Is Tennessee's law making the Tennessee Association of Professional Bail Agents the only provider of required continuing education for bail bondsmen an unconstitutional monopoly?

Subject

Constitutionality of Provision Governing Continuing Education Requirements for Professional Bail Bondsmen and Bonding Agents

Plain-English summary

Tennessee bail bondsmen and bonding agents must complete eight hours of continuing education each year, and state law (Tenn. Code Ann. § 40-11-404) gives one organization, the Tennessee Association of Professional Bail Agents, the exclusive right to provide it. The Association can charge up to $450 a year. A state representative asked whether this exclusive grant violates Article I, Section 22 of the Tennessee Constitution, which says "perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed."

The AG concludes the statute is likely constitutional. The Tennessee Supreme Court has long held that a "monopoly" in the constitutional sense is "an exclusive right granted to a few, which was previously a common right." Because no one else has ever had a right to provide this state-mandated training (the legislature created the requirement and the exclusive grant in the same 1996 act), there is no pre-existing common right to take away. The opinion contrasts a North Carolina case (Rockford-Cohen) where an earlier version of the statute let any qualified provider apply, so the legislature's later grant of exclusivity did extinguish a common right. Tennessee never had that earlier opening, so the rule is different. Even if it were a monopoly, the AG concludes, it would survive review because uniform training has a rational tie to public safety, given that bail bondsmen have arrest authority under § 40-11-133 and play a role in the criminal justice system.

What this means for you

For working bail bondsmen and bonding agents

The annual eight-hour continuing education requirement and the up-to-$450 fee charged by the Tennessee Association of Professional Bail Agents are likely on solid constitutional footing. Plan for the cost and the time. The Association is statutorily authorized to subcontract with sub-associations and to offer one or more virtual classes, so check for online options if travel is a problem.

For other education providers wanting to enter this market

This opinion is bad news. The AG's reading of Tenn. Const. art. I, § 22 says you can't claim a "common right" was taken because none has ever existed in Tennessee. If you want to compete, your remedy is legislative: lobby the General Assembly to amend § 40-11-404 to let qualified providers apply for state approval to offer the training. The North Carolina parallel (Rockford-Cohen) shows that, once a state has established the right to apply, taking it back can violate an anti-monopoly clause.

For state legislators considering reform

Two design options. (1) Open up the market by amending § 40-11-404 to let any qualified provider apply. This addresses concerns about price and quality competition. (2) Keep the exclusive grant but add accountability, like a price cap below $450, content audits, or sunset review. Either is constitutional. The status quo is also constitutional under the AG's analysis, but constitutional permissibility does not equate to good policy.

For private bail bondsmen contemplating litigation

Read the opinion carefully before suing. The AG's analysis identifies two independent reasons a facial challenge would lose: no common right was extinguished, and the police-power justification (public safety, uniform training, easy state oversight) gives a rational basis. The opinion expressly leaves the door open for "as-applied" challenges based on a developed factual record, but counsels that "facial invalidity" carries an "especially heavy legal burden."

For citizens worried about monopoly pricing

The AG's opinion is a constitutional one, not a market-pricing one. Even if the law is constitutional, the legislature can still investigate or cap the $450 fee. Concerns about monopoly pricing should be directed to the General Assembly, not to the courts.

Common questions

What does Article I, Section 22 of the Tennessee Constitution actually say?

"That perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed."

What counts as a "monopoly" under Tennessee constitutional law?

A monopoly is "an exclusive right granted to a few, which was previously a common right." City of Watauga v. City of Johnson City, 589 S.W.2d 901, 904 (Tenn. 1979). If no common right ever existed, there is no constitutional monopoly.

Is the bail-bondsmen training a "common right"?

No, says the AG. The legislature created the continuing-education requirement and the Association's exclusive role in the same 1996 act. No one else has ever had the right or "liberty" to provide this state-mandated training, so there is no pre-existing common right.

What was the North Carolina case that found a monopoly?

Rockford-Cohen Group, LLC v. North Carolina Department of Insurance, 749 S.E.2d 469 (N.C. Ct. App. 2013), struck down a statute giving one group exclusive bail-bondsmen training authority, because the prior version of the statute had allowed anyone to apply to the Commissioner of Insurance for approval. That earlier opening meant there was a "common right" to apply, which was extinguished. Tennessee's statute never had that history.

