Can a Tennessee county apply its courthouse-security litigation tax to some types of cases (or courts) and not others?

Subject

Opinion No. 12-13, Scope of County Litigation Tax, February 10, 2012

Plain-English summary

Tennessee counties can levy a privilege tax on litigation, with the revenue earmarked for specific purposes. Tenn. Code Ann. § 67-4-601(b)(6) authorizes counties (by two-thirds vote of the legislative body) to levy up to $25 per case on litigation "in all civil and criminal cases" with the proceeds used for courthouse security. Deputy Speaker McDaniel asked the AG two questions: could a county exempt some types of cases (the example was uncontested divorces) from the (b)(6) tax, and could a county apply it to litigation in some courts but not others?

The AG said no to both. The statute's "all civil and criminal cases" language is plain and unambiguous. A court interpreting statutory text gives effect to the plain meaning when the language is clear. Leggett v. Duke Energy Corp. (Tenn. 2010); Bryant v. Baptist Health System Home Care of East Tennessee (Tenn. 2006). "All" means all: every civil case, every criminal case, every court in the county.

The AG buttressed this reading by comparing (b)(6) to the parallel provisions in (b)(1) and (b)(5), which let counties set the rate and choose among permitted uses. The Legislature gave counties discretion on rate and use, but it did not give counties discretion to pick which categories of cases would bear the tax. If it had wanted that, it would have used "any" rather than "all."

So a county that levies the (b)(6) courthouse-security litigation tax cannot exempt uncontested divorces, cannot exempt small-claims cases, cannot exempt traffic-court cases, and cannot pick general sessions over circuit court. The tax goes on every civil and criminal case in every court in the county or it does not go on at all.

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.

Tenn. Code Ann. § 67-4-601 has been amended multiple times. The current subsections may have different numbering or scope. Pull current text before relying on the analysis of a specific subsection.

Background and statutory framework

Statutory structure of the county litigation tax. Tenn. Code Ann. § 67-4-601(b) lists several specific litigation-tax authorities counties can exercise:

• (b)(1) and (b)(5): basic litigation taxes (up to $25 per case) for jail or courthouse renovation and similar capital uses. These subsections include county discretion on rate amount.
• (b)(6): the subject of this opinion. Authorizes an additional litigation tax up to $25 per case, used exclusively for courthouse security plus the (b)(1) purposes.

The plain-meaning canon. When a statute is clear and unambiguous, courts apply its plain language and do not strain to find alternative readings. Leggett (Tenn. 2010); Bryant (Tenn. 2006). The AG read (b)(6)'s use of "all civil and criminal cases" as a deliberate restriction of county discretion: counties choose whether to levy and at what rate, but not against whom.

Comparison with (b)(1) and (b)(5). Where the Legislature wanted counties to choose, it said so. Where the Legislature said "all," it meant all. The AG read silence in (b)(6) as denial of discretion to carve out categories.

Common questions

Q: My county exempts uncontested divorces from the courthouse-security litigation tax. Is that allowed?
A: Per this opinion, no. A county that levies the (b)(6) tax must levy it on every civil case, including uncontested divorces.

Q: Can my county apply the tax only in general sessions court and not in circuit court?
A: Per this opinion, no. The phrase "in all civil and criminal cases" covers every court in the county.

Q: Does this affect the $25 rate cap?
A: No. Counties still pick the rate, up to the $25 statutory ceiling, by two-thirds vote of the county legislative body. The opinion is only about who pays, not how much.

Q: What about cases where the litigation tax would be inequitable, like indigent civil litigants?
A: The opinion does not address indigency waivers separately. Indigent litigants typically have statutory and constitutional grounds for fee and tax waivers in Tennessee courts; consult current law and local court rules.

Q: Could the General Assembly change this rule?
A: Yes, by amending Tenn. Code Ann. § 67-4-601(b)(6) to say "any" rather than "all," or by adding express categorical exemptions. As of 2012, the statute did not authorize either.

Citations and references

Statutes:

• Tenn. Code Ann. § 67-4-601(b)(1), (5), (6)

Cases:

• Leggett v. Duke Energy Corp., 308 S.W.3d 843 (Tenn. 2010)
• Bryant v. Baptist Health System Home Care of East Tennessee, 213 S.W.3d 743 (Tenn. 2006)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-013.pdf

Original opinion text

Scope of County Litigation Tax
QUESTIONS
Lbl1. Is it legal for a county to exempt certain types of litigation (i.e., uncontested
divorces) from the privilege tax on litigation authorized by Tenn. Code Ann. § 67-4-601(b)(6)?
Lbl2. Does Tenn. Code Ann. § 67-4-601(b)(6) allow a county to impose a privilege tax
on litigation in certain courts within the county, without applying the tax in all courts?
OPINIONS
Lbl1. No. Pursuant to Tenn. Code Ann. § 67-4-601(b)(6), the General Assembly has
authorized counties to levy the litigation tax in "all civil and criminal cases," thereby requiring
that any tax imposed must be levied on all civil and criminal cases.
Lbl2. No. Because the General Assembly has authorized the tax to apply in "all civil
and criminal cases," counties may not limit the tax to civil and criminal cases in certain courts
instead of levying it in all courts.
ANALYSIS

