Can a Tennessee bail bond company file a criminal failure-to-appear case against a defendant who skipped court?

Subject

Opinion No. 12-83, Standing of Bonding Company to Commence Failure to Appear Action, August 23, 2012

Plain-English summary

Senator Tim Barnes asked whether a bail bond company can directly file a criminal action against a defendant under Tennessee's failure-to-appear statute, Tenn. Code Ann. § 39-16-609. The AG said no.

Failure to appear is a criminal offense, and Tenn. Code Ann. § 40-3-104 says "[a]ll criminal actions are prosecuted in the name of the State of Tennessee." The Tennessee Supreme Court has held that "a district attorney general has the sole duty, authority, and discretion to prosecute criminal matters" (State v. Spradlin). A bonding company is a private party, not the State.

The AG also raised a substantive concern: improperly using the criminal failure-to-appear statute as leverage to collect a debt (the forfeited bond) could conflict with Article I, Section 18 of the Tennessee Constitution, which prohibits imprisonment for debt. The opinion quotes at length from an Alabama Supreme Court decision (Piggly Wiggly v. Dutton) describing the parallel rule under Alabama law: the criminal law is for punishing crime, not for adjudicating civil debt disputes.

The bonding company is not powerless, though. It can swear out an arrest warrant by preparing an affidavit of complaint that complies with Rule 3 of the Tennessee Rules of Criminal Procedure (in writing, made on oath before a magistrate or neutral court clerk, alleging the essential facts of the offense). If the affidavit establishes probable cause, the magistrate may issue an arrest warrant under Tenn. Code Ann. §§ 40-6-202 and 40-6-203. After arrest, the district attorney general decides whether to prosecute.

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

What § 39-16-609 covers

Failure to appear under Tenn. Code Ann. § 39-16-609 is committed by anyone who knowingly fails to appear as directed by a lawful authority after being lawfully issued a criminal summons, citation, or release on conditions of subsequent appearance, or who goes into hiding to avoid prosecution or court appearance. It is a defense if appearance was required by a probation/parole officer as part of supervision, or if the person had a reasonable excuse. Class A misdemeanor for misdemeanor underlying offenses, Class E felony for Class A misdemeanor or felony underlying offenses. Sentences may be served consecutively to the original-offense sentence.

The DA's exclusive prosecutorial authority

Tennessee has consistently held that prosecutorial discretion lies with the district attorney general, not private parties. State v. Spradlin (Tenn. 2000) and Ramsey v. Town of Oliver Springs (Tenn. 1999) both reinforce that conclusion. § 40-3-104 codifies the rule by directing that all criminal actions be in the name of the State.

Imprisonment-for-debt concern

Tennessee Constitution art. I, § 18 prohibits imprisonment for debt. Allowing a private creditor (here, a bonding company that has paid or risks paying a bond forfeiture) to drive a criminal prosecution to recover that money would convert the failure-to-appear statute into a debt-collection mechanism. The AG quoted at length from Piggly Wiggly No. 208, Inc. v. Dutton (Ala. 1992), discussing how the criminal law's purpose is to punish criminal acts, not to enforce debts, and how the intent of the prosecutor is what distinguishes a proper criminal prosecution from a misuse of the statute.

Affidavit of complaint procedure

Rule 3 of the Tennessee Rules of Criminal Procedure requires that an affidavit of complaint be (a) in writing, (b) made on oath before a magistrate or a neutral court clerk authorized under Rule 4 to make a probable cause determination, and (c) allege the essential facts constituting the offense. The bonding company route under Tenn. Code Ann. § 40-6-203 lets the company put information before a magistrate to support an arrest warrant under § 40-6-202, even if the company cannot itself initiate prosecution.

Common questions

What about the civil bond forfeiture proceeding?
Bond forfeiture is a separate civil track from criminal prosecution under § 39-16-609. Bonding companies have their own remedies in bond-forfeiture proceedings; the AG opinion is about whether they can drive criminal prosecution.

Can a bonding company at least insist that the DA prosecute?
No. The DA has prosecutorial discretion. A bonding company can present evidence and file an affidavit, but cannot compel charges.

Can a private party ever initiate a criminal prosecution in Tennessee?
The general rule is no. The DA exercises the State's prosecutorial authority. Some narrow exceptions (e.g., grand-jury procedures) exist for citizen-initiated complaints, but the DA still controls whether the case is prosecuted.

Citations

Statutes and constitution:

• Tenn. Code Ann. § 39-16-609 (failure to appear)
• Tenn. Code Ann. § 40-3-104 (criminal actions in the name of the State)
• Tenn. Code Ann. §§ 40-6-202, 40-6-203 (warrants and affidavits of complaint)
• Tenn. R. Crim. P. 3 (affidavit of complaint)
• Tenn. Const. art. I, § 18 (no imprisonment for debt)

Cases:

• State v. Spradlin, 12 S.W.3d 432 (Tenn. 2000)
• Ramsey v. Town of Oliver Springs, 998 S.W.2d 207 (Tenn. 1999)
• Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907 (Ala. 1992)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-083.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

August 23, 2012

Opinion No. 12-83

Standing of Bonding Company to Commence Failure to Appear Action

QUESTION

Does a bonding company, or someone appearing on behalf of a bonding company, have standing to file an action against a defendant for failure to appear under Tenn. Code Ann. § 39-16-609?

