Can a Tennessee sheriff collect a $5 fee from a surety before releasing a defendant on bail, and can the sheriff reject the bond if the fee isn't paid?

Subject

Opinion No. 12-38, Collecting Sheriff's Fee for Bail Bond, March 19, 2012

Plain-English summary

Tennessee sheriffs do real work when accepting a bail bond. They have to verify the surety, check the bond's validity, issue a numbered receipt, and deposit the bond with the clerk of court. Tenn. Code Ann. § 8-21-901(a)(3)(C) authorizes a $5 fee per bail bond to defray that administrative work. Representative Joe Armstrong asked three related questions: was the fee actually authorized, could the sheriff condition release on payment, and was the surety liable even without a separate written agreement?

The AG answered yes to all three. The fee was authorized when "services are actually rendered," which the AG read to mean upon issuance and acceptance of the bond. The sheriff could refuse to validate the bond if the fee wasn't paid, because Tenn. Code Ann. § 40-11-106(a) gave the sheriff the authority to determine the sufficiency and validity of bonds. And the surety's liability arose from the statute, not from any side agreement; the surety could decline to pay, but then the bond would not be accepted.

The opinion also noted the fee did not violate the Eighth Amendment's prohibition on "excessive bail." The U.S. Supreme Court in Schilb v. Kuebel, 404 U.S. 357 (1971), had upheld a much larger Illinois administrative fee (1% of the bond amount) as a permissible administrative measure subject only to rational basis review. A $5 flat fee easily passed muster.

Currency note

This opinion was issued in 2012. 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.

Historical background and statutory framework

The sheriff's fee schedule

Tenn. Code Ann. § 8-21-901 set out a list of sheriff fees for various services. Subsection (a)(3)(C) specified "For every bail bond: 5.00." The statute opened by stating the sheriff was "entitled to demand and receive the respective fees for the following services where services are actually rendered."

The "services actually rendered" condition meant the fee attached to actual administrative activity, not a generic surcharge. The work that triggered the fee was set out in three places:

• Tenn. Code Ann. § 40-11-106: sheriff (or judicial commissioner) determines the sufficiency of the surety and the validity of the bond, provides a numbered receipt to the defendant, and deposits the bail with the clerk of court.
• Tenn. Code Ann. § 40-11-108: detail on sureties.
• Tenn. Code Ann. § 40-11-109: more detail on bail mechanics.

Earlier AG opinions had reached the same conclusion that fees under § 8-21-901 attached upon performance of the service. Op. Tenn. Att'y Gen. 02-113 (Oct. 10, 2002); Op. Tenn. Att'y Gen. 01-145 (Sept. 11, 2001).

Disputes over fees are resolved under Tenn. Code Ann. § 8-21-105, which directed 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."

Conditioning the bond on payment

The AG read the statute together with § 40-11-106(a). The sheriff had authority to determine "the sufficiency of the surety and the validity of the bond." Op. Tenn. Att'y Gen. 03-050 (April 22, 2003) had said a surety could be deemed insufficient and rejected. The AG concluded the sheriff could lawfully refuse to validate a bond unless the $5 fee was paid. A surety remained free not to pay; the consequence was simply a non-accepted bond.

Constitutional consideration

The Eighth Amendment forbids "excessive bail." The AG noted that the $5 administrative fee did not implicate this prohibition. In Schilb v. Kuebel, 404 U.S. 357, 365 (1971), the U.S. Supreme Court upheld Illinois's policy of retaining 1% of the bond amount as a fee. The Court said the fee "smacks of administrative detail and of procedure and is hardly to be classified as a 'fundamental' right or as based upon any suspect criterion," and so was subject only to rational basis review.

Other courts had reached similar conclusions. Broussard v. Parish of Orleans, 318 F.3d 644, 660 (5th Cir. 2003); Payton v. County of Kane, 301 F. Supp. 2d 835, 838 (N.D. Ill. 2004). A $5 flat fee in Tennessee was on much firmer ground than Illinois's percentage fee. It was reasonable and rationally related to defraying administrative costs.

