In Tennessee, can a judicial commissioner or a general-sessions-court magistrate swear in a newly elected or appointed official?

Plain-English summary

Rep. Lamberth asked a clean statutory question: can a judicial commissioner or a magistrate of a general sessions court swear in a Tennessee elected or appointed official under Tenn. Code Ann. § 8-18-109(b)? AG Slatery's answer was no.

Section 8-18-109(b) lists, in plain terms, who can administer an oath of office: county mayors, county clerks, judges of general sessions courts, and judges of courts of record in the county. The list does not include judicial commissioners or general sessions magistrates, and the AG explained why those positions are not a "judge of a court" within the statute's meaning.

A judicial commissioner is a "judicial officer without a court," as the AG had already recognized in Op. 96-139 (Nov. 26, 1996). State v. Bush, 626 S.W.2d 470 (Tenn. Crim. App. 1981), confirmed that judicial commissioners exercise magistrate-like powers but are not a "court." So when the General Assembly assigns a power to a "court," that assignment does not include a judicial commissioner. Op. 12-82 (Aug. 23, 2012) had applied that same principle in the bail-alteration context.

A general sessions magistrate is also not a judge of the general sessions court. Tennessee general sessions judges are elected (Tenn. Const. art. VI, § 4; Tenn. Code Ann. § 16-15-202(a)). Magistrates can perform certain judicial functions like setting bail (Tenn. Code Ann. § 40-11-104), but the magistrate is not the elected judge of the court. The general magistrate-definition statute (§ 40-1-106) sweeps in judicial commissioners, county mayors, and presiding officers of municipal/city courts under the umbrella term "magistrate," which underlines the point: "magistrate" is a broader functional category, not a synonym for "judge."

The AG also pointed to a contrast statute. § 36-3-601(3)(D), in the marriage-license context, expressly defines "court" to include "judicial commissioners, magistrates, and other officials" in specified circumstances. The General Assembly knows how to expand "court" or "judge" to reach those positions when it wants to. Section 8-18-109(b) does not include that expansion. So the plain reading controls: only judges of the listed courts (plus county mayors and clerks) may administer an oath of office.

Currency note

This opinion was issued in 2019. 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.

Common questions

Q: Who can administer an oath of office to a Tennessee official under § 8-18-109(b)?
A: County mayors, county clerks, judges of general sessions courts, and judges of any court of record in the county. The statute is a closed list.

Q: Why can't a judicial commissioner do it?
A: Because § 8-18-109(b) requires a "judge of a court," and a judicial commissioner is not a judge of a court. The AG cited Op. 96-139 and State v. Bush for the principle that judicial commissioners are judicial officers without a court.

Q: What about a general sessions magistrate, who is part of the court?
A: The magistrate assists the court but is not the judge of it. General sessions judges are elected. A magistrate may handle specific functions like bail-setting under § 40-11-104, but the office is not the judgeship contemplated by § 8-18-109(b).

Q: Does § 40-1-106 help, since it defines "magistrate" broadly?
A: No, the opposite. Section 40-1-106 defines "magistrate" to include judges, judicial commissioners, county mayors, and presiding officers of municipal or city courts. The term is a category, not a synonym for "judge." The breadth of § 40-1-106 underlines that magistrates are not necessarily judges.

Q: When does Tennessee law treat judicial commissioners or magistrates as a "court"?
A: Only when the specific statute says so. The AG cited § 36-3-601(3)(D), which expressly defines "court" to include "judicial commissioners, magistrates, and other officials" in limited circumstances (marriage license issuance). Without that kind of express expansion, the general rule applies and they are not a "court."

Q: What if no judge is available for a swearing-in ceremony?
A: Section 8-18-109(b) does not include a fallback rule that lets a judicial commissioner or magistrate stand in. The other listed officials (county mayor, county clerk) remain available. The General Assembly could add a fallback, but as of February 28, 2019, none existed in this statute.

Q: Is an oath administered by an unauthorized officer void?
A: The opinion does not address that secondary question. It only addresses whether § 8-18-109(b) authorizes the administration in the first place, not the consequences of an oath given by someone outside the statute's list.

Background and statutory framework

Tennessee elects its judges under Tenn. Const. art. VI, § 4. General sessions judges are elected under Tenn. Code Ann. § 16-15-202(a). The General Assembly has populated the trial-court system with two distinct kinds of additional judicial officers:

Judicial commissioners. These are statutory officers who can issue arrest warrants, set bail in some contexts, and perform other magistrate-style functions. They are, as State v. Bush explained, judicial officers without a court. They are not constitutional judges.

