Once bail is set by a Tennessee judicial commissioner, who can change it, and can a bonding company sue over the way bail is set?

Subject

Opinion No. 12-82, Authority of Judicial Commissioners and Judges Regarding the Setting and Alteration of Bail, August 23, 2012

Plain-English summary

District Attorney General Wm. Paul Phillips of the 8th Judicial District asked four questions about how the Tennessee Bail Reform Act of 1978 (Tenn. Code Ann. §§ 40-11-101 to -405) divides authority between judicial commissioners and general sessions judges to set and modify bail.

The AG's answers:

1. Authority to admit to bail and to alter bail are different. Both judicial commissioners and general sessions judges count as "magistrates" under Tenn. Code Ann. § 40-1-106 and can initially admit a defendant to bail. But once bail is set, only a "court" can change it, and the Tennessee Court of Criminal Appeals held in State v. Bush that a judicial commissioner is not a "court." So a general sessions judge can alter bail at any time before the defendant is bound over to the grand jury, with written reasons under § 40-11-143. A judicial commissioner cannot alter bail once a defendant has been admitted to bail.
2. Reducing bail and authorizing a cash deposit. A general sessions judge can reduce bail at any time before bind-over if the reduction reflects the § 40-11-118(b) factors and the reasons are in writing. A judicial commissioner cannot. Once a court has set or reduced bail, the defendant chooses the security method (cash deposit, surety, or deed of trust under § 40-11-122). A court cannot force the defendant to use a particular method.
3. Reduced bail as a release condition. Yes. Under Tenn. Code Ann. § 40-11-116(b)(3), reduced bail is an appropriate release condition if (a) it is based on the § 40-11-118(b) factors, (b) the reduced amount will reasonably assure the defendant's appearance, and (c) the reasons are in writing.
4. Bonding company standing. A bonding company can sue to challenge bail-setting practices only if it can prove the three standing elements: a distinct and palpable injury (not conjectural), a causal connection to the challenged conduct, and redressability. Whether those elements are present is fact-specific. The AG cited Lewis Bail Bond Co. (cash-only bond policy gave standing) and Graham v. General Sessions Court of Franklin County (two-property-owner-signature requirement for bonds under $4,400 gave standing).

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.

Background and statutory framework

Magistrate authority to admit to bail

Tenn. Code Ann. § 40-1-106 designates judges of the supreme, appellate, chancery, circuit, general sessions, and juvenile courts, judicial commissioners, county executives, and presiding officers of municipal courts as "magistrates" for purposes of Title 40. Tenn. Code Ann. § 40-11-104 lets any magistrate admit a defendant to bail at any time up through bind-over to the grand jury. The trial court has a parallel, but broader, authority that extends past conviction.

Authority to alter bail belongs to "courts," not commissioners

Tenn. Code Ann. § 40-11-106 governs appeals from bail decisions and limits the reviewing "court having jurisdiction of the offense" to the question whether the sheriff or judicial commissioner abused discretion. Tenn. Code Ann. § 40-11-143 governs motions for changes in bail: any motion must be by written motion, and the "court" must set out the reasons for granting or denying the motion in writing.

Neither statute defines "court." The AG relied on State v. Bush, 626 S.W.2d 470 (Tenn. Crim. App. 1981), which held that the statutes creating judicial commissioners do not create a "court" because judicial commissioners are not given regular sittings at fixed places and times. Their duties (issuing arrest and search warrants, issuing mittimus) are magisterial, not judicial. The framework has not changed since Bush, so judicial commissioners still lack the authority of a "court" to alter bail.

Bail-setting factors

Tenn. Code Ann. § 40-11-118(b) lists nine factors to consider in setting bail: length of residence in community; employment history and financial condition; family ties; reputation, character, mental condition; prior criminal record and record of appearances or flight; nature of offense and probability of conviction and likely sentence; risk of danger to the community; identity of community members willing to vouch (limited to two pending defendants at a time); and any other factors bearing on flight risk. Bail must be set "as low as is necessary to reasonably assure the appearance of the defendant as required" (§ 40-11-118(a)).

Defendant chooses security method

After bail is set, the defendant has three options under Tenn. Code Ann. § 40-11-122 and § 40-11-118(a): (1) deed of trust conveying real estate to the court clerk; (2) surety bond; or (3) cash deposit with the court clerk equal to the bail amount. The AG quoted prior Op. Tenn. Att'y Gen. 04-008 and Op. Tenn. Att'y Gen. 03-054 to confirm that a court cannot lock the defendant into one method.

Standing for bonding companies

Tennessee follows the federal standing template: (1) distinct and palpable injury, (2) causal connection, (3) redressability (Fannon v. City of Lafollette, quoting ACLU v. Darnell). A bonding company that operates in a county whose bail practices restrict its business may have a sufficient injury, as in Lewis Bail Bond Co. (cash-only policy) and Graham (two-property-owner-signature policy excluding bonding companies from bonds under $4,400). Whether any particular policy creates standing is fact-specific.

Common questions

Why is a judicial commissioner a "magistrate" but not a "court"?
The Tennessee scheme distinguishes between officials who can perform certain pre-trial functions (issuing warrants, admitting to bail) and "courts" that adjudicate disputes through regular sittings. Bush relied on that distinction: judicial commissioners do not hold regular sessions at fixed times and places, so they lack the structural attributes of a court.

