What law enforcement powers do officers of a Tennessee judicial district drug task force have, and is it constitutional to fund a task force entirely from asset forfeitures?

Subject

Opinion No. 12-10, Scope of Enforcement Authority of Judicial District Task Force Members, January 20, 2012

Plain-English summary

Tennessee judicial district drug task forces are joint cooperative entities formed under interlocal agreements among county sheriffs, city police departments, district attorneys, and sometimes state agencies. Tenn. Code Ann. §§ 8-7-110, 12-9-104. They have two types of personnel: officers assigned by their home agencies, and officers directly employed by the task force. Representative Rich asked the AG five questions about the scope of their authority and the constitutionality of how they are funded.

1. Assigned officers carry their home authority into the district. Under Tenn. Code Ann. § 8-7-110(a), an officer assigned to a task force "has the same rights, powers, duties and immunities in every jurisdiction within the judicial district as such officer has within the officer's own jurisdiction." If the home agency cloaked the officer with full law enforcement authority, that authority travels with the officer throughout the district.

2. Directly-employed task force officers have only what the interlocal agreement gives them. § 8-7-110(a) is silent about the authority of task force employees, but § 12-9-104(a)(1) lets constituent agencies confer their police powers on the task force through the interlocal agreement. A directly-employed officer can exercise what the constituent agencies pooled and conferred, no more.

3. Traffic stops. An assigned officer who has general traffic authority back home can make traffic stops anywhere in the judicial district, including stops unrelated to drug investigations. A directly-employed officer has traffic authority only if the interlocal agreement conferred it.

4. DA investigator assigned to a task force. Under § 16-2-508(f)(1) DAs may employ criminal investigators. Assigning one to a drug task force does not create a per se conflict of interest for the district attorney. Both bodies share the same goal of investigating and prosecuting crime in the district. The board of directors of the task force, not the DA alone, oversees the assignment. Tenn. Code Ann. § 8-7-110(a). Specific facts could still create a conflict; the assignment itself does not.

5. Funding from forfeitures. Tenn. Code Ann. §§ 39-17-420(c) and 40-33-211(a) channel drug-case fines and forfeiture proceeds into an expendable trust to be spent on drug enforcement or drug education programs as the board directs. § 40-33-211(b) layers on a rule that "[f]unds derived from seizures, confiscations and sales shall not be used to supplement the salaries of any public employee or law enforcement officer." Read together: forfeiture money can pay task force salaries only if those salaries are predetermined and fixed, with no link between an officer's pay and the volume of seizures the officer produced. The compensation structure, not the source of the money, is what avoids the constitutional concern that officers might have a personal financial stake in seizing property.

Currency note

This opinion was issued in 2012. 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.

Tennessee's drug task force statutes (Tenn. Code Ann. §§ 8-7-110, 39-17-420, 40-33-211) have been amended multiple times since 2012, and the federal and state law of asset forfeiture has changed significantly. Anyone advising a task force on jurisdiction or funding today should pull the current statutes.

Background and statutory framework

Authority to form a task force. Tenn. Code Ann. § 12-9-104 lets public agencies exercise their powers jointly. Tenn. Code Ann. § 6-54-307 authorizes municipalities and counties to enter mutual aid agreements. Tenn. Code Ann. § 8-7-110(a) addresses task forces specifically.

Cross-jurisdictional authority. § 8-7-110(a) provides that an assigned officer has the same rights, powers, duties, and immunities throughout the judicial district as in the officer's home jurisdiction.

Use of forfeiture funds. § 39-17-420(c) directs fines and forfeitures from drug-related task force activity into an expendable trust fund for drug enforcement or education. § 40-33-211(b) bars use of seizure, confiscation, and sale proceeds to supplement salaries of public employees or law enforcement officers. Op. Tenn. Att'y Gen. 99-202 read the two statutes together to allow forfeiture money to fund predetermined, fixed salaries that do not turn on individual seizure amounts.

Common questions

Q: Can a small-town officer assigned to a drug task force make arrests in a different town within the same judicial district?
A: Yes, if the officer's home agency has cloaked the officer with general law enforcement authority. Under § 8-7-110(a) the officer carries that authority district-wide while serving on the task force.

