What gave the Tennessee Attorney General authority to investigate a sitting member of the General Assembly (Representative Jeremy Durham), and can the legislature shut that down if it disagrees with how the AG handles it?

Plain-English summary

In early 2016, the Tennessee House of Representatives appointed an Article II, Section 12 Ad Hoc Select Committee to look into allegations of "disorderly and inappropriate behavior" by Representative Jeremy Durham. On February 8, 2016, the committee adopted a resolution designating the Attorney General and Reporter, and additional staff as the AG might select, to conduct the actual investigation and report findings back to the committee. A different House member, Representative Rick Womick, then asked the AG to opine on the AG's own legal authority to perform that work, and on related questions about transparency and oversight.

The AG's answers were short and structural:

• The constitutional basis for the investigation was Article II, Section 12 of the Tennessee Constitution, which empowers each House of the General Assembly to "determine the rules of its proceedings" and to "punish its members for disorderly behavior." The committee's resolution was an exercise of that constitutional self-governance power.
• The committee tied the AG's role to the committee's continuing pleasure. The resolution expressly reserved the right "to amend, or even revoke, the authority granted herein at its discretion."
• Whether all House members are entitled to investigative updates and interim reports is an internal House matter, governed by the House's own rules, not by any external law the AG can resolve.
• If the AG steps outside the authority granted, the committee, the same body that granted the authority, has the power to revoke it. That is the oversight mechanism for the investigation.

Currency note

This opinion was issued in 2016. 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

Article II, Section 12 of the Tennessee Constitution gives each chamber of the General Assembly two powers relevant here. First, the chamber "shall determine the rules of its proceedings." Second, it may "punish its members for disorderly behavior." Together those powers make the House the master of its own discipline.

The legislature has implemented Article II, Section 12 through several statutes that give committees the procedural tools to do investigative work:

• Tenn. Code Ann. § 3-4-101. Standing and select committees of the General Assembly have the power to issue subpoenas (including duces tecum subpoenas) and to enforce attendance of witnesses and production of documents, in accord with the procedures in §§ 3-3-108 through 3-3-121.
• Tenn. Code Ann. § 3-4-102(d). When a committee investigates state business, it has the powers granted to investigating committees in Title 3, Chapter 3, which includes the authority to employ or designate "any necessary or proper legal counsel and investigators" for the committee's work.

The Article II, Section 12 Ad Hoc Select Committee invoked § 3-4-102(d) when it designated the Office of the Attorney General and Reporter (plus any additional attorneys and staff the AG chose) to conduct a "full, fair, and thorough investigation" into the allegations against Representative Durham. The resolution incorporated the subpoena powers under § 3-3-108 through § 3-3-121 and required the AG to deliver a final report to the committee.

The resolution's revocation clause is what carried most of the AG's analysis. By keeping the committee in charge of when (and whether) the investigation continued, the resolution preserved the chamber's constitutional self-governance role. The AG was the committee's agent for purposes of this investigation, not an independent prosecutor.

That framing also answered the oversight question (Question 4). The "standing" or "legal authority" to discipline the AG for actions taken outside the committee's grant is, in the first instance, the committee itself: it can rescind the authority and end the engagement. The opinion did not extend the analysis to potential independent forums (judicial review, ethics complaints, professional discipline through the Tennessee Supreme Court), which would have been outside the scope of the questions asked.

The Question 3 answer was equally narrow: who gets updates and how often is a House internal matter. The House's rules of proceedings, not state statutes or the constitution, decide it.

Common questions

Q: Was the AG independently empowered to investigate a legislator?
A: The opinion did not claim a freestanding AG investigative power over individual legislators. Instead, it identified a specific, committee-conferred designation as the source of authority.

Q: Could the General Assembly use the AG for any internal disciplinary matter?
A: Section 3-4-102(d) lets a committee employ or designate "necessary or proper legal counsel and investigators." The AG's office is a logical pick because of its existing legal infrastructure, but a committee could also employ outside counsel.

Q: What if Representative Durham challenged the AG's role in court?
A: The opinion did not address that. A House member subject to a § 3-3-108-style subpoena would typically have to litigate any objections to the subpoena's enforcement in court, but the committee's underlying authority comes from Article II, Section 12, which courts have historically been cautious about second-guessing.

