Can a Tennessee county use its road crew and equipment to repair a road leading to a cemetery if the road isn't on the county's road list?

Plain-English summary

Senator Rusty Crowe asked four questions about whether a Tennessee county can repair a road that leads to a cemetery. The AG split the answers across two statutes:

Q1 (Does § 54-7-202 prohibit repair?). Not necessarily. § 54-7-202 prohibits the county from using county vehicles, equipment, supplies, or road materials for anything other than "official county road purposes," subject to a § 54-7-202(d) exception that allows the county to perform reimbursed work for other governmental entities. If the road is on the county road list under § 54-10-103, it's a county road and the county can maintain it. If the road is owned by another governmental entity, the county can do reimbursed work. If neither, the county equipment restriction applies.

Q2 (Does Q1 change if the road isn't on the county's road list?). No. The list does not by itself determine authority. The substance of whether the road is a county road (or qualifies for the § 54-7-202(d) reimbursement exception) controls.

Q3 (Can § 46-2-107 cemetery funds reimburse the county highway department for road repair?). No. § 46-2-107 authorizes counties to solicit, receive, and use funds for rehabilitating "dilapidated or abandoned cemeteries, or portions of cemeteries," including roads. But it does not override § 54-7-202's prohibition on using county trucks, equipment, materials, or employees for non-official county road purposes. The county can use the cemetery funds, but cannot route them through the county road department for the work.

Q4 (Can the county contract with a private contractor?). Yes. § 46-2-107 lets a county use solicited and received funds to rehabilitate cemeteries (including roads that are part of the cemetery). Hiring a private contractor with those funds is consistent with both § 46-2-107 and § 54-7-202, since the county is not using its own non-monetary resources. The road must qualify as part of a dilapidated or abandoned cemetery under § 46-2-107, which is a question of fact specific to each road and cemetery.

Currency note

This opinion was issued in 2017. 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

§ 54-7-202 (county equipment use restrictions). Subsection (a) prohibits the chief administrative officer from authorizing or knowingly permitting county trucks, road equipment, rock, crushed stone, or other road materials to be used for any private use or for any individual's private purposes (Class C misdemeanor). Subsection (b) requires immediate discharge of a county road department employee who uses equipment or materials for personal use, or who sells or gives them away. Subsection (c) prohibits county trucks, equipment, or road materials from being used to work private roads or for private purposes of owners of those roads. Subsection (d) prohibits the chief administrative officer and any other county official or employee from using county vehicles, equipment, supplies, or road materials for other than official county road purposes; however, the county governing body has authority to authorize the county road department to perform work for other governmental entities, provided the cost is reimbursed.

§ 46-2-107 (cemetery rehabilitation). "Notwithstanding any law to the contrary," upon majority vote of the local government legislative body, the local government may draw upon its general fund and may solicit, receive, and use funds from all other sources, public or nonpublic, for rehabilitating or maintaining dilapidated or abandoned cemeteries or portions of cemeteries. Maintenance may include "[r]epairing and preserving the drains, water lines, roads, fences, statues, fountains and other structures." Subsection (b) limits this to cemeteries not adequately maintained or with sufficient improvement-care trust funds. Subsection (c) defines "local government" to include counties.

The county road list (Tenn. Code Ann. §§ 54-10-103, -202). Counties maintain lists of public roads. A road cannot be added to the list without notice to interested parties. Vaughn v. Brewer (Tenn. Ct. App. 2010) held that public use alone does not convert a private road into a county road. Cole v. Dych and West Meade Homeowners Ass'n establish that a road is a public road only if it is statutorily established or dedicated by the owner to public use.

The two-statute interaction. § 46-2-107 says "notwithstanding any law to the contrary," which seems broad. But the AG read it narrowly: § 46-2-107 authorizes solicitation, receipt, and use of funds for cemetery rehabilitation. It does not override § 54-7-202's separate prohibition on county officers and employees using county non-monetary resources for non-official road purposes. The county can spend the cemetery-rehab funds, but it cannot route them through its own road department for the work; it must use a private contractor.

The "portion of a cemetery" question. § 46-2-107 lets the county fund rehabilitation of "dilapidated or abandoned cemeteries, or portions of cemeteries." A road can be a "portion" of a cemetery if it functions as part of the cemetery's physical layout. The AG flagged this as fact-specific: whether any particular road qualifies is a question of fact for the county legislative body and (if challenged) a court.

Common questions

Q: Can a Tennessee county fix a road that leads to a private cemetery?
A: Generally, the county cannot use its own road department equipment unless the road is on the county road list or the work is reimbursed by another governmental entity under § 54-7-202(d). For a non-county private road leading to a cemetery, the option is a private contractor paid with § 46-2-107 cemetery funds.

