Can a Tennessee corporation be criminally prosecuted for telling a sheriff or process server to stay off its property, and does 'person' in the obstructing-service statute include businesses?

Plain-English summary

State Representative Harry Brooks asked whether the word "person" in Tenn. Code Ann. § 39-16-602(c) covered corporations and other business entities, and whether a corporation refusing access to a sheriff or process server could violate the statute. The AG concluded that a corporation is included in "person" and that it is an offense to intentionally prevent or obstruct service of process.

The first question was a pure definitional matter. Tenn. Code Ann. § 39-11-106(a)(27), which supplies the definitions for criminal offenses in Title 39, defines "person" to include "any individual, firm, partnership, copartnership, association, corporation, governmental subdivision or agency, or other organization or other legal entity, or any agent or servant thereof." So "person" in § 39-16-602(c) was not limited to natural humans. Corporations and other legal entities fell within the term.

The second question concerned preventing or obstructing service. Section 39-16-602(c) makes it an offense to "intentionally prevent or obstruct an officer of the state or any other person known to be a civil process server in serving, or attempting to serve or execute, any legal writ or process." The AG used dictionary meanings: prevent meant "to keep from happening," and obstruct meant "to impede, retard, or interfere with." Under the proper circumstances, a corporation consciously impeding service or keeping process from being served may be prosecuted.

Corporate criminal responsibility is addressed in § 39-11-404(a)(3)(A). It applies when an agent engages in conduct constituting a misdemeanor while acting within the scope of employment and on behalf of the corporation. The AG noted that a violation of § 39-16-602(c) is a Class A or Class B misdemeanor, depending on the circumstances, and concluded that a corporation could commit the offense through an agent who intentionally prevents or obstructs service.

The AG declined to answer Representative Brooks's third question (how should the statute be modified if it didn't reach corporate conduct), saying the first two answers made the third unnecessary.

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. § 39-11-103 states that "every person, whether an inhabitant of this or any other state or country, is liable to punishment by the laws of this state, for an offense committed in this state," subject to the federal-court exception quoted in the opinion. Tenn. Code Ann. § 39-11-106(a)(27) expressly includes corporations and other legal entities within "person."

Tenn. Code Ann. § 39-11-106(18) defines intentional conduct as conduct undertaken when "it is the person's conscious objective or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-404(a)(3)(A) addresses when an agent's misdemeanor conduct constitutes an offense by the corporation.

Section 39-16-602(c) addresses intentionally preventing or obstructing an officer of the state or a person known to be a civil process server while serving or attempting to serve or execute legal process. The opinion applies that text to corporations under the Title 39 definition of "person."

The AG said a § 39-16-602(c) violation is a Class A or Class B misdemeanor, depending on the circumstances. That classification matters to the corporate responsibility provision the opinion applies, § 39-11-404(a)(3)(A).

Common questions

Q: When could an employee's obstruction expose a corporation to prosecution?
A: The AG said the agent's conduct must constitute the misdemeanor, occur within the scope of employment, and be on behalf of the corporation. The agent must intentionally prevent or obstruct service.

Q: Did the employee have to know it was a process server?
A: The statute quoted by the AG refers to "an officer of the state or any other person known to be a civil process server." The opinion did not analyze what evidence would establish that knowledge in a particular case.

Q: What did the opinion mean by intentional obstruction?
A: It quoted § 39-11-106(18): a person acts intentionally when engaging in the conduct or causing the result is the person's "conscious objective or desire."

Q: What kind of conduct counted?
A: The opinion used dictionary definitions: "prevent" means keeping something from happening, and "obstruct" means impeding, retarding, or interfering. It did not decide whether any specific refusal of access met those definitions.

Q: Did the AG decide whether an officer or employee could also be prosecuted?
A: No. The opinion addressed whether a corporation or other legal entity could commit the offense and when an agent's conduct could be attributed to a corporation.