Q: Can a task force officer pull me over for speeding if the officer was hired directly by the task force?
A: Only if the constituent agencies' interlocal agreement gave the task force general traffic-enforcement authority. Many task force agreements focus narrowly on drug investigations.

Q: Is it a conflict of interest for the DA to assign one of the DA's investigators to a drug task force?
A: Per this opinion, no, not as a structural matter. The DA and the task force share the same prosecution goal, and the task force is governed by its board, not the DA alone.

Q: Can a task force pay its officers entirely with seized drug money?
A: Only with fixed, predetermined salaries that are not linked to the amount of forfeitures the officer generates. A bonus or commission tied to seizures would run into § 40-33-211(b) and broader due-process concerns.

Q: Does forfeiture-funded compensation create constitutional problems even when it is fixed?
A: Per the AG's reading, no, as long as the officer has no personal financial stake in the level of forfeitures. Defendants challenging forfeiture-funded enforcement have raised due-process and incentive arguments in state and federal courts; later cases may have refined this analysis.

Citations and references

Statutes:

• Tenn. Code Ann. § 8-7-110(a), (b)
• Tenn. Code Ann. § 12-9-104(a)(1), (c)(2)
• Tenn. Code Ann. § 6-54-307
• Tenn. Code Ann. § 16-2-508(f)(1)
• Tenn. Code Ann. § 39-17-420(c)
• Tenn. Code Ann. § 40-33-211(a), (b)

Cases:

• Timberlake v. Benton, 786 F. Supp. 676 (M.D. Tenn. 1992)
• State v. Sherman, 266 S.W.3d 395 (Tenn. 2008)
• Auto Credit v. Wimmer, 231 S.W.3d 896 (Tenn. 2007)
• Brown v. Erachem Comilog, Inc., 231 S.W.3d 918 (Tenn. 2007)
• In re Sentinel Trust Co., 206 S.W.3d 501 (Tenn. Ct. App. 2005)
• State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. Crim. App. 1995)
• State v. White, 114 S.W.3d 469 (Tenn. 2003)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-010.pdf

Original opinion text

Scope of Enforcement Authority of Judicial District Task Force Members
QUESTIONS
Lbl1. Does a law enforcement officer who is assigned to a judicial drug task force by a
constituent agency have the authority to exercise the full extent of his law enforcement powers
while he or she is operating outside the jurisdictional limits of his appointing authority?
Lbl2. If a judicial task force officer is employed directly by a drug task force, pursuant to
Tenn. Code Ann. § 8-7-110, does that officer have the authority to exercise full law enforcement
authority over offenses that are not drug related or do not involve violence?
Lbl3. Do officers of judicial district drug task forces, who are employed directly by the drug
task force pursuant to Tenn. Code Ann. § 8-7-110, have the authority to make traffic stops by use
of radar guns or other speed detection equipment?
Lbl4. Does the assignment of investigators who are employed by a district attorney general
to a drug task force create a conflict of interest for that district attorney general?
Lbl5. Are the operations of drug task forces vulnerable to constitutional challenges based on
the fact that the task forces are funded solely from the proceeds of asset forfeitures from cases the
tasks forces have investigated?
OPINIONS
Lbl1. Under Tenn. Code Ann. § 8-7-110(a), a law enforcement officer who is assigned to a
judicial drug task force by a constituent agency may exercise the same law enforcement authority
within the entire judicial district that the officer possesses within the jurisdiction of the
constituent agency which employs that officer.
Lbl2. Under Tenn. Code Ann. § 8-7-110, an agent who is employed directly by a drug task
force is a commissioned law enforcement officer and has peace officer authority throughout the
judicial district but that authority is limited by the power the drug task force may confer and
exercise according to the governing interlocal agreement.
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1 A judicial district task force may be considered to be a joint cooperative or undertaking or, pursuant to the
interlocal agreement, be formed as a not for profit corporation. Tenn. Code Ann. § 12-9-104(c)(2). See also
Timberlake V. Benton, 786 F. Supp. 676, 682 (M.D. Tenn. 1992).
Page 2

