTORNEY  GENERAL

                               ATTORNEY  GENERAL
                              500  CHARLOTTE  AVENUE
                           NASHVILLE,  TENNESSEE  37243-0497

                                  March  9,  2004
                                Opinion  No.  04-035
         Authority  Of  Tennessee  Department  Of  Transportation  To  Investigate  Alleged  Violations  Of
         Tennessee  Water  Quality  Control  Act



                                  QUESTION

             What  powers  do  Tenn.  Code  Ann.  ¤¤  4-3-2303(9)  and  69-1-101  vest  in  the  Commissioner
         of  the  Tennessee  Department  of  Transportation  to  investigate  alleged  violations  of  the  Tennessee
         Water  Quality  Control  Act?


                                   OPINION

             None.  The  regulatory  power  to  investigate  allegations  and  initiate  enforcement  for  violations
         of  the  Tennessee  Water  Quality  Control  Act,  Tenn.  Code  Ann.  ¤¤  69-3-101  to  -137  (Supp.  2003),
         rests  with  the  Commissioner  of  the  Tennessee  Department  of  Environment  and  Conservation. 


                                   ANALYSIS

             Under  Tenn.  Code  Ann.  ¤  4-3-2303(9),  the  Commissioner  of  the  Tennessee  Department  of
         Transportation  (TDOT)  has  the  power  to  Ò[u]ndertake  programs  of  transportation  related  to
         investigation,  research  and  operation  of  safe,  adequate  and  efficient  transportation  modes,  including
         but  not  limited  to,  aeronautics,  waterways,  rails,  highways  and  mass  transit.Ó Tennessee  Code
         Annotated  ¤  69-1-101  provides  that  Ò[a]ll  navigable  waters  are  public  highways,  including  those
         declared  navigable  by  special  law.Ó The  Tennessee  Water  Quality  Control  Act  (TWQCA)
         establishes  a  regulatory  program  intended  to  Òabate  existing  pollution  of  the  waters  of  Tennessee,
         to  reclaim  polluted  waters  [and]  to  prevent  the  future  pollution  of  waters  .  .  .  .Ó  Tenn.  Code  Ann.
         ¤  69-3-102(b). 
             It  is  the  opinion  of  this  Office  that  the  TDOT  CommissionerÕs  authority  in  ¤  4-3-2303(9)  to
         investigate  safe,  adequate  and  efficient  modes  of  transportation  does  not  give  him  the  regulatory



                   TDOTÕs  highway  construction  projects  that  impact  waters  of  the  state  are  subject  to  the  requirements  of  *

            the  TWQCA.  While  TDOT  does  not  have  the  regulatory  power  to  investigate  and  enforce  under  the  TWQCA,  as  an
            entity  subject  to  regulation,  TDOT  does  have  the  responsibility  to  ensure  that  the  agency  itself  and  its  highway
            contractors  meet  the  TWQCAÕs  requirements.  power  to  investigate  alleged  violations  of  the  TWQCA.  The  regulatory  power  to  investigate  *

            allegations  and  to  enforce  violations  of  the  TWQCA  is  vested  in  the  Commissioner  of  the  Tennessee
            Department  of  Environment  and  Conservation  (TDEC). See  Tenn.  Code  Ann.  ¤  69-3-107.
                  Likewise,  the  declaration  in  Tenn.  Code  Ann.  ¤  69-1-101  that  Ò[a]ll  navigable  waters  are
            public  highways,  including  those  declared  navigable  by  special  lawÓ  does  not  provide  the  TDOT
            Commissioner  with  investigative  authority  under  the  TWQCA. Section  69-1-101  is  not  a  provision
            of  the  TWQCA. This  statute  is  one  of  several  addressing  navigable  waters  found  in  Chapter  1  of
            Title  69.  The  TWQCA  is  codified  as  Chapter  3  of  Title  69.  The  TDOT  Commissioner  has  not  been
            given  any  regulatory  power  to  investigate  or  enforce  Tenn.  Code  Ann.  ¤¤  69-1-101  to  -117.  Rather,
            the  TDEC  Commissioner  is  the  state  official  who  has  been  empowered  to  issue  navigability  permits
            and  to  investigate  and  initiate  enforcement  for  a  Òviolation  of  state  navigability  law.Ó Tenn.  Code
            Ann.  ¤  69-1-117(c).



                                                     __________________________
                                                     PAUL  G.  SUMMERS
                                                     Attorney  General



                                                     __________________________
                                                     MICHAEL  E.  MOORE
                                                     Solicitor  General



                                                     ___________________________
                                                     BARRY  TURNER
                                                     Deputy  Attorney  General



            Requested  by:
                   Honorable  Phillip  Pinion
                   State  Representative
                   24  Legislative  Plaza
                   Nashville,  Tennessee  37243-0177 



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE
                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        March  12,  2004
                                      Opinion  No.  04-036
          Effect  of  criminal  summons  statute  on  citizen  arrests  and  the  authority  of  a  law  enforcement  officer
          to  seek  arrest  warrants


                                        QUESTIONS

                1.    Do  the  recently-amended  provisions  of  Tenn.  Code  Ann.  ¤  40-6-215  (2003  Repl.)
          regarding  the  issuance  of  a  criminal  summons  in  lieu  of  an  arrest  warrant  in  certain  circumstances
          prevent  a  private  citizen  from  making  an  arrest  as  allowed  by  Tenn.  Code  Ann.  ¤¤  40-7-109  and  -110
          (2003  Repl.)?
                2.    Do  the  recently-amended  provisions  of  Tenn.  Code  Ann.  ¤  40-6-215  (2003  Repl.)
          affect  a  law  enforcement  officerÕs  authority  to  seek  an  arrest  warrant  for  offenses  committed  outside
          of  the  officerÕs  presence?