Surety liability without separate written agreement

The third question addressed whether the surety could escape liability by not having signed a separate fee agreement. The AG said no. The fee is established by statute, not by contract. By entering into the surety relationship and proposing a bond, the surety triggered the statutory fee structure. If the surety wished to avoid the fee, they could decline to post the bond. There was no path to providing the surety without paying the fee.

Common questions

Who pays the $5 fee, the defendant or the surety?

The opinion treated the fee as the surety's responsibility but did not foreclose the defendant from paying it. In practice, the $5 typically gets folded into the surety's bond paperwork. The opinion's point is that the sheriff need not look behind the bond to find the payor; the sheriff requires the fee before accepting the bond.

Can a sheriff charge more than $5 for a bail bond service?

The AG's reading was that the statutory fee was $5 per bail bond, full stop. Sheriffs cannot freelance higher fees. The statute is the schedule. If the General Assembly wanted higher fees, it could have set them.

What about a surety who shows up at midnight with a $5 bill, but the sheriff demands more?

The opinion addressed only the $5 fee. A surety who is asked for more should consult § 8-21-105 procedures, which allow courts to resolve fee disputes. The decision-tree under § 8-21-105 protects sheriffs who act in good faith on a court's ruling.

Doesn't the Eighth Amendment apply to bail amounts?

Yes, but only to the bail amount itself, not to administrative fees. Schilb v. Kuebel held that administrative bail fees are not "bail" in the constitutional sense for excessive-bail purposes; they are procedural fees subject to rational basis review.

Could a surety pay under protest and recover the fee later?

The opinion didn't directly address this. The procedural path under § 8-21-105 would be the way to challenge an alleged improper fee in court. Whether a $5 collected fee could be recouped after challenge would depend on the court's ruling, but the AG saw no reason it would be.

Did the AG suggest the $5 amount was too low to make a difference?

The AG framed the $5 amount as "de minimis" and "reasonable" to "partially defray" administrative costs. The implication: the fee was not meant to fully recoup costs, just to make a contribution. That framing supported the rational-basis analysis and avoided any argument that the fee was disguised punishment.

Citations

• Tenn. Code Ann. § 8-21-901(a)(3)(C) ($5 bail bond fee)
• Tenn. Code Ann. § 8-21-105 (court resolution of fee disputes)
• Tenn. Code Ann. § 40-11-106 (sheriff's role in accepting bail bonds)
• Tenn. Code Ann. § 40-11-108 (sureties)
• Tenn. Code Ann. § 40-11-109 (bail mechanics)
• U.S. Const. amend. VIII (Excessive Bail clause)
• Schilb v. Kuebel, 404 U.S. 357 (1971)
• Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003)
• Payton v. County of Kane, 301 F. Supp. 2d 835 (N.D. Ill. 2004)
• Op. Tenn. Att'y Gen. 01-145 (Sept. 11, 2001)
• Op. Tenn. Att'y Gen. 02-113 (Oct. 10, 2002)
• Op. Tenn. Att'y Gen. 03-050 (April 22, 2003)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-038.pdf

Original opinion text

Collecting Sheriff's Fee for Bail Bond

QUESTIONS

1. Does Tenn. Code Ann. § 8-21-901(a)(3)(C) grant authority to sheriffs in Tennessee to charge and collect a $5 fee on a bail bond at the time the bond is initially made, and, if so, when is this fee assessed and collected?

2. Does Tenn. Code Ann. § 8-21-901(a)(3)(C) grant authority to sheriffs in Tennessee to charge and collect a $5 fee from a surety on a bail bond before the sheriff will release the defendant on a bail bond?

3. Is a surety on a bail bond liable for payment of the $5 fee authorized by Tenn. Code Ann. § 8-21-901(a)(3)(C) if the surety has not agreed in writing to be liable for such costs in a criminal case?

