Did the 2012 amendment requiring Tennessee defendants to pay for their own DNA test collection apply to people convicted before the law took effect?

Subject

Opinion No. 13-06, Fees for Collection of Biological Specimens from Persons Convicted of Certain Offenses, January 17, 2013

Plain-English summary

The director of the Tennessee Bureau of Investigation asked whether a 2012 amendment (Chapter 996) requiring people convicted of certain offenses to pay for their own DNA-sample collection applied to those who were convicted before the amendment took effect on May 10, 2012. The AG said yes, and walked through why neither the Tennessee Constitution's prohibition on retrospective laws nor the federal/state prohibition on ex post facto laws barred that result.

The statute's plain text, the AG reasoned, tied the fee to the act of providing the specimen, not to the underlying conviction. The amendment said that "if the person is not incarcerated at the time of sentencing," the court should require the person to report to the probation division, "[t]he cost of taking, processing and storing the specimen shall be paid by the defendant," and the fee "shall be collected by the probation officer in the same manner as other fees." Read literally, the fee attached whenever a specimen was collected on or after May 10, 2012. The fact that the underlying conviction predated the act did not change the timing of the collection event.

On retrospective laws under Tenn. Const. art. I, § 20, the AG cited Morris v. Gross for the principle that a retrospective law is one that takes away or impairs vested rights under existing law. A statute does not become retrospective simply because it "upsets expectations" (Landgraf v. USI Film Products) or "draws upon antecedent facts" (Cox v. Hart). Requiring a fee for a future specimen collection did not strip the convicted person of a vested right.

On ex post facto under both Tenn. Const. art. I, § 11 and U.S. Const. art. I, § 9, the test from Collins v. Youngblood and United States v. Ursery asks first whether the legislature intended the measure to be punitive and, if not, whether the measure is nonetheless "so punitive in fact" that it cannot be treated as civil. The AG concluded that the DNA-collection fee was administrative. The fiscal note showed the total cost was about $37, made up of $22 in TBI test-kit and mailing costs and a $15 administrative charge at the Board of Probation and Parole. The fee was collected "in the same manner as other fees," not as a punishment proportioned to the offense. State courts in Washington (Brewster), Illinois (Johnson), and several federal circuits (In re DNA Ex Post Facto Issues) had reached the same conclusion about similar DNA fees. The AG also cited probation-supervision fee cases from the First Circuit, Kansas, Montana, North Dakota, and Pennsylvania, all of which had treated similar administrative collections as non-punitive.

For people incarcerated at sentencing, nothing changed. Tenn. Code Ann. § 40-35-321 still required the institution's chief administrative officer to designate someone to collect the specimen, and the statute did not require incarcerated people to pay the costs.

Currency note

This opinion was issued in 2013. 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.

Tenn. Code Ann. § 40-35-321 and its associated fee structures have been amended in the years since. The exact subsection numbering, the per-specimen cost, and the list of qualifying offenses may differ from the 2013 description here. Anyone applying this opinion to a current case should pull the current statute and check the current fee schedule.

Background and statutory framework

Tenn. Code Ann. § 40-35-321 has long required people convicted of certain offenses to provide DNA samples for analysis by the Tennessee Bureau of Investigation. Subsection (b) covered the major sex offenses, and subsection (d)(1) covered any felony committed after July 1, 1998 or certain post-2007 sex-offender-registration misdemeanors. The samples went to the TBI for analysis and storage under Tenn. Code Ann. § 38-6-113.

Before the 2012 amendment, those who were not incarcerated at sentencing were ordered to report to the county or district health department for collection, and no fee was charged: the TBI and the collecting agency absorbed the costs. Chapter 996 of the 2012 Public Acts (effective May 10, 2012) shifted that pattern. It changed the collection site to the probation division and added the requirement that "[t]he cost of taking, processing and storing the specimen shall be paid by the defendant and shall be collected by the probation officer in the same manner as other fees." The fiscal note cited in the opinion put the total cost at about $37 per sample.

The legal questions broke down into two:

Retrospective law (Tenn. Const. art. I, § 20): Tennessee's retrospective-law clause prohibits the General Assembly from impairing vested rights. Under Morris v. Gross, a statute is "retrospective" if it takes away or impairs vested rights. Landgraf and Cox v. Hart show that not every law touching past events is retrospective; a law can apply to future events that depend on past facts without impairing vested rights. The AG concluded that requiring a fee for a future specimen collection didn't impair anything that had vested.

