Can the Tennessee legislature pass a private act forcing one county's general sessions court to use the county probation office (and only that office) to supervise misdemeanor probationers?

Subject

Opinion No. 13-70, Private Act Requirement that General Sessions Court Use Services of County Probation Office, September 4, 2013

Plain-English summary

Rep. Kent Williams asked whether a private act could force one county's general sessions court to use only the county probation office (rather than choosing among qualified private providers) to supervise misdemeanor probationers. The AG concluded yes. Two issues were considered: conflict with general law under Article XI, § 8 of the Tennessee Constitution, and separation of powers under Article II.

Article XI, § 8 (private-act / general-law conflict). Tennessee's general probation statute, Tenn. Code Ann. § 40-35-302(f)(1), said the prohibition on board-of-probation-and-parole supervision of misdemeanants was not intended to restrict the use of "any county probationary service or private probation company." Earlier AG opinions had read that to allow general sessions judges discretion to pick among qualified providers. But the AG observed that the statute did not actually require judges to consider every qualified provider. It only said the statute itself was not a restriction. That left room for the General Assembly to limit choice in a particular county by private act. To violate Article XI, § 8, the private act had to "flatly contravene" a generally applicable statewide statute. Since § 40-35-302 was permissive, not mandatory, on the choice question, no contravention existed. And even if there had been a conflict, a reasonable basis (maximizing use of a county-funded probation office and controlling costs by eliminating private contractor fees) would have saved the private act under the rational-basis test.

Article II (separation of powers). The supervision of probationers, the AG explained, is an executive/ministerial function, not a judicial one. The adjudicative function (deciding guilt or innocence, imposing the sentence) was left untouched by the private act. The Tennessee Supreme Court had recently reaffirmed in Mansell (2013) that "[a] legislative enactment which does not frustrate or interfere with the adjudicative function of the courts does not constitute an impermissible encroachment upon the judicial branch." The General Assembly has long held the power to define crimes, set punishments, and design administrative schemes for parole and probation.

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.

Tennessee's misdemeanor probation framework has been reorganized since 2013, and the General Assembly has periodically addressed the role of private probation companies. Anyone evaluating a current private act should pull the current general statute and consult later AG opinions and case law on the constitutionality of private probation arrangements.

Background and statutory framework

General statute. Tenn. Code Ann. § 40-35-302 governed misdemeanor sentencing. Subsection (f)(1) prohibited placing misdemeanants under board-of-probation-and-parole supervision but explicitly did not "restrict the use, where necessary, of any county probationary service or private probation company." Subsection (g)(1) set qualification standards for private probation companies, with population-based exceptions in (g)(2).

Prior AG opinions. Tenn. Att'y Gen. Op. 09-33 at 2 (Mar. 23, 2009); Tenn. Att'y Gen. Op. 99-029 (Feb. 17, 1999); and Tenn. Att'y Gen. Op. 08-175 at 2 (Nov. 18, 2008) recognized that general sessions judges had wide discretion to determine which qualified entity supervises a probationer.

Article XI, § 8 framework. "The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land." A private act must "contravene a general law that has mandatory statewide application" to be unconstitutional under this provision. Knox County ex rel. Kessel v. Lenoir City, 837 S.W.2d 382, 383 (Tenn. 1992). Even if a contravention exists, the private act is upheld if a reasonable basis for the classification exists. Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454, 457 (Tenn. 1973); Knox County Educ. Ass'n v. Knox County Bd. of Educ., 60 S.W.3d 65, 76-77 (Tenn. Ct. App. 2001). Smith County v. Enoch, 2003 WL 535914 at *3-4 (Tenn. Ct. App. Feb. 26, 2003), required the private act to "flatly contravene" general law.

Article II framework. Article II, § 1 divides Tennessee government into Legislative, Executive, and Judicial. Article II, § 2 prohibits one department from exercising powers properly belonging to another. Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975), recognized that the doctrine "does not preserve perfectly" theoretical demarcations. Mansell v. Bridgestone Firestone (Tenn. Aug. 20, 2013) reaffirmed the test that a legislative enactment which does not frustrate or interfere with adjudication does not impermissibly encroach on the judicial branch. State v. Burdin, 924 S.W.2d 82, 86 (Tenn. 1996), and Charles Massengill v. State, 1997 WL 254229 at *2 (Tenn. Crim. App. May 16, 1997), confirmed the legislature's authority to define offenses, set punishments, and design schemes for parole.

Common questions

What practical effect did the private act have on misdemeanor sentencing in the county?

Once enacted, the general sessions court could only direct misdemeanor probationers to the county-run probation office. Private probation companies, which historically had charged fees directly to probationers in many Tennessee counties, were excluded from misdemeanor cases in that county.

Was there any due-process problem with forcing a defendant to use a specific provider?

