Who pays for preliminary hearings in General Sessions criminal court when a defendant is later convicted of a felony, and who pays for court-ordered mental health evaluations of felony defendants?

Subject

Who is responsible for paying preliminary-hearing costs and court-ordered mental health evaluation costs in Tennessee felony cases, and how the General Sessions court fits into the cost-shifting scheme.

Plain-English summary

Senator Raumesh Akbari asked the AG two questions about how Tennessee's tangled criminal-cost statutes assign the bill for two specific items: preliminary hearings held in General Sessions criminal court, and mental health evaluations and treatment ordered by various courts.

Tennessee starts from the rule that "a defendant convicted of a criminal offense shall pay all costs that have accrued in the cause" (Tenn. Code Ann. § 40-25-123(a)). The defendant pays unless an exception shifts the cost.

The exceptions sit in two places that have to be read together. Section 40-25-129(a) says neither the State nor any county may pay or be liable for criminal costs except in three classes of cases: (1) all felony cases where the prosecution proceeded to a verdict in circuit or criminal court; (2) cases where the defendant was convicted in a court of record and a court found the defendant indigent and remained indigent at conviction; and (3) prosecutions against prison inmates and committed juveniles in certain circumstances. The AG read § 40-25-129(a) as a ceiling on State liability, not a floor: it tells you when the State can be liable, not when it must be.

Section 40-25-131(b) is one of the cost-shifting statutes that operates within those classes. It says the State "shall pay the accrued costs in all criminal prosecutions for offenses punishable with death or by confinement in the penitentiary where the accused shall have been convicted by trial or by guilty plea." For felony prosecutions that proceed to a verdict in circuit or criminal court (class one), the State pays. For felony prosecutions that end in a guilty plea, the case has to fit class two: the defendant has to be convicted in a court of record (which General Sessions is not) and found indigent.

So can preliminary-hearing costs in General Sessions count? Yes, but only when the case eventually ends in a conviction in a court of record (circuit or criminal) and the case fits one of the three classes in § 40-25-129(a). The preliminary hearing itself qualifies as a cost "for the faithful prosecution and safekeeping of the defendant" under Tenn. Code Ann. § 40-25-133, because the preliminary hearing is a critical stage in Tennessee criminal prosecutions (McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974)). And while General Sessions is not itself a court of record (State v. Willoughby; State v. Black), § 40-25-129(a)(2) shifts costs accrued in any forum if the defendant is "ultimately convicted in a court of record." So the path is: the case starts in General Sessions, a preliminary hearing is held, the case is bound over to circuit or criminal court, the defendant is convicted there. The State pays the preliminary-hearing costs, subject to the indigency requirements where the conviction is by guilty plea.

For mental health evaluations and treatment, the rule is cleaner. Tenn. Code Ann. § 33-2-1109(a) generally bars state-paid mental health care from State programs, but subsection (a)(2) creates an exception for persons subject to evaluation, diagnosis, or treatment under Title 33, chapter 7, part 3, who are charged with a felony. Tenn. Code Ann. § 33-7-301(a) lets Criminal, Circuit, or General Sessions courts order mental health evaluation and treatment of a defendant charged with a criminal offense. Tenn. Code Ann. § 33-7-304(a) says the cost is "a charge upon the funds of the state" unless the court finds the defendant financially able to pay and orders payment. So if any of the three courts orders evaluation or treatment of a felony defendant, the State pays unless the court orders otherwise. The court level does not change the answer.

What this means for you

Court clerks (General Sessions, Circuit, Criminal)

When you are coding cost responsibility, the analysis depends on outcome and class. For preliminary hearings: only shift to the State if (a) the case ultimately reaches a conviction in circuit or criminal court, and (b) the case fits § 40-25-129(a)(1) (verdict on a felony) or (a)(2) (court-of-record conviction with indigency finding). Until the conviction posture is settled, you cannot make the State-pay determination. Build the cost-allocation step into your post-conviction processing rather than at the time the preliminary hearing is held.

