If a Tennessee defendant is charged with several offenses but posts one bail bond, can the sheriff charge a $5 fee for each charge?

Subject

Opinion No. 13-03, Sheriff's Fee for Issuance and Acceptance of Bail Bond, January 7, 2013

Plain-English summary

A state representative asked how to interpret the $5 sheriff's fee for bail bonds set out in Tenn. Code Ann. § 8-21-901(a)(3)(C). If a defendant faced multiple offenses in a single case, was the sheriff entitled to a separate $5 for each charge, or just one $5 for the bond itself?

The Attorney General read the statute as written: the sheriff was entitled to $5 "for every bail bond," not for every charge. Whether the sheriff collected one $5 fee or several depended on how the bond paperwork was structured. One omnibus bond covering all the charges produced one $5 fee. Separate bonds for each charge produced a $5 fee for each bond. The statute's language was, in the AG's view, "clear and unambiguous."

The opinion also tied the result to the underlying structure of Tennessee's bail bond process. Article I, § 15 of the Tennessee Constitution gave criminal defendants a right to bail in non-capital cases, the legislature codified that right in Tenn. Code Ann. § 40-11-102, and the bail bond itself was a contract between the State and the defendant (with the surety as guarantor) under In re Sanford & Sons Bail Bonds. That contract framework matters: the fee was tied to the contractual instrument (the bond), not to the underlying criminal charges. The opinion also cross-referenced the AG's own earlier guidance in Tenn. Att'y Gen. Op. 12-38 (March 19, 2012), which addressed when the $5 fee could be collected.

Currency note

This opinion was issued in 2013. 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.

The sheriff's fee schedule in Tenn. Code Ann. § 8-21-901 has been amended on several occasions since 2013. The specific subsection numbering, fee amounts, and what's covered may not match the current statute. Anyone working out a fee question today should pull the current text of § 8-21-901.

Background and statutory framework

Tennessee's bail bond process is set out in Tenn. Code Ann. §§ 40-11-101 to -405. Magistrates and general sessions judges set bail (Tenn. Code Ann. §§ 40-4-101(6), 40-4-117, 40-5-105). When charges arose from the same criminal episode, Tenn. R. Crim. P. 8(a)(1) required them to be joined in a single indictment, presentment, or information and treated as a single case. That meant a single defendant in a single case could face multiple charges at once.

The fee statute, Tenn. Code Ann. § 8-21-901, listed the fees a sheriff could collect for various services. Subsection (a)(3)(C) provided for a $5 fee "for every bail bond." The AG noted that the statute "does not provide that a $5 fee may be collected for each charge for which bail is set; instead the fee is assessed for each bail bond actually accepted and issued by the sheriff."

The opinion treated this as a straightforward application of the rule in Chapman v. DaVita, Inc. that an unambiguous statute is to be applied according to its plain language. The cross-reference to Tenn. Att'y Gen. Op. 12-38 confirms an earlier consistent interpretation of when the fee attaches: at issuance and acceptance of the bond.

Common questions

Did this opinion mean a defendant facing five charges could only be charged $5 in sheriff's fees?

If the sheriff issued one omnibus bond covering all five charges, yes, the AG read § 8-21-901(a)(3)(C) to allow only one $5 fee. If the sheriff issued five separate bonds (one per charge), the answer was $25 in fees, $5 per bond.

Could the sheriff insist on separate bonds to collect more fees?

The opinion did not directly answer that, but it stressed that the fee follows the bond instrument. If local practice involved separate bonds per charge, the resulting per-bond fees would have been collectible. The opinion did not authorize manufacturing multiple bonds purely to generate fees; it just described the fee that attached to whatever bond paperwork was actually issued.

Who decides whether to use one bond or several?

The opinion did not get into local administrative practice. The bail amount itself was set by the judge or magistrate for each offense, but the form in which the bond was written and submitted typically reflected local practice and the surety's preference.

Did this fee apply to cash bonds or just surety bonds?

The statute referred broadly to "every bail bond," and the AG's analysis did not distinguish between bond types. The earlier Op. 12-38 had addressed the timing of the fee (issuance and acceptance), which would apply to any bond the sheriff accepted.

Was this opinion binding on Tennessee sheriffs?

AG opinions are persuasive but not binding. A sheriff's office relying on this opinion would have wanted to confirm that local practice and any local rules were consistent with the per-bond reading. A challenge from a defendant who paid five $5 fees on five separate bonds would have had to be framed as a challenge to the local practice of writing separate bonds, not to the fee statute itself.