Q: If a future committee disliked the AG's progress, what could it do?
A: Revoke the authority. The resolution's express revocation clause makes that a unilateral committee decision.

Q: Are the AG's investigative findings public?
A: The resolution required a final report to the committee. Public release would be governed by the General Assembly's rules and Tennessee's Public Records Act as applied to legislative records. The opinion did not work through that question.

Citations and references

Constitutional and statutory provisions (as cited in the opinion):

• Tenn. Const. art. II, § 12
• Tenn. Code Ann. § 3-4-101
• Tenn. Code Ann. § 3-4-102(d)
• Tenn. Code Ann. §§ 3-3-108 to 3-3-121
• Resolution adopted by the Article II, Section 12 Ad Hoc Select Committee, Feb. 8, 2016

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-020.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 26, 2016
Opinion No. 16-20
Authority of the Tennessee Attorney General to Conduct an Investigation of a Member of
the Tennessee General Assembly

Question 1
What constitutional, statutory or other authority exists to authorize the Attorney General
of the State of Tennessee to conduct an investigation of a member of the Tennessee General
Assembly? To the extent that no express delegation of investigative authority exists, what
precedent exists to support the existence of such authority? To the extent that such authority exists,
what is the scope of such investigative authority?

Opinion 1
Article II, section 12, of the Tennessee Constitution gives each House of the General
Assembly the power to "determine the rules of its proceedings" and to "punish its members for
disorderly behavior." The investigation that gives rise to Question 1 was expressly authorized by
resolution of a committee of the Tennessee House of Representatives pursuant to article II, section

12. The resolution narrowly defines the scope of the investigation and specifies that the
    authorization to investigate may be modified or revoked at the discretion of the committee.

Question 2
What authority exists to authorize the Attorney General of the State of Tennessee to
investigate alleged ethical violations by a member of the Tennessee General Assembly?

Opinion 2
See Opinion 1.

Question 3
If the Attorney General of the State of Tennessee engages in an investigation of a member
of the Tennessee General Assembly at the request of one or more members of the Tennessee
General Assembly, do all members of the Tennessee General Assembly have a right to obtain
copies of any investigative updates or reports?

Opinion 3
Whether all members of the Tennessee General Assembly have a right to obtain copies of
"any investigative updates or reports" is an internal matter to be determined by the legislature as
part of the rules of its proceedings.

Question 4
If it is believed that the Attorney General of the State of Tennessee has engaged in
unethical, ultra vires, or other inappropriate conduct, who has the standing and legal authority to
investigate the Attorney General of the State of Tennessee or his staff?

Opinion 4
The committee has full discretion to revoke the authority vested in the Office of the
Attorney General at any time. Thus, if it is believed that the Attorney General has acted outside
the scope of that authority, the committee may revoke the authority.

ANALYSIS

It is a matter of public knowledge that these questions have been asked in the context of an
investigation into allegations of disorderly and inappropriate behavior on the part of
Representative Jeremy Durham. The Attorney General was appointed and designated to conduct
the investigation by a Resolution (copy attached), adopted on February 8, 2016, by the Article II,
Section 12 Ad Hoc Select Committee of the Tennessee House of Representatives. Thus, the Office
of the Attorney General is currently conducting that investigation pursuant to an express
authorization from the Tennessee House of Representatives.

Article II, section 12, of the Tennessee Constitution gives each House of the General
Assembly the power to "determine the rules of its proceedings" and to "punish its members for
disorderly behavior." Pursuant to article II, section 12, of the Tennessee Constitution and the
statutory provisions cited in the Resolution, the House of Representatives specifically authorized
the Attorney General to conduct the Durham investigation. The authorization is explicitly subject
to amendment and even revocation at any time at the discretion of the House Select Committee.
The terms, conditions, and scope of that authorization are delineated in the Resolution.

Since the Committee has the right to revoke the authorization at any time in its discretion, it follows
that, if it is believed that the Attorney General has acted outside the scope of the authority vested
in the Attorney General, the Committee has the standing and power to revoke the authority.