                                         OPINIONS

                1.    No. Recent  changes  to  Tenn.  Code  Ann.  ¤  40-6-215  (2003  Repl.)  concern  a
          magistrateÕs  authority  to  issue  a  criminal  summons  in  lieu  of  an  arrest  warrant;  whereas  Tenn.  Code
          Ann.  ¤¤  40-7-109  and  -110  (2003  Repl.)  govern  a  private  citizenÕs  authority  to  make  a  warrantless
          arrest.  Accordingly,  modifications  to  Tenn.  Code  Ann.  ¤  40-6-215  (2003  Repl.)  have  no  bearing  on
          a  citizenÕs  statutory  authority  to  make  a  warrantless  arrest.
                2.    No. Recent  changes  to  Tenn.  Code  Ann.  ¤  40-6-215  (2003  Repl.)  relate  to  a
          magistrate  ordering  an  arrest  where  the  affiant  for  the  warrant  is  not  a  law  enforcement  officer;  thus,
          the  modifications  to  the  law  have  no  bearing  on  the  existing  authority  of  a  law  enforcement  officer
          to  sign  an  affidavit  for  an  arrest  warrant  concerning  an  offense  that  occurred  outside  of  the  officerÕs
          presence.


                                         ANALYSIS

                As  the  result  of  recent  changes  to  Tenn.  Code  Ann.  ¤  40-6-215,  effective  January  4,  2004,
          a  criminal  summons  is  now  the  exclusive  means  by  which  a  magistrate,  judge  or  clerk  may  compel
          an  accused  party  to  answer  allegations  that  s/he  has  committed  a  criminal  offense  where  the  affiant



            Page  2














































                   Nevertheless,  as  this  Office  has  previously  opined,  the  statute  appears  to  require  the  issuance  of  a  criminal  1

            summons  instead  of  a  warrant  of  arrest  when  a  private  citizen  brings  the  person  before  a  magistrate  and  serves  as  the
            only  affiant.  See  Op.  Tenn.  AttÕy  Gen.  03-153  (Dec.  1,  2003)  2003  WL  23099753,  at  *2  (copy  attached). is  not  a  law  enforcement  officer,  with  the  lone  exception  being  circumstances  demonstrating  that  an
            arrest  warrant  Òis  necessary  to  prevent  an  immediate  threat  of  imminent  harmÓ  to  a  domestic  violence
            victim. See  Tenn.  Code  Ann.  ¤  40-6-215  (2003  Repl.).
                  Because  the  new  legislation  only  relates  to  efforts  by  a  private  citizen  to  obtain  an  order  or
            warrant  for  the  arrest  of  a  suspect,  it  does  not  affect  a  private  citizenÕs  authority,  set  forth  in  Tenn.
            Code  Ann.  ¤¤  40-7-109  and  -110  (2003  Repl.),  to  make  a  citizen  arrest  without  a  warrant.1

            Likewise,  these  changes  have  no  bearing  on  a  law  enforcement  officerÕs  authority  to  seek  an  arrest
            warrant  for  an  offense  committed  outside  of  the  officerÕs  presence.





                                                       PAUL  G. SUMMERS
                                                       Attorney  General


                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General


                                                       THOMAS  E.  WILLIAMS,  III
                                                       Assistant  Attorney  General

            Requested  by:
                  The  Honorable  Joe  Fowlkes
                  32  Legislative  Plaza
                  Nashville,  Tennessee 37243-0165



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                       OFFICE  OF  THE

                                    ATTORNEY  GENERAL
                                       P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202

                                        March  12,  2004
                                      Opinion  No.  04-037
          Effective  Date  of  Annexation  for  Purposes  of  Local  Sales  Tax  Distribution  Under 
          Tenn.  Code  Ann.  ¤  6-51-115(b)(2) 

                                        QUESTIONS

                1.    What  application,  if  any,  does  the  November  25,  1997,  date  found  in  Section  16  of
          Chapter  1101  of  the  Public  Acts  of  1998  have  to  Tenn.  Code  Ann.  ¤  6-51-115(b)(2),  enacted  by  the
          Act?
                2.    Does  Tenn.  Code  Ann.  ¤  6-51-115(b)(2),  enacted  by  Chapter  1101  of  the  Public  Acts
          of  1998  and  effective  May  19,  1998,  apply  to  annexations  that  were  passed  by  ordinance,  the  final
          reading  of  which  occurred  prior  to  May  19,  1998,  but  that  were  not  operative  until  after  May  19,
          1998,  because  of  litigation  challenging  the  annexation?
                3.    If  the  answer  to  question  2  above  is  Òyes,Ó  in  the  case  of  annexations  challenged  by
          litigation,  does  the  revenue  from  those  businesses  that  began  in  an  annexed  area  more  than  three  (3)
          months  after  the  final  reading  of  the  annexation  ordinance,  but  before  the  annexation  became
          operative  at  the  conclusion  of  the  litigation,  go  into  the  determination  of  the  fifteen  (15)  year
          payment  to  the  county?
                4.    How  will  answers  to  questions  1  through  3  above  affect  the  Department  of  RevenueÕs
          administrative  decisions  in  specific  annexation  situations  and  what,  if  any,  additional  action  should
          the  Department  take  in  these  situations?