Q: Does the road need to be on the official county road list for the county to fix it?
A: To use county equipment directly, yes (or the road must be owned by another governmental entity with reimbursement). Public use of a road does not by itself convert it to a county road; Vaughn v. Brewer is clear on that.

Q: Can the county use § 46-2-107 cemetery funds to reimburse its road department?
A: According to this opinion, no. § 46-2-107 does not override § 54-7-202. Even with funds in hand, the county cannot use its own road department's non-monetary resources for non-official road purposes.

Q: Can the county hire a private contractor with cemetery funds to fix the road?
A: Yes. Neither § 54-7-202 nor § 46-2-107 prohibits the county from contracting with a private firm to repair and preserve a cemetery road, as long as the road qualifies as a "portion of a cemetery" under § 46-2-107 and the county has authority to use its funds for that purpose.

Q: What's a "dilapidated or abandoned cemetery"?
A: § 46-2-107(b) limits the funding mechanism to cemeteries not adequately maintained or without sufficient improvement-care trust funds. Whether any specific cemetery qualifies is a factual determination.

Citations and references

Statutes:

• Tenn. Code Ann. § 54-7-202 (a), (b), (c), (d)
• Tenn. Code Ann. § 46-2-107
• Tenn. Code Ann. §§ 54-10-102, -103, -202

Cases:

• Johnson v. Hopkins, 432 S.W.3d 840 (Tenn. 2013)
• Lind v. Beaman Dodge, Inc., 356 S.W.3d 889 (Tenn. 2011)
• Lavin v. Jordan, 16 S.W.3d 362 (Tenn. 2000)
• Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105 (Tenn. 1996)
• Vaughn v. Brewer, 2010 WL 3307075 (Tenn. Ct. App. Aug. 23, 2010)
• Cole v. Dych, 535 S.W.2d 315 (Tenn. 1976)
• West Meade Homeowners Ass'n., Inc. v. WPMC, Inc., 788 S.W.2d 365 (Tenn. Ct. App. 1989)

Related AG opinion:

• Tenn. Atty. Gen. Op. 00-100 (May 24, 2000)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-046.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 11, 2017
Opinion No. 17-46
Scope of a County's Authority to Repair Roads Leading to Cemeteries

Question 1
Does Tenn. Code Ann. § 54-7-202 prohibit a county from repairing or maintaining roads in such a county if the roads lead to a cemetery and are available for public use?

Opinion 1
Not necessarily. Tennessee Code Annotated § 54-7-202 only prohibits the use of non-monetary county resources for anything other than official county road purposes, subject to statutory exceptions.

Question 2
Would the answer to Question 1 change if the roads were not on the county's road list?

Opinion 2
No.

Question 3
If a county is prohibited from repairing the roads, may funds allocated by the county legislative body pursuant to Tenn. Code Ann. § 46-2-107 be used to pay or reimburse the county highway department for the repair and preservation of the roads?

Opinion 3
No.

Question 4
Do the above-cited laws prohibit a county from contracting with a private contractor to repair and preserve the roads described in the previous questions?

Opinion 4
No, provided that the county has the authority to utilize its funds to repair and preserve the roads.

ANALYSIS

Each of the questions concerns an application of the provisions of Titles 68 and 46 of the Tennessee Code. The primary goal of statutory construction "is to carry out legislative intent without broadening or restricting the statute beyond its intended scope." Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013) (quoting Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011)). In so doing, courts "examine the 'natural and ordinary meaning of the language used, without a forced or subtle construction that would limit or extend the meaning of the language.'" Lavin v. Jordan, 16 S.W.3d 362, 365 (Tenn. 2000) (quoting Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn. 1996)). "When a statute's meaning is clear, '[courts] apply the plain meaning without complicating the task' and enforce the statute as written." Id. (quoting Lind, 356 S.W.3d at 895).

1. & 2. Statutory Prohibition on Maintaining Roads in a County Leading to a Cemetery

Generally, Tenn. Code Ann. § 54-7-202 bars the expenditure of county non-monetary resources for anything other than official county road purposes, including individual and private purposes, subject only to the exception in subsection (d):

(a) The chief administrative officer shall not authorize or knowingly permit the trucks or road equipment, the rock, crushed stone or any other road materials to be used for any private use or for the use of any individual for private purposes, and the chief administrative officer's failure to see that this subsection (a) is enforced is a Class C misdemeanor.
(b) Any employee of the county road department who uses any truck or any other road equipment or any rock, crushed stone or other road material for that employee's personal use, or sells or gives those things away, shall be immediately discharged.
(c) No truck or other road equipment or any rock, crushed stone or any road material shall be used to work private roads or for private purposes of owners of the roads.
(d) Neither the chief administrative officer nor any other official or employee of the county may use any county vehicle, equipment, supplies or road materials for other than official county road purposes; however, the county governing body has the authority to authorize the county road department to perform work for other governmental entities; provided, that the cost of the projects so authorized is to be reimbursed to the county road department.

