Does the 2010 Tennessee law raising the drug-testing fee on Drug Control Act convictions apply statewide, or only to the few counties named in § 39-17-420(d)?

Plain-English summary

State Representative Mark Maddox asked whether 2010 Public Chapter 1004 raised the drug-testing fee for every Tennessee Drug Control Act conviction or only for those in a small set of counties identified in Tenn. Code Ann. § 39-17-420(d). The AG concluded the new fee was statewide.

Public Chapter 1004 (effective July 1, 2010) rewrote § 39-17-420(h). The new (h) said that "[i]n addition to all other fines, fees, costs and punishments now prescribed by law, imposed pursuant to subsection (d), a drug testing fee in the amount of two hundred and fifty dollars ($250) shall be assessed upon a conviction of or upon the granting of pretrial diversion under § 40-15-105 or judicial diversion under § 40-35-313 for a violation of any part of the Tennessee Drug Control Act . . . ."

The drafting was awkward, and the awkwardness drove the legal question. Subsection (d) imposes the smaller $20 fee, but only in counties with populations within named bands (about 87,900 to 88,000 or over 700,000). One reading of the new (h) would have said that the $250 fee piggybacks on subsection (d) and therefore only applies in the same limited counties. The AG rejected that reading.

The AG's reasoning was grammatical. The phrase "imposed pursuant to subsection (d)" is an adjective phrase, and the usual rule of English grammar is that an adjective phrase modifies the immediately preceding nouns. Here those preceding nouns were "fines, fees, costs and punishments." So the phrase "imposed pursuant to subsection (d)" describes the other fines, fees, costs, and punishments that already exist under subsection (d). It does not limit where the new $250 fee applies. Read that way, the $250 fee is a statewide fee that operates in addition to whatever other charges already attach under subsection (d).

The AG noted a drafting wrinkle. Subsection (d) only imposes a fee, not fines, costs, or punishments, so the cross-reference is a little loose. But the AG cited Seals v. H & F, Inc. for the proposition that a legislative slip does not create ambiguity that overrides the statute's plain meaning. Fixing the slip is the legislature's job under In re Swanson, not the AG's.

A second footnote in the opinion compared the language before and after Public Chapter 1004. The old (h) had said "including the fee imposed pursuant to subsection (d)," which clearly identified one particular fee within the larger category and would not have limited the geography. The new version drops "including the fee," but the AG read the adjective-phrase grammar to reach the same result either way.

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.

Background and statutory framework

Tenn. Code Ann. § 39-17-420 sits inside the Tennessee Drug Control Act and governs the financial side of drug-offense dispositions: how much money gets collected, who collects it, and where it flows. Subsection (d) is a local fee aimed at counties that maintain or operate a publicly funded forensic laboratory. It imposes a $20 drug-testing fee on Drug Control Act convictions in those counties only.

Subsection (h) before Public Chapter 1004 imposed a $100 statewide drug-testing fee. Public Chapter 1004 raised the headline number to $250 and added pretrial diversion (§ 40-15-105) and judicial diversion (§ 40-35-313) as triggers, not just convictions. The opinion makes clear the $250 fee runs statewide, on top of the $20 fee where that fee already applies.

Pretrial diversion under § 40-15-105 is the prosecutor-driven diversion program available before trial. Judicial diversion under § 40-35-313 is the judge-driven version available after a guilty plea or finding. Both are routine off-ramps for many drug cases; capturing both alongside convictions broadens the reach of the $250 fee considerably.

Common questions

Q: Did this opinion mean every drug conviction in Tennessee triggered the $250 fee?
A: Per the AG, yes, plus pretrial diversion under § 40-15-105 and judicial diversion under § 40-35-313 for any Tennessee Drug Control Act violation. The fee was not limited to the named counties.

Q: Did a defendant pay both fees in the named counties?
A: Under the AG's reading, yes. The $250 statewide fee operated in addition to the $20 local fee where the population thresholds in subsection (d) were met.

Q: Was the AG bothered by the drafting slip in the cross-reference?
A: Yes. The AG flagged in a footnote that subsection (d) imposes a fee but not fines, costs, or punishments, so the cross-reference to "fines, fees, costs and punishments . . . imposed pursuant to subsection (d)" was technically off. The AG followed Seals v. H & F, Inc. and In re Swanson to read past the slip and let the plain language work.

Q: When did the new fee take effect?
A: Public Chapter 1004 took effect July 1, 2010. The opinion noted that effective date but did not address how the increase applied to cases already in the system or any question of retroactivity.

Q: Why use the grammatical analysis at all?
A: Because plain-meaning interpretation is the starting point in Tennessee. The AG cited Curtis v. G.E. Capital Modular Space and Hawkins v. Case Management Inc. for the rule that, when statutory language is plain, the court derives intent from the statute's face and is bound by ordinary grammatical construction.

Citations and references

Statutes and session laws:
- 2010 Tenn. Pub. Acts, ch. 1004 (raising and broadening the drug-testing fee)
- Tenn. Code Ann. § 39-17-420(d) (local $20 fee in named counties)
- Tenn. Code Ann. § 39-17-420(h) (statewide drug-testing fee)
- Tenn. Code Ann. § 40-15-105 (pretrial diversion)
- Tenn. Code Ann. § 40-35-313 (judicial diversion)

Cases:
- Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877 (Tenn. 2005)
- Owens v. State, 908 S.W.2d 923 (Tenn. 1995)
- Hawkins v. Case Management Inc., 165 S.W.3d 296 (Tenn. Ct. App. 2004)
- Seals v. H & F, Inc., 301 S.W.3d 237 (Tenn. 2010)
- Frillici v. Town of Westport, 231 Conn. 418, 650 A.2d 557 (1994)
- In re Swanson, 2 S.W.3d 180 (Tenn. 1999)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-103.pdf

Original opinion text

Drug Testing Fees

QUESTION

Does 2010 Tenn. Pub. Acts, ch. 1004 ("Public Chapter 1004"), which increases the fees that are assessed for drug testing, apply statewide, or is its application limited to the counties that assess drug testing fees pursuant to Tenn. Code Ann. § 39-17-420(d)?