                                         OPINIONS

                1.    None. The  November  25,  1997,  date  found  in  Section  16  of  Chapter  1101  of  the
          Public  Acts  of  1998  does  not  apply  to  Tenn.  Code  Ann.  ¤  6-51-115(b)(2).
                2.    Yes. Tenn.  Code  Ann.  ¤  6-51-115(b)(2)  applies  to  annexations  that  were  not
          operative  until  after  the  statuteÕs  May  19,  1998,  effective  date  because  of  pending  litigation
          challenging  the  annexationÕs  validity.



            Page  2

                  3.    In  cases  where  annexations  are  challenged  by  litigation,  the  three-month  period  to  be
            used  in  determining  the  fifteen-year  payment  to  the  county  under  Tenn.  Code  Ann.  ¤  6-51-115(b)(2)
            is  the  three  months  immediately  after  the  effective  date  of  the  annexation  at  the  conclusion  of  the
            litigation,  not  the  three  months  after  the  date  of  the  final  reading  of  the  annexation  ordinance.
                  4.    The  Department  of  Revenue  should  handle  any  pending  and  future  annexation
            questions  in  accordance  with  the  opinions  set  forth  herein.

                                               ANALYSIS

                  Your  request  requires  this  Office  to  opine  on  the  meaning  of  the  term  Òeffective  date  of  the
            annexationÓ  as  contained  in  Tenn.  Code  Ann.  ¤  6-51-115(b). That  statute  provides:
                        when  a  municipality  annexes  territory  in  which  there  is  retail  or
                        wholesale  activity  at  the  time  the  annexation  takes  effect  or  within
                        three  (3)  months  after  the  annexation  date,  the  following  shall  apply:
                               .  .  .  .
                               (2)   Notwithstanding  the  provisions  of  ¤  67-6-712  or  any
                        other  law  to  the  contrary,  for  retail  activity  subject  to  the  Local
                        Option  Revenue  Act,  the  county  shall  continue  to  receive  annually  an
                        amount  equal  to  the  amount  of  revenue  the  county  received  pursuant
                        to ¤ 67-6-712(a)(2)(A) in the twelve (12) months immediately
                        preceding the effective date of the annexation for business
                        establishments  in  the  annexed  area  that  produced  Local  Option
                        Revenue  Act  revenue  during  that  entire  twelve  (12)  months. For
                        business  establishments  that  produced  such  revenues  for  more  than
                        a  month  but  less  than  the  full  twelve  (12)  month  period,  the  county
                        shall  continue  to  receive  an  amount  annually  determined  by  averaging
                        the  amount  of  local  option  revenue  produced  by  the  establishment  and
                        allocated  to  the  county  under  ¤  67-6-712(a)(2)(A)  during  each  full
                        month the establishment was in business during that time and
                        multiplying  this  average  by  twelve  (12).  For  business  establishments
                        which did  not  produce  revenue  before  the  annexation  date  and
                        produced  revenue  within  three  (3)  months  after  the  annexation  date,
                        and  for  establishments  which  produced  revenue  for  less  than  a  full
                        month  prior  to  annexation,  the  county  shall  continue  to  receive
                        annually  an  amount  determined  by  averaging  the  amount  of  Local
                        Option Revenue produced and allocated to the county under
                        ¤ 67-6-712(a)(2)(A) during the first three (3) months the
                        establishment  was  in  operation  and  multiplying  this  average  by
                        twelve  (12). The  provisions  of  this  subdivision  are  subject  to  the
                        exceptions  in  subsection  (c). A  municipality  shall  only  pay  the



            Page  3

                        county  the  amount  required  by  this  subdivision,  for  a  period  of
                        fifteen  (15)  years.
            Tenn.  Code  Ann.  ¤  6-51-115(b)(2)  (1998)  (emphases  added). Tenn.  Code  Ann.  ¤  6-51-115(b)(2)
            was  created  by  Chapter  1101  of  the  Public  Acts  of  1998,  which  became  effective  May  19,  1998.  See