OPINIONS

1. Tenn. Code Ann. § 8-21-901(a)(3)(C) authorizes sheriffs to collect a $5 fee for every bail bond, which may be collected by the sheriff upon issuance and acceptance of the bail bond.

2. Yes.

3. Yes.

ANALYSIS

1. Tennessee law provides a sheriff may collect various fees for specified official acts, including a $5.00 fee for every bail bond, stating in relevant part:

(a) Notwithstanding any other provision of law to the contrary, the sheriff or constable is entitled to demand and receive the respective fees for the following services where services are actually rendered:

. . . .

(3)(C) For every bail bond: 5.00

Tenn. Code Ann. § 8-21-901(a)(3)(C).

The sheriff is "entitled to demand and receive" this fee "where services are actually rendered," in this case upon the issuance and acceptance of a bail bond for a defendant. Tenn. Code Ann. § 8-21-901(a). See also Op. Tenn. Att'y Gen. 02-113 (Oct. 10, 2002); Op. Tenn. Att'y Gen. 01-145 (Sept. 11, 2001) (both opinions state that a sheriff is entitled to demand and receive the fees enumerated in Tenn. Code Ann. § 8-21-901 upon rendition of the service performed). Any disputes regarding the collection of any fee are resolved under Tenn. Code Ann. § 8-21-105, which states that the courts have a duty "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." See also Op. Tenn. Att'y Gen. 02-113.

2. As specifically stated in Tenn. Code Ann. § 8-21-901(a), the $5.00 fee assessed and collected by a sheriff for the issuance and acceptance of a bail bond is intended to defray the administrative services rendered by sheriffs in the bail bond process. The duties performed by sheriffs related to the acceptance of bail bonds are catalogued at Tenn. Code Ann. § 40-11-106, § 40-11-108, and § 40-11-109. These duties include determining the sufficiency of the surety and the validity of any bond, providing a numbered receipt to the defendant, and depositing the bail with the clerk of the court having jurisdiction over the offense. Tenn. Code Ann. § 40-11-106. The sheriff's fee, applicable to all bail bonds and set at a de minimis amount of $5.00 per bail bond, is a reasonable fee intended to defray partially the sheriff's administrative costs. Accordingly the collection of this fee does not violate any provision of the Tennessee or United States Constitutions, including the prohibitions against "excessive bail." See Schilb v. Kuebel, 404 U.S. 357, 365 (upholding an Illinois policy retaining one percent of the bond amount as a fee, stating the validity of the fee satisfies a rational basis review given it "smacks of administrative detail and of procedure and is hardly to be classified as a 'fundamental' right or as based upon any suspect criterion."). See also Broussard v. Parish of Orleans, 318 F.3d 644, 660 (5th Cir. 2003); Payton v. County of Kane, 301 F. Supp. 2d 835, 838 (N.D. Ill. 2004). Therefore, a sheriff may lawfully condition acceptance of a bail bond upon payment of the $5 fee.

3. As discussed above, the sheriff is entitled to demand this fee at the time service is rendered pursuant to Tenn. Code Ann. § 8-21-901(a). Therefore, non-payment of the required fee by the defendant or the defendant's surety constitutes grounds for the sheriff to reject the bond as not valid. See Tenn. Code Ann. § 40-11-106(a) (granting the sheriff or the judicial commissioner authority to determine the sufficiency of the surety and the validity of the bond). See also Op. Tenn. Att'y Gen. 03-050 (April 22, 2003) (stating a surety may be deemed insufficient and rejected by the sheriff or judicial commissioner). Thus, while the surety may refuse to pay the administrative fee when seeking a bail bond from the sheriff, the sheriff can nonetheless require payment of the fee as a condition for validating the bond under Tenn. Code Ann. § 40-11-106(a).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

BENJAMIN A. WHITEHOUSE
Assistant Attorney General

Requested by:
The Honorable Joe Armstrong
State Representative
35 Legislative Plaza
Nashville, Tennessee 37243