Can the spouse of a Tennessee deputy sheriff legally write bail bonds in the same county?

Plain-English summary

Tennessee bars certain classes of people from writing bail bonds or acting as agents for bondsmen or sureties, and bars them from directly or indirectly receiving any benefit from a bail bond. The list in Tenn. Code Ann. § 40-11-128 includes jailers, attorneys, police officers, convicted felons, committing magistrates, municipal or magistrate court judges, clerks or deputy clerks, sheriffs, deputy sheriffs, constables, and anyone with arrest power or control over federal, state, county, or municipal prisoners.

The question presented was whether the spouse of a deputy sheriff is also prohibited from being a bail bondsperson. The AG concluded yes if the spouses commingle funds. The AG's reasoning rested on a long line of Tennessee AG opinions holding that when spouses pool their money, share responsibility for expenses, or jointly accumulate debts and assets, a person has at least an indirect interest in any contract that directly affects the other spouse's employment. Because a bail bond is a contract (per In re Sanford & Sons Bail Bonds, Inc.) and the bondsperson's earnings come from writing those contracts, a deputy sheriff whose finances are mingled with the bondsperson's would indirectly benefit from every bond.

Currency note

This opinion was issued in 2014. 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.

Common questions

Q: Does the statute name the spouse of a deputy sheriff?
A: No. § 40-11-128 names individuals in certain categories, including deputy sheriffs themselves. The spouse-disqualification reading comes from the statute's separate prohibition on directly or indirectly receiving any benefit from the execution of a bail bond, combined with the AG's repeated conclusion that commingled finances create an indirect benefit to both spouses from either spouse's employment income.

Q: What does "commingle funds" actually mean here?
A: The earlier AG opinions cited (notably Tenn. Att'y Gen. Op. 82-394) describe the inquiry as whether spouses "commingle their funds, share responsibility for expenses, or jointly accumulate debts and assets." Joint checking accounts, shared budgets, jointly held property, and shared liabilities are the kind of indicators that signal commingling.

Q: What if the deputy sheriff and the bondsperson keep entirely separate finances?
A: The opinion does not say the spouse is categorically prohibited. The bar attaches to indirect benefit, and the AG's reasoning is that commingled finances create indirect benefit. Separately maintained finances change the factual basis for that conclusion. Whether any particular arrangement is sufficiently separate is a fact-specific question.

Q: Did this opinion change earlier AG guidance?
A: It refined it. Tenn. Att'y Gen. Op. 79-145 (1979) had said that a police-officer spouse "should not be allowed" to write bonds, period. By 1981 (Op. 81-449), the office shifted to a fact-specific commingling inquiry. Tenn. Att'y Gen. Op. 82-394, 88-122, 00-181, 05-017, and 08-102 each applied that commingling test in other contexts. Opinion 14-80 applies that line of reasoning to the deputy-sheriff/bail-bondsperson configuration.

Q: Is a bail bond a contract for these purposes?
A: Yes. In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d 199, 202 (Tenn. Crim. App. 2002), characterizes a bail bond as a contract. That characterization is the linchpin that pulls in the "indirect interest in contracts affecting a spouse's employment" line of cases.

Background and statutory framework

The bail-bond statute's "person or classes" list reflects the legislature's judgment that certain occupations create a categorical conflict with the bail business. Law-enforcement officers, court personnel, and people with arrest authority sit at the heart of the criminal-process pipeline; allowing them (directly or through pocketbook ties) to benefit from bail bonds creates obvious risks of leverage and favoritism.

The statute's anti-circumvention language is broader than its list of categories. The "shall not directly or indirectly receive any benefits" clause is what pulls in the spouse analysis. The AG's commingling rule developed across decades of opinions in different contexts (city alderman whose spouse held a city accounting contract; government employees whose spouses had agency-financed investments; and so on) and lands here as a single coherent test: shared finances create indirect benefit. The bail-bond statute's indirect-benefit prohibition then activates.