            1998  Tenn.  Pub.  Acts  1101,  ¤¤  24,  30.
                  In order to effectuate the distribution of revenues required by Tenn. Code Ann.
            ¤  6-51-115(b)(2),  the  county  within  which  the  annexed  territory  lies  is  responsible  for  certifying  and
            providing  to  the  Department  of  Revenue  Òa  list  of  all  tax  revenue  producing  entities  within  the
            proposed  annexation  area.Ó  Tenn.  Code  Ann.  ¤  6-51-115(d)(1)  (1998). From  this  information,  the
            Department  determines  the  countyÕs  Òlocal  share  of  revenue  .  .  .  generated  within  the  annexed
            territory  for  the  year  before  the  annexation  becomes  effective.Ó  Tenn.  Code  Ann.  ¤  6-51-115(d)(2)
            (1998)  (emphasis  added).
                  As  explained  in  your  request,  in  several  cases,  a  municipality  passed  an  annexation  ordinance
            prior  to  May  19,  1998,  the  effective  date  of  Tenn.  Code  Ann.  ¤  6-51-115(b)(2);  however,  due  to
            subsequent  litigation  challenging  the  annexationÕs  validity,  the  annexation  did  not  become  operative
            until  some  time  after  May  19,  1998.  You  have  questioned  whether,  in  such  cases,  the  Òeffective  date
            of  the  annexationÓ  is  the  date  the  annexation  ordinance  is  passed  by  the  municipality  upon  final
            reading  or,  alternatively,  the  date  the  annexation  becomes  operative  at  the  conclusion  of  litigation
            challenging  the  annexation.  This  question  is  important  because  the  effective  date  of  the  annexation
            determines  what  twelve-month  period  the  municipality  and  county  use  to  calculate  the  amount  of
            local  option  tax  revenues  that  will  be  paid  to  the  county  under  Tenn.  Code  Ann.  ¤  6-51-115(b)(2).
                  1.    As a preliminary  matter, you have asked this Office to address whether the
            November  25,  1997,  date  found  in  Section  16  of  Chapter  1101  of  the  Public  Acts  of  1998  applies
            to  Tenn.  Code  Ann.  ¤  6-51-115(b)(2). Section  16  of  Chapter  1101  provides  that  Ò[t]he  provisions
            of  this  chapter  shall  not  apply  to  any  annexation  ordinance  that  was  pending,  but  not  yet  effective,
            on  November  25,  1997.Ó  1998  Tenn.  Pub.  Acts  1101,  ¤  16  (emphasis  added).  Section  16Õs  reference
            to  Òthis  chapterÓ  means  Chapter  58,  within  which  the  provision  appears,  and  not  the  Act  as  a  whole.
            Section  2  of  the  Act  provides  that  ÒTennessee  Code  Annotated,  Title  6,  is  amended  by  adding
            Sections  3  through  16  as  a  new  Chapter  58.Ó  1998  Tenn.  Pub.  Acts  1101,  ¤  2.  Section  16  of  the  Act
            became  part  of  Chapter  58,  but  Section  16  was  not  included  as  part  of  Chapter  51  or  any  other
            chapter  amended  by  the  Act. Subsequent  to  its  enactment,  Section  16  was  codified  as  Tenn.  Code
            Ann.  ¤  6-58-115.  On  the  other  hand,  the  Òeffective  date  of  annexationÓ  language  on  which  you  have
            requested  an  opinion  appears  in  Section  24  of  the  Act,  which  specifically  directs  that  it  become  a
            new  subsection  to  Tenn.  Code  Ann.  ¤  6-51-115,  contained  within  Chapter  51. Under  these
            circumstances,  Section  16  of  the  Act,  as  codified  at  Tenn.  Code  Ann.  ¤  6-58-115,  has  no  application
            to  the  provisions  of  Tenn.  Code  Ann.  ¤  6-51-115(b)(2).



            Page  4

                  2.    In  Attorney  General  Opinion  No.  80-495,  this  Office  opined  that  Tenn.  Code  Ann.
            ¤  6-51-103  Ògoverns  the  effective  date  of  an  annexation  by  a  Tennessee  municipality.Ó Op.  Tenn.
            AttÕy  Gen.  No.  80-495  (Oct.  27,  1980). As  explained  in  that  opinion,  Òif  the  annexation  of  an  area
            is  not  contested  it  takes  effect  in  accordance  with  the  annexation  ordinance.Ó Id. If  an  annexation
            is  contested,  however,  Tenn.  Code  Ann.  ¤  6-51-103(c)  Òstates  that  it  shall  become  operative  thirty-one 
               days  after  judgment  is  entered  upholding  its  validity,  unless  an  abrogating  appeal  is  taken.Ó Id.

            This  Office  concluded  that  Ò[t]he  clear  design  of  the  statute  is  that  upon  filing  of  a  lawsuit,  the
            operation  of  the  annexation  ordinance  is  suspended  until  a  court  determines  the  validity  of  the
            ordinance.Ó Id.  (citing  Tenn.  Code  Ann.  ¤  6-51-103(d)).
                  Consistent  with  this  OfficeÕs  prior  opinion,  the  Court  of  Appeals  has  observed  that,  where
            residents  challenged  the  validity  of  an  annexation  ordinance  in  a  lawsuit  filed  in  chancery  court,  the
            annexation  ordinance  Òdid  not  become  effective  until  the  Supreme  CourtÕs  judgment  finding  the
            ordinance  valid  became  final.Ó Piper  v.  City  of  Memphis,  861  S.W.2d  832,  834  (Tenn.  Ct.  App.
            1992).  In  essence,  such  litigation  delays  the  effective  date  of  the  annexation.  See  PEP  Properties  v.
            Town  of  Farragut,  1991  WL  50211,  at  *1  (Tenn.  Ct.  App.  Apr.  10,  1991),  perm.  app.  denied  (Tenn.
            Sept.  9,  1991).
                  This  OfficeÕs  attention  has  been  drawn  to  the  Court  of  AppealsÕ  decision  in  Jefferson
            County  v.  City  of  Morristown,  No.  03A01-9810-CH-00331,  1999  WL  817519  (Tenn.  Ct.  App.
            Oct.  13,  1999)  (no  perm.  app.  filed),  wherein  the  Court  concluded  that  the  annexation  law  to  be
            applied  to  an  annexation  ordinance  is  the  law  in  effect  at  the  time  the  legislative  body  takes  its  final
            action  to  approve  the  ordinance. In  that  case,  however,  the  statute  at  issue  provided  that  it  would
            Ònot  affect  any  annexation  ordinance  adopted  on  final  reading  by  a  municipality  prior  to  May  19,
            1998.Ó Id.,  at  *2  (quoting  Tenn.  Code  Ann.  ¤  6-58-108(e)  (1998)). Thus,  for  purposes  of
            determining  the  statuteÕs  applicability,  the  critical  date  was  the  date  the  legislative  body  adopted  the
            annexation  ordinance  on  final  reading.  In  contrast,  the  critical  date  for  purposes  of  determining  the
            applicability  of  Tenn.  Code  Ann.  ¤  6-51-115(b)(2)  is  Òthe  effective  date  of  the  annexation,Ó  which
            this  Office  has  opined,  and  the  Court  of  Appeals  has  agreed,  is  the  date  a  court  order  is  entered
            finally  upholding  the  annexation  ordinanceÕs  validity.
                  Admittedly,  the  Jefferson  County  opinion  contains  language  and  reasoning  that  would  apply
            this  principle  more  broadly  to  instances  that  do  not  involve  such  Òfinal  readingÓ  phraseology. But
            that  discussion  is  not  necessary  to  the  CourtÕs  decision. In  any  event,  to  the  extent  they  are  in
            conflict,  in  the  opinion  of  this  Office,  the  reasoning  of  Piper  is  more  persuasive  and  authoritative
            than  that  found  in  Jefferson  County.

