Can a Tennessee court clerk require people to put up a deposit before letting them bid at a delinquent property tax auction?

Subject

Whether a Tennessee court clerk has authority to require a deposit as a condition of bidding at a delinquent property tax sale, and if so, whether there is any limit on the amount.

Plain-English summary

Representative Brock Martin asked a clean question on behalf of Tennesseans who show up to delinquent tax auctions: can the court clerk require a deposit before allowing me to bid? The AG's answer is no.

The reasoning: court clerks are ministerial public officers, and ministerial officers can do only what statute expressly authorizes or what is necessarily implied from those express powers. The Tennessee Court of Appeals stated this rule plainly in Jones v. Anderson (2007), and the older Tennessee Supreme Court decisions in Bailey v. Schubert (1958) and State v. Brady (1851) say the same thing.

The delinquent tax sale statutes (Tenn. Code Ann. §§ 67-5-2501 to -2516) carefully list what the clerk does: advertise the sale, give notice to the property owner, set the minimum bid (taxes, penalties, interest, and costs), collect payments, bid the minimum on behalf of the taxing entity if nobody else does, file a report of sale, send notice to the register of deeds, and provide an annual list of unpaid taxes. They also explicitly tell the clerk what the clerk does not have to do (no duty to prepare suit papers under § 67-5-2410). Nowhere in any of this does the statute mention a bidder deposit. Because there is no express grant and nothing about the listed powers necessarily implies the right to require a deposit, the clerk simply does not have that authority.

The opinion treats Question 2 (whether there's a cap on a deposit if it could be required) as moot because of the answer to Question 1.

What this means for you

If you are someone planning to bid at a Tennessee delinquent tax sale

You should not be required to make a deposit as a precondition to bidding. The auction terms must be the cash terms the court ordered, with the minimum bid set per statute. If a clerk demands a deposit, you have an AG opinion supporting your right to bid without one. Document any refusal to allow you to bid, because that refusal may be challenged.

If you are a court clerk currently using a deposit system

Stop. The opinion is unambiguous. A clerk cannot require a deposit as a condition to bidding at a delinquent tax sale. If your office's local practice has been to require deposits, the practice is unauthorized. Coordinate with the county attorney to revise procedures and confirm that court orders setting tax sale terms do not include any deposit requirement.

If you are a county attorney

When the clerk asks about local procedures or operations at a tax sale, walk through the explicit statutory list of clerk duties. The list is the floor and the ceiling. If the clerk wants new authority (a deposit, a registration step, a deadline before auction day), the legislature has to give it; the clerk cannot create it.

If you are a delinquent taxpayer trying to redeem or challenge

The clerk's role in the auction is narrow. If a clerk has done something not authorized by statute (required deposits, demanded fees beyond costs, conditioned bidding on registration), that is procedurally defective and may give you grounds to contest the sale. Talk to a Tennessee attorney experienced in delinquent tax sales.

If you are a state legislator

If a uniform deposit system would help manage tax sales (deter non-serious bidders, ensure ability to perform), the AG opinion is a roadmap: the legislature has to add that authority by statute. Right now, the clerk's authority is so narrowly drawn that even routine practices common in private auctions (deposits, bidder registration with deposits) are off-limits.

Common questions

Q: What if local practice has always required a deposit?
A: Local practice cannot expand the clerk's statutory authority. The AG cites the principle that "express statutory powers cannot be broadened by implication," nor "may public officials expand those powers by their own authority." A long-running unauthorized practice is still unauthorized.

Q: Can the court order a deposit even if the clerk cannot require one?
A: The opinion does not address whether the supervising court has independent authority to impose deposit conditions. The opinion squarely addresses the clerk. A court order imposing a deposit (rather than the clerk imposing one unilaterally) raises a different question.

Q: Are there any payment requirements at the auction itself?
A: Yes. The court must order the sale "for cash" under § 67-5-2501(a)(1). The successful bidder is expected to pay at the sale or per the terms of the court's order. The opinion's holding is about pre-bidding deposits, not post-bid payment.

Q: Are political subdivisions allowed to bid?
A: Yes. § 67-5-2508(a)(1) permits political subdivisions to bid. The clerk also bids the minimum on behalf of the taxing entity if no other bidder offers the minimum, with limited exceptions (e.g., when the county legislative body has determined no bid should be made because the property poses an environmental risk, § 67-5-2501(a)(2)).

Q: What is the minimum bid?
A: Per § 67-5-2501(a)(2) and (b)(2), it is the amount due for taxes, penalties, interest, and costs of administering the sale.

