When a Tennessee defendant skips bail, are 'costs of the court proceedings' under § 40-11-120 just the forfeiture costs or all the costs in the case?

Plain-English summary

A Tennessee Circuit Court judge asked whether the "costs of the court proceedings" that a bail-violating defendant must pay under § 40-11-120 are limited to the costs of the forfeiture step or include all the case's costs. The AG concluded all the costs.

The text uses the plural "proceedings." That alone signals more than a single forfeiture step. Even using the narrower dictionary definition of "proceeding" as "[a]n act or step that is part of a larger action" (Black's Law Dictionary, 10th ed.), the plural picks up multiple acts or steps in the case. Using the broader dictionary definition ("regular and orderly progression of a lawsuit"), the result is the same.

Tennessee precedent treats a bail forfeiture as an "incidental proceeding" within the existing case, not a separate proceeding. State v. Sibley, 72 Tenn. 738, 741 (1880); Indemnity Ins. Co. v. Blackwell, 653 S.W.2d 262 (Tenn. Ct. App. 1983). The forfeiture step is one distinct act within the larger collection of court proceedings.

The legislature's use of the plural is purposeful (Fed. Express Corp. v. Tenn. State Bd. of Equalization, 717 S.W.2d 873 (Tenn. 1986)) and the Bail Reform Act's surrounding provisions (§ 40-11-110(b), § 40-11-118(a)) use the singular "proceeding" when they mean a single act, confirming that the plural in § 40-11-120 is deliberate.

The broader Bail Reform Act framework also points to all-costs liability. § 40-11-121 applies a defendant's bail deposit to "a judgment for fine and court costs." §§ 40-11-122(1), 40-11-138(b) impose costs of preparation, recordation, and release on defendants posting real estate bail. § 40-11-139(b) lets the court enter judgment "for the amount of the bail and costs of the proceedings" against the defendant and sureties. § 40-11-203 conditions surety exoneration on "payment of all costs."

Currency note

This opinion was issued in 2017. 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 mentioned here.

Background and statutory framework

Tennessee's bail framework is mostly in the Release From Custody and Bail Reform Act of 1977, codified at § 40-11-101 et seq. The basic mechanism: a defendant is released on recognizance or by posting a cash deposit (typically the full bail amount). If the defendant violates the conditions, § 40-11-120 directs the court to declare bail forfeited, provide notice, give the defendant 30 days to surrender or show impossibility, and (failing that) enter judgment "for the amount of the bail and costs of the court proceedings."

The cash deposit is then applied to the judgment and costs, with the balance collectible like a civil judgment. § 40-11-118(a).

The interpretive question. "Costs of the court proceedings" is undefined. Under § 1-3-105(b), the term gets its natural and ordinary meaning. Both broad and narrow dictionary definitions of "proceeding" point to all-case costs when read with the plural noun. Fed. Express Corp. requires reading each legislative word as purposeful, and the Bail Reform Act's neighboring sections (§ 40-11-110(b), § 40-11-118(a)) use the singular "proceeding" intentionally, contrasting with the plural in § 40-11-120.

Tennessee precedent on forfeiture. State v. Sibley (1880) characterized bail forfeiture as "an incidental proceeding" within the existing case. Indemnity Ins. Co. v. Blackwell (1983) follows. So the forfeiture is a distinct act, one of multiple "proceedings" in the case.

Surrounding provisions confirm the reading. § 40-11-121 mandates that bail deposits "shall be applied to the payment" of "a judgment for fine and court costs." §§ 40-11-122(1), 40-11-138(b) require defendants posting real estate bail to pay preparation, recordation, and release costs. § 40-11-139(b) lets the court enter judgment against the defendant and sureties "for the amount of the bail and costs of the proceedings" when bail is violated. § 40-11-203 conditions surety exoneration on "payment of all costs."

Common questions

Q: A defendant skips bail. What costs can the court enter judgment for?
A: According to this opinion, all the costs of all the proceedings in the case against the defendant, not just the costs of the bail forfeiture step.

Q: Does this include attorney fees?
A: The opinion did not address attorney fees specifically. "Court costs" in Tennessee practice typically does not include attorney fees absent specific statutory authorization.