                  3.    In  accordance  with  the  foregoing  analysis,  the  three-month  period  referred  to  in  Tenn.
            Code  Ann.  ¤  6-51-115(b)(2)  is  the  three  months  immediately  after  the  effective  date  of  the
            annexation  at  the  conclusion  of  the  litigation,  not  the  three  months  after  the  date  of  the  final  reading
            of  the  annexation  ordinance. Accordingly,  calculation  of  the  fifteen-year  payment  to  the  county
            should  include  revenue  from  those  businesses  that  began  in  an  annexed  area  within  this  time  period,



            Page  5

            even  if  the  businesses  were  not  in  existence  three  months  after  the  annexation  ordinanceÕs  final
            reading.
                  4.    In handling any pending and future annexation questions from counties and
            municipalities,  the  Department  of  Revenue  should  act  consistently  with  the  principles  set  forth  in
            this  Opinion.  That  is,  in  determining  the  effective  date  of  the  annexation  for  purposes  of  calculating
            the  fifteen-year  payment  required  by  Tenn.  Code  Ann.  ¤  6-51-115(b)(2),  the  Department  should  use
            the  date  of  the  order,  judgment,  or  mandate  of  the  last  court  that  acts  authoritatively  to  uphold  the
            validity  of  the  challenged  annexation  ordinance.




                                                       ___________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General

                                                       ___________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General

                                                       ___________________________________
                                                       MARY  ELLEN  KNACK
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Loren  L.  Chumley
                  Commissioner  of  Revenue
                  1200  Andrew  Jackson  Building
                  Nashville,  TN 37242



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                        OFFICE  OF  THE

                                     ATTORNEY  GENERAL
                                        PO  BOX  20207
                                  NASHVILLE,  TENNESSEE  37202

                                        March  12,  2004
                                      Opinion  No.  04-038
          Juvenile  court  authority  to  detain  an  adult  for  an  offense  committed  while  a  juvenile

                                         QUESTION

                Where  may  a  juvenile  court  detain  a  defendant  who  committed  an  offense  as  a  juvenile  but
          was  not  convicted  until  after  the  defendantÕs  eighteenth  birthday? 

                                         OPINION

                The  juvenile  court  may  only  order  the  detention  of  such  a  defendant  to  a  juvenile  detention
          facility,  where  the  defendant  may  only  be  held  until  his/her  nineteenth  birthday,  at  which  time  the
          juvenile  courtÕs  jurisdiction  over  the  defendant  is  terminated,  and  the  defendant  must  be  released.

                                         ANALYSIS

                Tenn.  Code  Ann.  ¤  37-1-103(a)(1)  states:  ÒThe  juvenile  court  has  exclusive  original
          jurisdiction  of  .  .  .  [p]roceedings  in  which  a  child  is  alleged  to  be  delinquent,  unruly  or  dependent
          and  neglected,  or  to  have  committed  a  juvenile  traffic  offense.  .  .  .Ó 
                Tenn.  Code  Ann.  ¤  37-1-102(b)(4)(B)(iii),  in  pertinent  part,  defines  Òchild,Ó  as: 
                [a]  person  under  nineteen  (19)  years  of  age  for  the  limited  purpose  of  .  .  .  [r]emaining
                under  the  jurisdiction  of  the  juvenile  court  for  resolution  of  a  delinquent  offense  or
                offenses  committed  prior  to  a  personÕs  eighteenth  birthday  but  considered  by  the
                juvenile  court  after  a  personÕs  eighteenth  birthday  with  the  court  having  the  option
                of  retaining  jurisdiction  for  adjudication  and  disposition  or  transferring  the  person  to
                criminal  court.  .  .  .
                Furthermore,  Tenn.  Code  Ann.  ¤  37-1-103(c)  states  that  in  such  cases  Òjurisdiction  shall
          continue  until  a  person  reaches  the  age  of  eighteen  (18),  except  that  the  court  may  extend  jurisdiction
          for  the  limited  purposes  set  out  in  ¤  37-1-102(b)(4)(B)  until  the  person  reaches  the  age  of  nineteen
          (19).Ó 
                Although  the  juvenile  courts  have  jurisdiction  over  any  Òchild,Ó  as  defined  above,  Tenn.  Code
          Ann.  ¤  37-1-134  allows  a  case  to  be  transferred  to  the  criminal  court  system  where  the  child  may  be
          prosecuted  as  an  adult. 



