Who pays for a court-ordered mental health evaluation of a misdemeanor defendant in Tennessee, the county or the city?

Subject

Opinion No. 11-76, County's Responsibility for Payment of Court-Ordered Mental Health Evaluations, November 1, 2011

Plain-English summary

Tennessee shifted who pays for court-ordered mental health evaluations of misdemeanor defendants in 2009. Before then, the State paid under Tenn. Code Ann. § 33-2-1109(a)(2). After 2009 Tenn. Pub. Acts, ch. 531, the State pays only when the defendant is charged with a felony. Misdemeanor evaluation costs went to the counties. The new section, codified at Tenn. Code Ann. § 33-7-304, says: "The cost of evaluation and treatment under Chapter 7, Part 3 of this title, if the defendant is charged with a misdemeanor, will be a charge upon the funds of the county."

Representative Eldridge asked the AG to confirm the shift and to answer a follow-up: can the county bill a city when a city court (exercising concurrent jurisdiction with general sessions) orders the evaluation? The AG said no on the city question.

There are two carve-outs to the basic county-pays rule:

First, the court "may" order a defendant who is financially able to pay some or all of the costs to do so. The AG read "may" as discretionary, not mandatory. The court is not required to make an own-motion ability-to-pay determination. And the carve-out does not transfer the obligation back to the State; it only shifts it to a paying defendant. If the defendant can pay, the court can charge the defendant; if the defendant cannot, or if the court does not so order, the cost stays with the county.

Second, two narrower categories were carved out and treated as "court costs" instead: competency evaluations of non-indigent post-conviction petitioners (§ 46 of the Act) and outpatient treatment of defendants found NGRI who are not committable but who pose a future risk of serious harm (§ 51 of the Act). Counties are not ordinarily liable for the court costs of non-indigent defendants in misdemeanor cases. See § 40-25-129 and State v. Brown.

On the city-court question, the AG cross-referenced Op. Tenn. Att'y Gen. No. 84-340 for the general rule that "Tennessee does not impose liability by statute upon municipalities for costs arising in connection with the enforcement of state laws." Section 45 of the 2009 Act expressly directs that the costs "will be a charge upon the funds of the county." The county pays, even when a city court (with concurrent jurisdiction under § 40-1-107) is the court that orders the evaluation.

The AG also rejected a reading that would have left the State responsible for indigent misdemeanor defendants while making non-indigent defendants pay their own way. That construction would have rendered § 45's county-funding allocation nugatory. Statutory construction principles (Black, Hudson, Davis) compelled the conclusion that the county bears the cost for indigent defendants under § 33-7-304, with the court's discretionary ability-to-pay carve-out applying only to non-indigent defendants the court chooses to order to pay.

Currency note

This opinion was issued in 2011. 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.

Background and statutory framework

Pre-2009 framework. Tenn. Code Ann. § 33-2-1109(a)(2) (2007) provided for State funding of mental health evaluations and treatment for defendants subject to evaluation under § 33-7-301(a) (incompetency, mental capacity at time of offense) and § 33-7-303(a) (post-NGRI diagnosis and evaluation).

Effective June 25, 2009, the funding shift. 2009 Tenn. Pub. Acts, ch. 531, § 45 added Tenn. Code Ann. § 33-7-304: "(a) The cost of evaluation and treatment under Chapter 7, Part 3 of this title, if the defendant is charged with a misdemeanor, will be a charge upon the funds of the county. If 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 same. Payment shall be made to the clerk of the general sessions court for remittance to the person, agency or facility to whom compensation is due, or if the costs and expenses have been paid by the county, to the appropriate office of the county. (b) Costs of the care or treatment of any defendant ordered by the court and who is charged with a misdemeanor shall be paid by the state only when specifically authorized by law."

Felony-only state liability. Section 33 of the 2009 Act limits state-paid evaluation to defendants "charged with a felony."

Court-costs carve-outs. § 46 (competency evaluations of non-indigent post-conviction petitioners) and § 51 (outpatient treatment of certain NGRI defendants) treat those costs as court costs.

Discretionary ability-to-pay. "May" connotes discretion or permission. Colella v. Whitt, 202 Tenn. 551, 556, 308 S.W.2d 369, 371 (1957).

No municipal liability for state-law enforcement. Op. Tenn. Att'y Gen. No. 84-340 (Dec. 20, 1984). Tennessee does not impose statutory liability on municipalities for costs arising in connection with enforcement of state laws; absent such a statutory assignment, "none exists."

Statutory construction backdrop. "Specific statutory language will control over general statutory language." State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005). Constructions that would render an Act "self-defeating and nugatory" are disfavored. State v. Hudson, 562 S.W.2d 416, 418 (Tenn. 1978). "Each part and every word of a statute is presumed to have meaning and purpose." State v. Black, 815 S.W. 166, 197 (Tenn. 1991).