What if the Tennessee statute is a monopoly anyway?

The Tennessee Supreme Court has held that even a true monopoly survives the anti-monopoly clause if it has "a reasonable tendency to aid in the promotion of the health, safety, morals and well being of the people." Checker Cab Co. v. City of Johnson City, 216 S.W.2d 335, 337 (Tenn. 1948). The test is essentially rational basis. Bail bondsmen exercise arrest authority and operate within the criminal justice system, so uniform training has at least a rational connection to public safety.

Can a fee of $450 a year be challenged as too high?

Not on monopoly grounds, under this analysis. Pricing concerns belong to the General Assembly, not to constitutional litigation.

What is an "as-applied" challenge?

A constitutional challenge based on the law's effect on a particular person or set of facts, rather than its text. The AG opinion expressly does not address as-applied challenges, leaving them to be developed in court on a factual record. Tenn. Att'y Gen. Op. 78-306 (July 27, 1978).

Background and statutory framework

In 1996, the General Assembly required bail bondsmen and bonding agents to complete eight hours of continuing education each year and assigned exclusive responsibility for those courses to the Tennessee Association of Professional Bail Agents. 1996 Pub. Acts, ch. 856. The mandate is now codified at Tenn. Code Ann. § 40-11-404(a), with implementation rules in subsection (b). The Association may charge up to $450 annually, must offer eight hours of in-person classes "in each of the grand divisions" (East, Middle, West Tennessee), may subcontract with sub-associations, and may "provide or contract for one or more virtual classes."

Article I, Section 22 of the Tennessee Constitution provides "[t]hat perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed." Tennessee courts presume statutes are constitutional and "indulge[] every presumption and resolve[] every doubt in favor of constitutionality." Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006). The presumption is even stronger for facial challenges. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009); Fisher v. Hargett, 604 S.W.3d 381, 398 (Tenn. 2020).

The Tennessee Supreme Court has read the anti-monopoly clause narrowly. Two doctrines control:

1. The "common right" requirement. A monopoly under Article I, Section 22 is "an exclusive right granted to a few, which was previously a common right." City of Watauga, 589 S.W.2d at 904. If no pre-existing common right existed, the statute is not a monopoly. The Tennessee Court of Appeals applied this rule in James Cable Partners, L.P. v. City of Jamestown to uphold a city's exclusive cable-system franchise: there had been no common right to use city streets in the manner the franchise allowed.

2. The police-power exception. Even if a true monopoly is created, it is constitutional if it "has a reasonable tendency to aid in the promotion of the health, safety, morals and well being of the people." Checker Cab Co. v. City of Johnson City, 216 S.W.2d 335, 337 (Tenn. 1948); Landman v. Kizer, 255 S.W.2d 6 (Tenn. 1953). Tennessee courts apply rational-basis review to this question. Dial-A-Page v. Bissell; Esquinance v. Polk County Education Ass'n.

Applying these doctrines, the AG concludes:

• No common right existed before the 1996 statute. The legislature created both the training requirement and the Association's exclusive role in the same act, so there was nothing pre-existing to take away.

• Even if a common right existed, the statute would still survive police-power review. Bail bondsmen have arrest authority under Tenn. Code Ann. § 40-11-133, and uniform statewide training has a rational tie to public safety.

• The North Carolina decision in Rockford-Cohen is distinguishable because the earlier North Carolina statute had permitted anyone to apply to the Commissioner of Insurance for approval to provide training. The Tennessee statute never had that opening.

Citations

• Tenn. Code Ann. § 40-11-404 (continuing education for bail bondsmen)
• Tenn. Code Ann. § 40-11-133 (bail bondsmen's arrest authority)
• Tenn. Const. art. I, § 22 (anti-monopoly clause)
• 1996 Pub. Acts, ch. 856 (the 1996 enactment)
• Lynch v. City of Jellico, 205 S.W.3d 384 (Tenn. 2006)
• Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009)
• Fisher v. Hargett, 604 S.W.3d 381 (Tenn. 2020)
• City of Watauga v. City of Johnson City, 589 S.W.2d 901 (Tenn. 1979)
• James Cable Partners v. City of Jamestown, 818 S.W.2d 338 (Tenn. Ct. App. 1991)
• Checker Cab Co. v. City of Johnson City, 216 S.W.2d 335 (Tenn. 1948)
• Landman v. Kizer, 255 S.W.2d 6 (Tenn. 1953)
• Dial-A-Page, Inc. v. Bissell, 823 S.W.2d 202 (Tenn. Ct. App. 1991)
• Esquinance v. Polk County Education Ass'n, 195 S.W.3d 35 (Tenn. Ct. App. 2005)
• City of Memphis v. Memphis Water Co., 52 Tenn. 495 (1871)
• Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420 (1837)
• Rockford-Cohen Group v. North Carolina Department of Insurance, 749 S.E.2d 469 (N.C. Ct. App. 2013)
• Tenn. Att'y Gen. Op. 17-43 (Sept. 25, 2017)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2025/op25-013.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
June 20, 2025
Opinion No. 25-013