For mental health evaluation and treatment costs: the State pays whenever a court (Criminal, Circuit, or General Sessions) ordered the evaluation or treatment under Tenn. Code Ann. § 33-7-301 for a defendant charged with a felony, unless the court has found the defendant financially able to pay and so ordered. Do not divert these costs to the county based on which court ordered them; the analysis is statute-specific, not court-specific.

County finance officials

Counties may have been picking up preliminary-hearing costs in General Sessions felony cases that should have shifted to the State once the case was bound over and resulted in conviction in a court of record. Audit the past several years of allocations. If your county was paying for preliminary hearings on cases that ended in a circuit-court conviction within § 40-25-129(a)(1) or (a)(2), there may be a State reimbursement question.

District attorneys general

Educate trial-level prosecutors that the State will be on the hook for costs when felony cases proceed to verdict (or guilty plea with indigency findings). Track the cost implications by case posture so the office can provide accurate fiscal estimates to the Department of Finance and Administration. The AG explicitly noted that § 40-25-129(c) permits limited witness-expense cost-shifting at the prosecution's request even without an indigency determination.

Public defenders and indigent-defense panel attorneys

Indigency findings carry serious cost-shifting consequences. Make sure indigency findings are made at the earliest appropriate hearing and are clearly preserved in the record. Section 40-25-129(a)(2) requires both an evidentiary indigency finding and a finding that the defendant remains indigent at conviction. Counsel should ensure the record reflects both findings so the State pays.

Mental health evaluators and treating providers

Bill the State for evaluation and treatment ordered by any court (Criminal, Circuit, or General Sessions) under § 33-7-301 unless the order tells you the defendant has been deemed financially able and the court has assigned the cost to the defendant. Read the order carefully. Get the court's order in writing showing the cost assignment.

State treasury and Department of Finance and Administration

The combination of § 40-25-131(b), § 40-25-129(a), and § 33-7-304(a) creates predictable cost-shifting categories. Build budget projections off felony case volumes (verdicts plus indigent guilty pleas plus mental health evaluation orders for felony defendants). The opinion's clarification of the General Sessions-to-court-of-record path may slightly increase State exposure relative to lax pre-opinion practice if some counties had been absorbing those costs.

Common questions

Why isn't General Sessions a "court of record"?

Tennessee has historically distinguished between courts of record (which keep verbatim transcripts and have particular jurisdictional reach) and inferior courts whose decisions are subject to de novo appeal. State v. Willoughby (1980) and State v. Black (1995) confirmed that General Sessions courts are not courts of record. That matters because § 40-25-129(a)(2) shifts costs only for defendants "convicted in a court of record."

Doesn't this mean the State never pays for cases that end in General Sessions?

Generally yes for cost shifting under § 40-25-129(a)(2), because that provision requires conviction in a court of record. But § 40-25-129(a)(1) (felony verdicts in circuit or criminal court) can still pull in costs accrued in General Sessions earlier in the same prosecution, because the General Sessions costs are still part of the same "criminal prosecution." And § 33-7-304(a) makes the State pay for mental health evaluations regardless of which court ordered them.

What if my felony case ends in a guilty plea but no indigency finding?

Then the cost does not shift to the State under § 40-25-129(a)(2), which requires both. The defendant pays under the default rule. The AG was careful that the indigency finding has to be made and the defendant has to remain indigent at conviction.

Are there other exceptions I should know about?

Yes, § 40-25-129(c) allows limited cost shifting for necessary witness expenses requested by the district attorney and approved by the court, even without an indigency determination. There are also conviction-by-statute treatments for prison inmates and committed juveniles in § 40-25-129(a)(3). And § 40-25-133 gives a definition of "costs" for § 40-25-131 purposes, with limited exceptions for jail-guarding and out-of-county prisoner transport (which the county pays).

Can a court order the defendant to pay even if the State could pay under the statute?

For mental health evaluation and treatment, yes. Section 33-7-304(a) explicitly allows the court to find the defendant financially able and order the defendant to pay all or part of the costs. For preliminary-hearing costs, the analysis is more rigid; the State-pays exceptions only apply if the case fits the listed classes.

