Can Tennessee pass a private act letting one county run a home health agency in three other counties?

Plain-English summary

Representative Michael Harrison asked whether the General Assembly could pass a private act letting Hancock County, a small rural county in northeast Tennessee, own and operate a home care organization not just within Hancock County but also in three neighboring counties (Claiborne, Grainger, and Hawkins). The catch: Tennessee Article XI, Section 8 of the state Constitution bars private legislation that contradicts a "general law of mandatory statewide application."

AG Robert E. Cooper, Jr. concluded the bill would likely survive constitutional challenge. The general statute on home care organizations (Tenn. Code Ann. § 68-11-206(a)) only requires a license; it does not flatly prohibit a county from operating a home care organization outside its boundaries. Because no general law of mandatory statewide application speaks to extraterritorial county home care operations, a private act tailoring that authority to one county does not "contravene" anything. Even if a court were to find a conflict, the act would still be upheld so long as a rational basis existed for granting the authority to Hancock County specifically. The opinion did not identify a basis on the record but noted that Hancock County's rural character and limited service options would likely supply one.

Currency note

This opinion was issued in 2010. 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, deadline, or remedy mentioned here.

Common questions

Q: What's a private act in Tennessee?
A: A statute that applies only to a specifically named county or municipality, rather than to all jurisdictions of a class. Tennessee uses private acts heavily for local governance because county-by-county variation is common. Article XI, Section 8 limits how far that customization can go.

Q: What does Article XI, Section 8 actually prohibit?
A: The Legislature cannot suspend a general law for one individual or pass any law granting individuals rights, privileges, immunities, or exemptions other than what the same law extends to anyone in the same situation. Courts have read it as a class-legislation ban: special treatment for one county is permitted only if (a) it does not conflict with a general statewide statute, or (b) there is a rational basis for distinguishing that county.

Q: Why didn't the licensing requirement count as a "general law" the private act conflicted with?
A: Because § 68-11-206(a) doesn't say "no county may operate outside its territory." It says any operator (including governmental units) must obtain a license. The private act would still leave Hancock County subject to the licensing requirement; it would just give Hancock County the authority to apply for that license for facilities in three other counties.

Q: What is the "rational basis" test?
A: The lowest tier of constitutional scrutiny. The challenger has to show that no conceivable state of facts could justify the classification. If any reasonable basis can be imagined, even one not articulated in the legislative record, the law stands. State v. Tester (Tenn. 1994) is the standard cite.

Q: Why might Hancock County have a rational basis?
A: The opinion did not dig into the legislative record, but Hancock County is one of Tennessee's least populated counties and historically faces challenges attracting healthcare providers. If the Legislature wanted to let Hancock County's existing operation serve adjacent rural communities that would otherwise have limited home care access, that purpose would readily satisfy rational basis.

Q: Were there safeguards in the bill?
A: Yes. Section 2 made the act self-effectuating only if the Hancock County legislative body approved it by two-thirds vote within 60 days. Tennessee private acts often require local ratification before taking effect, which provides a political check.

Background and statutory framework

Tennessee counties are creatures of statute. Their powers are limited to what the General Assembly grants. The Tennessee Supreme Court has repeated the rule for almost a century: counties have only "such powers as are expressly conferred by the legislature or necessarily implied from such grants of power" (Metropolitan Government of Nashville v. Allen; Bayless v. Knox County; Hicks v. Fox). Without a statute, a county cannot do anything, including operating a home care organization across county lines.

Layered on top of that limitation is Article XI, Section 8, which applies to private acts that single out a county or municipality. The Tennessee Supreme Court's framework comes from Leech v. Wayne County (Tenn. 1979): a private act triggers Article XI, Section 8 scrutiny only if it "contravenes" a general statute of mandatory statewide application. If no such conflicting statute exists, the private act does not implicate the class-legislation ban at all. If a conflict does exist, the act can still be upheld under rational basis review.

The 2010 opinion runs the Hancock County bill through both stages. Stage one: § 68-11-206(a) requires anyone operating a home care organization to be licensed but does not restrict where a county can operate. § 5-1-118 lets counties exercise many city powers, including the broad service-provision powers under § 6-2-201(26). Together, those statutes affirmatively authorize a county to operate a home care organization, and the AG could not find any general statute prohibiting cross-county operation. So the act does not contravene a general law. Stage two, even hypothetically: if a court disagreed, rational basis would apply, and the AG flagged that the act "would be defensible if a rational basis exists for conferring this power on Hancock County."

Citations and references

Tennessee Constitution:

• Tenn. Const. art. XI, § 8

Statutes:

• Tenn. Code Ann. § 5-1-118 (county powers via city authorities)
• Tenn. Code Ann. § 6-2-201(26) (municipal services)
• Tenn. Code Ann. § 68-11-201(20) (home care organization definition)
• Tenn. Code Ann. § 68-11-206 (licensure requirement)

Cases (Tennessee Supreme Court unless noted):

• Leech v. Wayne County, 588 S.W.2d 270 (Tenn. 1979)
• Metropolitan Government of Nashville and Davidson County v. Allen, 220 Tenn. 222, 415 S.W.2d 632 (1967)
• Large v. City of Elizabethton, 185 Tenn. 156, 203 S.W.2d 907 (1947) (taxi regulation private act upheld)
• State v. Tester, 879 S.W.2d 823 (Tenn. 1994) (rational basis standard)
• Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978)
• F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) (U.S. Supreme Court): equal-protection classification standard
• Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993)
• State v. Robinson, 29 S.W.3d 476 (Tenn. 2000)
• City of Memphis v. State ex rel. Ryals, 133 Tenn. 83, 179 S.W. 631 (1915)
• Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1955)
• Hicks v. Fox, 190 Tenn. 82, 228 S.W.2d 68 (1950)
• State ex rel. Citizens of Wilson County v. Lebanon & Nashville Turnpike Co., 151 Tenn. 150, 268 S.W. 627 (1924)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-033.pdf

Original opinion text

Private Act Authorizing Hancock County to Operate Home Health Agency Outside County

QUESTION

May the General Assembly pass a private act authorizing Hancock County to operate a home health care organization inside or outside the territorial limits of the county?

