Can a Tennessee judge issuing an emergency order of protection order an abuser out of the home, and can violations be punished with contempt?

Plain-English summary

Circuit Court Judge Carol Soloman asked the AG two questions about ex parte orders of protection. Both involved the practical question of how to keep a victim safe in the gap between filing for an order and the merits hearing.

First: when a judge or magistrate signs an ex parte order based on a finding of substantial risk of immediate harm, can the order require the respondent to leave the shared residence pending the hearing? AG Robert Cooper said yes. Tennessee Code § 36-3-601 et seq. (the domestic abuse statute) gives courts broad authority to issue ex parte orders for good cause, including immediate and present danger. Combined with the general court-control authority in § 16-1-102, this includes discretion to order temporary measures (including an immediate vacate order) that further the protective purpose. The catch: the vacate cannot be permanent. A merits hearing must happen within 15 days, and only after both sides have been heard can the court enter a longer-term order under § 36-3-606(a).

Second: if the respondent comes back to the residence anyway, can the court hold them in contempt? Cooper split his answer. A judge has full statutory contempt authority under §§ 16-1-103 and 29-9-102, including for "willful disobedience" of a court order. A 2009 Court of Appeals case, Dockery v. Dockery, expressly held that violating an ex parte order of protection can support criminal contempt. So a judge can do it. A magistrate cannot. The General Assembly authorized magistrates to issue ex parte orders of protection but not to conduct hearings or issue extended orders. Because criminal contempt requires notice and a hearing under Tenn. R. Crim. P. 42(b), and a magistrate has no authority to hold that hearing, a magistrate cannot hold the respondent in contempt. Enforcement of a magistrate-issued vacate directive must be referred to a judge.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is an ex parte order of protection?
A: It is a temporary court order issued without notice to the respondent, based on a sworn petition by the alleged victim, when the court finds an immediate and present danger of abuse. It lasts only until a hearing on the merits, which Tenn. Code Ann. § 36-3-605(b) requires within 15 days.

Q: Can the order kick the respondent out of a shared home?
A: Yes, on a temporary basis. The opinion concludes that the protective authority in § 36-3-601 et seq., combined with the general control-of-proceedings authority in § 16-1-102, permits a vacate directive pending the merits hearing. What the order cannot do is permanently evict the respondent before the respondent has had a chance to be heard.

Q: What happens if the respondent comes back to the house?
A: The respondent has violated a court order. If a judge issued the order, the judge can initiate contempt proceedings (with notice and a hearing under Tenn. R. Crim. P. 42(b)) and impose criminal contempt sanctions. The Court of Appeals in Dockery v. Dockery (2009) confirmed that violation of an ex parte order can be criminal contempt.

Q: Can the magistrate who signed the order also hold the respondent in contempt?
A: No. Magistrates' authority under the domestic abuse statute is limited to issuing the order. They cannot conduct a hearing or issue an extended order, and contempt requires a hearing. The contempt proceeding must be conducted by a judge.

Q: Who can hold a respondent in contempt for violating the order?
A: A judge, not a magistrate. The opinion concluded that a judge has statutory contempt authority under §§ 16-1-103 and 29-9-102 and may cite a respondent who violates the vacate directive, while a magistrate (who can issue the ex parte order but cannot hold the required hearing) cannot conduct contempt proceedings. The opinion addressed only contempt, not any separate criminal charge.

Q: Why must the merits hearing happen within 15 days?
A: Tenn. Code Ann. § 36-3-605(b) sets that timeline as a due-process safeguard. The respondent has not had a chance to respond when the ex parte order is issued, so the statute requires a prompt hearing where both sides can be heard before any longer-term order takes effect.

Q: What if the respondent owns the house and the petitioner does not?
A: The vacate authority under this opinion is temporary, not a determination of property rights. Property rights, including who has the right to occupy the home longer term, are addressed at the merits hearing or in a separate proceeding. The temporary vacate is a safety measure for the gap before the hearing.