What about the conflict between § 40-25-131(b) (older) and § 40-25-129(a) (newer)?

The AG noted in a footnote that the newer § 40-25-129(a) (2016 Tenn. Pub. Acts, ch. 782) prevails over the older § 40-25-131 (1970 Tenn. Pub. Acts, ch. 461) to the extent of any irreconcilable conflict, citing Brewer v. Lincoln Brass Works, Inc., 991 S.W.2d 226 (Tenn. 1999). In practice, the AG harmonized the statutes by treating § 40-25-129(a) as the class-of-cases ceiling and § 40-25-131(b) as a cost-shifting trigger that operates within those classes.

Background and statutory framework

Tennessee's default cost rule is in Tenn. Code Ann. § 40-25-123(a): a convicted defendant pays all costs accrued in the cause. The exceptions are layered.

Section 40-25-129(a) sets the ceiling: neither the State nor any county may pay or be liable for criminal costs except in three classes: (1) felony cases where the prosecution proceeded to verdict in circuit or criminal court; (2) cases where the defendant was convicted in a court of record and an evidentiary hearing found the defendant indigent and the defendant remained indigent at conviction; and (3) prosecutions against prison inmates and committed juveniles. The AG reads § 40-25-129(a) as a class definition rather than a cost-shifting trigger; it tells you when the State can pay, not when the State must pay.

Section 40-25-131(b) is one of the trigger statutes. It says the State "shall pay the accrued costs in all criminal prosecutions for offenses punishable with death or by confinement in the penitentiary where the accused shall have been convicted by trial or by guilty plea." Read together with § 40-25-129(a), the State pays for verdict-resulting felony prosecutions (class one) outright, and for guilty-plea felony prosecutions only if the case is in a court of record and the defendant is found indigent and remains indigent at conviction (class two).

For preliminary hearings: the costs accrued in General Sessions during the preliminary-hearing stage of a felony case are within the definition of "costs" under § 40-25-133, because the preliminary hearing is a "critical stage in a criminal prosecution" (McKeldin v. State, 516 S.W.2d 82, 86 (Tenn. 1974)). General Sessions is not a court of record (State v. Willoughby, 594 S.W.2d 388, 391 (Tenn. 1980); State v. Black, 897 S.W.2d 680, 682 (Tenn. 1995)), but the costs can still shift under § 40-25-129(a)(2) when the case is ultimately convicted in a court of record. So preliminary-hearing costs from General Sessions can shift to the State when the case fits classes (1), (2), or (3) of § 40-25-129(a).

For mental health evaluations and treatment: Tenn. Code Ann. § 33-2-1109(a) is the general rule barring State-funded mental health care, with subsection (a)(2) creating an exception for persons subject to Title 33, chapter 7, part 3 evaluation, diagnosis, or treatment, who are charged with a felony. Tenn. Code Ann. § 33-7-301(a) lets Criminal, Circuit, or General Sessions courts order outpatient or inpatient evaluation or treatment of a defendant believed to be incompetent or whose mental capacity at the time of the offense is in question. Tenn. Code Ann. § 33-7-304(a) makes evaluation and treatment "a charge upon the funds of the state," with an option for the court to find the defendant financially able and order the defendant to pay all or part. The court level does not change the analysis; the State pays unless the court orders the defendant to pay.

The AG also noted that the newer § 40-25-129(a) (2016) prevails over the older § 40-25-131(b) (1970) where they irreconcilably conflict, citing Brewer v. Lincoln Brass Works, Inc., 991 S.W.2d 226, 229 (Tenn. 1999). In practice, the two were read in harmony.

