Can a Tennessee court clerk pay a sheriff or constable more or less than the statutory fee for serving process?

Plain-English summary

Tenn. Code Ann. § 8-21-901 sets specific dollar amounts that sheriffs and constables are entitled to receive for specific services: $40 for serving process in person, $10 for service by mail, $5 for summoning each juror, and so on. The question to the AG was whether a court clerk has any discretion to pay something different, either above or below those numbers.

The AG's answer was a clean no. The statute's "notwithstanding any other provision of law to the contrary" language and its "the sheriff or constable is entitled to demand and receive" framing made the fees mandatory and nondiscretionary. Court clerks cannot pay less than the listed fee for a service actually rendered, and they cannot pay more.

The AG also pulled in a constitutional point. Article XI, Section 8 of the Tennessee Constitution forbids the legislature from suspending any general law for the benefit of an individual. In Remine v. Knox County, 189 S.W.2d 811 (Tenn. 1945), a private act giving a particular deputy more than the general fee was held unconstitutional under that provision. If the legislature itself cannot create individualized fee carve-outs by private act, the AG reasoned, a court clerk certainly cannot do so by discretion.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The fee amounts in Tenn. Code Ann. § 8-21-901 are particularly susceptible to legislative updates. 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

The Tennessee fee structure for sheriffs and constables is the legislature's way of standardizing the cost of court-related services across all 95 counties. Each line of Tenn. Code Ann. § 8-21-901 ties a specific dollar amount to a specific act, "for each item of process that must be served separately per person served."

At the time of the opinion, the schedule included:

• Service of process in person: $40
• Service of process by mail: $10
• Service of process by any other authorized method: $10
• Summoning each juror: $5
• Serving any other non-judicial process issued by an entity other than a court: $10

Tenn. Code Ann. § 8-21-901(a)(2)-(5) layered on additional fees for money collection, property storage, prisoner arrest and transport, security, and data processing.

The mandatory hook. Subsection (a) opens with the phrase "Notwithstanding any other provision of law to the contrary, the sheriff or constable is entitled to demand and receive" the listed fees "where services are actually rendered." The AG read both clauses as load-bearing. The "notwithstanding" clause clears the field of any inconsistent statute. The "is entitled to demand and receive" clause makes the fee a vested right of the officer once the service is performed. Together, those two clauses leave no room for a clerk to write a different check.

The constitutional layer. Tenn. Const. art. XI, § 8 provides that the legislature shall not "suspend any general law for the benefit of any particular individual, nor pass any law for the benefit of individuals inconsistent with the general laws of the land." § 8-21-901 is a general law. In Remine v. Knox County, 189 S.W.2d 811 (Tenn. 1945), the Tennessee Supreme Court applied Art. XI, § 8 to strike down a private act that purported to give a specific deputy sheriff compensation in excess of the general-law fee. The AG's logic followed: if the legislature itself cannot make an individual exception to a general-law fee schedule, a court clerk has no greater power to do so by discretion.

Implications for "negotiated" fees and reduced charges. The opinion was direct that the rule cuts both ways. Clerks cannot pay less than the statutory fee, even where a sheriff or constable might be willing to accept less, and cannot pay more, even where the workload or local cost of living might seem to justify a premium. The statute is the floor and the ceiling.

The opinion did not address whether services rendered outside the listed categories could be the subject of a different fee arrangement. The question and the analysis were limited to fees for the specifically enumerated services.

Common questions

Q: Can a court clerk pay a sheriff less than the statutory fee if the sheriff agrees?
A: According to this opinion, no. The fees are mandatory entitlements once the service is rendered; the clerk has no discretion to pay less.

Q: Can a private act give a particular county's sheriff a higher fee than the general schedule?
A: The AG cited Remine v. Knox County (1945) for the proposition that such a private act would violate the Tennessee Constitution's prohibition on suspending general laws for individual benefit.

Q: Are the fees payable per item of process or per defendant served?
A: § 8-21-901(a)(1)(A) states the fee is owed "for each item of process that must be served separately per person served." Each separate document for each separate person triggers a separate fee.