What happens if a judicial commissioner does alter bail in practice?
The opinion implies that such action would be ultra vires. A defendant who has been re-bailed by a commissioner after the initial admission could seek correction by a court with jurisdiction over the offense; the State or the original parties could likewise seek review under § 40-11-106.

Can a court order a cash-only bail?
No. § 40-11-122 gives the defendant the right to choose among real-estate, surety, or cash. A blanket cash-only requirement was what got the bonding company standing in Lewis Bail Bond Co.

What does written-reasons mean in practice?
The court must set out the reasons for any bail change in writing under § 40-11-143. The AG does not specify a format; an entry on the bail order or a separate order with findings satisfies the statutory text.

Citations

Statutes:

• Tenn. Code Ann. § 40-1-106 (magistrate definition); § 40-1-107 (original criminal jurisdiction)
• Tenn. Code Ann. §§ 40-5-201 to -204 (appointment of judicial commissioners)
• Tenn. Code Ann. §§ 40-11-101 to -405 (Bail Reform Act of 1978)

Cases:

• State v. Bush, 626 S.W.2d 470 (Tenn. Crim. App. 1981)
• Mengel Box Co. v. Fowlkes, 135 Tenn. 202, 186 S.W. 91 (1916)
• Lind v. Beaman Dodge, Inc., 356 S.W.3d 889 (Tenn. 2011)
• Warth v. Seldin, 422 U.S. 490 (1975)
• Knierim v. Leatherwood, 542 S.W.2d 806 (Tenn. 1976)
• ACLU v. Darnell, 195 S.W.3d 612 (Tenn. 2006)
• Fannon v. City of Lafollette, 329 S.W.3d 418 (Tenn. 2010)
• Lewis Bail Bond Co. v. General Sessions Court of Madison County, 1997 WL 711137 (Tenn. Ct. App. Nov. 12, 1997)
• Graham v. General Sessions Court of Franklin County, 157 S.W.3d 790 (Tenn. Ct. App. 2004)

Prior AG opinions: Op. Tenn. Att'y Gen. 03-054; Op. Tenn. Att'y Gen. 04-008.

Secondary source: 9 David Louis Raybin, Tennessee Practice: Criminal Practice and Procedure §§ 4.7–4.13 (2011).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-082.pdf

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text. The questions presented and opinions issued were:

QUESTIONS

1. After a judicial commissioner has initially set the amount of bail, does that commissioner prior to the defendant's appearance in general sessions court or the general sessions judge thereafter have authority to modify the amount of bail or alter bail conditions upon further consideration of the factors set forth in Tenn. Code Ann. § 40-11-118?

2. If a defendant proposes to post a cash bail less than the amount previously set by the judicial commissioner or judge, can the judicial commissioner prior to the defendant's appearance in general sessions court or the general sessions judge thereafter reduce the bail amount and authorize a cash deposit in that amount with the clerk of the court?

3. If a defendant does not qualify for release on his own recognizance pursuant to Tenn. Code Ann. § 40-11-115 and a bail amount is set, is a subsequent reduction of the bail amount upon application of the defendant to post a cash deposit in a lower amount an appropriate condition of release pursuant to Tenn. Code Ann. § 40-11-116(b)(3)?

4. Does a bail bonding company or association have standing to contest in court, pursuant to Tenn. Code Ann. §§ 40-11-144(b), 27-8-101 to -118, or 29-14-101 to -113, the manner in which bail is set by judicial commissioners or general sessions judges, provided the bail bonding company or association is not prohibited by the commissioner or judge from posting bail for any defendant for which a bail amount is set?

OPINIONS

1. As "magistrates" within the meaning of Tenn. Code Ann. § 40-1-106, both commissioners and general sessions judges have authority to admit a defendant to bail at any time prior to or at the time the defendant is bound over to the grand jury. A general sessions judge may alter the original bail amount or conditions or release at any time prior to or at the time the defendant is bound over to the grand jury, but the reasons for any such alteration must be set forth in writing. A judicial commissioner does not have authority to alter bail after a defendant has already been admitted to bail. In determining the appropriate bail amount, magistrates must consider the factors set forth in Tenn. Code Ann. § 40-11-118(b).

2. A general sessions judge may reduce a defendant's original bail amount at any time prior to or at the time the defendant is bound over to the grand jury, provided the reduction is based on the factors listed by Tenn. Code Ann. § 40-11-118(b), and the reasons for any alteration are set forth in writing. A judicial commissioner does not have authority to alter the amount of bail after a defendant has already been admitted to bail.

3. Yes. A reduced bail amount is an appropriate condition of release pursuant to Tenn. Code Ann. § 40-11-116(b)(3) if (1) the reduction is based on consideration of the factors listed by Tenn. Code Ann. § 40-11-118(b); (2) the reduced bail amount will reasonably assure the appearance of the defendant; and (3) the reasons underlying the bail reduction are set forth in writing.

4. A bonding company does not have standing to pursue litigation challenging the manner in which a magistrate sets bail unless it can establish by a preponderance of the evidence: (1) a distinct and palpable injury, rather than one that is conjectural or hypothetical; (2) a causal connection between the claimed injury and the challenged conduct; and (3) that the alleged injury is capable of being redressed by a favorable decision of the court. The question whether standing exists in a particular case will necessarily depend upon the specific facts of that case.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

NICHOLAS W. SPANGLER
Assistant Attorney General

Requested by:
The Honorable Wm. Paul Phillips
District Attorney General, 8th Judicial District
575 Scott High Drive
Post Office Box 10
Huntsville, TN 37756