When a Tennessee judge issues an attachment for a parent over 30 days behind on child support, must the bond be cash only?

Subject

Opinion No. 13-62, Cash Bonds for Child Support Attachments Under Tenn. Code Ann. § 36-5-101(f)(2), August 8, 2013

Plain-English summary

Tenn. Code Ann. § 36-5-101(f)(2) authorizes the clerk to issue a summons or, in the court's discretion, an attachment for a parent who is more than 30 days in arrears on child support. The attachment is issued "setting a bond of not less than two hundred fifty dollars ($250) or, in the discretion of the court, up to the amount of the arrears." District Attorney Mike Bottoms (22nd Judicial District) asked whether the statute required the bond to be cash only.

The AG concluded no, for two reasons.

Plain language. The statute says "bond." It doesn't say "cash bond" or "cash-only bond." Under standard statutory construction principles, courts give effect to the legislature's words and don't read in restrictions that aren't there. Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994); Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000); Nat'l Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991). Nothing in § 36-5-101 limits the form of the bond to cash.

Constitutional backdrop. Article I, Section 15 of the Tennessee Constitution provides: "That all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great." The AG cited its earlier Op. 03-054 (Apr. 30, 2003), which concluded that proposed legislation permitting a judge to restrict bail to a cash deposit bond would violate that provision because it could deny bail to defendants with property or access to a bondsman but without the necessary cash.

Based on the statute's language and the constitutional protection, the AG concluded that a court issuing an attachment under § 36-5-101(f)(2) is not required to set a cash-only bond. It did not decide what forms of bond a judge must accept in an individual case.

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.

For a current attachment, check the present text of § 36-5-101(f)(2) and any later opinions or decisions on bond requirements. This page describes the AG's 2013 answer to whether the statute mandates cash.

Background and statutory framework

§ 36-5-101(f)(2) text:

In addition to the remedies provided in part 5 of this chapter, but not as an alternative to those provisions, if a parent is more than thirty (30) days in arrears, the clerk of the court may, upon written application of the obligee parent, a guardian or custodian of the children, or the department of human services or its contractors in Title IV-D support cases, issue a summons or, in the discretion of the court, an attachment for such parent, setting a bond of not less than two hundred fifty dollars ($250) or, in the discretion of the court, up to the amount of the arrears, for such other proceedings as may be held in the matter. In addition, the court may, at any time, require an obligor parent to give security by bond, with sufficient sureties approved by the court, or, alternatively, in the absence of the judge from the court, approved by the clerk of the court, for payment of past, present, and future support due under the order of support. If the obligor parent thereafter fails to appear or fails without good cause to comply with the order of support, such bonds may be forfeited and the proceeds from the bonds paid to the court clerk and applied to the order of support.

Statutory construction principles.

• Wilson v. Johnson County: ascertain and give effect to legislative intent without restricting or expanding the statute's coverage.
• Freeman v. Marco Transp. Co.: when statute is unambiguous, legislative intent is determined from plain and ordinary meaning.
• Nat'l Gas Distribs. v. State: read language in the context of the entire statute, without forced or subtle construction.

Constitutional foundation. Tenn. Const. art. I, § 15: "That all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great." The AG cited this provision in support of its reading that the child support attachment statute does not require cash-only bonds.

Prior AG opinion 03-054. Reviewed proposed legislation permitting a judge to restrict bail to a cash deposit bond. It concluded the proposal violated art. I, § 15 because it could effectively deny bail to defendants with property or access to a bondsman but no cash. Opinion 13-62 cites that earlier analysis; it does not decide the validity of a judge's discretionary choice of bond in a particular child support case.

Common questions

I'm behind on support, and the court set a cash-only bond. Does this opinion forbid it?

The opinion does not answer whether that particular cash-only order is valid. It answers a narrower question: § 36-5-101(f)(2) does not require the court to set a cash-only bond. The statute allows the court to set a bond of at least $250, up to the amount of the arrears in its discretion.

Does this mean a bail bondsman can post my attachment bond?

The opinion does not decide whether a bondsman may post a particular attachment bond or whether the court must accept it. It quotes an earlier AG opinion explaining that a cash-only restriction in proposed bail legislation could deny bail to someone able to obtain a professional bondsman's help.

What about property bonds?