Ex post facto (U.S. Const. art. I, § 9, cl. 3 and Tenn. Const. art. I, § 11): Ex post facto prohibitions apply only to penal statutes. Collins v. Youngblood. The Ursery test asks whether the legislature intended punishment; if not, whether the law is so punitive in fact that it cannot be considered civil. Scarborough described the purpose of the Tennessee DNA-collection statute as accuracy in investigation and prosecution, "enabling law enforcement personnel to more quickly exonerate the innocent and prosecute the perpetrators," which the AG read as non-punitive. The fee itself, modest and tied to actual administrative costs, fit the model in Brewster, Johnson, and In re DNA Ex Post Facto Issues. Several monthly probation-supervision fees ($10 to $30) had likewise been held non-punitive in Taylor, Owens, Frazier, Glaspie, and Nicely.

Common questions

Did this opinion mean the state could go back and charge thousands of already-convicted people?

It meant the fee applied any time a non-incarcerated person provided a DNA sample on or after May 10, 2012, including people whose convictions predated the amendment. The trigger was the collection event, not the conviction date. As a practical matter, that swept in everyone who had been ordered to provide a sample but had not yet done so.

Was incarceration still free?

For people incarcerated at the time of sentencing, the statute remained as it had been. The institution designated a qualified person to take the specimen, and the costs were not imposed on the inmate. The opinion was careful to flag that point in its footnote.

Could a defendant challenge the fee as ex post facto punishment?

The AG said no, drawing on the analysis above. The fee was administrative, tied to actual costs, and treated by the statute "in the same manner as other fees." Federal courts (In re DNA Ex Post Facto Issues), Washington courts (Brewster), and Illinois courts (Johnson) had reached the same conclusion. A challenger would have faced the Ursery "so punitive in fact" bar, which the opinion's collection of supervision-fee cases suggested was rarely met for modest administrative charges.

What happened if the defendant couldn't pay?

The opinion did not address indigency procedures directly. It said only that the fee "shall be collected by the probation officer in the same manner as other fees," which presumably brought it within ordinary procedures for handling court-ordered fees against indigent defendants, including any applicable ability-to-pay limitations.

Did the amendment change which offenses required a sample?

No. The list of qualifying offenses in subsections (b) and (d)(1) was not changed by Chapter 996. The amendment changed who paid and how the sample was collected, not the universe of people required to provide samples.

Citations

• Tenn. Code Ann. § 40-35-321(b), (d)(1) (DNA specimen requirement; 2012 fee amendment)
• Tenn. Code Ann. § 38-6-113 (TBI analysis and storage)
• Tenn. Const. art. I, § 11 (ex post facto)
• Tenn. Const. art. I, § 20 (retrospective laws)
• U.S. Const. art. I, § 9, cl. 3 (federal ex post facto)
• 2012 Tenn. Pub. Acts, ch. 996 (the amendment at issue)
• Garrison v. Brickford, 377 S.W.3d 659 (Tenn. 2012) (plain-meaning statutory construction)
• Morris v. Gross, 572 S.W.2d 902 (Tenn. 1978) (retrospective laws impair vested rights)
• Landgraf v. USI Film Products, 511 U.S. 244 (1994) (statute not retrospective merely because it upsets expectations)
• Collins v. Youngblood, 497 U.S. 37 (1990) (ex post facto applies only to penal statutes)
• United States v. Ursery, 518 U.S. 267 (1996) (two-step punishment analysis)
• State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006) (DNA-collection statute serves non-punitive purpose)
• In re DNA Ex Post Facto Issues, 561 F.3d 294 (4th Cir. 2009) (DNA processing fee not punitive)
• State v. Brewster, 218 P.3d 249 (Wash. Ct. App. 2009) (DNA fee is administrative, not punishment)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-006.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

January 17, 2013

Opinion No. 13-06

Fees for Collection of Biological Specimens from Persons Convicted of Certain Offenses

QUESTION

As amended by 2012 Tenn. Pub. Acts, ch. 996 (Chapter 996), are Tenn. Code Ann. §§ 40-35-321(b) and (d)(1), requiring persons convicted of certain criminal offenses but who are not incarcerated at the time of sentencing to pay for the collection of DNA specimens, applicable to persons who were convicted before the effective date of the amendments?

OPINION

Yes. The plain language of Tenn. Code Ann. §§ 40-35-321(b) and (d)(1), as amended by Chapter 996, makes those provisions applicable to persons who are not incarcerated at the time of sentencing and who provide DNA specimens on or after May 10, 2012, the effective date of the amendments. The application of the statute as amended to such persons convicted before the effective date of the amendments is not prohibited by either the Tennessee or the United States Constitution.