Q: What if the defendant surrenders within 30 days?
A: § 40-11-120 lets the defendant appear and surrender within 30 days, or satisfy the court that doing so would be impossible and not the defendant's fault. The cost-liability language operates if the defendant fails to do so.

Q: Can the bail deposit be applied to costs?
A: Yes. § 40-11-118(a) and § 40-11-121 both contemplate application of the deposit to fines and costs.

Q: What costs come up in a typical case?
A: Court costs, filing fees, service costs, witness fees, juror compensation, and the like, all accumulating across the proceedings from charging through trial or other disposition.

Citations and references

Constitution and statutes:
- Tenn. Const. art. I, § 15
- Tenn. Code Ann. § 1-3-105(b)
- Tenn. Code Ann. §§ 40-11-101 et seq., -110(b), -115, -116, -118(a), -120, -121, -122(1), -138(b), -139(b), -203

Cases:
- Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192 (1952)
- Fed. Express Corp. v. Tenn. State Bd. of Equalization, 717 S.W.2d 873 (Tenn. 1986)
- State v. Sibley, 72 Tenn. 738 (1880)
- Indemnity Ins. Co. v. Blackwell, 653 S.W.2d 262 (Tenn. Ct. App. 1983)

Related AG opinion:
- Op. Tenn. Att'y Gen. 15-17 (Mar. 10, 2015)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-038.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 1, 2017
Opinion No. 17-38
Interpretation of "Costs of the Court Proceedings" in Tenn. Code Ann. § 40-11-120

Question
Do the "costs of the court proceedings" for which a defendant violating the conditions of his bail may be held liable under Tenn. Code Ann. § 40-11-120 include the costs of all the proceedings in the case or the costs of only the bail forfeiture proceeding?

Opinion
The "costs of the court proceedings" in Tenn. Code Ann. § 40-11-120 include the costs of all the proceedings in the case and are not limited to the costs of the forfeiture proceeding alone.

ANALYSIS

Article I, § 15 of the Tennessee Constitution grants criminal defendants a right to bail except in capital cases. See Wallace v. State, 193 Tenn. 182, 185-86, 245 S.W.2d 192, 193 (1952). The current statutory framework governing pretrial release and bail in Tennessee largely originates in The Release From Custody and Bail Reform Act of 1977 ("Bail Reform Act"). 1978 Tenn. Pub. Acts, ch. 506; Tenn. Code Ann. § 40-11-101, et seq. Under its provisions, individuals charged with most criminal offenses may be released pending trial by a magistrate authorized to admit the person to bail. See Tenn. Code Ann. § 40-11-115; see also id. § 40-11-102 (defining "[b]ailable offenses"). The magistrate may order the defendant released pending trial on his personal recognizance or "upon the execution of an unsecured appearance bond in an amount specified by the magistrate." Id. § 40-11-115(a). A defendant for whom bail has been set may "execute the bail bond and deposit with the clerk of the court before which proceeding is pending a sum of money in cash equal to the amount of the bail." Id. § 40-11-118(a). After making this deposit, a defendant is released from custody but "subject to the conditions of the bail bond." Id.; see also id. § 40-11-116.

If a criminal defendant who has been released on his recognizance under § 40-11-115 or who has posted a bail bond pursuant to § 40-11-118 violates the conditions of his bail, Tenn. Code Ann. § 40-11-120 directs the court to enter an order "declaring the bail to be forfeited" and to provide the defendant notice of this forfeiture. The defendant must appear and surrender to the court within thirty days of the date of the forfeiture or satisfy the court that doing so would be impossible and not the defendant's fault. Id. If the defendant fails to appear or demonstrate impossibility, however, the court must "enter judgment for the state against the defendant for the amount of the bail and costs of the court proceedings." Id. (emphasis added). A defendant's cash deposit made in accordance with § 40-11-118 "shall be applied to the payment of the judgment and costs" and the rest of the sum may be collected in the same manner as a civil judgment. Id.

As used in § 40-11-120, neither "costs" nor "court proceedings" are defined in the Code. Undefined words in the Tennessee Code must "be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest." Tenn. Code Ann. § 1-3-105(b). Interpreted according to its ordinary meaning, the term "costs of the court proceedings" encompasses all of the costs incurred in the various actions taking place within a single case.