The opinion didn't address due process directly. Generally, where the county probation office met state qualifications and provided basic supervision services at reasonable cost, defendants had no due-process right to choose a particular provider, just as criminal defendants had no right to choose which sheriff's office served process on them.

Did this opinion mean any county could pass such an act?

The General Assembly enacts private acts on behalf of specific counties (usually after a local resolution). The AG concluded the legislative power existed. Whether a given county wanted such an act was a separate political question for the county delegation.

What was the "reasonable basis" argument the AG floated?

Even assuming a conflict with general law (which the AG didn't find), Article XI, § 8 allowed private acts when a rational basis supports the classification. Maximizing use of a county-funded office and reducing total probation costs to the county were classic rational-basis reasons. Cost control, in particular, has long passed the rational-basis test in Tennessee.

Were there counties where the AG expected such acts to be enacted?

The opinion didn't speculate, but private probation arrangements were contested in several Tennessee counties during this period. Counties that had built up their own probation offices typically had more incentive to push out private providers.

Citations

Tenn. Code Ann. §§ 40-35-302, 40-35-302(f)(1), 40-35-302(g)(1), 40-35-302(g)(2). Tenn. Const. art. II, §§ 1, 2; art. XI, § 8. Cases: Knox County ex rel. Kessel v. Lenoir City, 837 S.W.2d 382 (Tenn. 1992); Brentwood Liquors Corp. v. Fox, 496 S.W.2d 454 (Tenn. 1973); Knox County Educ. Ass'n v. Knox County Bd. of Educ., 60 S.W.3d 65 (Tenn. Ct. App. 2001); Smith County v. Enoch, 2003 WL 535914 (Tenn. Ct. App. Feb. 26, 2003); Chapman v. DaVita, Inc., 380 S.W.3d 710 (Tenn. 2012); State v. Strode, 232 S.W.3d 1 (Tenn. 2007); Underwood v. State, 529 S.W.2d 45 (Tenn. 1975); Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978); Mansell v. Bridgestone Firestone (Tenn. Aug. 20, 2013); State v. Burdin, 924 S.W.2d 82 (Tenn. 1996); Charles Massengill v. State, 1997 WL 254229 (Tenn. Crim. App. May 16, 1997). Prior AG opinions: Op. 09-33 (Mar. 23, 2009); Op. 99-029 (Feb. 17, 1999); Op. 08-175 (Nov. 18, 2008); Op. 13-20 (May 23, 2013); Op. 09-12 (Feb. 5, 2009); Op. 81-219 (Apr. 6, 1981); Op. 00-012 (Jan. 24, 2000).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-070.pdf

Original opinion text

September 4, 2013

Opinion No. 13-70

Private Act Requirement that General Sessions Court Use Services of County Probation Office

QUESTIONS

1. Would a private act mandating that a general sessions court use only the services of a county probation office to supervise an eligible defendant placed on probation conflict with the general law under Tenn. Code Ann. § 40-35-302 and therefore be invalid under the Tennessee Constitution?

2. Would such a private act raise any other constitutional concerns?

OPINIONS

1. No.

2. No.

ANALYSIS

1. Misdemeanor sentencing is generally governed by Tenn. Code Ann. § 40-35-302. This statute provides in part that a defendant convicted of a misdemeanor offense and then placed on probation shall not be placed under the supervision of the Tennessee board of probation and parole. Tenn. Code Ann. § 40-35-302(f)(1). This provision clarifies that this prohibition is not intended to "restrict the use, where necessary, of any county probationary service or private probation company established for the purpose of supervising defendants convicted of misdemeanors." Id. The statute also sets forth the qualifications for a private entity that provides probation supervisory services. See Tenn. Code Ann. § 40-35-302(g)(1). (Certain counties defined by population bracket are exempt from these requirements. Tenn. Code Ann. § 40-35-302(g)(2).) This Office has previously opined that these provisions collectively do not restrict a general sessions court's discretion to choose which qualified entity will supervise a probationer. Tenn. Att'y Gen. Op. 09-33, at 2 (Mar. 23, 2009); Tenn. Att'y Gen. Op. 99-029 (Feb. 17, 1999). See also Tenn. Att'y Gen. Op. 08-175, at 2 (Nov. 18, 2008) ("[T]his Office adheres to the opinion that judges have wide discretion to determine which qualified entity will supervise a defendant," provided that the determination is made impartially and on the basis of merit).

