When does a Tennessee creditor have to pay the clerk's and sheriff's fees for a garnishment, at the time of filing or only after the service is performed?

Plain-English summary

State Senator Joe Haynes asked when garnishment costs must be paid. The AG had to handle three separate fee statutes and gave a layered answer.

For court clerk fees under Tenn. Code Ann. § 8-21-401, the answer was up-front. Subsection (i)(1) gave the clerk a $25 post-judgment fee, chargeable per occurrence, applicable to garnishment enforcement. Subsection (a) is the timing rule: "Except as otherwise provided by law, the costs provided in this section in civil cases are chargeable and may be collected at the time the services are requested from the clerk or other officer of the court." So when the judgment creditor asks the clerk to issue a garnishment, the clerk may collect the fee at that moment. The judgment creditor can later recover the cost from the debtor under § 26-2-106(c), which says the debtor pays the costs of any garnishment.

For court clerk fees in counties that fall under Tenn. Code Ann. § 8-21-409 (then only Knox County, defined as a charter county with a population between 350,000 and 450,000), the answer was the opposite. Section 8-21-409 forbids clerks from collecting fees before performing the service. So a Knox County clerk could only charge after issuing the garnishment, not on request.

For sheriff and constable fees under Tenn. Code Ann. § 8-21-901, the AG read § 8-21-102 ("No officer is entitled to demand and receive fees allowed by law until the duty or service for which they are granted is performed, unless otherwise expressly provided by law") together with § 8-21-901(a) ("the sheriff or constable is entitled to demand and receive the respective fees for the following services where services are actually rendered"). The result: the $20 fee under § 8-21-901(a)(2)(B)(i) is payable after the garnishment has been served, not when requested.

The AG also pointed to two other provisions worth noting. § 67-5-2007(b) confirms that officers' fees for collecting delinquent taxes by garnishment are taxed as costs and are payable by the delinquent taxpayer. § 8-21-105 provides a procedural channel: officers facing fee questions may apply to the court for a decision that protects them when acting on it.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Knox County's special-treatment threshold and the underlying fee amounts have likely been adjusted. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tennessee's court-cost framework splits into general-law fees (§ 8-21-401, applicable to most clerks) and county-specific fees triggered by population brackets (§ 8-21-409, currently Knox County). § 8-21-102 is the default rule: officers cannot collect a fee until they have performed the service. § 8-21-401(a) supplies the exception for the general-law fees by expressly authorizing collection at the time of request.

Garnishment is one of the principal judgment-enforcement tools. A judgment creditor with an unpaid judgment can ask the clerk to issue a garnishment summoning a third party (typically the debtor's employer) to surrender funds owed to the debtor. The clerk's fee covers the administrative cost. The sheriff or constable then serves the garnishment, which is the act that triggers their separate fee.

The opinion is most useful as a decision tree:

1. Is the case in a § 8-21-409 county (Knox)? Then both clerk and sheriff fees follow the rule that the fee is owed only after the service is performed.
2. Is the case in any other county? Then the clerk's general-law fee can be charged at request, and the sheriff's fee waits until service is rendered.

In all counties, § 26-2-106(c) places the ultimate cost on the debtor: the creditor pays up front in many cases, then recovers the amount as taxed costs.

Common questions

Q: Could the clerk refuse to issue a garnishment if the creditor refused to pay the fee at the time of the request?
A: In counties governed by § 8-21-401, yes. § 8-21-401(a) expressly permits collection at the time of the request. Outside Knox County, clerks routinely treat the fee as a precondition.

Q: What if the garnishment yielded no recovery?
A: The clerk's fee still applies because it covers the act of issuance. The sheriff's fee applies because it covers the act of service. Whether the creditor ultimately recovers the costs from the debtor depends on whether the debtor has assets to satisfy the judgment.

Q: How does the pauper's oath fit in?
A: § 8-21-401(a) leaves a clear path for a pauper to initiate a judicial proceeding without paying costs up front. The general timing rule does not block access to court for those who cannot afford the fee.

Q: Could a sheriff demand the fee before serving the garnishment?
A: § 8-21-102 says no, unless a statute expressly says otherwise. The AG did not identify any such exception for garnishment service fees, so the fee is payable after service.

Q: What if a fee question arose mid-case?
A: § 8-21-105 allows the officer to apply to the court for a decision. The court's decision protects the officer who acts on it. That mechanism handles disputes about whether a fee is properly chargeable and at what stage.

