Attorney General Opinions 
Relating to County Government

2003 Law Enforcement

• Good time credits mandated by T.C.A. § 41-2-111(b) for prisoners sentenced to the county jail or workhouse for less than one year apply only to post-sentence detention and not to pre-sentence detention.  Opinion No. 03-166 (December 23, 2003).

• The new legislation regarding the issuance of a criminal summons instead of an arrest warrant applies only when the affiant providing probable cause is not a law enforcement officer.  If a private citizen makes an arrest and delivers the person to a law enforcement officer who then becomes the affiant or one of the affiants, an arrest warrant may be issued.  Opinion No. 03-153 (December 8, 2003).

• An officer who has probable cause (or reasonable suspicion based on specific and articulable facts) to believe that the operator of a vehicle is driving on a suspended or revoked license is authorized to stop the vehicle.  Opinion No. 03-152 (November 25, 2003).

• A bailiff or court officer cannot serve as a judicial commissioner.  Opinion No. 03-136 (October 8, 2003).

• The forfeiture provision of the Tennessee Drug Control Act, T.C.A. § 53-11-451(a), does not authorize the seizure or forfeiture of a vehicle if its only connection to a controlled substance is as a means of transportation to facilitate simple possession or casual exchange of a controlled substance, delivery of ½ ounce or less of marijuana, or possession or delivery of drug paraphernalia.  A vehicle used to facilitate the sale of a controlled substance, by contrast, is subject to forfeiture.  The statutes do not differentiate between controlled substances in possession of the driver and those in possession of a passenger, unless the passenger’s actions are without the driver’s knowledge or consent.  Opinion No. 03-133 (October 8, 2003).

• Private security guards may be employed to protect public property.  Opinion No. 03-132 (October 8, 2003).

• The increased fines for driving under the influence provided for in Acts of 1994, Chapter 948 must be deposited in a dedicated county fund and may be expended only for the four items listed in the statute and for no other purpose.  They cannot be used for drug testing of offenders placed on misdemeanor probation or for hiring a probation officer for supervising drug and alcohol offenders.  Opinion No. 03-128 (September 29, 2003).

• Workhouse inmates eligible to earn sentence credits under T.C.A. ' 41-2-147 can earn credits for working for a private employer (private citizen, for-profit corporation, partnership or other business) if such labor is part of a court-approved work release program or a work release program operated under a commission established under T.C.A ' 41-2-134.  Opinion No. 03-125 (September 29, 2003).

• Depending on the facts and circumstances, a sheriff may be allowed to access a database maintained by and readily accessible to an emergency communication district to look up addresses to assist in serving warrants, but district funds cannot be used to provide access if it is not for an emergency purpose.  Opinion No. 03-124 (September 26, 2003).

• The office of constable has been abolished when the terms of the current incumbents expire in Johnson and McNairy counties because they grew into the narrow population classifications contained in T.C.A. ' 8-10-101 effective when the census results were published in the Tennessee Code in 2002.  Other counties also grew into population classifications relative to constables and will be required to follow those provisions when the terms of the currently serving constables expire.  Opinion No. 03-121 (September 24, 2003).

• A defendant convicted of a misdemeanor offense may be assessed the costs of prosecution including jailer=s fees, regardless of financial status, but the defendant cannot have his probation revoked through a violation warrant for failure to pay costs assessed.  These costs may be collected in the same manner as a judgment in a civil action.  Jailers fees may be imposed on a per diem basis but should only cover the reasonable actual costs of confinement.  Opinion No. 03-106 (August 22, 2003).

• The Tennessee Corrections Institute (TCI) has no authority to waive compliance with minimum jail standards other than in those specific situations outlined in T.C.A. ' 41-4-140(b)(2), (d) and (e), which include crowding due to delayed intake into the Department of Correction, or when a local government submits a plan to correct deficiencies within 60 days after inspection which is reasonably expected to eliminate the deficiencies, or when the governor has invoked the power of delayed intake or a court has delayed intake into the department penal system.  Opinion No. 03-101 (August 19, 2003).

• A person who has been convicted of or pleaded nolo contendere to an offense that disqualifies them from employment as a police officer in Tennessee under T.C.A. § 38-8-106(4) is disqualified even if the conviction or plea occurred in another state, and even if the record was later expunged.  Opinion No. 03-095 (July 30, 2003).