ANALYSIS

Tennessee Code Ann. § 40-35-321 provides for the collection of biological specimens for DNA analysis from persons convicted of certain offenses. Under subsection (b), those who have been convicted of committing or attempting to commit aggravated rape, rape, aggravated sexual battery, sexual battery, rape of a child, aggravated rape of a child, or incest (or those juveniles adjudicated delinquent for violating or attempting to violate those offenses) shall be ordered by the court to provide biological specimens for the purpose of DNA analysis. Tenn. Code Ann. § 40-35-321(b). Furthermore, under subsection (d)(1), persons convicted of any felony committed after July 1, 1998, or any misdemeanor for which the person must register as a sexual offender on or after July 1, 2007, shall be ordered by the court to provide a biological specimen for DNA analysis. Tenn. Code Ann. § 40-35-321(d)(1). All specimens are then forwarded to the Tennessee Bureau of Identification (TBI), which analyzes, maintains, and preserves them. Tenn. Code Ann. §§ 38-6-113 & 40-35-321(b), (a)(1).

Under prior law, the convicting court was required to order those who were not incarcerated at the time of sentencing to report to the county or district health department to give a biological specimen for DNA testing. See Tenn. Code Ann. §§ 40-35-321(b), (d)(1) (2010). No fees were charged for the collection and analysis of the specimen, and thus those costs were borne by the TBI and the agencies that collected and analyzed the specimen. Id.

Effective May 10, 2012, Tenn. Code Ann. § 40-35-321, as amended by Chapter 996, now provides that

[i]f the person is not incarcerated at the time of sentencing, the order shall require the person to report to the probation division of the department charged by law with the supervision of probationers, which shall gather the specimen. If a probation officer is not available to gather the specimen, the court may designate a person to do so. The cost of taking, processing and storing the specimen shall be paid by the defendant and shall be collected by the probation officer in the same manner as other fees.

Tenn. Code Ann. §§ 40-35-321(b), (d)(1). [For those persons incarcerated at the time of sentencing, the statute remains unchanged: "If the person is incarcerated at the time of sentencing, the order shall require the chief administrative officer of the institution of incarceration to designate a qualified person to gather the specimen." Tenn. Code Ann. §§ 40-35-321(b), (d)(1). There is no requirement that incarcerated persons pay the costs of taking, processing, and storing the specimen. Id.]

The question posed is whether the requirement of paying the cost of taking, processing, and storing the specimen applies to those persons convicted prior to May 10, 2012, the effective date of the 2012 amendments, when the actual collection occurs on or after May 10, 2012. The plain language of the provisions demonstrates that it does. The statute as amended states that the fee is to be collected at the time the specimen is taken, without regard to the date of the person's conviction. Thus, the statutory provisions apply to persons who are not incarcerated at the time of sentencing and who provide the specimen on or after May 10, 2012, regardless of whether their convictions occurred prior to that date. See Garrison v. Brickford, 377 S.W.3d 659, 663 (Tenn. 2012) (stating the general rule of statutory construction that a court's role is "to examine the text of the statute and, if the language used is unambiguous," the court will "simply apply the plain meaning of the words used in the statute").

The Tennessee Constitution, Article I, § 20, prohibits the General Assembly from enacting retrospective laws or laws that impair contractual obligations. The Tennessee Supreme Court has characterized a retrospective law as one that takes away or impairs vested rights under existing laws. See Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978). A statute does not operate retrospectively merely because it upsets expectations. Landgraf v. USI Film Products, 511 U.S. 244, 269 (1994). Furthermore, a statute "is not made retroactive merely because it draws upon antecedent facts for its operation." Id. n.24 (quoting Cox v. Hart, 260 U.S. 427, 435 (1922)). By its amendment of Tenn. Code Ann. §§ 40-35-321(b) and (d)(1), the General Assembly merely required certain convicted criminals to pay a fee for DNA samples collected on or after the effective date of the act. This is not a retrospective law within the meaning of Article I, § 20, because it does not impair any contractual obligation or take away or impair any vested right belonging to a convicted person. See Op. Tenn. Att'y Gen. 04-069 (Apr. 21, 2004) (concluding that proposed act's application of registration and reporting requirements to sexual offenders convicted prior to effective date of act not violative of prohibition in Tenn. Const. art. I, § 20, against retrospective laws).

Nor does the act constitute an ex post facto law, which is prohibited by both the Tennessee and United States Constitutions. See U.S. Const. art. I, § 9, cl. 3, and Tenn. Const. art. I, § 11. The United States Supreme Court and the Tennessee Supreme Court have adopted complementary constructions of these provisions. Kaylor v. Bradley, 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995). In order for a law to violate the prohibition against ex post facto laws, the law must impose a punishment. See Collins v. Youngblood, 497 U.S. 37, 41 (1990) ("[I]t has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes. . . ."). Determining whether a law imposes punishment for ex post facto purposes involves a two-step analysis. A court first asks whether the legislature's intent, as discerned from the structure and design of the statute, along with any declared legislative intent, was to impose a punishment or merely to enact a civil or regulatory law. United States v. Ursery, 518 U.S. 267, 288 (1996). Second, even if the legislature did not intend to impose a punishment, a law still may be said to do so if the sanction or disability that it imposes is "so punitive in fact" that the law "may not legitimately be viewed as civil in nature." Id.