                       Tenn.  Code  Ann.  ¤37-116(c)  states  that  Ô[i]f  a  case  is  transferred  to  another  court  for  criminal  prosecution,  1

               the  child  may  be  transferred  to  the  appropriate  officer  or  detention  facility  in  accordance  with  the  law  governing  the
               detention  of  persons  charged  with  crime.Ó Tenn.  Code  Ann.  ¤  37-1-116(h)  states  that  a  juvenile  may  be  temporarily
               detained  for  no  more  than  forty-eight  hours  in  an  adult  jail  or  lockup  when  certain  specific  conditions  have  been  met.
                       Even  where  a  child  is  prosecuted  as  an  adult,  the  law  recognizes  the  possible  danger  to  a  child  in  an  adult  penal  2

               institution. Tenn.  Code  Ann.  ¤  37-1-134(h)  allows  an  adult  institution  to  request  a  defendantÕs  transfer  to  a  juvenile
               facility  until  the  defendant  is  eighteen  years  old,  at  which  time  the  defendant  would  be  transferred  to  the  adult  facility
               to  serve  the  remainder  of  his/her  sentence. Page  2

                       Tenn. Code Ann. ¤37-1-116(a) limits the options available to the juvenile court in
               determining  a  place  of  detention  for  a  juvenile  offender:
                       (a) A  child  alleged  to  be  delinquent  or  unruly  may  be  detained  only  in:
                       (1)  A  licensed  foster  home  or  a  home  approved  by  the  court;
                       (2)  A  facility  operated  by  a  licensed  child  care  agency;
                       (3)  A  detention  home  or  center  for  delinquent  children  which  is  under  the  direction
                       or  supervision  of  the  court  or  other  public  authority  or  of  a  private  agency  approved
                       by  the  court;  or
                       (4)  .  .  .  [A]ny  other  suitable  place  or  facility  designated  or  operated  by  the  court. The
                       child  may  be  detained  in  a  jail  or  other  facility  for  the  detention  of  adults  only  if:
                       (A)  Other  facilities  in  subdivision  (a)(3)  are  not  available;
                       (B)  The  detention  is  in  a  room  separate  and  removed  from  those  for  adults;  and
                       (C) It appears to the satisfaction of the court that public safety and protection
                       reasonably  require  detention,  and  it  so  orders.
                       Except  under  very  limited  conditions, Ò[n]o  child  may  be  detained  or  otherwise  placed  in  1

               any  jail  or  other  facility  for  the  detention  of  adults  .  .  .  .Ó Tenn.  Code  Ann.  ¤  37-1-116(e).
                       The  juvenile  court,  then, has  exclusive  jurisdiction  for  offenses  committed  by  a  person  when
               that  person  is  under  eighteen  years  of  age,  although  such  cases  may  be  transferred  to  the  criminal
               courts  under  certain  circumstances. When  the  juvenile  court  retains  jurisdiction  over  the  person  and
               the  offense,  that  jurisdiction  continues  only  until  the  person  is  nineteen  years  of  age. The  juvenile
               court  may  order  the  child  to  be  detained  in  one  of  several  different  types  of  facilities  but  may  not
               order  the  child  to  be  detained  Òin  any  jail  or  other  facility  for  the  detention  of  adults.Ó
                       Regarding  the  severity  of  the  offense  committed  by  the  child,  the  juvenile  courtÕs  authority
               to  order  the  detention  of  a  juvenile  is  limited  by  the  offense  and  the  juvenile  status  of  a  defendant,
               i.e.,  the  juvenile  court  may  not  order  the  detention  of  a  defendant  beyond  the  sentence  limit  for  the
               particular  crime  for  which  the  defendant  would  be  eligible  if  an  adult  and  the  defendant  may  not  be
               detained,  under  any  circumstances,  beyond  the  defendantÕs  nineteen  birthday. If  the  alleged  crime
               is  of  such  a  serious  nature  that  the  juvenile  court  deems  its  authority  inadequate  to  address  the
               alleged  crime,  the  juvenile  court  may  take  action  in  accordance  with  Tenn.  Code  Ann.  ¤  37-1-134,
               to  transfer  the  case  to  the  criminal  court  system  where  the  child  would  be  dealt  with  as  an  adult.  2



              Page  3

                      Accordingly,  it  is  the  opinion  of  this  office  that  a  juvenile  offender  who  has  attained  the  age
              of  majority  before  being  convicted  of  an  offense  by  a  juvenile  court  may  not  be  held  in  an  adult
              facility,  such  as  the  local  jail. Such  a  defendant  may  only  be  held  in  a  juvenile  detention  facility  as
              set  forth  above  and  may  not  be  held  beyond  the  defendantÕs  nineteenth  birthday,  regardless  of
              whether  the  offense  is  a  misdemeanor  or  a  felony. 



                                                                  PAUL  G. SUMMERS
                                                                  Attorney  General  and  Reporter


                                                                  MICHAEL  E.  MOORE
                                                                  Solicitor  General


                                                                  BRENT  C.  CHERRY
                                                                  Assistant  Attorney  General
              Requested  by:
                      The  Honorable  Jeff  D.  Rader
                      The  Honorable  Dwight  E.  Stokes
                      Sevier  County  Juvenile  Court  Services
                      125  Court  Avenue
                      Suite  305W  Courthouse  Annex
                      Sevierville,  Tennessee  37862



                       Tenn.  Code  Ann.  ¤  49-13-101,  et.  seq.  1


                       Type  2  schools  may  be  formed  to  meet  the  needs  of  students  eligible  for  special  education  services. Type  3  2

               schools  may  be  created  in  concert  with  a  state  public  higher  education  teacher  training  institution  to  meet  the  needs  of
               a  broad  range  of  students. Tenn.  Code  Ann.  ¤  49-13-106(a)(2);  Op.  Tenn.  Atty.  Gen.  03-083  (July  2,  2003). S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                                          OFFICE  OF  THE

                                                      ATTORNEY  GENERAL
                                                          PO  BOX  20207
                                                 NASHVILLE,  TENNESSEE  37202

                                                         March  12,  2004
                                                       Opinion  No.  04-039
               Charter  Schools:  Eligibility  for  Enrollment  in  Type  1  Charter  School;  Approval  of  New  Charter
               School  Application

                                                          QUESTIONS

                       1.     Is  a  student  who  attends  a  school  failing  to  make  adequate  yearly  progress,  as  defined
               by  the  stateÕs  accountability  system,  eligible  to  attend  a  charter  school  established  pursuant  to  Tenn.
               Code  Ann.  ¤  49-13-106(a)(1)?
                       2.     Does  the  Tennessee  Public  Charter  School  Act  of  2002  (Act),  Tenn.  Code  Ann.  ¤  49-
               13-101,  et.  seq.,  prohibit  the  approval  of  an  application  for  a  new  charter  school  if  an  eligible  student
               population  does  not  exist  at  the  time  the  charter  school  application  is  approved?

