Can a Tennessee constable arrest someone outside their own county?

Subject

Whether Tennessee constables have arrest authority outside their county, whether they may serve process outside their county, and whether failing to act on the duties stated in their oath of office can violate that oath when they are outside their county or lack law enforcement powers.

Plain-English summary

Representative Timothy Hill asked the AG three questions about how far a Tennessee constable's authority reaches. The short answer: not very far. A constable's jurisdiction is county-wide only.

Question 1: Statewide arrest powers? No. A constable's "governmental" arrest powers exist only within their county. If a constable is pursuing a suspect across the county line, they retain the powers of a private citizen (a citizen's arrest), but no special governmental arrest authority. The opinion confirms this rule with three prior AG opinions going back to 1981.

Question 2: Can a constable serve process out-of-county and arrest someone they observe committing a crime there? The scenario can't arise the way the question posits. A constable has no authority to serve process outside their own county.

Question 3: Does a constable violate their oath if they fail to act on the oath's duties (keeping the peace, arresting persons going armed offensively, apprehending felons or rioters)? It depends. Two layers of variation:

• Some constables take the oath and have law enforcement powers (§§ 8-10-108(b), (d), (e); 8-10-109(a)). Those constables can violate the oath in their county.
• Other constables don't have law enforcement powers and don't take that oath (§§ 8-10-108(a); 8-10-109(b)(1)(A)). They cannot violate an oath they didn't take and aren't bound by.
• And in either case, no constable has authority outside their county, so failure to act outside the county is not an oath violation.

What this means for you

If you are a constable

The opinion holds that a constable's governmental authority is county-wide only. Constables vested with governmental arrest powers can make arrests only within their county; a constable pursuing a suspect across the county line "has the same powers of arrest as any private citizen." Whether a constable can violate the oath in § 8-10-108(b) depends on whether the constable holds law enforcement powers and took that oath: constables without those powers (§§ 8-10-108(a), 8-10-109(b)(1)(A)) do not take the same oath. No constable can violate the oath by failing to act outside the county, because constables can take official action only within their counties.

If you are a county attorney advising county government

The opinion restates the longstanding AG position that constables are county-only officials, citing prior opinions back to 1981. It does not address whether a county can extend constable authority by Private Act or any other mechanism.

If you are a citizen who has been served by a constable

The opinion states that a constable "has no authority to serve papers outside the boundary of his own county." It does not address the validity of any particular service or how to contest defective service.

If you are a magistrate or judge issuing process

The opinion holds that constables lack authority to serve process outside their own county. It does not address how process should be directed or what alternatives exist for out-of-county service.

If you are a sheriff or police officer

The opinion holds that a constable pursuing a suspect outside the county has only the arrest powers of a private citizen, and that governmental arrest powers do not extend beyond the county line. It does not address inter-agency coordination.

If you are a state legislator

The opinion describes the existing statutory structure, in which some constables hold law enforcement powers and take the § 8-10-108(b) oath while others (§§ 8-10-108(a), 8-10-109(b)(1)(A)) do not. It does not recommend any change to that structure.

Common questions

Q: Can a constable arrest someone for a crime they witness in their own county?
A: The opinion states that constables vested with governmental arrest powers can make arrests only within their county. Constables who lack law enforcement powers under § 8-10-108(a) do not have those governmental powers.

Q: Can a Tennessee constable arrest someone outside their county?
A: No. The opinion holds that constables cannot exercise governmental arrest power throughout the state. A constable pursuing a suspect outside the county "has the same powers of arrest as any private citizen" (Tenn. Att'y Gen. Op. 92-18).

Q: Can a constable serve process outside their county?
A: No. The opinion holds that "a constable has no authority to serve papers outside the boundary of his own county" (Tenn. Att'y Gen. Op. 94-095).

Q: Can a constable violate the oath of office by failing to act?
A: It depends. The opinion holds that constables cannot violate the § 8-10-108(b) oath if they lack law enforcement powers (and so did not take that oath) or if their failure to act occurs outside their county.

Background and statutory framework

Tennessee constables are county-level officers. Title 8, Chapter 10 of the Code sets out two parallel structures:

• Constables with law enforcement powers: take the oath in § 8-10-108(b) (peace-keeping, armed-offensive arrests, apprehending felons/rioters). Powers and duties are detailed in § 8-10-109(a).
• Constables without law enforcement powers: covered by § 8-10-108(a) and § 8-10-109(b)(1)(A). The oath and duties differ from the law-enforcement track.

