When a Tennessee defendant pays a fine in installments, can the court hold them in contempt if the payments are applied to court costs first?

Subject

Opinion No. 12-52, Payment of Fines in Installments, May 10, 2012

Plain-English summary

Judge Seth Norman of the Davidson County Criminal Court asked the AG how clerks should apply installment payments when a defendant owes litigation taxes, court costs, and a fine. He also asked whether a defendant who is faithfully paying on the installment plan could be "show caused" for failure to promptly pay the fine if every dollar is being absorbed by costs first.

The AG's answers were short. Tenn. Code Ann. § 40-24-105(a) imposes a strict allocation order: litigation taxes first, then court costs, then the fine. Clerks have no discretion to allocate differently. And because the statute dictates the order, a court cannot find a defendant in contempt for non-payment of the fine when the defendant is complying with the installment plan: the money is going where the statute sends it. The opinion suggested courts can avoid the resulting confusion by writing installment orders that explicitly cover the taxes and costs in addition to the fine, under § 40-24-105(b)(4).

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

Installment authority

When a criminal defendant cannot pay litigation taxes, costs, and fines in full, the court can establish a plan for installment payments. Tenn. Code Ann. § 40-24-101(a) authorizes that, and § 40-24-105(b)(4) lets the court set installment plans that cover litigation taxes and costs as well as fines. The court has "considerable discretion" over the amount and timing of payments under § 40-24-101(a)(3).

Allocation formula

Tenn. Code Ann. § 40-24-105(a) sets the allocation:

[T]he first moneys paid in any case shall first be credited toward payment of litigation taxes and once litigation taxes have been paid, the next moneys shall be credited toward payment of costs; then additional moneys shall be credited toward payment of the fine.

The AG read this as a mandatory rule, not a default that the trial court can override by order.

Enforcement of unpaid amounts

Unpaid litigation taxes, costs, and fines may be collected like a civil judgment. When a defendant willfully fails to pay a fine "as directed" under § 40-24-104(a), the court may enforce the assessment by contempt. But no person may be imprisoned for failure to pay litigation taxes or court costs under § 40-24-105(a). The opinion focused on what counts as failing to pay the fine "as directed" when the directed installment plan addresses only fines but is being eaten by taxes and costs.

Why the defendant cannot be show-caused

The AG's logic: if the statute mandates that every dollar paid go to litigation taxes first, then to costs, then to the fine, a defendant who pays on an installment plan covering only fines is doing exactly what the statute and the court ordered. Their money is reaching the taxes and costs lines because the statute commanded it, not because the defendant chose to short the fine. A trial court "[is] not free to alter the allocation by order or to 'show cause' a defendant for failure to promptly pay the fine."

The AG closed with a practical fix: courts should issue installment orders that cover litigation taxes and costs as well, under § 40-24-105(b)(4). That way the ordered installments and the statutory allocation line up.

Common questions

My client is paying his installments on time but the clerk says nothing has gone to his fine yet. Is he at risk of a fine-payment contempt?

According to this opinion, no, not while the installment plan addresses only fines and the statutory allocation is being followed. The defendant is complying with the court's order, and the statute is responsible for where the money goes. Confirm the current statutory text and any later case law before relying on this in court today.

Can the court order the clerk to apply some payments to the fine before costs are paid off?

The AG opinion treats § 40-24-105(a) as mandatory. Trial courts cannot alter the allocation by order. They can structure the installment plan itself to address litigation taxes and costs in addition to fines, but the credit rules apply to each payment as it comes in.

Can a defendant be jailed for failure to pay costs or litigation taxes?

No. Section 40-24-105(a) expressly says no person may be imprisoned for failure to pay litigation taxes or costs.

When can the court hold someone in contempt over a fine?

Section 40-24-104(a) allows contempt enforcement when the defendant "willfully" fails to pay a fine "as directed." If the defendant is on an installment plan and is paying it, willful nonpayment of the fine is hard to establish, especially when the statutory allocation is consuming the payments at the taxes and costs lines.

What's the cleanest way to write an installment order?

The AG recommended that the order itself address litigation taxes and court costs alongside the fine, under § 40-24-105(b)(4). That eliminates the mismatch between what the order asks for and what the allocation statute does with each payment.

Does the allocation rule apply to a single lump-sum payment?

The statute says "the first moneys paid in any case." If a defendant pays a partial amount short of full satisfaction, the allocation order kicks in: taxes first, then costs, then fine.

Citations

• Tenn. Code Ann. § 40-24-101(a) (installment authority)
• Tenn. Code Ann. § 40-24-101(a)(3) (court discretion over installment amounts and dates)
• Tenn. Code Ann. § 40-24-104(a) (contempt for willful nonpayment of fine)
• Tenn. Code Ann. § 40-24-105(a) (mandatory allocation order; no imprisonment for taxes/costs)
• Tenn. Code Ann. § 40-24-105(b)(4) (installment orders covering taxes and costs)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-052.pdf

Original opinion text

May 10, 2012
Opinion No. 12-52
Payment of Fines in Installments

QUESTIONS

1. If a defendant is ordered by a court to pay a certain amount in fines on an installment plan pursuant to Tenn. Code Ann. § 40-24-101(a) and remits a payment to the clerk's office, is the clerk required to apply that money to litigation taxes and court costs in satisfaction of those debts before applying it to the fine assessed?

2. If the defendant abides by the installment payment plan, can a court "show cause" the defendant for failure to promptly pay the fine?

OPINIONS

1. Yes. Tennessee Code Annotated § 40-24-105(a) requires that moneys paid into court be allocated first to litigation taxes, then to costs, and last to fines.

2. No.

ANALYSIS

When a defendant who has been assessed litigation taxes, court costs, and fines in a criminal case is unable to pay the entire amount, the court can establish a plan for payment by installments. Tenn. Code Ann. §§ 40-24-101(a), -105(b)(4). Tennessee Code Annotated § 40-24-105 provides the following allocation formula for moneys paid into court:

the first moneys paid in any case shall first be credited toward payment of litigation taxes and once litigation taxes have been paid, the next moneys shall be credited toward payment of costs; then additional moneys shall be credited toward payment of the fine.

Tenn. Code Ann. § 40-24-105(a).

Unpaid litigation taxes, costs, and fines may be collected in the same manner as a judgment in a civil action. Id. When a defendant willfully fails to pay a fine "as directed," Tenn. Code Ann. § 40-24-104(a), the court may enforce the order assessing the fine by contempt, but no person may be imprisoned for failure to pay litigation taxes or costs, Tenn. Code Ann. § 40-24-105(a).

Because Section 40-24-105(a) expressly sets forth the manner in which partial payments are to be allocated, trial courts are not free to alter the allocation by order or to "show cause" a defendant for failure to promptly pay the fine. Courts have considerable discretion, however, in ordering both the amount of payments and the dates on which they fall due. See Tenn. Code Ann. § 40-24-101(a)(3). In the example cited in the request, the court has ordered a payment plan with respect to fines only, although the defendant apparently has unpaid litigation taxes and court costs as well. Such circumstances might give rise to confusion where the defendant complies with the plan but the payments under it are allocated by operation of law to taxes and costs. Courts can avoid this confusion by issuing payment orders that also address litigation taxes and court costs pursuant to Tenn. Code Ann. § 40-24-105(b)(4).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
Judge Seth Norman
Criminal Court Division IV
Justice A.A. Birch Building
408 Second Avenue North, Suite 6100
Nashville, TN 37201