Citations and references

Statutes:

• Tenn. Code Ann. § 39-11-103 (persons liable to punishment)
• Tenn. Code Ann. § 39-11-106(a)(27) (definition of "person" in Title 39)
• Tenn. Code Ann. § 39-11-106(18) (definition of intentional conduct)
• Tenn. Code Ann. § 39-11-404(a)(3)(A) (corporate criminal responsibility for misdemeanor agent conduct)
• Tenn. Code Ann. § 39-16-602(c) (intentionally preventing or obstructing service of process)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-023.pdf

Original opinion text

March 1, 2010

Opinion No. 10-23

Corporate Criminal Responsibility under Tennessee Code Annotated section 39-16-602(c)

QUESTIONS

1. Does the word "person" in Tennessee Code Annotated section 39-16-602(c) include a corporation, business, or legal entity?

2. If so, and such a "person" refused to allow a sheriff or private process server onto its property to execute service, or refused to accept process executed upon the "person," would that conduct constitute "preventing or obstructing" service as prohibited by subsection (c)?

3. If not, why, and how should the statute be modified in order to cover that conduct?

OPINIONS

1. Under the proper circumstances, the statutory definition of "person" may include corporations, businesses, and other legal entities for all criminal offenses in Title 39.

2. Yes. It is an offense for any corporation, business, or other legal entity included in the definition of "person" to intentionally prevent or obstruct service of process.

3. The answer to the first two questions obviates the need to answer the third question.

ANALYSIS

1. Tennessee Code Annotated section 39-11-103 states that "[e]very person, whether an inhabitant of this or any other state or country, is liable to punishment by the laws of this state, for an offense committed in this state, except where it is by law cognizable exclusively in the courts of the United States." As defined in Title 39, "[p]erson' includes the singular and the plural and means and includes any individual, firm, partnership, copartnership, association, corporation, governmental subdivision or agency, or other organization or other legal entity, or any agent or servant thereof." Tenn. Code Ann. § 39-11-106(a)(27) (emphasis added). Accordingly, "person" as used in Tennessee Code Annotated section 39-16-602(c) would not be limited to an individual but would include a corporation or other legal entity.

2. Under Tennessee Code Annotated section 39-16-602(c), "[i]t is an offense for a person to intentionally prevent or obstruct an officer of the state or any other person known to be a civil process server in serving, or attempting to serve or execute, any legal writ or process." (Emphasis added). A person acts intentionally "when it is the person's conscious objective or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-106(18). The terms "prevent" and "obstruct," however, are not defined by the statute. But, "prevent" generally means "[t]o keep from happening," and "obstruct" means "[t]o impede, retard, or interfere with." The American Heritage College Dictionary 859, 982 (2nd ed. 1985).

Therefore, it is the opinion of this office that, under the proper circumstances, a corporation or other legal entity consciously impeding an officer of the state or civil process server serving or attempting to serve process, or consciously keeping such process from being served, would be committing an offense under Tennessee Code Annotated section 39-16-602(c) and may be subject to criminal prosecution.

It should be further noted that pursuant to Tennessee Code Annotated section 39-11-404(a)(3)(A), a corporation commits an offense when the conduct constituting the offense is engaged in by an agent of the corporation acting within the scope of the agent's employment and on behalf of the corporation, and the offense is a misdemeanor. A violation of Tennessee Code Annotated section 39-16-602(c) is a Class A or B misdemeanor, depending on the circumstances. Therefore, a corporation could be committing an offense under Tennessee Code Annotated 39-16-602(c) when an agent of the corporation, acting within the scope of his employment and on behalf of the corporation, intentionally prevents or obstructs a legal process server in serving or attempting to serve process.

3. The answer to the first two questions obviates the need to answer the third question.

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

LINDSY PADUCH STEMPEL
Assistant Attorney General

Requested by:
The Honorable Harry Brooks
State Representative
212 War Memorial Building
Nashville 37243-0119