The county-wide jurisdiction rule comes from a long line of Tennessee AG opinions: 81-96 (1981), U91-144 (1991), 92-18 (1992), 94-095 (1994). All hold that a constable's official authority is bounded by the county. Outside the county, the constable retains only private-citizen authority.

Process service authority is similarly county-bounded. AG Opinion 94-095 held that "a constable has no authority to serve papers outside the boundary of his own county." Because a constable cannot serve process out-of-county, the AG concluded that the Question 2 scenario (serving process outside the county and observing a crime there) cannot arise.

The oath analysis turns on whether the constable took the law-enforcement oath (§ 8-10-108(b)) or the non-law-enforcement oath (§ 8-10-108(a)). A constable cannot violate an oath they didn't take. And no constable can violate the oath through failure to act outside their county, because they have no authority to act outside their county.

Citations

Statutes:

• Tenn. Code Ann. § 8-10-108(a), (b), (d), (e)
• Tenn. Code Ann. § 8-10-109(a), (b)(1)(A)

Prior AG opinions cited:

• Tenn. Att'y Gen. Op. 81-96 (Feb. 13, 1981)
• Tenn. Att'y Gen. Op. U91-144 (Nov. 26, 1991)
• Tenn. Att'y Gen. Op. 92-18 (Feb. 28, 1992)
• Tenn. Att'y Gen. Op. 94-095 (Aug. 30, 1994)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-006.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 15, 2024
Opinion No. 24-006

Jurisdiction, Authority, and Duties of Constables

Question 1

Do constables have arrest powers throughout the entire State of Tennessee?

Opinion 1

No. Constables cannot exercise governmental power to make arrests throughout the entire State of Tennessee.

Question 2

If a constable is tasked with serving process outside the constable's county, and the constable observes a crime taking place outside the constable's county, does the constable have authority to make the arrest?

Opinion 2

The scenario described in the question cannot arise. Constables lack authority to serve process outside their county.

Question 3

If a constable does not act to "cause the peace of the state to be kept [and] . . . arrest all persons that go in . . . sight armed offensively" or to "apprehend all felons, rioters, or persons riotously assembled," would that violate the constable's oath of office?

Opinion 3

It depends. Constables cannot violate the oath set out in Tenn. Code Ann. § 8-10-108(b) if they lack law enforcement powers or if their failure to act occurs outside their county.

ANALYSIS

1. Constables cannot exercise governmental power to make arrests throughout the entire State of Tennessee.

"The jurisdiction of a constable is county-wide." Tenn. Att'y Gen. Op. 94-095 (Aug. 30, 1994); Tenn. Att'y Gen. Op. 92-18 (Feb. 28, 1992); Tenn. Att'y Gen. Op. 81-96 (Feb. 13, 1981). This means that constables vested with governmental arrest powers can make arrests only within their county. Tenn. Att'y Gen. Op. U91-144 (Nov. 26, 1991). "Although a constable's [governmental] powers do not extend beyond the county line, a constable pursuing a suspect outside the county has the same powers of arrest as any private citizen." Tenn. Att'y Gen. Op. 92-18 (Feb. 28, 1992).

2. Constables lack authority to serve process outside their county.

The scenario described in the question cannot arise. "[A] constable has no authority to serve papers outside the boundary of his own county." Tenn. Att'y Gen. Op. 94-095 (Aug. 30, 1994).

3. Constables cannot violate the oath set out in Tenn. Code Ann. § 8-10-108(b) if they lack law enforcement powers or if their failure to act occurs outside their county.

The duties of a constable vary. The Tennessee Code vests some constables with law enforcement powers. Those constables take an oath to "cause the peace of the state to be kept," to "arrest all persons that go in [their] sight armed offensively," and to "apprehend all felons, rioters, or persons riotously assembled." Tenn. Code Ann. §§ 8-10-108(b), (d), (e); -109(a). Other constables, however, lack the law enforcement powers described in § 8-10-108(b) and do not take the same oath. See id. §§ 8-10-108(a), -109(b)(1)(A). The determination of whether a constable has violated his or her oath thus depends on the powers that the constable exercises. Moreover, as discussed above, constables can take official action only within their counties. Constables cannot exercise law enforcement powers outside their county and, therefore, cannot violate their oath by failing to act outside their county.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

KATHERINE C. REDDING
Senior Assistant Attorney General

Requested by:
The Honorable Timothy Hill
State Representative
582 Cordell Hull Building
425 5th Avenue North
Nashville, Tennessee 37243