Magistrates of general sessions courts. These officers help the general sessions court manage volume by handling specific functions (bail under § 40-11-104, for example). The general magistrate-definition statute, § 40-1-106, sweeps several officials into the term "magistrate," including judicial commissioners and county mayors.

When the General Assembly grants a power to a "court" or to a "judge of a court," that grant does not automatically reach commissioners or magistrates. The AG repeatedly applies that principle. Op. 12-82 had applied it to bail-alteration authority. Op. 19-02 applies it to oath administration. Where the legislature wants commissioners or magistrates to count as a "court," it says so expressly, as in § 36-3-601(3)(D).

The opinion is short because the statute is plain. Section 8-18-109(b) lists four kinds of officers, none of which includes a judicial commissioner or a general sessions magistrate. End of analysis.

Citations

• Tenn. Code Ann. § 8-18-109(b)
• Tenn. Code Ann. § 16-15-202(a)
• Tenn. Code Ann. § 36-3-601(3)(D)
• Tenn. Code Ann. § 40-1-106
• Tenn. Code Ann. § 40-11-104
• Tenn. Const. art. VI, § 4
• State v. Bush, 626 S.W.2d 470 (Tenn. Crim. App. 1981)
• Tenn. Att'y Gen. Op. 96-139 (Nov. 26, 1996)
• Tenn. Att'y Gen. Op. 12-82 (Aug. 23, 2012)

Subject

Authority of Judicial Commissioners and Magistrates to Administer Oaths of Office

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-02.pdf

Original opinion text

Authority of Judicial Commissioners and Magistrates to Administer Oaths of Office

Question
Does Tenn. Code Ann. § 8-18-109(b) authorize a judicial commissioner or a magistrate of a general sessions court to administer the oath of office to an elected or appointed official?

Opinion
No.

ANALYSIS

Pursuant to Tenn. Code Ann. § 8-18-109(b), an oath of office for an elected or appointed official may be administered by county mayors, county clerks, and, relevant here, "judges of courts of general sessions, or a judge of any court of record in the county."

Judicial commissioners and magistrates of general sessions courts do not fall within the plain language of that grant of authority. Neither a judicial commissioner nor a magistrate is a judge of a court.

As this office has recognized in the past, a judicial commissioner is a "judicial officer[] without a court." Tenn. Att'y Gen. Op. 96-139 (Nov. 26, 1996) (emphasis added); see also State v. Bush, 626 S.W.2d 470, 473 (Tenn. Crim. App. 1981) ("The duties fixed by the legislation for Judicial Commissioners are characteristic of those of a 'magistrate' and not of a 'court.'"). Accordingly, we have concluded that a grant of authority to a "court" to alter a defendant's bail does not authorize a judicial commissioner to alter it; only the "court" has that authority. See Tenn. Att'y Gen. Op. 12-82 (Aug. 23, 2012).

Nor are magistrates of general sessions courts "judges" of those courts. The judges of general sessions courts must be elected. See Tenn. Const. art. VI, § 4; Tenn. Code Ann. § 16-15-202(a). Magistrates may perform certain judicial functions, such as releasing defendants on bail, see Tenn. Code Ann. § 40-11-104, but they are not necessarily judges elected to the court, see id. § 40-1-106 (defining "magistrates" to include both judges and judicial commissioners, county mayors, and presiding officers of municipal and city courts). A magistrate of a general sessions court is a judicial officer who assists the court in performing judicial functions, but the magistrate is not a "judge" of that court.

Accordingly, neither a judicial commissioner nor a magistrate of a general sessions court is a "judge" of a "court" under the established meaning of those terms. And § 8-18-109(b), unlike other statutory provisions, does not expressly provide for judicial commissioners and magistrates to perform the functions of a judge of a court if a judge is unavailable. Contrast Tenn. Code Ann. § 36-3-601(3)(D) (defining "court" to include "judicial commissioners, magistrates, and other officials" in limited circumstances).

Section 8-18-109(b) thus does not authorize a judicial commissioner or a magistrate of a general sessions court to administer an oath of office to an elected or appointed official.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable William Lamberth
425 5th Avenue North
Cordell Hull Bldg., Suite 602
Nashville, TN 37243