OPINION

No. A failure to appear under Tenn. Code Ann. § 39-16-609 is a criminal offense and may only be prosecuted in the name of the State of Tennessee by the district attorney general for the appropriate judicial district.

ANALYSIS

Tenn. Code Ann. § 39-16-609 is part of Title 39 of the Tennessee Code, which defines various criminal offenses, and provides as follows:

(a) It is unlawful for any person to knowingly fail to appear as directed by a lawful authority if the person:
(1) Has been lawfully issued a criminal summons pursuant to § 40-6-215;
(2) Has been lawfully commanded to appear for booking and processing pursuant to a criminal summons issued in accordance with § 40-6-215;
(3) Has been lawfully issued a citation in lieu of arrest under § 40-7-118;
(4) Has been lawfully released from custody, with or without bail, on condition of subsequent appearance at an official proceeding or penal institution at a specified time or place; or
(5) Knowingly goes into hiding to avoid prosecution or court appearance.

(b) It is a defense to prosecution under this section that:
(1) The appearance is required by a probation and parole officer as an incident of probation or parole supervision; or
(2) The person had a reasonable excuse for failure to appear at the specified time and place.

(c) Nothing in this section shall apply to witnesses.

(d) If the occasion for which the defendant's appearance is required is a misdemeanor or is a violation of subdivision (a)(2), failure to appear is a Class A misdemeanor.

(e) If the occasion for which the defendant's appearance is required is a Class A misdemeanor or a felony, failure to appear is a Class E felony.

(f) Any sentence received for a violation of this section may be ordered to be served consecutively to any sentence received for the offense for which the defendant failed to appear.

Because failure to appear is a criminal offense, only the State of Tennessee may prosecute the party charged with the offense. See Tenn. Code Ann. § 40-3-104 (stating that "[a]ll criminal actions are prosecuted in the name of the State of Tennessee"). The sole authority to determine whether a criminal case should be initiated resides with the district attorney general for the appropriate judicial district. As the Tennessee Supreme Court has stated, "a district attorney general has the sole duty, authority, and discretion to prosecute criminal matters in the State of Tennessee." State v. Spradlin, 12 S.W.3d 432, 433-34 (Tenn. 2000) (emphasis added). See also Ramsey v. Town of Oliver Springs, 998 S.W.2d 207, 209 (Tenn. 1999). Furthermore, a district attorney general in exercising this discretion to prosecute is charged with enforcing Tennessee's criminal laws and not inappropriately using these criminal laws to collect a civil debt. Indeed such an improper utilization of Tennessee's criminal laws might violate the Tennessee Constitution's prohibition against imprisonment for debt. See Tenn. Const. art. I, § 18. As the Alabama Supreme Court observed in reviewing the relationship between Alabama's worthless check criminal statute and the Alabama Constitution's prohibition against imprisonment for debt (Ala. Const. art. I, § 20 (1901)):

"The criminal law was not designed to enforce the payment of a debt or to adjudicate civil disputes between parties. Hurst v. State, 21 Ala. App. 361, 108 So. 398 (1926). The mere failure to pay a debt, while furnishing a basis for a civil suit, is not sufficient to constitute a crime. Hurst, supra. The improper employment of a statute to enforce payment of a debt is an unconstitutional application of that statute. Tolbert, supra. [Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975)].

"The Alabama Supreme Court has condemned the use of threat of prosecution as a means of collecting a debt by '[those] who seek only payment of debts and have no interest in criminal prosecution other than as a means of collecting money allegedly due them.' Tolbert, supra, 321 So.2d at 232. Thus, if one is prosecuted under a statute, he must be prosecuted for the crime which he has committed, not for the debt that he owes or to make him pay it. Cottonreeder v. State, 389 So.2d 1169 (Ala. Crim. App. 1980).

"The difference between the improper use of a statute as a means of punishment for debt and the proper use of a statute as a means of punishment for a criminal act is intent. Harris v. State, 378 So.2d 257 (Ala. Crim. App.), cert. denied, 378 So. 2d 263 (Ala. 1979)."

Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 909 (Ala. 1992) (quoting Bullen v. State, 518 So.2d 227, 233 (Ala. Crim. App. 1987)).

Accordingly, a bonding company or its representative may not file an action against a defendant for a failure to appear under Tenn. Code Ann. § 39-16-609. A bonding company or its representative, however, is permitted to swear out an arrest warrant by preparing an affidavit of complaint in conformance with Rule 3 of the Tennessee Rules of Criminal Procedure. Tenn. Code Ann. § 40-6-203. If that affidavit sets forth sufficient facts to establish probable cause that the defendant has committed the crime of failure to appear in violation of Tenn. Code Ann. § 39-16-609, a magistrate could then issue a warrant for the defendant's arrest. Tenn. Code Ann. § 40-6-202. After the warrant has been served, the district attorney general for the appropriate judicial district has the discretion to determine whether the case will go forward to prosecute the criminal offense of failure to appear.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

RACHEL JRADE-RICE
Assistant Attorney General

Requested by:
Tim Barnes
State Senator
305 War Memorial Building
Nashville, TN 37243