Citations

• Tenn. Code Ann. § 8-21-901(a)(3)(C) ($5 fee "for every bail bond")
• Tenn. Code Ann. §§ 40-11-101 to -405 (Tennessee bail bond process)
• Tenn. Code Ann. § 40-11-102 (codification of right to bail)
• Tenn. R. Crim. P. 8(a)(1) (joinder of charges from same criminal episode)
• In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d 199 (Tenn. Crim. App. 2002) (nature of bail bond as contract)
• Wallace v. State, 245 S.W.2d 192 (Tenn. 1952) (right to bail in non-capital cases)
• Chapman v. DaVita, Inc., 380 S.W.3d 710 (Tenn. 2012) (plain-language statutory construction)
• Tenn. Att'y Gen. Op. 12-38 (March 19, 2012) (timing of $5 sheriff's fee)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-003.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

January 7, 2013

Opinion No. 13-03

Sheriff's Fee for Issuance and Acceptance of Bail Bond

QUESTION

If a defendant is charged with multiple offenses in a single case, bail is set for each offense and the defendant posts one or more bail bonds for all charged offenses, may a sheriff collect a separate $5 fee for each charged offense pursuant to Tenn. Code Ann. § 8-21-901(a)(3)(C)?

OPINION

A sheriff may only collect a single $5 fee for each bail bond issued, regardless of the number of charged offenses covered by the bond, pursuant to Tenn. Code Ann. § 8-21-901(a)(3)(C).

ANALYSIS

The question posed concerns the amount of the administrative fee a sheriff may collect for the issuance of a bail bond that includes bail for multiple charges. Magistrates, including general sessions judges, are empowered to establish bail in bailable offenses brought before the magistrate. See Tenn. Code Ann. §§ 40-4-101(6) & 40-4-117 (general sessions judges); Tenn. Code Ann. § 40-5-105 (magistrates); Tenn. Code Ann. §§ 40-11-101 to -405 (setting forth Tennessee's bail bond process). The Tennessee Court of Criminal Appeals has explained the working of Tennessee's bail bond process in criminal cases as follows:

Preliminarily, we note that our consideration of the parties' arguments occurs against the backdrop of a criminal defendant's right to bail, the role of the professional bondsman in our system of criminal justice, and the nature of the "bail bond" itself. Article I, Section 15 of the Tennessee Constitution provides "[t]hat all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great." Our supreme court has held that "[u]nder the foregoing constitutional provision [a criminal defendant] is entitled to bail as a matter of right" in all except capital cases. Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192, 193 (1952); see also State ex rel. Hemby v. O'Steen, 559 S.W.2d 340, 341 (Tenn. Crim. App. 1977) (observing that "[t]here is no doubt that the right to bail is mandatory in all except capital cases"). The legislature has codified the right to bail at Tenn. Code Ann. § 40-11-102 (1997). The right to bail, however, does not ensure a criminal defendant's ability to pay the amount of bail set by the court. Rather, a private, profit-driven bail bonding industry enables the average citizen to secure enough money to obtain release, in addition to relieving significant pressures upon local jails to house criminal defendants awaiting trial. Holly J. Joiner, Note, Private Police: Defending the Power of Professional Bail Bondsmen, 32 Ind. L. Rev. 1413, 1420-1421 (1999).

In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d 199, 201-02 (Tenn. Crim. App. 2002).

As recognized by the Court in the case of In re Sanford & Sons Bail Bonds, 96 S.W.3d at 202, a bail bond is a contract between the government and the defendant and any surety. Under the terms of that agreement, the State agrees to release a defendant who is being held in a criminal case in exchange for the defendant's promise to make all required appearances before the court in connection with that case. The surety acts as a guarantor of the defendant's performance and agrees to pay the State a fixed sum of money if the defendant breaches the contract by failing to make such appearances. Id.

Criminal cases often involve multiple charges. If such charges arise from the same criminal episode, they are required to be joined in a single indictment, presentment, or information and treated as a single case. Tenn. R. Crim. P. 8(a)(1).

Tenn. Code Ann. § 8-21-901 establishes the fees a sheriff may charge and collect for the performance of specified services. The administrative fee that a sheriff may charge for the issuance of a bail bond is set forth at Tenn. Code Ann. § 8-21-901(a)(3)(C), which provides that the sheriff is entitled to receive a $5 fee "for every bail bond." The language of Tenn. Code Ann. § 8-21-901(a)(3)(C) is clear and unambiguous; the sheriff is entitled to collect a $5 fee for each bail bond that is issued. The statute does not provide that a $5 fee may be collected for each charge for which bail is set; instead the fee is assessed for each bail bond actually accepted and issued by the sheriff. Thus, if one omnibus bail bond was submitted to the sheriff that covered a multitude of charges, then only one $5 fee would be due. However if separate and distinct bail bonds covering the bail for each charge were submitted to the sheriff, then a $5 fee would be due for each bail bond issued. See Chapman v. DaVita, Inc., 380 S.W.3d 710, 714 (Tenn. 2012) (stating the general rule of statutory construction that, if the statutory language is unambiguous, then the court will apply the statute's plain language without any forced construction that would extend the statute's meaning). See also Tenn. Att'y Gen. Op. 12-38 (March 19, 2012) (opining that a sheriff may collect the $5 fee upon issuance and acceptance of the bail bond).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

BENJAMIN A. WHITEHOUSE
Assistant Attorney General

Requested by:

The Honorable Mike Sparks
State Representative
203 War Memorial Building
Nashville, TN 37243