Constitutionality of Provision Governing Continuing Education Requirements for Professional Bail Bondsmen and Bonding Agents

Question
Tennessee Code Annotated § 40-11-404 mandates that the Tennessee Association of Professional Bail Agents provide all continuing education courses that are statutorily required for bail bond professionals. Does the statute create a monopoly in violation of article I, section 22 of the Tennessee Constitution?

Opinion
Likely not.

ANALYSIS

In 1996, the General Assembly passed legislation mandating continuing education requirements for bail bond professionals. See 1996 Pub. Acts, ch. 856. At its root, the legislation required bail bondsmen and bail bonding agents to obtain eight hours of continuing education credits annually. But of relevance here, it also mandated that the Tennessee Association of Professional Bail Agents ("the Association") provide the required continuing education courses. This mandate for the Association's involvement is now codified at Tenn. Code Ann. § 40-11-404, and under the statute, the Association may charge up to $450 annually for the required eight hours of continuing education. See id. § 40-11-404(b).

The question presented asks whether § 40-11-404 creates a monopoly in violation of article I, section 22 of the Tennessee Constitution. When analyzing constitutional issues, the Supreme Court "indulge[s] every presumption and resolve[s] every doubt in favor of constitutionality." Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006). And if a party "brings a facial challenge," the "presumption of constitutionality applies with even greater force." Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009); see also Fisher v. Hargett, 604 S.W.3d 381, 398 (Tenn. 2020). Ultimately, we do not think that a plaintiff challenging § 40-11-404 could carry the "especially heavy legal burden" of establishing facial invalidity. Fisher, 604 S.W.3d at 398.

Legal Principles Surrounding the Tennessee Constitution's Anti-Monopoly Provision

Article I, section 22 of the Tennessee Constitution provides "[t]hat perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed." Tenn. Const., art. I, § 22. While the language of this section may appear broad, almost two centuries of case law has clarified limitations on its scope. Not every exclusive right constitutes a "monopoly" within the meaning of the Tennessee Constitution. The Tennessee Supreme Court has explained that a monopoly is "an exclusive right granted to a few, which was previously a common right." City of Watauga v. City of Johnson City, 589 S.W.2d 901, 904 (Tenn. 1979) (emphasis added). And thus, "[i]f there is no common right in existence prior to the granting of the privilege for franchise, the grant is not a monopoly." Id.

The Tennessee Court of Appeals' decision in James Cable Partners, L.P. v. City of Jamestown, 818 S.W.2d 338 (Tenn. Ct. App. 1991), illustrates this point. There, the Court of Appeals addressed a situation where a city had granted an exclusive right to use its streets for the operation of a communications system. In discussing why this exclusive grant could not be classified as a monopoly, the Court of Appeals succinctly explained that, "prior to this grant," "[i]t certainly was not a common right to use the streets of the city [in the manner allowed by the exclusive franchise]." Id.

And even when there is a monopoly, courts have made clear that it does not automatically follow that the monopoly is a constitutionally prohibited one. In fact, "[i]t is settled law that the anti monopoly clause of our constitution does not prohibit the legislature from granting a monopoly, in so far as such monopoly has a reasonable tendency to aid in the promotion of the health, safety, morals and well being of the people." Checker Cab Co. v. City of Johnson City, 216 S.W.2d 335, 337 (Tenn. 1948). "[I]f the monopoly created has a legitimate relation to the public purpose sought to be accomplished in the exercise of the police power," a court is not permitted to declare the monopoly invalid simply because it thinks some other method would have accomplished the purpose sought. In the end, "[i]f in the exercise of such police power an incidental monopoly happens to be created, it is not one which offends the anti-monopoly clause of our Constitution." Landman v. Kizer, 255 S.W.2d 6, 7 (Tenn. 1953).