                                                           OPINIONS

                       1.     Yes. Students  eligible  to  enroll  in  a  charter  school  formed  under  Tenn.  Code  Ann.
               ¤  49-13-106(a)(1)  are  students  who  come  from  failing  schools.
                       2.     No.  However, the local board of education has the sole authority to approve
               applications  and  may  deny  applications  if  an  eligible  student  population  does  not  exist  at  the  time
               the  charter  school  application  is  submitted. 

                                                           ANALYSIS

                       There  are  three  different  types  of  charter  schools  authorized  by  the  Tennessee  Public  Charter
               Schools  Act  of  2002  (Act). The  only  students  eligible  to  enroll  in  the  schools  authorized  by  Tenn.  1

               Code  Ann.  ¤  49-13-106(a)(1)  (Type  1)  are  students  Òin  schools  failing  to  make  adequate  yearly
               progress,  as  defined  by  the  stateÕs  accountability  system.Ó  Though  there  are  several  bills  currently  2



            Page  2








































                   HB2427  (SB2579),  103d  Gen.  Assem.,  Reg.  Sess.  (Tn.  2004),  would  make  students  in  schools  placed  on  3

            probation  eligible,  rather  than  students  in  schools  failing  to  make  adequate  yearly  progress;  HB2632  (SB2585)  would
            make  students  failing  to  make  adequate  yearly  progress  eligible  for  charter  schools  formed  under  Tenn.  Code  Ann.  ¤
            49-13-106(a)(1);  HB3380  (SB3216)  would  expand  eligibility  to  many  new  categories  of  students,  including  those
            failing  to  make  adequate  yearly  progress  and  students  Òcategorized  as  Ôhigh-riskÕ  or  Ôdrop  out.ÕÓ 
                   Sponsors  denied  approval  may  amend  their  application  and,  if  their  application  is  again  disapproved,  may  4

            appeal  to  the  state  board  of  education. If  the  state  board  of  education  determines  that  denying  an  application  Òwas
            contrary  to  the  best  interests  of  the  pupils,  school  district,  or  community,  the  state  board  shall  remand  such  decision  to
            the  local  board  of  education  with  written  instructions  for  approval  of  the  charter.Ó  Tenn.  Code  Ann.  ¤  49-13-108(3).

                                                    2 before  the  state  legislature  that  would  change  the  criteria  for  Type  1  schools, the  current  law  limits  3

            Type  1  charter  school  eligibility  to  students  from  schools  failing  to  make  adequate  yearly  progress.
                  You  also  asked  whether  the  Act  prohibits  the  approval  of  an  application  for  a  new  charter
            school  if  an  eligible  student  population  does  not  exist  at  the  time  the  charter  school  application  is
            approved.  Tenn.  Code  Ann.  ¤  49-13-108(1)  gives  local  boards  of  education  the  authority  to  approve
            or  deny  applications  to  establish  public  charter  schools. That  authority  is  not  limited  by  the  statute.  4


                  Although  the  law  does  not  list  specific  reasons  for  disapproving  an  application,  Tenn.  Code
            Ann.  ¤  49-13-107  requires  potential  sponsors  to  list,  among  other  things,  the  following  information:
                  -  An  operating  budget  based  on  anticipated  enrollment
                  -  A  timetable  for  commencing  operations  as  a  public  charter  school
                  -  A  description  of  the  anticipated  student  enrollment
                  -  The  transportation  plan  for  the  pupils  attending  the  charter  school
                  Sponsors  could  not  provide  any  of  this  information  in  the  absence  of  a  pool  of  students
            currently  eligible  to  attend  a  charter  school.  Moreover,  though  the  Act  does  not  prohibit  approving
            a  new  charter  school  application  if  an  eligible  student  population  does  not  exist  at  the  time  of  the
            application,  we  find  nothing  in  the  Act  to  limit  the  discretion  of  local  boards  of  education  to  decide
            that  charter  schools  should  not  be  approved  in  areas  lacking  an  eligible  student  population.


                                                       __________________________________
                                                       PAUL  G.  SUMMERS
                                                       Attorney  General


                                                       __________________________________
                                                       MICHAEL  E.  MOORE
                                                       Solicitor  General



            Page  3









































                                                    3  __________________________________ 
                                                       RICHARD  F.  HAGLUND  III
                                                       Assistant  Attorney  General
            Requested  by:
                  The  Honorable  Ben  West,  Jr.
                  State  Representative
                  Suite  37,  Legislative  Plaza
                  Nashville,  TN  37243-0160



                  PL  107-110,  January  8,  2002,  115  Stat  1425.  1


                  20  U.S.C.A.  ¤  6316  (2003).  2


                  20  U.S.C.A.  ¤  6316  (2003).  3                 S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                             OFFICE  OF  THE

                                          ATTORNEY  GENERAL
                                           425  Fifth  Avenue  North
                                    NASHVILLE,  TENNESSEE  37243-0497

                                             January  12,  2004
                                           Opinion  No.  04-004

            Termination  of  teachers  in  Òcorrective  actionÓ  schools  under  the  federal  No  Child  Left  Behind  Act

                                              QUESTION

                  Does  the  federal  No  Child  Left  Behind  Act  of  2001  (ÒNCLBÓ)  supersede  state  law  or  the
            negotiated  contract  between  teachers  and  a  Local  Education  Agency  (LEA)  when  it  comes  to
            removing  faculty  from  Òcorrective  actionÓ  schools? Does  the  federal  legislation  give  an  LEA  the
            authority  to  dismiss  bad  teachers  without  going  through  the  long  process  of  documentation  in  those
            schools  that  are  in  Òcorrective  actionÓ?

