Tennessee § 40-1-111 - Appointment of judicial commissioners or magistrates — Duties — Terms — Compensation — Continuing education.

§ 40-1-111. Appointment of judicial commissioners or magistrates — Duties — Terms — Compensation — Continuing education.

The chief legislative body of any county having a population of less than two hundred thousand (200,000) or a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census may appoint, and the chief legislative body of any county having a population of over seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, may initially appoint one (1) or more judicial commissioners whose duty or duties shall include, but not be limited to, the following: Issuance of search warrants and felony arrest warrants upon a finding of probable cause and pursuant to requests from on-duty law enforcement officers and in accordance with the procedures outlined in chapters 5 and 6 of this title; Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103; The appointing of attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county; The setting and approving of bonds and the release on recognizance of defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county; and Issuance of injunctions and other appropriate orders as designated by the general sessions judges in cases of alleged domestic violence. This subdivision (a)(1)(B)(i) applies to any county having a population of less than two hundred thousand (200,000) or a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census. The term or terms of the officers shall be established by the chief legislative body of the county to which this subdivision (a)(1)(B)(i) applies but shall not exceed a four-year term. No member of the county legislative body of any county to which this subdivision (a)(1)(B)(i) applies shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(i) to the contrary, the presiding general sessions criminal judge of a county to which this subdivision (a)(1)(B)(i) applies may appoint a temporary or part-time judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The legislative body of any county to which this subdivision (a)(1)(B)(i) applies, in appointing, evaluating and making decisions relative to retention and reappointment, shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve. Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of over seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, shall be by the general sessions judges of that county. The term or terms of the officers shall be established by the general sessions criminal court judges of the county but shall not exceed a four-year term. No member of the county legislative body of the county shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(ii) to the contrary, the presiding general sessions criminal court judge of the county may appoint a temporary, or part-time, judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The general sessions judges of the county in appointing, evaluating and making decisions relative to retention and reappointment shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve. Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of not less than one hundred eighty-three thousand one hundred (183,100) nor more than one hundred eighty-three thousand two hundred (183,200), according to the 2010 federal census or any subsequent federal census, shall be by the general sessions judges of that county. In the event that the general sessions judges are unable to agree on the appointment of a judicial commissioner, the appointment shall be made by the chief legislative body of the county; provided, that any appointment made by the chief legislative body of the county shall not be construed to divest the general sessions judges of the supervisory authority over the judicial commissioner. In any county having a population greater than seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, to be eligible for appointment and service as a judicial commissioner a person must be licensed to practice law in this state. Any county, having a population greater than seven hundred thousand (700,000), according to the 1970 federal census or any subsequent federal census, which appoints and makes use of judicial commissioners shall maintain records sufficient to allow an annual determination of whether the use of judicial commissioners is accomplishing the purposes intended. On an annual basis the county legislative body shall conduct a public hearing to examine and evaluate the program of judicial commissioners and to determine if the program is being conducted in accordance with law and is contributing to the orderly, effective and fair administration of justice. As a part of the public hearing the county legislative body shall examine the effectiveness of the system of judicial commissioners and hear the opinions of the public concerning the system. The county legislative body shall give notice of the public hearing at least thirty (30) days prior to the meeting. Following the hearing and not later than April 1 of each year, the county legislative body shall cause to be submitted to the judges of the general sessions criminal court of the county, the chair of the judiciary committee of the senate and the chair of the judiciary committee of the house of representatives a written report setting forth findings and the overall evaluation of the use of judicial commissioners. The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the chief legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner. Notwithstanding any provision of this section to the contrary, a judge of a court of general sessions in a county having a population of not less than fourteen thousand seven hundred (14,700) nor more than fourteen thousand eight hundred (14,800), according to the 1970 federal census or any subsequent federal census, may appoint one (1) or more judicial commissioners whose duties shall be the same as those prescribed for judicial commissioners in subsection (a). The judge may appoint a commissioner if the county legislative body of the counties noted in subsection (a) does not appoint a judicial commissioner before May 1, 1980. The term of the judicial officer shall be for one (1) year or until the county legislative body appoints a judicial commissioner as provided by subsection (a). A judicial commissioner who is appointed by a general sessions judge as outlined in subdivision (b)(1) shall serve without compensation unless an amount of compensation is specifically established by the county legislative body. Notwithstanding any provision of this section to the contrary, in any county having a population of not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, any appointment of a judicial commissioner pursuant to subsection (a) shall be subject to the approval of a majority of the general sessions judges in the county. Notwithstanding subsections (a)-(c), the legislative body of any county having a population of not less than forty-one thousand four hundred (41,400) nor more than forty-one thousand six hundred (41,600), according to the 1990 federal census or any subsequent federal census, may, by resolution, create the position of one (1) or more judicial commissioners. The duties of a commissioner shall include, but are not limited to, the following: The issuance of arrest warrants upon a finding of probable cause; The setting of bonds and recognizance in accordance with the procedures outlined in chapters 5 and 6 of this title; The issuance of search warrants where authorized by the general sessions judge or a judge of a court of record; and The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103. The term of a judicial commissioner shall be established by the general sessions judge of the county, but in no event shall the term exceed four (4) years. A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the general sessions judge of the county and subject to the approval of the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner. A judicial commissioner shall be selected and appointed by the general sessions judge in the county, and shall serve at the pleasure of such general sessions judge, but not longer than the term specified in subdivision (d)(3). Notwithstanding subsections (a)-(d), any county having a population of not less than three hundred seven thousand (307,000) nor more than three hundred eight thousand (308,000), according to the 2000 federal census or any subsequent federal census, may elect to establish judicial commissioners to assist the general sessions court in accordance with this subdivision (e)(1). The county legislative body may appoint one (1) or more attorneys to serve as judicial commissioners. The duties of a judicial commissioner shall include, but not be limited to the following: Issuance of arrest and search warrants upon a finding of probable cause in accordance with the procedures outlined in chapters 5 and 6 of this title; Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103; Appointing attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county; Setting and approving bonds and the release on recognizance of defendants in accordance with chapter 11 of this title; and Setting bond for the circuit court judges and chancellors in cases involving violations of orders of protection between the hours of nine o'clock p.m. (9:00 p.m.) and seven o'clock a.m. (7:00 a.m.) on weekdays, and on weekends, holidays and at any other time when the judge or chancellor is unavailable to set bond. The term of office for a judicial commissioner shall be established by the county legislative body, but such term shall not exceed four (4) years. A member of the county legislative body is not eligible for appointment as a judicial commissioner. A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed therein being performed by a judicial commissioner. Beginning January 1, 2010, each judicial commissioner who is appointed to serve pursuant to this section must complete twelve (12) hours of continuing education each calendar year, ten (10) hours of which must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee. The remaining two (2) hours may be completed by attendance at classes sponsored by either the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association, or by local in-service education. At least six (6) hours of the total twelve (12) hours must be taught by a person who is licensed to practice law in this state. Any judicial commissioner who is licensed to practice law in this state is authorized to use continuing legal education credits toward completion of the ten (10) hours, which otherwise must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee. All judicial commissioners must complete, as part of the twelve (12) required hours, the following classes: At least two (2) hours concerning domestic violence or child abuse; At least one (1) hour concerning bail and bonds; and At least one (1) hour concerning ethics. All counties for which judicial