Citations

• Tenn. Code Ann. § 33-2-1109(a) (general bar on State-funded mental health care)
• Tenn. Code Ann. § 33-2-1109(a)(2) (exception for felony defendants under Title 33 chapter 7 part 3)
• Tenn. Code Ann. § 33-7-301(a) (Criminal, Circuit, or General Sessions courts may order evaluation or treatment)
• Tenn. Code Ann. § 33-7-304(a) (cost is a charge on State funds unless court orders defendant to pay)
• Tenn. Code Ann. § 40-25-123(a) (default rule: convicted defendant pays all costs)
• Tenn. Code Ann. § 40-25-129(a)(1)-(3) (three classes in which State or county may pay)
• Tenn. Code Ann. § 40-25-129(a)(2) (court-of-record conviction plus indigency findings)
• Tenn. Code Ann. § 40-25-129(c) (limited witness-expense shifting at prosecutor's request)
• Tenn. Code Ann. § 40-25-131(b) (State pays accrued costs in death-or-penitentiary felony prosecutions)
• Tenn. Code Ann. § 40-25-133 (definition of "costs" for State payment purposes)
• 2016 Tenn. Pub. Acts, ch. 782, § 1 (the recent amendment to § 40-25-129(a))
• 1970 Tenn. Pub. Acts, ch. 461, § 1 (original § 40-25-131)
• State v. Willoughby, 594 S.W.2d 388 (Tenn. 1980) (General Sessions is not a court of record)
• State v. Black, 897 S.W.2d 680 (Tenn. 1995) (same)
• Brewer v. Lincoln Brass Works, Inc., 991 S.W.2d 226 (Tenn. 1999) (later statute prevails over earlier on irreconcilable conflict)
• McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974) (preliminary hearing is critical stage)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-016.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 14, 2024
Opinion No. 24-016
State Liability for Costs in Criminal Matters

Question 1

If "[t]he State shall . . . pay the accrued costs in all criminal prosecutions for offenses punishable by death or by confinement in the penitentiary where the accused shall have been convicted by trial or guilty plea," is the State required to pay costs accrued in the General Sessions Criminal Court pursuant to probable cause preliminary hearings for criminal prosecutions meeting the requirements of Tenn. Code Ann. § 40-25-131(b)?

Opinion 1

For prosecutions meeting the terms of Tenn. Code Ann. § 40-25-131(b) and falling within the class of cases set out in Tenn. Code Ann. § 40-25-129(a)(1)-(3), the State must pay costs accrued for preliminary hearings.

Question 2

If the State is responsible for payment of court-ordered mental-health evaluations and treatment for defendants charged with a felony in accordance with Tenn. Code Ann. § 33-2-1109(a)(2), is the State required to pay such costs when the mental-health evaluation and treatment is ordered by the General Sessions Criminal Court as well as by the Criminal Court?

Opinion 2

If the Criminal, Circuit, or General Sessions Court orders the mental health evaluation or treatment pursuant to Tenn. Code Ann. § 33-7-301 and the court does not order the defendant to pay the costs of that evaluation or treatment, the State must pay those costs.

ANALYSIS

1. Generally, "[a] defendant convicted of a criminal offense shall pay all costs that have accrued in the cause." Tenn. Code Ann. § 40-25-123(a). So unless a specific exception to that general rule applies, convicted defendants must pay the costs for preliminary hearings.

The exceptions to the convicted-defendants-pay-costs rule are not a model of clarity. The Tennessee Code starts with the statement that "[n]either the state nor any county of the state shall pay or be liable in any criminal prosecution for any costs or fees . . . except in the following classes of cases: (1) All felony cases, where the prosecution has proceeded to a verdict in the circuit or criminal court; (2) All cases where the defendant has been convicted in a court of record and the court has made a finding at any evidentiary hearing that the defendant is indigent and remains indigent at the time of conviction;" and (3) prosecutions against prison inmates and committed juveniles under certain circumstances. Tenn. Code Ann. § 40-25-129(a)(1)-(3). In our view, this language sets out a general command as to when the State and counties cannot pay or be liable for costs. That is, § 40-25-129(a) does not, in itself, shift any burden on the State or counties to pay costs; it simply sets out the class of cases in which that burden may be shifted.

The Tennessee Code does have a handful of statutes that shift costs to the State or counties. Tennessee Code Annotated § 40-25-131(b) is one such statute. It provides that "[t]he state shall . . . pay the accrued costs in all criminal prosecutions for offenses punishable with death or by confinement in the penitentiary where the accused shall have been convicted by trial or by guilty plea."