Citations and references

Statutes:
- Tenn. Code Ann. § 40-11-128 (bail bondsmen; prohibited persons)

Cases:
- In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d 199 (Tenn. Crim. App. 2002) (Tennessee Court of Criminal Appeals; bail bond is a contract)

Earlier AG opinions:
- Tenn. Att'y Gen. Op. 79-145 (Mar. 28, 1979)
- Tenn. Att'y Gen. Op. 81-449 (Aug. 5, 1981)
- Tenn. Att'y Gen. Op. 82-394 (Aug. 3, 1982)
- Tenn. Att'y Gen. Op. 88-122 (July 13, 1988)
- Tenn. Att'y Gen. Op. 00-181 (Nov. 22, 2000)
- Tenn. Att'y Gen. Op. 05-017 (Feb. 3, 2005)
- Tenn. Att'y Gen. Op. 08-102 (May 6, 2008)

Subject

Opinion No. 14-80, Disqualification from Service as Bail Bondsperson, September 4, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-080.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 4, 2014
Opinion No. 14-80
Disqualification from Service as Bail Bondsperson

QUESTION

Does Tenn. Code Ann. § 40-11-128 prohibit the spouse of a deputy sheriff from serving as a bail bondsperson?

OPINION

Yes, if the spouses commingle funds.

ANALYSIS

Tenn. Code Ann. § 40-11-128 provides:

The following persons or classes shall not be bail bondsmen or agents of bail bondsmen or surety companies and shall not directly or indirectly receive any benefits from the execution of any bail bond: jailers, attorneys, police officers, convicted felons, committing magistrates, municipal or magistrate court judges, clerks or deputy clerks, sheriffs, deputy sheriffs and constables, and any person having the power to arrest or having anything to do with the control of federal, state, county or municipal prisoners.

In Tenn. Att'y Gen. Op. 79-145 (Mar. 28, 1979), this Office addressed the question whether the spouse of a city police officer was prohibited from writing bail bonds for persons appearing in the general sessions and criminal courts in the county where the police officer was employed. Citing Tenn. Code Ann. § 40-1228 (now Tenn. Code Ann. § 40-11-128), the Office observed that a "police officer who is married to a bail bondsperson would clearly be in a position to receive indirect benefit from every bond written by his spouse" and opined: "The writing of bonds by the spouse of a police officer accordingly appears to be contrary to the intent of [§ 49-11-128] and should not be allowed." Tenn. Att'y Gen. Op. 79-145, at 1.

In 1981, however, addressing whether a conflict of interest existed where the husband of an employee of a government agency was a partner in a project financed by the agency, this Office opined that the question whether one spouse has a financial interest in the investments of the other spouse would depend on the circumstances. Tenn. Att'y Gen. Op. 81-449 (Aug. 5, 1981). See also Tenn. Att'y Gen. Op. 82-394, at 5 (Aug. 3, 1982) (opining that the question whether a city alderman stood to benefit from her spouse's accounting contract with the city "would depend on whether the spouses commingle their funds, share responsibility for expenses, or jointly accumulate debts and assets"). Since then, this Office has opined on several occasions that when spouses commingle assets, a person has at least an indirect interest in any contract directly affecting his or her spouse's employment. See, e.g., Tenn. Att'y Gen. Op. 88-122 (July 13, 1988); Tenn. Att'y Gen. Op. 00-181 (Nov. 22, 2000); Tenn. Att'y Gen. Op. 05-017 (Feb. 3, 2005); Tenn. Att'y Gen. Op. 08-102 (May 6, 2008).

A bail bond is a contract, In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d 199, 202 (Tenn. Crim. App. 2002), and clearly a bail bondsperson's employment is directly affected when the bondsperson executes a bail bond. The bail bondsperson's spouse would have an indirect interest in any such contract if the spouses commingle funds and, therefore, would "indirectly receive any benefits from the execution" of that bail bond under Tenn. Code Ann. § 40-11-128. Because deputy sheriffs are specifically included in the prohibited "person or classes" listed in § 40-11-128, the statute would prohibit the spouse of a deputy sheriff from serving as a bail bondsperson if the spouses commingle funds.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

GORDON W. SMITH
Associate Solicitor General

Requested by:
The Honorable James G. Martin III
Circuit Judge
Twenty-first Judicial District
135 Fourth Avenue South
Franklin, Tennessee 37064