The Resolution requires that the Attorney General report the findings of the investigation
to the Select Committee at the conclusion of the investigation. Whether all members of the
Tennessee General Assembly have a right to obtain copies of "any investigative updates or reports"
is purely an internal matter to be determined by the legislature as part of the rules of its
proceedings.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Rick Womick
State Representative
G29 War Memorial Building
Nashville, Tennessee 37243-0134

Attachment:
Resolution adopted by the Article II, Section 12 Ad Hoc Select Committee of the
Tennessee House of Representatives on February 8, 2016.

ARTICLE II, SECTION 12 AD HOC SELECT COMMITTEE
HOUSE OF REPRESENTATIVES
109th GENERAL ASSEMBLY

A RESOLUTION to authorize the Article II, Section 12 Ad Hoc Select Committee to
designate the Attorney General and Reporter as counsel and investigator for the
Committee to investigate and to advise the Committee with respect to allegations of
disorderly and inappropriate behavior and misconduct by Jeremy Durham,
Representative for House District 65, acting pursuant to Article II, Section 12 of the
Tennessee Constitution and Tennessee Code Annotated, Title 3, Chapters 3 and 4.

WHEREAS, Jeremy Durham is the duly elected Representative for House District 65; and

WHEREAS, there have been a number of allegations of disorderly and inappropriate
behavior concerning Representative Durham; and

WHEREAS, Tennessee Code Annotated § 3-4-102(d) provides that any standing committee
or select committee of the General Assembly investigating any manner of state business shall
have the powers granted to investigating committees in Title 3, Chapter 3; and

WHEREAS, Tennessee Code Annotated § 3-4-101 further provides that any standing
committee or select committee of the General Assembly shall have the power to issue
subpoenas, including subpoenas duces tecum, and to enforce the attendance of witnesses
and the production of records, documents, papers, or other items of evidence, and that the
provisions of Tennessee Code Annotated §§ 3-3-108 - 3-3-121 are applicable to the exercise
of such power; and

WHEREAS, pursuant to Tennessee Code Annotated § 3-4-102(d), the Article II, Section 12
Ad Hoc Select Committee is authorized to employ or designate any necessary or proper legal
counsel and investigators to attend upon the work of the Committee and provide the
Committee the necessary and proper aid and assistance in the performance of its duties, as
ordered and directed by the Committee; and

WHEREAS, the Committee has determined that it is necessary and appropriate to conduct
an investigation of the allegations of disorderly and inappropriate behavior and misconduct
by Representative Durham; and

WHEREAS, the Committee has determined that it is necessary and proper to obtain legal
counsel and investigators to provide necessary and proper aid and assistance to the
Committee in the conduct of such an investigation; and

WHEREAS, the Committee has determined that the Office of the Attorney General and
Reporter for the State of Tennessee has the requisite knowledge, skills, and expertise to
provide the necessary aid and assistance to the Committee; and

WHEREAS, the Committee has determined that the Attorney General, and such other
attorneys within his Office and any additional staff as determined by the Attorney General,
should be designated for the purpose of investigating the allegations of disorderly and
inappropriate behavior and misconduct by Representative Durham; and

WHEREAS, upon conclusion of the investigation, the Attorney General shall prepare a
report of the findings of the investigation to the Article II, Section 12 Ad Hoc Select
Committee; now therefore,

BE IT RESOLVED BY THE ARTICLE II, SECTION 12 AD HOC SELECT COMMITTEE
OF THE HOUSE OF REPRESENTATIVES, that the committee appoints and designates the
Attorney General and Reporter of the State of Tennessee, and such other attorneys within the
Office of the Attorney General and Reporter and any additional staff as determined by the
Attorney General, to conduct a full, fair, and thorough investigation of the allegations of
disorderly and inappropriate behavior and misconduct by Representative Durham; that the
power to issue subpoenas, including subpoenas duces tecum, to enforce the attendance of
witnesses and the production of any records, documents, papers, or other items of evidence
as set forth in Tennessee Code Annotated §§ 3-3-108 - 3-3-121 is necessary to conduct a full,
fair, and thorough investigation; and that upon conclusion of the investigation, the Attorney
General shall prepare a report of the findings of the investigation to the Article II, Section
12 Ad Hoc Select Committee. The Committee reserves the right to amend, or even revoke,
the authority granted herein at its discretion.

ADOPTED: February 8, 2016

Representative Steve McDaniel, Chair