The authority of a county to repair or maintain a road thus depends on the ownership and designation of the road. If the road in question was designated as a county road, the statute does not prohibit a county from repairing or maintaining it. Tenn. Atty. Gen. Op. 00-100 (May 24, 2000); Tenn. Code Ann. §§ 54-10-102, -103. If the road in question is owned by another governmental entity, a county is permitted to authorize the county road department to perform the work for reimbursement. Tenn. Code Ann. § 54-7-202(d); Tenn. Atty. Gen. Op. 00-100 (May 24, 2000).

Public use of the road does not necessarily mean that maintenance or repair of that road would be considered an official county road purpose. What constitutes an official county road purpose is a question of fact, the answer to which will depend on the particular facts and circumstances in any given situation. For example, even if a private road is used by the public, that alone is insufficient to convert it to a county road. Vaughn v. Brewer, No. E2009-02288-COA-R3-CV, 2010 WL 3307075 (Tenn. Ct. App. Aug. 23, 2010). A road cannot be added to a county public road list without notice to interested parties. Tenn. Code Ann. §§ 54-10-103, -202. Nor can a road be classified as a public road unless it is statutorily established or dedicated by the owner to public use. See Vaughn, 2010 WL 3307075, at *2 (citing Cole v. Dych, 535 S.W.2d 315 (Tenn. 1976) and West Meade Homeowners Ass'n., Inc., v. WPMC, Inc., 788 S.W.2d 365 (Tenn. Ct. App. 1989)).

However, a road leading to a cemetery might also be subject to Tenn. Code Ann. § 46-2-107, which provides in pertinent part:

(a) Notwithstanding any law to the contrary, upon a majority vote of the legislative body of the local government, the local government may draw upon its general fund and may solicit, receive, and utilize funds from all other sources, public or nonpublic, for the purpose of rehabilitating or maintaining dilapidated or abandoned cemeteries, or portions of cemeteries, subject to the limitations imposed by subsection (b). The maintenance may include:
. . .
(2) Repairing and preserving the drains, water lines, roads, fences, statues, fountains and other structures; . . . .
(b) This section shall not be construed to authorize any local government to utilize funds to maintain cemeteries or portions of cemeteries that are presently maintained adequately or that maintain a sufficient improvement care trust fund pursuant to this chapter and chapter 1 of this title.
(c) As used in this section, "local government" means any county, municipality, city, or other political subdivision of this state.

If a road leading to an abandoned or dilapidated cemetery were deemed to be a "portion[] of [a] cemeter[y]," Tenn. Code Ann. § 46-2-107 would permit a county to solicit, receive, and use funds to rehabilitate and maintain that road even if the road was not a county public road under Tenn. Code Ann. § 54-10-103(a). Whether any particular road leading to a cemetery may legitimately be deemed "a portion" of that cemetery is entirely a question of fact, not of law, and the answer would depend on the unique circumstances of each particular road and cemetery.

3. Allocation of Funds to Pay County Road Department

As discussed above, if a road qualifies as part of a dilapidated or abandoned cemetery, the county would be permitted to solicit, receive, and use funds to rehabilitate and maintain the cemetery, including any road that is a portion of the cemetery. Tenn. Code Ann. § 46-2-107. But Tenn. Code Ann. § 46-2-107 does not abrogate Tenn. Code Ann. § 54-7-202's prohibition on county officers and county employees from using any county vehicle, equipment, supplies, or road materials for non-official county road purposes. Accordingly, while a county may use those funds solicited and received for the purpose of rehabilitating a cemetery, it may not use its own non-monetary resources, even if reimbursed with the funds received.

4. Contracting with a Private Entity to Maintain Roads

Neither Tenn. Code Ann. § 46-2-107 nor § 54-7-202 prohibits a county from contracting with a private contractor to repair and preserve the roads described in questions 1-3, as long as the county has the authority to use its funds to repair and preserve the road in question.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

ALEXANDER S. RIEGER
Deputy Attorney General

Requested by:
The Honorable Rusty Crowe
State Senator
8 Legislative Plaza
Nashville, Tennessee 37243