commissioners are appointed to serve pursuant to this section shall provide all necessary funding for their respective judicial commissioners to complete the continuing education required by this subsection (f). All records indicating satisfaction of the continuing education requirements for judicial commissioners shall be maintained by each county and kept on the file for at least seven (7) years. Notwithstanding this subsection (f), in any county in which the judicial commissioner is selected by the general sessions judge or judges, the county legislative body of such county may elect, by a two-thirds (2/3) majority, to allow each judicial commissioner to receive twelve (12) hours of appropriate continuing education each calendar year under the supervision of the appointing general sessions judge or judges rather than the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association. Further, in any county that has previously made this election, that county may later rescind that action by a subsequent two-thirds (2/3) majority vote of its county legislative body as to allow the judicial commissioners to receive the required training through the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association. Subject to appropriation, funds from the judicial commissioner continuing education account, created in § 67-4-602(k), shall be used by the Judicial Commissioners Association of Tennessee for the development and presentation of continuing education programs, courses and conferences for judicial commissioners in this state. Judicial commissioners duly appointed pursuant to this section in any county with a population not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, shall be known as “magistrates.” In any county having a population of not less than four hundred thirty-two thousand two hundred (432,200) nor more than four hundred thirty-two thousand three hundred (432,300), according to the 2010 federal census or any subsequent federal census, there is created the position of domestic abuse magistrate. Notwithstanding any other law to the contrary, the domestic abuse magistrate created by this subsection (h) shall be appointed by the judge of the fourth circuit court of any such county and shall hold office for a term of eight (8) years from the date of appointment. The magistrate shall be eligible for reappointment to successive eight-year terms and shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Upon making a selection, the judge shall reduce the appointment to writing and file it with the fourth circuit court clerk of any county to which this subsection (h) applies. The domestic abuse magistrate, once appointed, shall regularly perform the duties set out in this subsection (h) within the approximate time period that the fourth circuit court begins and ends its daily docket, and the magistrate shall be styled as magistrate judge. To qualify for the position of domestic abuse magistrate, the applicant must: Be at least thirty (30) years of age; Be a resident of the county funding the position; Be an attorney, licensed to practice law in the courts of this state; and Have served as a judicial commissioner or magistrate pursuant to subsection (a) for at least a full four-year term prior to application. No person who is a judicial commissioner under subsection (a) or a magistrate under subsection (g) prior to the appointment of the domestic abuse magistrate may simultaneously hold that position and the position of domestic abuse magistrate under this subsection (h). For purposes of: Title 36, chapter 3, part 6, the domestic abuse magistrate shall be considered a “court” as defined in § 36-3-601(3)(A) and (D), and shall have all jurisdiction and authority necessary to serve in that function for the employing county; and Chapter 5, part 1 of this title, the domestic abuse magistrate shall be considered a “magistrate” as defined in § 40-5-102, and shall have all of the jurisdiction and authority necessary to serve in that function for the employing county, and the domestic abuse magistrate shall complete the judicial continuing education requirements of subsection (f) in the same manner as a judicial commissioner. The domestic abuse magistrate shall have, regardless of whether the case involves alleged domestic abuse, the following duties pursuant to this chapter, the Tennessee Rules of Civil Procedure, the Tennessee Rules of Criminal Procedure, and applicable statutes: Those conferred upon a court by title 36, chapter 3, part 6; Issuing or denying temporary or ex-parte orders of protection; Setting and approving bond in cases of civil and criminal contempt for alleged violations of orders of protection; Issuing injunctions and other appropriate orders in cases of alleged domestic violence; Setting and approving of bonds and release on recognizance of defendants in accordance with applicable law; Issuing mittimus in compliance with § 40-5-103; Issuing criminal arrest warrants, criminal summons, and search warrants upon a finding of probable cause; Appointing attorneys for indigent defendants and respondents in accordance with applicable law; Conducting initial appearances in accordance with Rule 5 of the Tennessee Rules of Criminal Procedure; Setting and approving bond for probation violation warrants; Issuing attachments, capias, or conditional bond forfeitures; Conducting compliance review dockets to examine and report to the appropriate judge any findings and conclusions regarding compliance with court orders; Conducting