OPINION

The bill could violate Article XI, Section 8, of the Tennessee Constitution only if it contravenes a mandatory law of general statewide application. Research has found no such statute. Even if the bill were found to violate a statute of mandatory statewide application, it would be upheld so long as there is a rational basis for conferring this authority on Hancock County.

ANALYSIS

This opinion concerns the constitutionality of a private act attached to the request. Section 1 of the proposed private act provides:

Hancock County is hereby authorized to own and operate a home care organization as defined in Tennessee Code Annotated, Section 68-11-201(20), in Hancock, Claiborne, Grainger and Hawkins counties, provided such organization is owned and operated in compliance with statutes and regulations applicable to home care organizations generally.

Section 2 of the act states:

This Act shall have no effect unless it is approved by two-thirds (2/3) vote of the county legislative body of Hancock County, such approval to be within sixty (60) days following the approval of this Act by the Governor, or alternatively, as the case may be, sixty (60) days following the date that this Act becomes effective without the explicit approval of the Governor. Such approval or disapproval shall be certified to the Secretary of State by the presiding officer of the county legislative body of Hancock County.

The request asks whether this power may be conferred on Hancock County by private act. Article XI, Section 8, of the Tennessee Constitution provides in relevant part:

The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.

The same rules are applied as to the validity of classifications made in legislative enactments under the United States Constitution, Amendment 14, and Article I, Section 8, and Article XI, Section 8, of the Tennessee Constitution. City of Memphis v. State ex rel. Ryals, 133 Tenn. 83, 88, 179 S.W. 631 (1915). These provisions guarantee that "all persons similarly circumstanced shall be treated alike." State v. Robinson, 29 S.W.3d 476, 480 (Tenn. 2000); Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, 153 (Tenn. 1993) (both quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed.2d 989 (1920)).

In order to trigger application of Article XI, Section 8, a statute must "contravene some general law which has mandatory statewide application." Leech v. Wayne County, 588 S.W.2d 270, 273 (Tenn. 1979) (emphasis added). The first question, therefore, is whether the proposed act, by authorizing Hancock County to operate a home care organization in three other counties, contravenes a general law of mandatory statewide application. State law generally requires any person, including any "state, county or local governmental unit, or any division, department, board or agency of the governmental unit," to obtain a license to operate a home care organization. Tenn. Code Ann. § 68-11-206(a). This statute, therefore, seems to authorize a county to operate a home care organization so long as it obtains a license under state law. In addition, counties, by resolution, may exercise many powers granted to cities. Tenn. Code Ann. § 5-1-118. These powers include the power under Tenn. Code Ann. § 6-2-201(26), which authorizes municipalities to:

Provide and maintain charitable, educational, recreative, curative, corrective, detentive, or penal institutions, departments, functions, facilities, instrumentalities, conveniences and services[.]

A home care organization appears to fall within the services authorized under this statute.

The question then becomes whether any general law of mandatory statewide application currently prohibits a county from operating a home care organization outside county boundaries. Counties are creatures of statutes and have only such powers as are expressly conferred by the legislature or necessarily implied from such grants of power. Metropolitan Government of Nashville and Davidson County v. Allen, 220 Tenn. 222, 225, 415 S.W.2d 632 (1967); Bayless v. Knox County, 199 Tenn. 268, 281, 286 S.W.2d 579 (1955); Hicks v. Fox, 190 Tenn. 82, 86, 228 S.W.2d 68 (1950); State ex rel. Citizens of Wilson County v. Lebanon & Nashville Turnpike Co., 151 Tenn. 150, 160, 268 S.W. 627 (1924). Since no statute of general applicability authorizes counties to operate a home care organization outside county boundaries, it must be assumed that counties generally do not have this authority. But a private act, by explicitly conferring this authority on a single county, does not contravene a statute of mandatory statewide application triggering the application of Article XI, Section 8, where the General Assembly has passed no such statute on this subject. Large v. City of Elizabethton, 185 Tenn. 156, 203 S.W.2d 907, 909-910 (1947) (private act allowing regulation of taxi cabs in one municipality only was not impermissible class legislation, since there was no general law on the subject of taxi cabs applicable to all municipalities); Op. Tenn. Att'y Gen. 96-140 (November 26, 1996).

Even if the bill were found to violate a statute of mandatory statewide application, it would be upheld so long as there is a rational basis for conferring this authority on Hancock County. All classifications that do not affect a fundamental right or discriminate as to a suspect class are generally subject to the rational basis test. State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994). The burden of showing that a classification is unreasonable and arbitrary is placed upon the individual challenging the statute. If any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld. Id. Thus, a classification will be upheld "if any state of facts may reasonably be conceived to justify it." Id., citing Tennessee Small School Systems v. McWherter, 851 S.W.2d 139, 153 (Tenn. 1993); Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978). Reasonableness depends upon the facts of the case, and no general rule can be formulated for its determination. See Harrison v. Schrader, 569 S.W.2d at 825-826; Op. Tenn. Att'y Gen. 99-112 (May 13, 1999). In this case, the bill would be defensible if a rational basis exists for conferring this power on Hancock County. Op. Tenn. Att'y Gen. 04-027 (February 12, 2004) (act applying explicitly to Coffee County).

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
Honorable Michael Harrison
State Representative
206-A War Memorial Building
Nashville, Tennessee 37243-0109