Application of the Governing Legal Principles

In view of these principles, we find it unlikely that a court would conclude that § 40-11-404 creates an unconstitutional monopoly. First, it is not clear that there is even a monopoly within the meaning of the Tennessee Constitution. A monopoly, after all, exists when there is "an exclusive right granted to a few, which was previously a common right," City of Watauga, 589 S.W.2d at 904 (emphasis added), and here, we struggle to see how the right granted to the Association meets this standard. A common right exists "if a person had the right or liberty to do a certain act or engage in a particular business." Tenn. Att'y Gen. Op. 17-43 (Sept. 25, 2017) (citing City of Memphis v. Memphis Water Co., 52 Tenn. 495, 529 (1871)). If the challenged statute creates the market (here, a market for statutorily required continuing education), then it is hard to see how any pre-existing right could exist. And here, the Association has always had the exclusive right at issue. The 1996 legislation mandated that the Association "provide all continuing education courses," 1996 Pub. Acts, ch. 856, and that has remained the case to the present day. Because the Association has always had the exclusive charge to provide or contract for the statutorily required continuing education, there is simply no support for the notion that there was ever any common right for others to provide it.

In this way, the circumstances surrounding § 40-11-404(a) differ from the circumstances addressed by a North Carolina appellate court in Rockford-Cohen Group, LLC v. North Carolina Department of Insurance, 749 S.E.2d 469 (N.C. Ct. App. 2013). In that case, the North Carolina Court of Appeals considered whether a law that assigned bail bondsmen training to a single group violated the State's constitutional prohibition on monopolies. But as ultimately proved to be significant, the precise question entailed consideration of the "[legislative] decision to assign creditable bail bondsmen training to one particular group, where previously anyone could apply to the Commissioner of Insurance to provide such training." Id. (emphasis added). In ultimately reasoning that a prior common right existed, the court looked at the prior iteration of the statute that was in question. Specifically, the court emphasized that the State's General Assembly had "created the right to apply to provide creditable bail bondsmen training in the previous version of this statute."

Here, of course, we have very different circumstances. Even accepting the underlying premise that a statutory scheme of this nature could create some type of a "common right" (a proposition that is far from clear), the statutory history that surrounds § 40-11-404 does not evidence any pre-existing right. Again, there is simply no support for the notion that there was ever any right for others to provide the required continuing education at issue, and for that reason alone, we think it is doubtful that a Tennessee court would regard § 40-11-404 as contravening the anti-monopoly provision of the Tennessee Constitution.

Regardless, even assuming a withdrawn common right, § 40-11-404 likely does not qualify as an unlawful monopoly. As discussed earlier, a monopoly is not prohibited if it "has a reasonable tendency to aid in the promotion of the health, safety, morals and well being of the people." Checker Cab Co., 216 S.W.2d at 337.

Here, we are skeptical that a Tennessee court would conclude that the authority given to the Association under § 40-11-404 lacks a "reasonable tendency to aid in the promotion of the health, safety, morals and well being of the people." The nexus between bail bond professionals and the criminal justice system implicates real public safety considerations, and a court could find that the uniformity in the education created by § 40-11-404 thus helps to generally promote safety for the public. For instance, a court might reason that the adoption of a uniform educational program provides the State with an opportunity to more easily track that education and ensure that bail bond professionals are in fact receiving the necessary knowledge that their jobs require. This justification is certainly rational and in furtherance of "the health, safety, morals and well being of the people."

All things considered, then, we do not believe it is likely that a court would conclude that § 40-11-404 creates an unconstitutional monopoly in light of the case law. First, we struggle to see how the statute implicates a common right. And as a result, we do not think there is even a monopoly within the parlance of article I, section 22 of the Tennessee Constitution. But, again, even if our understanding of that issue might somehow be in error, a court could still uphold the statute if it were to conclude that it has a "reasonable tendency to aid in the promotion of the health, safety, morals and well being of the people." Checker Cab Co., 216 S.W.2d at 337.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

MATTHEW KERNODLE
Assistant Attorney General

Requested by:
The Honorable Vincent Dixie
State Representative
425 Rep. John Lewis Way North
Nashville, Tennessee 37243