While Tenn. Code Ann. § 40-35-321 does not contain an explicit statement by the General Assembly declaring its intent in enacting the DNA-specimen requirement, the Tennessee Supreme Court has observed that the purpose of the statute is the promotion of increased accuracy in the investigation and prosecution of criminal cases, "enabling law enforcement personnel to more quickly exonerate the innocent and prosecute the perpetrators." State v. Scarborough, 201 S.W.3d 607, 621 (Tenn. 2006). This purpose is not punitive. See Jones v. Murray, 962 F.2d 302, 309 (4th Cir. 1992) (concluding that Virginia statute requiring that incarcerated felons provide blood samples was not punitive when its purpose was to establish data bank to aid future law enforcement).

Nor is the requirement that those providing the samples pay a fee for "[t]he cost of taking, processing and storing the specimen" punitive in nature. See In re DNA Ex Post Facto Issues, 561 F.3d 294, 299-300 (4th Cir. 2009) (processing fee for submission of DNA sample not punitive); People v. Johnson, 959 N.E.2d 1150, 1155 (Ill. 2011) ($200 DNA-analysis fee not punitive). Indeed, the statute requires that the fee "shall be collected by the probation officer in the same manner as other fees," Tenn. Code Ann. §§ 40-35-321(b), (d)(1), suggesting that the fee is intended to be only an additional administrative charge, not punishment. Moreover, the relatively small size of the fee also indicates that it was not intended to have significant retributive or deterrent value. See In re DNA Ex Post Facto Issues, 561 F.3d at 300 (concluding that relatively small size of fee ($250) indicates that fee is not punitive). Thus, it is clear that the General Assembly did not intend to impose a punishment by requiring payment of the fee, but instead intended only an administrative charge.

[Footnote: The fiscal note submitted in support of House Bill 2854/Senate Bill 2922, of the 107th Tennessee General Assembly, enacted as 2012 Tenn. Pub. Acts, ch. 996, and provided with the opinion request indicates that the total cost incurred in obtaining and submitting a DNA sample is approximately $37. That amount includes the $22 cost to the TBI for the buccal-swab DNA test kit and mailing costs and the $15 cost to the Board of Probation and Parole for administering the test.]

Furthermore, regardless of the legislative intent, the imposition of the fee is not "so punitive in fact" that it "may not legitimately be viewed as civil in nature." The expression of the Washington Court of Appeals on the nature of a similar DNA-collection fee is equally applicable to Tennessee's statutory provisions:

The DNA fee is a legal financial obligation. Its purpose is monetary, rather than retributive or deterrent. Such obligations have historically not been regarded as punishment. The fee does not define or punish criminal behavior and does not require a finding of scienter. It does not involve a disability or restraint. The amount of the fee is fixed and does not depend on the gravity of the offense, and is not excessive in relation to its purpose. The DNA collection fee is not punitive.

State v. Brewster, 218 P.3d 249, 251 (Wash. Ct. App. 2009) (footnotes omitted).

This conclusion is also consistent with judicial decisions upholding the constitutionality of various administrative fees challenged on ex post facto grounds. See, e.g., Taylor v. Rhode Island, 101 F.3d 780, 783-84 (1st Cir. 1996) ($15 monthly supervision fee was civil, not criminal, in nature); Owens v. Sebelius, 357 F. Supp. 2d 1281, 1286-87 (D. Kan. 2005) (deduction from inmate's prison trust account of fees incurred for parole supervision not punitive in violation of ex post facto clause); Frazier v. Mont. State Dep't of Corrs., 920 P.2d 93, 95-96 (Mont. 1996) ($10 monthly supervision fee was "civil administrative fee," not punishment); Glaspie v. Little, 564 N.W.2d 651, 653-54 (N.D. 1997) ($30 monthly fee to defray cost of supervision is civil fee for services); Commonwealth v. Nicely, 638 A.2d 213, 216 (Pa. 1994) ($25 monthly supervisory fee administrative in nature and not intended to be punitive).

Therefore, the plain language of Tenn. Code Ann. §§ 40-35-321(b) and (d)(1), as amended by Chapter 996, makes those provisions applicable to those persons who are not incarcerated at the time of sentencing and who provide DNA specimens on or after May 10, 2012, regardless of whether their convictions occurred prior to that date. The application of the statute as amended to such persons convicted before May 10, 2012, is not prohibited by either the Tennessee or the United States Constitution.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

LYNDSAY F. SANDERS
Senior Counsel

Requested by:

Mark Gwyn
Director
Tennessee Bureau of Identification
901 R.S. Gass Boulevard
Nashville, TN 37216-2639