Citations and references

Statutes:
- Tenn. Code Ann. § 8-21-102 (default: no fee until service performed)
- Tenn. Code Ann. § 8-21-105 (court resolution of fee questions)
- Tenn. Code Ann. § 8-21-401 (general-law clerk fees)
- Tenn. Code Ann. § 8-21-401(a) (collection at time of request)
- Tenn. Code Ann. § 8-21-401(i)(1) (twenty-five dollar post-judgment fee)
- Tenn. Code Ann. § 8-21-401(n) (Knox County exclusion)
- Tenn. Code Ann. § 8-21-409 (Knox County clerk fees; fee only after service)
- Tenn. Code Ann. § 8-21-901 (sheriff and constable fees)
- Tenn. Code Ann. § 8-21-901(a)(2)(B)(i) (twenty-dollar garnishment service fee)
- Tenn. Code Ann. § 26-2-106(c) (debtor pays garnishment costs)
- Tenn. Code Ann. § 67-5-2007(b) (officer fees for delinquent-tax garnishment as taxable costs)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-100.pdf

Original opinion text

Payment of Garnishment Costs

QUESTION

When must the costs on a garnishment be paid?

OPINION

Court costs charged under Tenn. Code Ann. § 8-21-401 may be collected when the services are requested from the clerk or other officer of the court. In counties where Tenn. Code Ann. § 8-21-409 applies, court clerks may not charge costs until the service for which the charge is being made has been performed. Similarly, fees of sheriffs or constables under Tenn. Code Ann. § 8-21-901 are not payable until collection has occurred or been attempted.

ANALYSIS

This opinion addresses whether costs on a garnishment must be paid when garnishment is requested or when collection has occurred or been attempted. The answer depends upon the statute under which the charge is being assessed.

1. Clerk's Fees

Costs associated with a garnishment are provided by statute. Under Tenn. Code Ann. § 8-21-401(i)(1), court clerks may charge a standard post-judgment fee of twenty-five dollars. The fee is charged per occurrence and applies to enforcement of a judgment by garnishment. Id. The governing statute provides in relevant part:

Except as otherwise provided by law, the costs provided in this section in civil cases are chargeable and may be collected at the time the services are requested from the clerk or other officer of the court; however, nothing in this section should be construed to limit the ability of a party to initiate a judicial proceeding by filing a pauper's oath.

Tenn. Code Ann. § 8-21-401(a) (emphasis added). If a judgment creditor requests to enforce a judgment by garnishment, therefore, the court clerk may collect the fee provided by Tenn. Code Ann. § 8-21-401(i)(1) from the judgment creditor when the request is made. A judgment creditor may then recover this cost from the judgment debtor in that Tenn. Code Ann. § 26-2-106(c) provides that "[t]he debtor shall pay the costs of any and all garnishments on each debt on which suit is brought."

The fees provided for in Tenn. Code Ann. § 8-21-401 do not apply to the court clerks in counties with a charter form of government and a population of not less than 350,000 nor more than 450,000 according to the 2000 federal census or any subsequent census (currently only Knox County). Tenn. Code Ann. § 8-21-401(n). In those counties, the fees recited in Tenn. Code Ann. § 8-21-409 are to be charged rather than those in Tenn. Code Ann. § 8-21-401. The general statute on official fees provides:

No officer is entitled to demand and receive fees allowed by law until the duty or service for which they are granted is performed, unless otherwise expressly provided by law.

Tenn. Code Ann. § 8-21-102 (emphasis added). Unlike Tenn. Code Ann. § 8-21-401, section 8-21-409 forbids clerks from collecting fees before performing a service. For this reason, court clerks' fees authorized from counties specified under Tenn. Code Ann. § 8-21-409 are payable only after the service the fee covers is performed.

2. Sheriff's or Constable's Fees

Under Tenn. Code Ann. § 8-21-901(a)(2)(B)(i), a sheriff or constable is entitled to a fee of twenty dollars for each garnishment served. As noted above, under Tenn. Code Ann. § 8-21-102, unless otherwise expressly provided by law, no officer may demand a fee until the duty or service for which the fee is granted has been performed. Similarly, subsection (a) of Tenn. Code Ann. § 8-21-901 provides that "the sheriff or constable is entitled to demand and receive the respective fees for the following services where services are actually rendered[.]" Thus, the twenty-dollar fee charged by a sheriff or constable under Tenn. Code Ann. § 8-21-901(a)(2)(B)(i) is payable after the officer serves a garnishment. See also Tenn. Code Ann. § 67-5-2007(b) (officers' fees for collecting delinquent taxes by serving a garnishment are taxed as costs and are payable by the delinquent taxpayer).

Finally, Tenn. Code Ann. § 8-21-105 provides a mechanism for resolving fee questions in the context of the case in which the fees must be paid. The statute states: "It is the duty of the courts to decide, upon application by the officer entitled to compensation, any question arising under the law, and such decision will protect the officer acting under it."

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Joe M. Haynes
State Senator
G-19 War Memorial Building
Nashville, Tennessee 37243-0220