• Under T.C.A. § 8-10-101(m), the office of constable is abolished in any county with a population between 17,250 and 17,550 according to the 1990 census or any subsequent census.  In the 2000 census, DeKalb County fell into this population classification. The 2000 census population brackets became effective when they were published in the Tennessee Code Annotated in October 2002, so that is the date that constables are abolished in DeKalb County.  Because the current constables were elected in August 2002 before the population brackets became effective and because the act establishing the population brackets stated that it would not cut short any incumbent’s term, the abolition of the office will not become effective until the incumbents vacate the office or their current terms end.  Opinion No. 03-092 (July 28, 2003).

• Counties have a duty to provide medical care for all prisoners in their facilities, including juveniles, the mentally ill and developmentally disabled, and federal detainees.  Competent adults may consent or withhold consent to medical treatment.  A court-appointed conservator may be sought to authorize medical treatment for an incompetent adult.  Certain minors over the age of fourteen may consent to medical treatment, and medical treatment may be provided to minors in the absence of consent in the event of emergency; otherwise, consent must be obtained from the minor’s parents, guardian or legal custodian.  Opinion No. 03-087 (July 10, 2003).

• State financial responsibility laws require that a person stopped for a traffic violation produce documentation of financial responsibility.  If a driver has insurance coverage because of the vehicle owner’s policy, then producing documentation of the owner’s policy should suffice to comply with the statute.  If the driver is instead insured by another policy, the driver should produce evidence of that policy.  State law does not currently require insurance companies to issue insurance cards to each family member covered under a policy, so it would be sufficient for family members to produce a photocopy of the card or other documentation.  Opinion No. 03-084 (July 2, 2003).

• An inmate’s labor may benefit a private property owner if such labor is performed as part of a court-approved work release program or under the supervision of a workhouse commission.  Opinion No. 03-075 (June 18, 2003).

• A county may include an inmate’s medical expenses in jailer’s fees, but if the county has established a per diem jailer’s fee that includes medical care the county could not add medical expenses to an individual’s fees that would provide double compensation for the same costs.  Jailer’s fees may be included as costs in a criminal action, but a defendant cannot have his probation revoked for failing to pay costs.  Opinion No. 03-072 (June 10, 2003).

• A finding of criminal contempt by a civil court cannot be considered a conviction of “a violation of any federal or state laws or city ordinances relating to force, violence, theft, [or] dishonesty . . .” as set forth in T.C.A. § 38-8-106(4) establishing qualifications for police officers.  Opinion No. 03-071 (May 27, 2003).

• The sheriff may reject a bail bond secured by real estate, even though it has been certified by the circuit court clerk, if the real estate is worth less than one and one-half times the amount of the bail as required by T.C.A. § 40-1-122 (April 22, 2003). 

• There is no federal or state constitutional violation in compelling a motorist to submit to a blood alcohol test as long as there is probable cause to believe the motorist is intoxicated, exigent circumstances exist to forego the warrant requirement, the test to determine alcohol content is reasonable, and the test is performed in a reasonable manner.  Opinion No. 03-047 (April 22, 2003).

• A private security officer is not exempt from licensing requirements even if he is assigned by a contract security company to provide services to a local, state, or federal government entity.  Licensed security officers may direct traffic on private property but not on public streets.  Opinion No. 03-022 (February 25, 2003).

• This opinion discusses the arrest powers of licensed security officers. Security guards are specifically prohibited from holding themselves out as law enforcement officers. They may not make an arrest as a law enforcement official, but private citizens may make an arrest under Tennessee law for an offense committed in their presence or for a felony not committed in their presence, and security guards have the same powers of arrest as any private citizen. Also, security guards are authorized to enforce state and local laws on private property.  Security guards are not required to provide notice of their authority, but they must provide notice of the grounds for arrest.  A security guard may transport a person he has arrested to a magistrate or officer in either a company or personal car, but he and/or his employer could be liable for injuries incurred by the arrestee during transport.  Security guards do not have immunity under the Governmental Tort Liability Act. A law enforcement officer can refuse to take a person arrested by a private person/security officer before a magistrate; the law enforcement officer should not take the person if he does not have reasonable cause to believe the person committed the crime.  A private person/security guard may use reasonable force to make an arrest, so handcuffs or restraining devices are permissible if it is reasonably necessary to accomplish the arrest.  A search conducted by a private person/security guard incident to arrest does not implicate constitutional protections against unlawful searches and seizures, but probable cause does not justify an arrest or search if the crime in fact was not committed, so liability may result from an improper arrest.  Freelance bounty hunters must have a pocket card attesting to their training before they can take a person into custody.  Opinion No. 03-018 (February 19, 2003).