Background and statutory framework

Tennessee's domestic abuse statute, Tenn. Code Ann. §§ 36-3-601 et seq., gives courts the power to issue ex parte orders of protection on a finding of "good cause." The statute defines "court" broadly to include "judicial commissioners, magistrates, and other officials with the authority to issue an arrest warrant in the absence of a judge for purposes of issuing ex parte orders of protection when a judge is not available." Tenn. Code Ann. § 36-3-601(3)(D). This is the structural foundation for after-hours and emergency issuance.

The statute is purposive. Tenn. Code Ann. § 36-3-618 expressly states the General Assembly's intent to provide enhanced protections from domestic abuse and to ensure enforcement to protect victims from further abuse. Courts read individual provisions in light of that purpose, which is why the AG concluded a vacate directive is within the statute's scope even though it is not expressly listed as a remedy.

Tennessee's contempt authority is purely statutory. Konvalinka v. Chattanooga-Hamilton County Hosp. Authority, 249 S.W.3d 346, 354 (Tenn. 2008). Tenn. Code Ann. § 29-9-102 lists six categories of contempt, the most relevant being "willful disobedience or resistance" to "any lawful writ, process, order, rule, decree, or command" of the court. The Court of Appeals applied this to ex parte orders of protection in Dockery v. Dockery (2009), confirming that a respondent who violates such an order can be cited for criminal contempt.

The magistrate limitation flows from the statutory architecture. The General Assembly granted magistrates issuance authority precisely to fill the gap when a judge is unavailable, but did not extend that grant to the conduct of hearings. The opinion cites prior AG opinion 01-027 (Feb. 27, 2001), reaching the same conclusion: "Judicial commissioners, magistrates, or other officials with the authority to issue an arrest warrant may not conduct a hearing or issue an extended order of protection." Because Tenn. R. Crim. P. 42(b) requires a hearing for criminal contempt, the magistrate's lack of hearing authority forecloses contempt enforcement at that level.

Citations and references

Statutes and rules:

• Tenn. Code Ann. § 36-3-601 et seq. (domestic abuse statute)
• Tenn. Code Ann. § 36-3-601(3)(D) (definition of "court" including magistrates)
• Tenn. Code Ann. § 36-3-605(a) (issuance for immediate and present danger)
• Tenn. Code Ann. § 36-3-605(b) (15-day hearing requirement)
• Tenn. Code Ann. § 36-3-606(a) (extended order requires hearing)
• Tenn. Code Ann. § 36-3-618 (legislative purpose)
• Tenn. Code Ann. § 16-1-102 (control over proceedings)
• Tenn. Code Ann. § 16-1-103 (statutory contempt power)
• Tenn. Code Ann. § 29-9-102 (statutory grounds for contempt)
• Tenn. R. Crim. P. 42(b) (notice and hearing required for criminal contempt)

Cases:

• Konvalinka v. Chattanooga-Hamilton County Hosp. Authority, 249 S.W.3d 346 (Tenn. 2008), Tennessee Supreme Court (contempt power is purely statutory)
• Dockery v. Dockery, 2009 WL 3486662 (Tenn. Ct. App., Oct. 29, 2009), Tennessee Court of Appeals (violation of ex parte order can be criminal contempt)

Prior AG opinion:

• Op. Tenn. Att'y Gen. No. 01-027 (Feb. 27, 2001) (magistrates cannot conduct hearings or issue extended orders)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-006.pdf

Original opinion text

Ex Parte Order of Protection

QUESTIONS

1. Does a judge or magistrate, who issues an ex parte order of protection upon determining that there is a substantial risk of immediate harm to the petitioner, have the discretion to order the respondent to vacate a residence shared with the petitioner pending a hearing?

2. Does a judge or magistrate have the authority to hold a respondent in contempt of court for returning to the shared residence in violation of the judge or magistrate's specific order?

OPINIONS

1. Yes. A judge or magistrate's authority to issue an ex parte order of protection includes discretionary authority to issue reasonable directives crafted to ensure the order's principle goal of protecting the petitioner from the abusive acts of the respondent.

2. Yes. A judge has legal authority to issue an order of contempt and could cite the respondent for contempt who returns to the residence in direct violation of a judge or magistrate's order. Magistrates, however, are only granted authority to issue an order of protection, and, therefore, lack the authority to conduct contempt proceedings.