Section 40-25-131(b)'s shift of costs, though, must operate within the class of cases in which § 40-25-129(a) allows the State and counties to be liable. That means, for felony prosecutions where the accused is "convicted by trial," the State can be held liable for costs under the class of cases in § 40-25-129(a)(1). But for felony prosecutions where the accused is "convicted . . . by guilty plea," the defendant does not fall within § 40-25-129(a)(1) because the case did not "proceed[] to a verdict." For guilty pleas, a convicted defendant must ordinarily show and the court must find that the defendant is indigent and remains indigent at the time of conviction before cost liability shifts to the State under the class of cases in § 40-25-129(a)(2).

Section 40-25-129(a)(2) permits cost shifting for "cases where the defendant has been convicted in a court of record. . . ." A "General Sessions court is not a court of record." State v. Willoughby, 594 S.W.2d 388, 391 (Tenn. 1980); State v. Black, 897 S.W.2d 680, 682 (Tenn. 1995). But costs accrued in General Sessions Court may still qualify for shifting under § 40-25-129(a)(2) in cases where the defendant is ultimately "convicted in a court of record."

The costs shifted by § 40-25-131(b) include costs associated with a preliminary hearing in General Sessions Court. For purposes of § 40-25-131, "costs" means "all costs accruing under existing laws on behalf of the state or county, as the case may be, for the faithful prosecution and safekeeping of the defendant[.]" Tenn. Code Ann. § 40-25-133. Costs accrued pursuant to a preliminary hearing relate to the faithful prosecution of the defendant because "a preliminary hearing is a critical stage in a criminal prosecution in Tennessee." McKeldin v. State, 516 S.W.2d 82, 86 (Tenn. 1974).

Accordingly, for prosecutions meeting the terms of § 40-25-131(b) and consistent with the limits on state liability under § 40-25-129(a)(1)-(3), the State must pay costs accrued for preliminary hearings.

2. Generally, "[n]o service recipient may receive care at the state's expense from a program operated by the [Department of Mental Health and Substance Abuse Services]." Tenn. Code Ann. § 33-2-1109(a). But there is a specific exception to this general rule for persons "subject to evaluation, diagnosis[,] or treatment under . . . chapter 7, part 3 of [title 33] and charged with a felony[.]" Tenn. Code Ann. § 33-2-1109(a)(2).

Tennessee Code Annotated § 33-7-301(a) allows Criminal, Circuit, or General Sessions Courts to order mental health evaluation and treatment for criminal defendants as follows:

When a defendant charged with a criminal offense is believed to be incompetent to stand trial, or there is a question about the defendant's mental capacity at the time of the commission of the crime, the criminal, circuit, or general sessions court judge may, upon the judge's own motion or upon petition by the district attorney general or by the attorney for the defendant and after hearing, order the defendant to be evaluated on an outpatient basis . . . If, and only if, the outpatient evaluator concludes that further evaluation and treatment are needed, the court may order the defendant hospitalized[.]

When the Criminal, Circuit, or General Sessions Court orders evaluation or treatment pursuant to § 33-7-301(a), the State may be required to pay the associated costs. Tennessee Code Annotated § 33-7-304(a) provides that "[t]he cost of evaluation and treatment under this part will be a charge upon the funds of the state." But "[i]f the court finds the defendant financially able to pay all or part of the costs and expenses for the evaluation and treatment, the court may order the defendant to pay all or part of the costs and expenses." Id. Thus, the State must pay the costs of any mental health evaluation and treatment ordered by a Criminal, Circuit, or General Sessions Court for a defendant charged with a felony unless the court orders the defendant to pay those costs.

JONATHAN SKRMETTI
Attorney General and Reporter

MATT RICE
Solicitor General

Nicholas Spangler
Associate Solicitor General

Requested by:
The Honorable Raumesh Akbari
State Senator
Suite 764 Cordell Hull Building
425 Rep. John Lewis Way
Nashville, Tennessee 37243