1. Pursuant to the provisions of Tenn. Code Ann. § 67-4-601, the General Assembly
   has authorized counties to levy specified privilege taxes on litigation, with the revenue to be used
   for certain designated purposes. For example, Tenn. Code Ann. § 67-4-601(b)(1) and (5) permit
   counties to "levy a privilege tax on litigation in all civil and criminal cases instituted in the
   county" in an amount not exceeding $25 per case, with the tax revenues to be used for building
   or renovating jails and courthouses. See Op. Tenn. Atty. Gen. No. 08-167 (Oct. 16, 2008).
   This request concerns the litigation tax authorized under Tenn. Code Ann. § 67-4-
   601(b)(6), which reads as follows:
   Notwithstanding any law to the contrary, upon the adoption of a
   resolution by a two-thirds (2/3) majority vote of a county
   legislative body, a privilege tax on litigation in all civil and
   criminal cases may be levied in an amount not to exceed twenty-
   five dollars ($25.00) per case, to be used exclusively for court
   Page 2
   house security, in addition to those purposes identified in
   subdivision (b)(1).
   The tax is to be applied “in all civil and criminal cases.” Tenn. Code Ann. § 67-4-601(b)(6)
   (emphasis added). The term “all” requires that counties that levy the tax must do so in all
   litigation without exception, and does not grant counties the authority to designate which types
   of litigation will bear the tax. See Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn.
   2010) (courts will apply the plain meaning of a statute when the statutory language is clear and
   unambiguous); Bryant v. Baptist Health System Home Care of East Tennessee, 213 S.W.3d 743,
   748 (Tenn. 2006) (courts should avoid applying to a statute any forced or subtle construction that
   extends the statute’s meaning). If the General Assembly had intended to allow a county the
   ability to determine which types of litigation would bear the tax, then it would have used the
   word “any” instead of “all.” Furthermore, other language in subdivision (b)(6) suggests that
   counties are not authorized to limit the tax to certain types of cases. The statute explicitly grants
   counties the ability to set the level of the tax at an amount up to $25 and to choose from the
   specified purposes how to use the revenue. In contrast, subdivision (b)(6) does not provide
   counties with any choice as to the types of civil and criminal litigation upon which the tax may
   be levied. Compare Tenn. Code Ann. § 67-4-601(b)(1) and (5) with Tenn. Code Ann. § 67-4-
   601(b)(6).
2. Similarly, subdivision (b)(6) does not include any language permitting counties to
   choose the courts in which to levy the tax. The tax is to be levied “in all civil and criminal
   cases.” Id. (emphasis added). Accordingly, counties may not levy this tax in some courts but
   not others.
   ROBERT E. COOPER, JR.
   Attorney General and Reporter
   WILLIAM E. YOUNG
   Solicitor General
   NICHOLAS G. BARCA
   Assistant Attorney General
   house security, in addition to those purposes identified in
   The tax is to be applied "in all civil and criminal cases." Tenn. Code Ann. § 67-4-601(b)(6)
   (emphasis added). The term "all" requires that counties that levy the tax must do so in all
   litigation without exception, and does not grant counties the authority to designate which types
   of litigation will bear the tax. See Leggett V. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn.
   2010) (courts will apply the plain meaning of a statute when the statutory language is clear and
   unambiguous); Bryant v. Baptist Health System Home Care of East Tennessee, 213 S.W.3d 743,
   748 (Tenn. 2006) (courts should avoid applying to a statute any forced or subtle construction that
   extends the statute's meaning). If the General Assembly had intended to allow a county the
   ability to determine which types of litigation would bear the tax, then it would have used the
   word "any" instead of "all." Furthermore, other language in subdivision (b)(6) suggests that
   counties are not authorized to limit the tax to certain types of cases. The statute explicitly grants
   counties the ability to set the level of the tax at an amount up to $25 and to choose from the
   specified purposes how to use the revenue. In contrast, subdivision (b)(6) does not provide
   counties with any choice as to the types of civil and criminal litigation upon which the tax may
   be levied. Compare Tenn. Code Ann. § 67-4-601(b)(1) and (5) with Tenn. Code Ann. § 67-4-
   601(b)(6).
3. Similarly, subdivision (b)(6) does not include any language permitting counties to
   choose the courts in which to levy the tax. The tax is to be levied "in all civil and criminal
   cases." Id. (emphasis added). Accordingly, counties may not levy this tax in some courts but
   not others.
   WILLIAM E. YOUNG
   Page 3
   Requested by:
   The Honorable Steve K. McDaniel
   Deputy Speaker of the House of Representatives
   18 Legislative Plaza
   Nashville, Tennessee 37243-0172
   The Honorable Steve K. McDaniel