ANALYSIS

1. Tennessee Code Annotated § 36-3-601, et seq., commonly referred to as the domestic abuse statute, gives "courts" the power to issue ex parte orders of protection when petitioned by an aggrieved party. The statute's definition of "court" includes "judicial commissioners, magistrates, and other officials with the authority to issue an arrest warrant in the absence of a judge for purposes of issuing ex parte orders of protection when a judge is not available." Tenn. Code Ann. § 36-3-601(3)(D). The General Assembly enacted § 36-3-601, et seq., to provide domestic abuse victims with enhanced protections from domestic abuse, and to ensure the enforcement of the domestic abuse laws to protect victims from further abuse. Tenn. Code Ann. § 36-3-618. The statute gives the courts power to issue ex parte orders of protection for good cause, including circumstances presenting an "immediate and present danger of abuse to the petitioner." Tenn. Code Ann. § 36-3-605(a).

You have asked whether a judge or magistrate's authority to issue an ex parte order of protection after determining that there is a substantial risk of immediate harm to the petitioner includes discretion to order the respondent to immediately vacate the residence shared with the petitioner pending a hearing on the merits. Generally, all courts have the power to "control, in furtherance of justice, the conduct of its officers, and all other persons connected with a proceeding before it, in every matter pertaining to the proceeding." Tenn. Code Ann. § 16-1-102. A condition requiring the respondent to temporarily vacate the shared residence furthers the interest of justice by protecting the petitioner from abuse until the court has had the opportunity to hold a hearing on the merits of the petition which, pursuant to state law, must occur within fifteen days. See Tenn. Code Ann. § 36-3-605(b). Accordingly, this Office is of the opinion that a judge or magistrate issuing an ex parte order of protection has the authority to order a respondent to immediately vacate the residence pending a hearing. That authority, however, cannot be exercised to permanently bar the respondent from the shared residence by "evicting" the respondent until both parties have been given the opportunity to be heard by the court. See Tenn. Code Ann. § 36-3-606(a).

2. You have asked whether a judge or magistrate has the authority to hold a respondent in contempt for violating a requirement in an ex parte order of protection requiring the respondent to vacate a residence shared with the petitioner. Under Tennessee law, the contempt power of the courts is purely statutory. Konvalinka v. Chattanooga-Hamilton County Hosp. Authority, 249 S.W.3d 346, 354 (Tenn. 2008); see also, Tenn. Code Ann. § 16-1-103 ("For the effectual exercise of its powers, every court is vested with the power to punish for contempt as provided for in this code"). The General Assembly has codified the circumstances under which a court may exercise its contempt powers:

The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:
(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice;
(2) The willful misbehavior of any of the officers of such courts, in their official transactions;
(3) The willful disobedience or resistance of any officer of such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or proceedings of the court;
(5) Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; or
(6) Any other act or omission declared a contempt by law.

Tenn. Code Ann. § 29-9-102. The Court of Appeals has recently held that any person who violates an ex parte order of protection can be held in criminal contempt. See Dockery v. Dockery, 2009 WL 3486662 (Tenn. Ct. App., Oct. 29, 2009). This Office is therefore of the opinion that a judge has authority to hold a respondent in contempt for violating an express directive in an order of protection to temporarily vacate a shared residence pending a hearing.

Authority to hold the respondent in contempt under these circumstances, however, would not extend to a magistrate. "Judicial commissioners, magistrates, or other officials with the authority to issue an arrest warrant may not conduct a hearing or issue an extended order of protection." Op. Tenn. Att'y Gen. No. 01-027 (Feb. 27, 2001). Tennessee law requires that any person charged with criminal contempt be provided adequate notice of the charge and afforded a hearing. See Tenn. R. Crim. P. 42(b). Because a magistrate authorized to issue an ex parte order of protection lacks the authority to conduct a hearing pertaining to the order, a magistrate cannot hold a respondent in contempt for violating an ex parte order of protection.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

JOSHUA DAVIS BAKER
Assistant Attorney General

Requested by:
Honorable Carol Soloman
Circuit Court Judge
604 Metro Courthouse
Nashville, TN 37201