3. Under Tenn. Code Ann. § 8-7-110(b) an officer assigned to a drug task force by a
   constituent agency has all of the authority that is generally conferred on peace officers and may
   exercise such authority throughout the judicial district. Consequently, such an officer will have
   the authority to make traffic stops that are unrelated to suspected drug stops if that officer has
   such authority in the officer’s home jurisdiction. An officer employed directly by a drug task
   force may exercise only those powers as the drug task force may confer and exercise. Therefore,
   an officer who is employed directly by a drug task force will have the general authority to make
   traffic stops only if such authority has been conferred upon the drug task force by the governing
   interlocal agreement.
4. A district attorney general’s assignment of an investigator to a drug task force would
   not per se create a conflict of interest.
5. The funding of a judicial task force’s budget from asset and bond forfeitures proceeds
   does not raise constitutional concerns so long as the compensation of judicial task force members
   is not directly tied to the level of proceeds from forfeiture and members do not otherwise have a
   direct financial stake in the seized property.
   ANALYSIS
6. Judicial district and multi-judicial district drug task forces are entities established by
   intralocal agreements for the purpose of investigating and prosecuting violent crime and drug
   cases. Tenn. Code Ann. § 8-7-110(a); Tenn. Code Ann. § 12-9-104. Task forces derive their
   authority from these intralocal agreements. As Tenn. Code Ann. § 12-9-104(a)(1) states, “[a]ny
   power or powers, privileges, or authority exercised or capable of exercise by a public agency of
   this state, including those provided in § 6-54-307 [mutual aid agreements] . . . may be exercised
   and enjoyed jointly with any other public agency of this state having the power or powers,
   privilege or authority….” Tenn. Code Ann. § 6-54-307 also authorizes municipalities and
   counties to enter into mutual aid agreements to provide law enforcement services and furnish
   assistance to one another.
   Intralocal and mutual aid agreements allow county and municipal law enforcement
   officers to partner with state agencies, including a district attorney general, to pool resources and
   form a distinct entity, such as a judicial district task force, to more effectively and efficiently
   combat crime.1
   The constituent agencies may convey police powers upon the judicial district
   task force. Tenn. Code Ann. § 12-9-104(a)(1). Furthermore, sheriff offices, police departments,
   the district attorney general, and state law enforcement agencies are authorized, subject to the
   approval of the district attorney general or governing board of the task force, to assign law
   enforcement personnel to the task force. Tenn. Code Ann. § 8-7-110(a). In addition to obtaining
   manpower from the constituent agencies, drug task forces may also employ officers directly.
   Tenn. Code Ann. § 8-7-110(a).
   1
   A judicial district task force may be considered to be a joint cooperative or undertaking or, pursuant to the
   interlocal agreement, be formed as a not for profit corporation. Tenn. Code Ann. § 12-9-104(c)(2). See also
   Timberlake v. Benton, 786 F. Supp. 676, 682 (M.D. Tenn. 1992).
   Tenn. Code Ann. § 8-7-110(a) defines the law enforcement authority that may be
   exercised by officers who are employed by or assigned to a drug task force, providing that such
   officers "have the same rights, powers, duties and immunities in every jurisdiction within the
   judicial district as such officer has within the officer's own jurisdiction." Id.
   In reviewing these various statutes, the primary objective of statutory construction is to
   ascertain and give effect to the intention of the Legislature. State v. Sherman, 266 S.W.3d 395,
   401 (Tenn. 2008); Auto Credit v. Wimmer, 231 S.W.3d 896, 900 (Tenn. 2007). If a statute is
   clear and unambiguous, courts will find the intent in the plain and ordinary meaning of its
   language. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007). Here the
   language of Tenn. Code Ann. § 8-7-110(a) is plain and unambiguous. By its terms, this statute
   authorizes law enforcement officers who are assigned to a drug task force to exercise all of the
   law enforcement authority that has been conferred by the agency which employed that officer.
   Thus, if an officer has been cloaked with full law enforcement authority by the officer's own
   jurisdiction, the officer may exercise such authority within the district covered by the judicial