Q: What happens after the auction?
A: The clerk files a report of sale for the judge's confirmation and sends notice to the register of deeds, under § 67-5-2501(c). The clerk also collects payments, alone or with the county trustee, under §§ 67-5-2404(c) and 67-5-2421.

Q: Does this opinion affect non-tax court auctions like foreclosure sales or judicial sales?
A: The opinion is specific to delinquent tax sales under §§ 67-5-2501 to -2516. The general principle (a clerk acts only under express statutory authority) carries over, but the specific statutory framework varies for other sales.

Background and statutory framework

Tennessee enforces delinquent property taxes through court-ordered public sales. The framework is in Tenn. Code Ann. §§ 67-5-2501 to -2516. The court orders the sale, the clerk conducts the auction (or a special master does), and the proceeds go to satisfy the unpaid taxes, penalties, interest, and costs.

The clerk's role is enumerated by statute. Among the express duties: advertise and give notice (§ 67-5-2501); set the minimum bid (§ 67-5-2501(a)(2), (b)(2)); bid the minimum on behalf of the taxing entity if no one else does (with the environmental-risk exception in § 67-5-2501(a)(2)); collect payments (§§ 67-5-2404(c), 67-5-2421); file the report of sale (§ 67-5-2501(c)); provide an annual unpaid taxes list (§ 67-5-2403). And the statute is explicit that the clerk has no duty to prepare petitions, complaints, summonses, notices, or orders for the prosecution of tax enforcement suits (§ 67-5-2410).

A court clerk is a ministerial officer. Tennessee law has been consistent for over 170 years that ministerial officers act only as the statute prescribes. Bailey v. Schubert, 315 S.W.2d 249, 252 (1958), said the clerk is a "mere ministerial officer and cannot act except under the conditions prescribed by the statute." State v. Brady, 31 Tenn. 36, 37 (1851), held that a clerk could not administer oaths outside the presence of the court because the statute conferred authority only to administer oaths in court. Jones v. Anderson, 250 S.W.3d 894, 897 (Tenn. Ct. App. 2007), in the delinquent tax sale context itself, declined to order the clerk to act "[i]n the absence of an express [statutory] grant of authority."

Layered on top is the broader public-officer rule from 67 C.J.S. Officers § 323 (2023): public officers can exercise only the powers expressly conferred by constitutional or statutory authority or necessarily implied from those powers. "[E]xpress statutory powers cannot be broadened by implication," nor "may public officials expand those powers by their own authority."

Putting these layers together, the AG's analysis is short and conclusive. The delinquent tax sale statutes do not authorize a bidder deposit. The clerk cannot create the authority by adopting a local practice. So a clerk has no authority to require one.

Citations

Statutes:
- Tenn. Code Ann. §§ 67-5-2501 to -2516 (delinquent tax sales)
- Tenn. Code Ann. § 67-5-2501(a)(1), (a)(2), (b)(2), (c) (cash sale, minimum bid, report of sale)
- Tenn. Code Ann. § 67-5-2502(a)(6) (clerk conducts the sale)
- Tenn. Code Ann. §§ 67-5-2403, 67-5-2404(c), 67-5-2410, 67-5-2421 (clerk's other duties and limits)
- Tenn. Code Ann. § 67-5-2508(a)(1) (political subdivisions may bid)
- Tenn. Code Ann. § 67-5-2706 (delinquent tax sale provision involved in Jones)

Cases:
- Bailey v. Schubert, 315 S.W.2d 249, 252 (1958), clerk is a ministerial officer
- State v. Brady, 31 Tenn. 36 (1851), clerk can act only as statute prescribes
- Jones v. Anderson, 250 S.W.3d 894, 897 (Tenn. Ct. App. 2007), clerk needs express statutory authority

Other:
- 85 C.J.S. Taxation § 1266 (2023), general qualification of bidders
- 67 C.J.S. Officers § 323 (2023): public officer authority limits

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-08.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 22, 2023
Opinion No. 23-008

Authority of Court Clerk to Require a Deposit to Bid at a Delinquent Tax Sale

Question 1

Is a court clerk authorized to require a deposit as a condition of bidding at a delinquent tax sale?

Opinion 1

No. As a public officer a court clerk has and can exercise only the authority that is expressly conferred on the clerk by statute or necessarily implied from the powers granted by statute. But no Tennessee statute expressly—or by necessary implication—authorizes a court clerk to require a deposit as a condition to bidding at a delinquent tax sale.

Question 2

If a court clerk is authorized to require a deposit as a condition of bidding at a delinquent tax sale, is there a limitation on the amount the court clerk is authorized to require?