                                               OPINION

                  The  NCLB  does  not  affect  rights  of  teachers  under  state  law  or  collective  bargaining
            agreements.

                                              ANALYSIS

                  The  federal  No  Child  Left  Behind  Act  of  2001 requires  states  to  determine  if  each  school  1

            and  Local  Education  Agency  (ÒLEAÓ)  make  adequate  yearly  progress. If  a  school  fails  to  make
            adequate  progress  for  several  consecutive  years,  the  school  is  placed  on  probation  and  may
            subsequently  be  subject  to  a  corrective  action  plan  composed  by  the  LEA. Consistent  with  state  2

            law,  the  LEA  must  implement  one  of  the  following  Òalternative  governance  arrangementsÓ  for  the
            school:  reopen  it  as  a  public  charter  school,  replace  all  or  most  of  the  staff  (including  the  principal)
            Òwho  are  relevant  to  the  failure  to  make  adequate  yearly  progress,Ó  turn  operation  of  the  school  over
            to  the  State  or  contract  with  a  private  entity  to  manage  the  school  or  make  Ò[a]ny  other  major
            restructuring  of  the  school's  governance  arrangement  that  makes  fundamental  reforms  .  .  .  .Ó  3



            Page  2











































                   TENN.  CODE  ANN.  ¤  49-5-409  (termination  of  teacher  contracts);  TENN.  CODE  ANN.  ¤¤  49-5-511-513  (notice  4

            requirement,  teachersÕ  right  to  a  hearing  and  judicial  review  of  termination  decisions).
                   TENN.  CODE  ANN.  ¤  49-5-601  et  seq.  5


                   20  U.S.C.A.  ¤  6316  (2003).  6When  removing  teachers  from  schools  failing  to  make  adequate  yearly  progress,  including
            teachers  in  schools  targeted  for  or  undergoing  Òcorrective  action,Ó  state  or  LEA  officials  are  not
            authorized  to  waive  any  of  the  procedural  protections  provided  by  state  law  or  collective  bargaining
            agreements. State  law  does  not  provide  exceptions  to  the  laws  governing  termination  of  teacher
            contracts or  collective  bargaining  agreements. And  the  NCLB  specifically  states:  4                              5


                  Nothing  in  this  section  shall  be  construed  to  alter  or  otherwise  affect  the  rights,
                  remedies,  and  procedures  afforded  school  or  school  district  employees  under  Federal,
                  State,  or  local  laws  (including  applicable  regulations  or  court  orders)  or  under  the
                  terms  of  collective  bargaining  agreements,  memoranda  of  understanding,  or  other
                  agreements  between  such  employees  and  their  employers.6


                  Therefore,  it  is  the  opinion  of  this  office  that  teachers  in  Òcorrective  actionÓ  schools  may  not
            be  removed  without  complying  with  all  of  the  notice,  hearing  and  other  procedural  rights  afforded
            teachers  by  state  law  or  collective  bargaining  agreements.

                                                 __________________________________
                                                 PAUL  G.  SUMMERS
                                                 Attorney  General  and  Reporter


                                                 __________________________________
                                                 MICHAEL  E.  MOORE
                                                 Solicitor  General


                                                 __________________________________
                                                 RICHARD  F.  HAGLUND  III
                                                 Assistant  Attorney  General



            Page  3
            Requested  by:
                  The  Honorable  Ward  Crutchfield
                  State  Senator
                  Legislative  Plaza  Suite  13
                  Nashville,  Tennessee  37243



                                S  T  A  T  E O  F T  E  N  N  E  S  S  E  E

                                       OFFICE  OF  THE

                                    ATTORNEY  GENERAL
                                       P.O.  BOX  20207
                                NASHVILLE,  TENNESSEE  37202

                                        March  12,  2004
                                      Opinion  No.  04-040
          Negotiation  of  Payments  in  Lieu  of  Taxes  by  Local  Industrial  Development  Boards 

                                         QUESTION

                Pursuant  to  Tenn.  Code  Ann.  ¤  7-53-305(g),  if  a  municipal  industrial  development
          corporation  (IDC)  negotiates  payments  in  lieu  of  taxes  in  an  amount  equal  to  or  exceeding  the  county
          ad  valorem  taxes  otherwise  due,  may  the  IDC  do  so  without  involvement  or  approval  of  the  county?

                                         OPINION

                Yes.  Tenn.  Code  Ann.  ¤  7-53-305(g)  does  not  require  the  countyÕs  involvement  or  approval
          when  a  municipal  IDC  negotiates  payments  in  lieu  of  taxes  in  an  amount  equal  to  or  exceeding  the
          county  ad  valorem  taxes  otherwise  due.  The  statute  requires  the  countyÕs  involvement  or  approval
          only  when  the  IDC  negotiates  payments  that  are  less  than  the  county  ad  valorem  taxes  otherwise  due.

                                         ANALYSIS

                Pursuant  to  Tenn.  Code  Ann.  ¤