No county liability for non-indigent acquittal costs. State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 251 (1935), held that the county is not liable for costs upon acquittal in misdemeanor cases under predecessor statutes. See Tenn. Code Ann. § 40-25-129.

Common questions

Does the court have to determine ability to pay before ordering the county to bear the cost?

No. The opinion read "may" as discretionary. The court is not obligated to make a sua sponte ability-to-pay finding before defaulting to county funding. A judge who wants to put the cost on a non-indigent defendant must affirmatively make the finding and so order.

What about felonies?

Felony evaluations and treatment remain a state expense under the post-2009 framework. Section 33 of the 2009 Act conditioned state payment on a felony charge.

Can the county get reimbursement from a defendant who is later convicted?

The statute does not provide an automatic reimbursement mechanism. The court can order a non-indigent defendant to pay, but that happens at the time the evaluation cost is being assessed, not after-the-fact via a separate proceeding. Counties seeking recovery from convicted defendants would have to look to general restitution or fines statutes.

Why doesn't the city pay when a city court orders the evaluation?

Tennessee has a longstanding rule (Op. 84-340) that municipalities are not statutorily liable for state-law enforcement costs. Section 45 of the 2009 Act assigns the cost specifically to the county. City courts exercising concurrent jurisdiction with general sessions under § 40-1-107 are enforcing state law; the county bears the cost regardless of which court ordered the evaluation.

Does this apply to juvenile evaluations?

The opinion addressed evaluations under Title 33, Chapter 7, Part 3, which governs adult criminal proceedings. Juvenile mental health evaluations are governed by other provisions and were not analyzed.

Citations

• Tenn. Code Ann. § 33-2-1109(a)(2)
• Tenn. Code Ann. §§ 33-7-301(a), -303(a)
• Tenn. Code Ann. § 33-7-301(a)
• Tenn. Code Ann. § 33-7-303(a)
• Tenn. Code Ann. § 33-2-1109(a)(1)
• Tenn. Code Ann. § 40-25-129
• Tenn. Code Ann. § 40-1-107
• 2009 Tenn. Pub. Acts, ch. 531
• Colella v. Whitt, 202 Tenn. 551, 308 S.W.2d 369 (1957)
• State v. Brown, 169 Tenn. 119, 83 S.W.2d 250 (1935)
• State v. Davis, 173 S.W.3d 411 (Tenn. 2005)
• State v. Hudson, 562 S.W.2d 416 (Tenn. 1978)
• State v. Black, 815 S.W. 166 (Tenn. 1991)
• Op. Tenn. Att'y Gen. No. 79-480 (Nov. 7, 1979)
• Op. Tenn. Att'y Gen. No. 84-340 (Dec. 20, 1984)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-076.pdf

Original opinion text

November 1, 2011
Opinion No. 11-76
County's Responsibility for Payment of Court-Ordered Mental Health Evaluations

QUESTIONS

1. Whether counties are responsible for the costs of mental health evaluations or treatments of misdemeanor defendants conducted pursuant to Tennessee Code Annotated, Title 33, Chapter 7, Part 3.

2. Whether the costs of such mental health evaluations or treatments may be allocated to a municipality where the evaluation or treatment is ordered by a city court exercising concurrent jurisdiction with the courts of general sessions.

OPINIONS

1. Except in cases in which a trial court finds that a misdemeanor defendant is able to pay some or all of the costs of a mental health evaluation or treatment, and in its discretion so orders, the county is liable for such costs.

2. No. Tennessee does not impose liability by statute upon municipalities for costs arising in connection with the enforcement of state laws.

ANALYSIS

1. Under former law, the costs of mental health evaluation, diagnosis, or treatment of certain criminal defendants were borne by the State. See Tenn. Code Ann. § 33-2-1109(a)(2) (2007) (providing for care at state expense of persons subject to evaluation, diagnosis or treatment under Tenn. Code Ann. §§ 33-7-301(a), -303(a)). Such defendants included those believed to be incompetent to stand trial or as to whom there was a question about mental capacity at the time of the commission of the offense. See Tenn. Code Ann. § 33-7-301(a) (2007). Additionally, expenses relating to the diagnosis and evaluation of persons acquitted on a verdict of not guilty by reason of insanity were chargeable to the State. See Tenn. Code Ann. § 33-7-303(a) (2007).

Effective June 25, 2009, these provisions were amended by 2009 Tenn. Pub. Acts, ch. 531. In particular, the following new section was added to Tennessee Code Annotated, Chapter 7, Part 3:

33-7-304. Cost of Evaluation and Treatment.

(a) The cost of evaluation and treatment under Chapter 7, Part 3 of this title, if the defendant is charged with a misdemeanor, will be a charge upon the funds of the county. If 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 same. Payment shall be made to the clerk of the general sessions court for remittance to the person, agency or facility to whom compensation is due, or if the costs and expenses have been paid by the county, to the appropriate office of the county.