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   2 The express language of Tenn. Code Ann. § 8-7-110(a) addresses only the law enforcement powers which may be
   exercised by officers who are employed by other agencies and are assigned to a drug task force.
   Page 3
   Tenn. Code Ann. § 8-7-110(a) defines the law enforcement authority that may be
   exercised by officers who are employed by or assigned to a drug task force, providing that such
   officers “have the same rights, powers, duties and immunities in every jurisdiction within the
   judicial district as such officer has within the officer’s own jurisdiction.” Id.
   In reviewing these various statutes, the primary objective of statutory construction is to
   ascertain and give effect to the intention of the Legislature. State v. Sherman, 266 S.W.3d 395,
   401 (Tenn. 2008); Auto Credit v. Wimmer, 231 S.W.3d 896, 900 (Tenn. 2007). If a statute is
   clear and unambiguous, courts will find the intent in the plain and ordinary meaning of its
   language. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007). Here the
   language of Tenn. Code Ann. § 8-7-110(a) is plain and unambiguous. By its terms, this statute
   authorizes law enforcement officers who are assigned to a drug task force to exercise all of the
   law enforcement authority that has been conferred by the agency which employed that officer.
   Thus, if an officer has been cloaked with full law enforcement authority by the officer’s own
   jurisdiction, the officer may exercise such authority within the district covered by the judicial
   task force established by its authorizing agreements.
7. The next question is whether an officer who is employed directly by a drug task force
   may exercise the same powers as an officer who has been assigned to the task force by a
   constituent agency. The task force and its agents may exercise such powers and authority as has
   been conferred by statute, as well as such powers that may be fairly implied from the statutory
   language. See In re Sentinel Trust Co., 206 S.W.3d 501, 519 (Tenn. Ct. App. 2005).
   Tenn. Code Ann. § 8-7-110(a) is silent with respect to the authority that may be exercised
   independently by a drug task force or any officers who are employed directly by that drug task
   force.2
   Nonetheless other Tennessee statutes do address the scope of this authority. Under Tenn.
   Code Ann. § 12-9-104(a)(1), the constituent agencies may confer police powers upon a drug task
   force through their mutual aid agreement. See also Tenn. Code Ann. § 6-54-307. Thus, an
   officer who is employed by a task force may exercise those police powers which the constituent
   agencies have conferred upon that drug task force under the governing agreement for each
   particular drug task force.
8. As stated above, all judicial district task members “have the same rights, powers,
   duties and immunities in every jurisdiction within the judicial district as such officer has within
   the officer’s own jurisdiction.” Tenn. Code Ann. § 8-7-110(a). An officer assigned to a drug task
   force by a constituent law enforcement agency will, therefore, have the authority to make traffic
   stops that are unrelated to suspected drug stops if that officer has such authority in the officer’s
   home jurisdiction. Absent such authority, an officer employed by a drug task force may make
   such traffic stops only to the extent such action is permitted under the governing mutual aid
   agreement.
9. Generally, no conflict of interest should exist merely because an investigator who is
   employed by a district attorney general is assigned by that district attorney general to a drug task
   2
   The express language of Tenn. Code Ann. § 8-7-110(a) addresses only the law enforcement powers which may be
   exercised by officers who are employed by other agencies and are assigned to a drug task force.
   Lbl
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   Tenn. Code Ann. § 39-17-420(c).
   Tenn. Code Ann. § 40-33-211 governs the use of such property by drug task forces and
   other law enforcement agencies. Subsection (a) tracks the language of Tenn. Code Ann. § 39-17-
   420(c) in that it authorizes drug task forces to use the money for drug enforcement as directed by
   its board of directors. Tenn. Code Ann. § 40-33-211(b), however, limits the use of the proceeds
   from asset forfeitures. That provision expressly states that "[f]unds derived from seizures,
   confiscations and sales shall not be used to supplement the salaries of any public employee or
   law enforcement officer."
   3 Tenn. Code Ann. § 16-2-508(f)(1) authorizes district attorneys to employ criminal investigators.
   4 It should also be noted that judicial district task forces are governed by a board of directors, not the district attorney