Q: Does the statute cover services beyond service of process?
A: Yes. Subsections (a)(2)-(5) at the time set fees for money collection, property storage, arrest and transportation of prisoners, security, and data processing. The schedule is comprehensive across the listed categories.

Q: What if the clerk underpays in good faith?
A: The opinion did not address remedies. But because the sheriff or constable's entitlement is statutory, an underpayment would presumably be recoverable; the entitlement does not depend on the clerk's discretion or good faith.

Citations and references

Statutes and constitution:

• Tenn. Code Ann. § 8-21-901 (fees payable to sheriffs and constables)
• Tenn. Const. art. XI, § 8 (suspension of general laws)

Cases:

• Remine v. Knox County, 189 S.W.2d 811, 182 Tenn. 680 (Tenn. 1945)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-013.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 24, 2017
Opinion No. 17-13
Fees Payable to Sheriffs and Constables for Services Rendered

Question
Does a court clerk have discretion to pay fees for service of process to sheriffs and constables that are different from the fees specified in Tenn. Code Ann. § 8-21-901?

Opinion
No. Sheriffs and constables are entitled to be paid the fees specified in Tenn. Code Ann. § 8-21-901 for services actually rendered. Court clerks do not have discretion or authority to decrease or increase the statutorily set fees; they may not pay less — nor may they pay more — than the fee set by statute for a specified service.

ANALYSIS

The Legislature has authorized and established a schedule of specific fees to be paid to sheriffs and constables for certain services they perform. Tenn. Code Ann. § 8-21-901. The statute lists certain services and specifies a fee for each of the listed services. For example, for serving any process issued by a clerk for a general sessions, criminal, circuit, chancery or any other court, "the sheriff or constable shall be entitled to" $40 for service in person, $10 for service by mail, $10 for service by any other authorized method, $5 for summoning jurors, and $10 for serving any other process not related to a judicial proceeding and issued by an entity other than a court. Tenn. Code Ann. § 8-21-901(a)(1)(A)-(C). The sheriff or constable is entitled to the specified fee, which is based on the manner in which process is served, "for each item of process that must be served separately per person served." Tenn. Code Ann. § 8-21-901(a)(1)(A). The statute similarly establishes fees for certain specified services related to the collection of money, storing property, arrest and transportation of prisoners, security, and data processing. Tenn. Code Ann. § 8-21-901(a)(2)-(5).

The fees thus established are the fees which, "[n]otwithstanding any other provision of law to the contrary, the sheriff or constable is entitled to demand and receive," respectively, for the specified services "where services are actually rendered." Tenn. Code Ann. § 8-21-901(a). As the statute explicitly states, notwithstanding any other provision of law to the contrary, the fees the Legislature has authorized are the fees which the sheriffs and constables are entitled to whenever they have rendered a designated service. According to the plain language of the statute, the fees specified in the statute are the fees that must be paid; they are not optional or discretionary.

Moreover, the amount of the fees set by statute is not subject to alteration or adjustment — either downward or upward — by clerks of court. Court clerks may not pay less than the specified fee for a specified service, nor may they pay more than the specified fee. The Legislature itself does not have the power "to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land." Tenn. Const. art. XI, § 8. Tennessee Code Annotated § 8-21-901 is a public act, i.e., a general law, fixing fees for specific services. Thus a private act purporting to award to a deputy sheriff compensation in excess of the fee fixed by this same general law was held to violate article XI, section 8, of the Tennessee Constitution because the private act conferred special benefits on an individual. Remine v. Knox County, 189 S.W.2d 811, 812, 182 Tenn. 680, 682, (Tenn. 1945). If the Legislature itself cannot suspend the operation of a general law for the benefit of an individual or individuals, it follows that a court clerk does not have the authority, power, or discretion to deviate from the general law to pay individuals amounts in excess of those fixed by the general law.

In sum, sheriffs and constables are entitled to be paid the fees specified in Tenn. Code Ann. § 8-21-901 for services actually rendered. Court clerks do not have discretion or authority to decrease or increase the statutorily set fees; they may not pay less — nor may they pay more — than the fee set by statute for a specified service.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Dan Howell
State Representative
110 War Memorial Building
Nashville, Tennessee 37243