The word "proceeding" can be used as a broad term to describe "[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment" as well as a more limited term to describe "[a]n act or step that is part of a larger action." Black's Law Dictionary (10th ed. 2014). Either way, the "costs of the court proceedings" in § 40-11-120 include the costs of the entire case and are not limited to the costs of the bail forfeiture proceeding. Reading "proceeding" according to its broad definition, the term "costs of the court proceedings" means the costs of the entire lawsuit, including all acts and events from beginning to end. And because § 40-11-120 refers to "proceedings" in the plural, reading "proceeding" according to its more limited definition does not alter the meaning. Use of the plural shows that the term "costs of the court proceedings" encompasses not just one "act or step" but all of the "act[s] or step[s]" that are part of the larger case.

Under Tennessee law, a bail forfeiture action is not a separate proceeding, but "an incidental proceeding" within the existing case. State v. Sibley, 72 Tenn. 738, 741 (1880); see also Indemnity Ins. Co. v. Blackwell, 653 S.W.2d 262, 264 (Tenn. Ct. App. 1983). The forfeiture of a defendant's bail deposit pursuant to § 40-11-120 is thus a distinct "act or step," a singular "proceeding," that is but one aspect of the collected "court proceedings" against the defendant. Accordingly, under the ordinary meaning of the provision, the "costs of the court proceedings" are not limited to the costs from that forfeiture proceeding but also include the costs of the other proceedings in the case.

When interpreting a provision of the Tennessee Code, "it should be assumed the legislature used each word purposefully and that those words convey some intent and have a meaning and a purpose." Fed. Express Corp. v. Tenn. State Bd. of Equalization, 717 S.W.2d 873, 874 (Tenn. 1986). An interpretation of § 40-11-120 must thus assume that the General Assembly "purposefully" used the plural "proceedings" and that its choice of the plural "convey[s] some intent and ha[s] a meaning and a purpose." Id. That assumption is bolstered in this instance because the General Assembly used the singular "proceeding" in neighboring provisions of the Bail Reform Act enacted alongside § 40-11-120 in order to limit the provisions to a single, specific "proceeding." See Tenn. Code Ann. § 40-11-110(b); id. § 40-11-118(a); 1978 Tenn. Pub. Acts ch. 506, §§ 10, 18.

The natural and ordinary meaning of "costs of the court proceedings" includes all costs of the proceedings in the case, and we can discern no contrary intention. The legislative history and statutory context of § 40-11-120 do not suggest, let alone "clearly manifest," any intention that would undercut this ordinary meaning. Tenn. Code Ann. § 1-3-105(b). To the contrary, they support the ordinary understanding that § 40-11-120 makes a defendant who violates the conditions of his bail liable for all of the existing costs of the proceedings against him if he fails to appear upon the court's order.

The Bail Reform Act was a comprehensive measure designed to set state-wide standards for bail and professional bondsmen. See Op. Tenn. Att'y Gen. 15-17 (Mar. 10, 2015). Numerous provisions of the Bail Reform Act demonstrate that the General Assembly purposefully included language to ensure that the costs of court proceedings would not go unpaid as a result of a defendant's failure to comply with his bail obligations. See, e.g., Tenn. Code Ann. § 40-11-121 (mandating that a defendant's bail deposit "shall be applied to the payment" of "a judgment for fine and court costs") (emphasis added); id. §§ 40-11-122(1), 40-11-138(b); id. § 40-11-139(b) (permitting the court to enter judgment against a defendant and his sureties "for the amount of the bail and costs of the proceedings" if the defendant violates bail) (emphasis added). And older provisions of the Code establish that the payment of costs by parties at fault has long been a principle of the bail framework. See id. § 40-11-203 (allowing a surety to be exonerated from bail forfeiture by the surrender of the defendant "and the payment of all costs") (emphasis added).

Accordingly, the "costs of the court proceedings" as used in § 40-11-120 includes the costs of all the proceedings within a case against a defendant and are not limited to the costs of the bail forfeiture proceeding alone.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable David D. Wolfe
Circuit Court Judge
Dickson County Courthouse Annex
Four Court Square
P.O. Box 158
Charlotte, Tennessee 37036