   general. Tenn. Code Ann. § 8-7-110(a). See also Timberlake V. Benton, 786 F. Supp. 676, 682 (M.D. Tenn. 1992)
   (discussing the organization of the judicial district task forces). The board of directors, along with the district
   attorney general, approves the assignments of law enforcement officers that the chief law enforcement official of the
   assigning jurisdiction makes to a task force. Tenn. Code Ann. § 8-7-110(a). The director of a judicial district drug
   task force has the authority to commission personnel assigned to or hired by the task force with the approval of the
   district attorney general. Id. Accordingly the members of a judicial district task force do not answer solely to the
   district attorney general nor are the members employed by the district attorney general. Id.
   Page 4
   force.3
   Tennessee recognizes a strong common law policy that precludes public officials from
   placing themselves in a position where their personal interests conflict with their public duties.
   See Op. Tenn. Att’y Gen. 85-036, at 2 (Feb. 14, 1985). Furthermore, district attorneys general
   specifically have a duty to investigate and prosecute criminal activity that occurs within their
   districts. State ex rel. Swann v. Pack, 527 S.W.2d 99, 112 (Tenn. Crim. App. 1995). In
   discharging that duty, district attorneys must be impartial in the same sense that they are required
   to seek the truth and to base their charging decisions on the evidence and without prejudice or
   bias. State v. White, 114 S.W.3d 469, 477 (Tenn. 2003).
   Applying these standards to the question presented, it is difficult to perceive how the
   assignment of an investigator employed by a district attorney general to drug task force would
   create a conflict of interest for the district attorney. Both the drug task force and the district
   attorney general in essence have the same goals, to investigate and ensure the successful
   prosecution of those who violate the laws of this State.4
   Thus there is nothing to indicate that
   such an assignment per se would cause any conflict of interest.
10. Tennessee law specifically addresses the use of fines, forfeitures of appearance bonds,
    and the proceeds of asset forfeitures by drug task forces, stating in relevant part:
    [A]ll fines and forfeitures of appearance bonds received from the violation of the
    provisions of this part and that are specifically set forth in this part, the proceeds
    of goods seized and forfeited under the provisions of § 53-11-451 and disposed of
    according to law that arise from the activities of a judicial district drug task force
    shall be paid to an expendable trust fund maintained by the county mayor in a
    county designated by the district attorney general and shall be used exclusively in
    a drug enforcement or drug education program of the district as designated by the
    board of directors of the judicial district drug task force.
    Tenn. Code Ann. § 39-17-420(c).
    Tenn. Code Ann. § 40-33-211 governs the use of such property by drug task forces and
    other law enforcement agencies. Subsection (a) tracks the language of Tenn. Code Ann. § 39-17-
    420(c) in that it authorizes drug task forces to use the money for drug enforcement as directed by
    its board of directors. Tenn. Code Ann. § 40-33-211(b), however, limits the use of the proceeds
    from asset forfeitures. That provision expressly states that “[f]unds derived from seizures,
    confiscations and sales shall not be used to supplement the salaries of any public employee or
    law enforcement officer.”
    3
    Tenn. Code Ann. § 16-2-508(f)(1) authorizes district attorneys to employ criminal investigators.
    4
    It should also be noted that judicial district task forces are governed by a board of directors, not the district attorney
    general. Tenn. Code Ann. § 8-7-110(a). See also Timberlake v. Benton, 786 F. Supp. 676, 682 (M.D. Tenn. 1992)
    (discussing the organization of the judicial district task forces). The board of directors, along with the district
    attorney general, approves the assignments of law enforcement officers that the chief law enforcement official of the
    assigning jurisdiction makes to a task force. Tenn. Code Ann. § 8-7-110(a). The director of a judicial district drug
    task force has the authority to commission personnel assigned to or hired by the task force with the approval of the
    district attorney general. Id. Accordingly the members of a judicial district task force do not answer solely to the
    district attorney general nor are the members employed by the district attorney general. Id.
    Page 5