Opinion 2

In light of Opinion 1 this question is moot.

ANALYSIS

A delinquent tax sale is the judicially ordered public sale of property for the purpose of collecting unpaid taxes owed on the property. Tennessee's delinquent tax sale process is prescribed by statute. See Tenn. Code Ann. §§ 67-5-2501 to -2516.

The delinquent tax sale—basically an auction at which the public is invited to bid on the property—is conducted by the clerk of the court that orders the sale. Id. § 67-5-2502(a)(6) (referring to the clerk or a special master "conducting the sale" of the property). Generally, any person not disqualified by statute may bid at a delinquent tax sale. 85 C.J.S. Taxation § 1266 (2023). Political subdivisions are also authorized to bid. Tenn. Code Ann. § 67-5-2508(a)(1). There is no statutory requirement that to qualify to bid a potential bidder must make a deposit.

The clerk's authority and responsibilities in conducting the sale are delimited by statute. Once the court orders the sale, the clerk is responsible for advertising the sale to the public and for providing notice of the sale to the owner(s) of the property to be sold. Id. § 67-5-2501. The clerk determines the minimum bid, which is to include the amount due for taxes, penalties, interest, and costs of administering the sale. Id. § 67-5-2501(a)(2), (b)(2). And, with some exceptions, the clerk must bid that minimum on behalf of the taxing entity if no other bidder offers the minimum or larger bid. Id. § 67-5-2501(a)(2).

The court must order the sale of the property for cash. Id. § 67-5-2501(a)(1). The clerk, either alone or along with the county trustee, collects any payments made towards the taxes at issue during the proceedings. Tenn. Code Ann. §§ 67-5-2404(c), 67-5-2421. Once the auction has concluded, the clerk files a report of sale for the judge's confirmation and forwards notice of the sale to the register of deeds. Id. § 67-5-2501(c). The clerk is required to provide annually, upon request, a complete list of unpaid taxes with their associated properties and tax years at issue in delinquent tax cases in the clerk's court. Id. § 67-5-2403. But the clerk expressly has no duty "to prepare petitions, complaints, summonses, notices or orders for the prosecution of tax enforcement suits." Id. § 67-5-2410.

In short, Tennessee's delinquent tax sale statutes do not give the clerk any authority to require a deposit as a prerequisite to bidding at a sale—in fact, the statutes make no reference at all to bidding deposits. The clerk's responsibilities and authority with respect to delinquent tax sales are limited by statute to receiving and distributing money during the process, providing notices and keeping records, reporting the sale to the judge and other officials, and, in certain delineated circumstances, bidding at the auction on behalf of the taxing entity.

A court clerk is a public officer. Generally, "[p]ublic officers have, and can exercise, . . . only such power and authority as are expressly or clearly conferred by constitutional or statutory authority or necessarily implied or inferred from the powers granted." 67 C.J.S. Officers § 323 (2023). Moreover, "express statutory powers cannot be broadened by implication," nor "may public officials expand those powers by their own authority." Id.

Under Tennessee law in particular, a court clerk "is a mere ministerial officer and cannot act except under the conditions prescribed by the statute." Bailey v. Schubert, 315 S.W.2d 249, 252 (1958); see also State v. Brady, 31 Tenn. 36, 37 (1851) (because the clerk of the circuit court is a ministerial officer of the court, the clerk could not administer an oath outside the presence of the court when the statute "confer[s] authority upon the clerk" to administer oaths only in the presence of and at the direction of the court). And specifically in the context of Tenn. Code Ann. § 67-5-2706, which is part of the delinquent tax sale statutory scheme, the Tennessee Court of Appeals found that the clerk could not be required to carry out an act that the statute did not "expressly" authorize or require the clerk to do. Jones v. Anderson, 250 S.W.3d 894, 897 (Tenn. Ct. App. 2007) (declining to order the clerk to act "[i]n the absence of an express [statutory] grant of authority") (emphasis in the original text).

In sum, the court clerk's role in conducting a delinquent tax sale is limited to the authority and responsibilities expressly given to the clerk by statute. Tennessee's delinquent tax statutes do not give the clerk any authority to require a deposit as a prerequisite to bidding at a delinquent tax sale, nor can any such authority be necessarily implied from the circumscribed powers granted the clerk by statute. A court clerk, therefore, has no authority to require a deposit as a condition to bidding at a delinquent tax sale.

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Brock Martin
State Representative
425 Rep. John Lewis Way, Suite 652
Nashville, Tennessee 37243