The opinion does not rule on accepting property as an attachment bond. It quotes an earlier AG opinion concerned that proposed cash-only bail legislation could deny bail to defendants who have property available but lack cash.

Can the judge refuse a property bond for any reason?

The opinion does not address when a judge may accept or refuse a property bond. Its conclusion is limited to whether § 36-5-101(f)(2) requires cash-only bonds.

What's the maximum bond the court can set?

Under the statutory language quoted in the opinion, the bond is at least $250 and, "in the discretion of the court, up to the amount of the arrears." The opinion concludes that the statute does not mandate cash as the bond's form.

Does this opinion apply to civil contempt for child support too?

The opinion addresses only whether a cash-only bond is required for an attachment under § 36-5-101(f)(2). It does not analyze bond requirements in civil contempt proceedings.

Citations

Tenn. Code Ann. § 36-5-101; § 36-5-101(f)(2). Tenn. Const. art. I, § 15. Cases: Wilson v. Johnson County, 879 S.W.2d 807 (Tenn. 1994); Freeman v. Marco Transp. Co., 27 S.W.3d 909 (Tenn. 2000); Nat'l Gas Distribs. v. State, 804 S.W.2d 66 (Tenn. 1991). Prior AG opinion: Op. 03-054 (Apr. 30, 2003).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-062.pdf

Original opinion text

August 8, 2013

Opinion No. 13-62

Cash Bonds for Child Support Attachments Under Tenn. Code Ann. § 36-5-101(f)(2)

QUESTION

If a court issues an attachment for a parent who is more than thirty days in arrears for a child support payment pursuant to Tenn. Code Ann. § 36-5-101(f)(2), is the court required to set a cash-only bond of no less than $250 and no more than the total amount of arrears?

OPINION

No.

ANALYSIS

Tennessee Code Annotated § 36-5-101(f)(2) provides as follows:

In addition to the remedies provided in part 5 of this chapter, but not as an alternative to those provisions, if a parent is more than thirty (30) days in arrears, the clerk of the court may, upon written application of the obligee parent, a guardian or custodian of the children, or the department of human services or its contractors in Title IV-D support cases, issue a summons or, in the discretion of the court, an attachment for such parent, setting a bond of not less than two hundred fifty dollars ($250) or, in the discretion of the court, up to the amount of the arrears, for such other proceedings as may be held in the matter. In addition, the court may, at any time, require an obligor parent to give security by bond, with sufficient sureties approved by the court, or, alternatively, in the absence of the judge from the court, approved by the clerk of the court, for payment of past, present, and future support due under the order of support. If the obligor parent thereafter fails to appear or fails without good cause to comply with the order of support, such bonds may be forfeited and the proceeds from the bonds paid to the court clerk and applied to the order of support.

In construing statutes such as Tenn. Code Ann. § 36-5-101(f)(2), courts will "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994). When the statute is unambiguous, legislative intent is determined from the plain and ordinary meaning of the language used in the statute. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000). The statutory language must be "read in the context of the entire statute, without any forced or subtle construction which would extend or limit its meaning." Nat'l Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991).

Neither the plain language of Tenn. Code Ann. § 36-5-101(f)(2) nor any other portion of Tenn. Code Ann. § 36-5-101 requires the conclusion that a "bond of not less than two hundred fifty dollars ($250) or, in the discretion of the court, up to the amount of the arrears" means only a cash bond. This conclusion is supported by Article I, Section 15, of the Tennessee Constitution, which provides "[t]hat all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great." This Office has previously opined that proposed legislation "permitting a judge to restrict the type of bail that a defendant may post to a cash deposit bond" violated the Tennessee Constitution's requirement of bail by "sufficient sureties," as "the legislation could effectively deny bail to those defendants who have property available or who have the ability to secure the help of a professional bondsman or other responsible individuals, but who do not have the requisite cash." Tenn. Att'y Gen. Op. 03-054 at 3 (Apr. 30, 2003).

Based upon the plain language of Tenn. Code Ann. § 36-5-101 and the protection afforded by of Article I, Section 15, of the Tennessee Constitution, a court is not required to set a cash-only bond when issuing an attachment pursuant to Tenn. Code Ann. § 36-5-101(f)(2).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ALEXANDER S. RIEGER
Assistant Attorney General

Requested by:

Honorable Mike Bottoms
District Attorney General
22nd Judicial District
Post Office Box 459
Lawrenceburg, Tennessee 38464