    As previously mentioned, in determining the meaning of these statutes the primary
    objective is to ascertain and give effect to the intent of the Legislature. Gragg v. Gragg, 12
    S.W.3d 412, 414-15 (Tenn. 2000). If the statute is clear and unambiguous, legislative intent is to
    be found in the plain meaning of the statutory text. Bostic v. Dalton, 158 S.W.3d 347, 350 (Tenn.
    2005). Finally, where statutes govern both general and specific matters, the specific language will
    govern the matters specifically addressed. Sallee v. Barrett, 171 S.W.3d 822, 829 (Tenn. 2005).
    Applying these principles to the statutes in question leads to the conclusion that Tenn.
    Code Ann. §§ 39-17-420(c) and 40-33-211(a) clearly and unambiguously authorize the board of
    directors of a drug task force to use fines and the proceeds of forfeitures of appearance bonds and
    seized and forfeited assets for drug enforcement and education programs of the district. The
    board must approve the specific uses of such funds and such funds must be used for drug
    education or drug enforcement programs.
    Tenn. Code Ann. § 40-33-211(b) also unambiguously imposes an additional restriction on
    the use of proceeds from asset forfeitures. Under the statute, such funds may not be used to
    supplement the salaries of public employees or law enforcement officers. Reading that statute in
    pari materia with Tenn. Code Ann. § 39-17-420(c) requires that, if the funds appropriated
    represent the proceeds of asset forfeitures, such funds may not be used to supplement the salaries
    of any public employee or law enforcement officer, even if such person is working in a drug
    enforcement or drug education program.
    Nonetheless, as this Office has opined, these statutes do not prohibit the use of the
    proceeds from asset and bond forfeiture related to drug offenses to pay public employee or law
    enforcement salaries so long as the salaries are for a predetermined amount and in no way linked
    to the amount of money that is forfeited based on the law enforcement work of that officer. Op.
    Tenn. Att’y Gen. 99-202 (Oct. 6, 1999) (copy attached). Thus, officers who are employed
    directly by a drug task force may be paid by the drug task force, regardless of the source of such
    funds, so long as such compensation is in the form of a regular, predetermined salary and the
    payments are not conditioned upon the officer effectuating any set amount of asset or bond
    forfeitures.
    ROBERT E. COOPER, JR.
    Attorney General and Reporter
    WILLIAM E. YOUNG
    Solicitor General
    As previously mentioned, in determining the meaning of these statutes the primary
    Applying these principles to the statutes in question leads to the conclusion that Tenn.
    Code Ann. §§ 39-17-420(c) and 40-33-211(a) clearly and unambiguously authorize the board of
    directors of a drug task force to use fines and the proceeds of forfeitures of appearance bonds and
    seized and forfeited assets for drug enforcement and education programs of the district. The
    board must approve the specific uses of such funds and such funds must be used for drug
    Tenn. Code Ann. § 40-33-211(b) also unambiguously imposes an additional restriction on
    the use of proceeds from asset forfeitures. Under the statute, such funds may not be used to
    supplement the salaries of public employees or law enforcement officers. Reading that statute in
    pari materia with Tenn. Code Ann. § 39-17-420(c) requires that, if the funds appropriated
    represent the proceeds of asset forfeitures, such funds may not be used to supplement the salaries
    of any public employee or law enforcement officer, even if such person is working in a drug
    Nonetheless, as this Office has opined, these statutes do not prohibit the use of the
    proceeds from asset and bond forfeiture related to drug offenses to pay public employee or law
    enforcement salaries so long as the salaries are for a predetermined amount and in no way linked
    to the amount of money that is forfeited based on the law enforcement work of that officer. Op.
    Tenn. Att'y Gen. 99-202 (Oct. 6, 1999) (copy attached). Thus, officers who are employed
    directly by a drug task force may be paid by the drug task force, regardless of the source of such
    funds, so long as such compensation is in the form of a regular, predetermined salary and the
    payments are not conditioned upon the officer effectuating any set amount of asset or bond
    Page 6
    RACHEL JRADE-RICE
    Assistant Attorney General
    Requested by:
    The Honorable Barrett Rich
    State Representative
    117 War Memorial Building
    Nashville, TN 37243
    Assistant Attorney General