OPINION

Public Chapter 1004, which increases the fees assessed for drug testing in certain cases, applies statewide.

ANALYSIS

Public Chapter 1004 took effect July 1, 2010. Among other provisions, Public Chapter 1004 deleted in its entirety subsection (h) of Tenn. Code Ann. § 39-17-420 and substituted the following:

(h) In addition to all other fines, fees, costs and punishments now prescribed by law, imposed pursuant to subsection (d), a drug testing fee in the amount of two hundred and fifty dollars ($250) shall be assessed upon a conviction of or upon the granting of pretrial diversion under § 40-15-105 or judicial diversion under § 40-35-313 for a violation of any part of the Tennessee Drug Control Act, compiled in this part and title 53, chapter 11, parts 3 and 4.

2010 Tenn. Pub. Acts, ch. 1004. Tenn. Code Ann. § 39-17-420(d) provides:

(d) In addition to all other fines, fees, costs and punishments now prescribed by law, in counties having a population of not less than eighty-seven thousand nine hundred (87,900) nor more than eighty-eight thousand (88,000), or a population greater than seven hundred thousand (700,000), according to the 2000 federal census or any subsequent federal census, a drug testing fee of twenty dollars ($20.00) shall be assessed upon conviction of a violation of this part whenever a drug analysis is performed by a publicly funded forensic laboratory or other forensic laboratory maintained in or operated by those counties. This fee shall be collected by the clerks of the various courts of those counties and forwarded to the appropriate county trustees on a monthly basis and designated for the exclusive use of the publicly funded forensic laboratory of those counties.

You ask if the newly enacted subsection (h) applies statewide or only to those counties that are specified in subsection (d). In construing a statute, a court first looks to the language of the statute itself, keeping in mind that the court's proper role is "to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877, 881 (Tenn. 2005) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). The court must apply the natural and ordinary meaning of the language used. Curtis, 155 S.W.3d at 882. When the language of the statute is plain, clear, and unambiguous, the legislative intent must be derived from the statute's face. Id. Under these circumstances, a court is bound by the plain language of the statute and by the general rules of grammatical construction. Hawkins v. Case Management Inc., 165 S.W.3d 296, 300 (Tenn. Ct. App. 2004).

A plain reading of subsection (h) indicates that the drug testing fee is to be assessed for violations of the Tennessee Drug Control Act in addition to all other fines, fees, costs, and punishments. The assessment of such fee is not limited to those counties enumerated in subsection (d). This conclusion is reached by applying accepted and ordinary principles of English grammar. The usual rule of English grammar is that an adjective phrase modifies and describes the nouns in the preceding phrase. Thus, the adjective phrase "imposed pursuant to subsection(d)" is descriptive and modifies the nouns "fines," "fees," "costs," and "punishments" in the preceding phrase. Stated another way, the "fines," "fees," "costs," and "punishments" referred to in subsection (h) are those imposed pursuant to subsection (d). As a result, it is the opinion of this Office that 2010 Tenn. Pub. Acts, ch. 1004 imposes a $250 drug testing fee for violations of the Tennessee Drug Control Act statewide in addition to the $20 drug testing fee imposed by certain counties enumerated in Tenn. Code Ann. § 39-17-420(d).

[Footnote 1] While subsection (d) imposes a fee, it does not impose any fines, costs, or punishments. This suggests that the legislature was mistaken when it referred to "all other fines, fees, costs and punishments now prescribed by law" as being "imposed pursuant to subsection (d)." But this mistake does not create an ambiguity or an absurdity that would render the statute meaningless. See, e.g., Seals v. H & F, Inc., 301 S.W.3d 237, 250-51 (Tenn. 2010). See also Frillici v. Town of Westport, 231 Conn. 418, 650 A.2d 557, 564 (1994) ("That the legislative branch enacts legislation based upon what may be a reasonable but mistaken factual or legal assumption is not a sufficient justification to fail to give proper effect to the legislation."). It is the prerogative of the legislature, and not the courts, to amend statutes. In re Swanson, 2 S.W.3d 180, 187 (Tenn. 1999).

[Footnote 2] As noted above, Public Chapter 1004 repealed existing language in subsection (h) and replaced it with new language. In fact, the new language only replaced parts of subsection (h). While the primary change was to increase the drug testing fee from $100 to $250, Public Chapter 1004 also modified the phrase "imposed pursuant to subsection (d)" at issue in this opinion. Prior to passage of Public Chapter 1004, the language read as follows: "including the fee imposed pursuant to subsection (d)" (emphasis added). As originally worded, this phrase would not have been construed as modifying the nouns "fines, fees, costs and punishments" but rather as identifying a particular fee falling within those general categories; as such, it clearly would not have been interpreted to limit the application of the drug testing fee only to the counties identified in subsection (d). While the omission of the words "including the fee" in Public Chapter 1004, whether intentional or inadvertent, can be read to change the phrase's meaning, even without those words the adjective phrase at issue does not limit the applicability of the drug testing fee for the reasons explained above.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

LYNDSAY F. SANDERS
Assistant Attorney General

Requested by:
The Honorable Mark L. Maddox
State Representative
17 Legislative Plaza
Nashville, TN 37243-0153