initial appearances for any defendant following arrest for a crime involving domestic abuse when conducted pursuant to the requirements imposed by § 36-3-602(c) [repealed]; and Any other judicial duty not prohibited by the constitution, statute, or applicable rules, when requested by a judge. If the domestic abuse magistrate is carrying out one (1) of the duties of the office under this subsection (h), the failure to appear before the magistrate constitutes failure to appear and shall subject the defendant or respondent to arrest and forfeiture of bond. If the appointed domestic abuse magistrate is absent or unavailable for any reason, the magistrate has the authority to appoint special, substitute, or temporary magistrates to carry out the duties of this section. A substitute magistrate shall be an attorney, licensed to practice law in the courts of this state, a resident of the county of the appointing domestic abuse magistrate, and not less than thirty (30) years of age. An order of appointment for a special, substitute, or temporary magistrate shall be for a fixed period of time and shall be reduced to writing and filed with the fourth circuit court clerk. The domestic abuse magistrate may also accept appointment by the judge of the fourth circuit court to serve as a special master to the fourth circuit court for any purpose established by the judge. The appointment may be made by the judge at the same time as the appointment to the position of domestic abuse magistrate, or at any time during the magistrate's term. Acts 1978, ch. 933, § 4; 1979, ch. 15, § 1; 1980, ch. 781, § 1; 1981, ch. 209, §§ 1, 2; T.C.A., § 40-120; Acts 1991, ch. 444, § 1; 1993, ch. 241, § 57; 1998, ch. 984, § 1; 2001, ch. 316, §§ 1, 2; 2004, ch. 685, § 1; 2009, ch. 503, § 1; 2010, ch. 989, §§ 1, 2; 2012, ch. 890, § 1; 2012, ch. 1052, §§ 1, 3; 2013, ch. 236, § 33; 2016, ch. 531, §§ 2, 3; 2017, ch. 222, § 1; 2019, ch. 345, § 55. Code Commission Notes. Former subdivisions (a)(1)(D), (a)(2)(A), (a)(2)(B), and (a)(3) were redesignated by the code commission as subdivisions (a)(1)(D)(i), (a)(1)(D)(ii), (a)(1)(D)(iii), and (a)(2), respectively, in 2011. Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. § 36-3-602 (c ), which is referred to in subsection (h) of this section, was repealed by Acts 2018, ch. 586, § 1. Amendments. The 2019 amendment substituted “judiciary” for “criminal justice” preceding “committee of the house” in (a)(1)(D)(iii). Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019. Cross-References. Judicial commissioners, metropolitan government, title 40, ch. 5, part 2. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 3.2, 18.81. Attorney General Opinions. A judicial commissioner appointed by a county commission can be removed from office by ouster for knowing or willful misconduct in office, knowing or willful neglect of duty, public intoxication, gambling, or any act constituting a violation of a penal statute involving moral turpitude, OAG 00-126 (8/7/00). A judicial commissioner may perform the functions of that office for a city court when that court exercises its concurrent general sessions jurisdiction over criminal cases, but the city is not authorized to provide additional compensation to the judicial commissioners for performing this function, OAG 00-126 (8/7/00). A judge may exercise supervisory authority over judicial commissioners who perform functions for the judge's court where such supervision is reasonably necessary to maintain order within that judge's court and to promote the administration of justice, but that authority does not include the authority to remove a judicial commissioner from office, OAG 00-126 (8/7/00). A judicial commissioner can be removed from office only by an ouster action governed by T.C.A. § 8-47-101 et seq., OAG 00-126 (8/7/00). The method used to appoint and retain judicial commissioners in Shelby County is constitutional, OAG 01-081 (5/17/01). Judicial commissioners in Shelby County may issue search warrants or arrest warrants in cases where the defendant is being charged with a Class A or Class B felony, OAG 01-081 (5/17/01). A constable with law enforcement powers is not a “neutral and detached” magistrate qualified to issue criminal arrest and search warrants, therefore, serving as constable, directly interferes with an individual's ability to carry out the duties of the office of judicial commissioner, OAG 02-109 (10/02/02). Where a judicial commissioner performs his or her official duties on behalf of a city court with concurrent general sessions jurisdiction, he or she is not required to be a resident of that city, absent some private act to the contrary, OAG 03-110 (9/8/03). Salary raise for Hamilton County judicial commissioners, OAG 03-150 (11/17/03). A part-time judicial commissioner serving the Shelby County General Sessions Criminal Court may not practice law in the same court, OAG 03-155 (12/01/03). Judicial commissioners in Hamilton County may set bonds for the appearance of individuals who are arrested and charged with state law or municipal ordinance violations, OAG 07-102 (7/10/07). No statute prohibits a person whose close relative is a law enforcement officer in the same county from serving as a judicial commissioner; however, a judicial commissioner should recuse himself or herself when presented with a request for a search warrant by the commissioner's relative or in connection with an investigation in which the relative is an investigating officer, OAG 07-123 (8/16/07).