Nonetheless, Tenn. Code Ann. § 40-35-302 contains no language that mandates a general sessions court to consider all qualified entities when determining which entity will supervise a probationer. Rather, the statute merely states at Tenn. Code Ann. § 40-35-302(f)(1) that this subsection is not intended to restrict the exercise of such discretion by a general sessions judge. See Tenn. Code Ann. § 40-35-302(f)(1). Thus, this statute does not prevent the General Assembly, by private act, from requiring general sessions courts in a particular county to select only a county probation office to supervise an eligible defendant placed on probation. See Chapman v. DaVita, Inc., 380 S.W.3d 710, 714 (Tenn. 2012) (quoting State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007)) (recognizing that courts in construing statutes will determine legislative intent from "the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction that would extend . . . the statute's meaning").

Accordingly, this Office perceives no constitutional barrier to the General Assembly's enactment of such a private act under Article XI, Section 8 of the Tennessee Constitution, which provides "[t]he Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land." Tenn. Const. art. XI, § 8. To violate this constitutional provision, a private act must contravene a general law that has mandatory statewide application. Knox County ex rel. Kessel v. Lenoir City, 837 S.W.2d 382, 383 (Tenn. 1992). If a private act does contravene a general law, the private act will be invalid unless a reasonable basis exists for the classification created by the private act. Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454, 457 (Tenn. 1973); Knox County Educ. Ass'n v. Knox County Bd. of Educ., 60 S.W.3d 65, 76-77 (Tenn. Ct. App. 2001). See Tenn. Att'y Gen. Op. 13-20, at 3-4 (May 23, 2013); Tenn. Att'y Gen. Op. 09-12, at 3 (Feb. 5, 2009); Tenn. Att'y Gen. Op. 81-219 (Apr. 6, 1981).

As previously discussed, no conflict exists between Tenn. Code Ann. § 40-35-302, which merely states that its provisions do not preclude a general sessions court from appointing any qualified entity to supervise a probationer, and the adoption of a private act that would limit such selection in a particular county to the county probation office. See Smith County v. Enoch, No. M1999-00063-COA-R3-CV, 2003 WL 535914 at *3-4 (Feb. 26, 2003) (stating that if "Article XI § 8 is implicated, a challenged private act must do more than differ with the general law, it must flatly contravene a generally applicable statewide statute"). Moreover, even if such a conflict existed, arguably a reasonable basis would exist for the private act's classification—namely, to ensure the maximum utilization of the county-funded probation office and to control the budget for probation supervision services by eliminating any payments to private contractors.

2. The enactment of such a private act also does not implicate the separation of powers doctrine of the Tennessee Constitution, which states that no person or persons belonging to the legislative, executive or judicial department "shall exercise any of the power properly belonging to either of the others, except in the cases herein directed or permitted." Tenn. Const. art. II, § 2. (The three departments of Tennessee government are the "Legislative, Executive, and Judicial." Tenn. Const. art. II, § 1.)

Although the doctrine of separation of powers is a fundamental principle of American constitutional government, courts nonetheless have long recognized the difficulty of preserving perfectly the theoretical lines of demarcation between the executive, legislative, and judicial branches of government. See Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975). While it is the province and duty of the judicial department to interpret the law, it is equally the exclusive province of the legislature to formulate policies, mandate programs, and establish their relative priority. Tennessee Valley Authority v. Hill, 437 U.S. 153, 194 (1978).

A private act mandating that general sessions courts in a particular county refer all probationers to the county probation office for supervision would not violate the separation of powers doctrine, since it would not interfere with any adjudicative function of the general sessions court or otherwise impact its ability to perform judicial functions. The Tennessee Supreme Court has recently reiterated that "[a] legislative enactment which does not frustrate or interfere with the adjudicative function of the courts does not constitute an impermissible encroachment upon the judicial branch of government." Mansell v. Bridgestone Firestone North American Tire, LLC, No. M2012-02394-WC-R3-WC, at 9 (Tenn. Aug. 20, 2013) (quoting Underwood, 529 S.W.2d at 47). In applying this test, this Office has previously opined that a statute redirecting the collection and distribution of child support payments from the clerks of court to the department of human services did not impermissibly encroach upon the judicial branch of government, but merely altered the entity which would perform a ministerial function. Tenn. Att'y Gen. Op. 00-012, at 1-2 (Jan. 24, 2000). This same analysis should insulate the private act at issue from any separation of powers challenge. It is well settled that the power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the General Assembly. State v. Burdin, 924 S.W.2d 82, 86 (Tenn. 1996). See also Charles Massengill v. State, No. 01C01-9605-CR-00191, 1997 WL 254229, at *2 (Tenn. Crim. App., May 16, 1997) (stating that "[i]nherent within the legislature's function to establish punishment is its authority to promulgate law devising and establishing a statutory scheme for parole").

This Office finds no other constitutional barrier to the adoption of the private act in question.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

BENJAMIN A. WHITEHOUSE
Assistant Attorney General

Requested by:

The Honorable Kent Williams
State Representative
G2 War Memorial Building
Nashville, Tennessee 37243