(b) Costs of the care or treatment of any defendant ordered by the court and who is charged with a misdemeanor shall be paid by the state only when specifically authorized by law.

2009 Tenn. Pub. Acts, ch. 531, § 45. Additionally, section 33 of the Act specifies that persons subject to evaluation, diagnosis or treatment under Chapter 7, Part 3 must be "charged with a felony" in order for the associated costs to be payable by the State. Id. § 33. The effect of these amendments is to allocate to the counties the costs of evaluation, diagnosis, or treatment of defendants in misdemeanor cases that were formerly chargeable to the State.

Chapter 531 sets forth a salient exception.[1] The court "may" order a defendant to pay some or all of the costs for evaluation and treatment upon finding that the defendant has the means to do so. Id. § 45(a). The term "may" ordinarily "connotes discretion or permission; and it will not be treated as a word of command unless there is something in the context or subject matter of the act or statute under consideration to indicate that it was used in that sense." Colella v. Whitt, 202 Tenn. 551, 556, 308 S.W.2d 369, 371 (1957). We see nothing in the Act that would compel the conclusion that the term was intended in a mandatory sense. Under former law, a person subject to evaluation, diagnosis, or treatment under Tenn. Code Ann. §§ 33-7-301(a), -303(a) was entitled to maintenance at state expense even if not indigent.[2] See Tenn. Code Ann. § 33-2-1109(a)(1) & (2) (2007); State v. Black, 815 S.W. 166, 197 (Tenn. 1991) ("Each part and every word of a statute is presumed to have meaning and purpose and should not be construed as superfluous or as surplusage."). Construing Chapter 531 as vesting the court with discretion to assess mental health evaluation costs against a county even upon a finding that a misdemeanor defendant has financial means is consistent with this backdrop. Because an order of costs and expenses is discretionary only, we do not believe the court is obligated to make a determination on its own motion as to a defendant's ability to pay in the first instance, although it may well choose to do so.

2. Certain city courts may exercise concurrent jurisdiction with general sessions courts over criminal actions. See Tenn. Code Ann. § 40-1-107. The judge of such a court might order evaluation or treatment of a misdemeanor defendant under Title 33, Chapter 7, Part 3. In a previous opinion, this Office noted that "Tennessee does not impose liability by statute upon municipalities for costs arising in connection with the enforcement of state laws," and concluded that, absent such statutory assessment of liability, "none exists." Op. Tenn. Att'y Gen. No. 84-340 (Dec. 20, 1984) (opining that a city is not liable to the county for the costs of incarcerating in the county jail an indigent person convicted of the offense of driving while intoxicated when such charge is initiated on a state warrant, and the case is tried in city court). This opinion holds good with respect to the enactment of Chapter 531. Because section 45 of the Act specifically provides that the costs of evaluation and treatment of misdemeanor defendants under Chapter 7, Part 3 "will be a charge upon the funds of the county," there is no legal basis for allocating such expenses to a municipality.

[1] Chapter 531 additionally specifies that expenses associated with two types of mental health evaluations are to be treated as "court costs". These are competency evaluations of non-indigent petitioners in post-conviction proceedings, 2009 Tenn. Pub. Acts, ch. 531, § 46, and outpatient treatment of persons adjudged not guilty by reason of insanity who are not committable but who are deemed to pose a future substantial risk of serious harm, id. § 51. Counties are not ordinarily liable for court costs of non-indigent defendants in misdemeanor cases. See Tenn. Code Ann. § 40-25-129; see also State v. Brown, 169 Tenn. 119, 83 S.W.2d 250, 251 (1935) (holding, under predecessor statute, that "the county is not liable for any costs upon acquittal in misdemeanor cases"); Op. Tenn. Att'y Gen. No. 79-480 (Nov. 7, 1979) (opining that "the county has no liability for costs in General Sessions Court criminal cases in which the defendant is adjudged guilty but is not declared indigent").

[2] Tenn. Code Ann. § 33-2-1109(a)(1) retains for persons who are indigent an exception to the general prohibition on maintenance of service recipients at state expense. In our view, this provision does not indicate that counties are not liable for the costs of evaluation and treatment of indigent misdemeanor defendants under Chapter 7, Part 3. See, e.g. State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005) ("specific statutory language will control over general statutory language"). A contrary reading, such that the State would be responsible for the mental health evaluation costs of indigent misdemeanor defendants, while non-indigent defendants could be required to bear their own costs, would render section 45's allocation of costs to the counties nugatory. See, e.g., State v. Hudson, 562 S.W.2d 416, 418 (Tenn. 1978) (applying principle of statutory construction against readings that would render act "self-defeating and nugatory").

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
The Honorable Jimmy Eldridge
State Representative
208 War Memorial Building
Nashville, TN 37243-0148