Knowledgebase-Issuing a Bench Warrant for Failure to Appear


Information Product

Title:Issuing a Bench Warrant for Failure to Appear
Summary:MTAS was asked whether the judge can issue a bench warrant for failure to appear on the part of a person cited for violation of a municipal ordinance.
Original Author:Hemsley, Sid
Co-Author:
Product Create Date:09/11/92
Last Reviewed on::04/19/2010
Subject:Courts; Police--Arrest procedure; Traffic--Laws and regulations
Type:Legal Opinion
Legal Opinion:

Reference Documents:

Text of Document: September 11, 1992

Your question is, can the judge issue a bench warrant for failure to appear on the part of a person cited for violation of a municipal ordinance? The answer is yes.

Tennessee Code Annotated, 7-63-101 et seq. gives Tennessee municipalities statutory authority to arrest and prosecute offenders in traffic and other municipal ordinance violation cases. Tennessee Code Annotated, 7-63-105 gives municipalities authority to arrest and prosecute offenders who fail to appear in municipal court after signing the agreement to appear. Specifically, that statute provides that:

In the event that the offender signs the agreement and waiver as provided in 7-63-102, and then fails to appear for trial at the time and place designated, then the court having jurisdiction of the case shall immediately issue a warrant against the offender for the offense, and an additional warrant for the offense of violating the agreement to appear provided the municipal, metropolitan or city government has made the failure so to appear an offense, or has adopted the state law creating such offense, and the warrant or warrants shall then be served upon the offender and the procedure followed as set out in 7-63-104 regarding the service of warrants, booking the defendant, and taking appearance bail or committing to jail.

The state law creating an offense of the failure to appear is found in Tennessee Code Annotated, 40-7-118(e). Subsection (f) follows with the declaration that "If the person cited fails to appear in court on the date and time specified or fails to appear for booking and processing prior to his court date, the court shall issue a bench warrant for such person's arrest." [It is worthwhile to read all of 40-1-118 because it contains the state law governing the conditions for the issuance of citations, including citations issued by municipalities.]

I checked the September, 1977 Municipal Code and find no specific offense for failure to appear. However, Section 10-101 of that code contains a general adoption of state misdemeanors as municipal ordinance violations. The Tennessee Attorney General has opined that such a general adoption of state misdemeanors by municipalities is legal. Unfortunately, I cannot find that opinion at the moment, but I will run it down for you. In any event, I'm nervous about that opinion; I would feel more comfortable if the city had made the failure to appear a specific violation. But if you follow that opinion, the city is on solid legal ground for relying upon Section 10-101 to issue a separate municipal warrant for failure to appear.

But read Tennessee Code Annotated, 7-63-101 carefully. Even if the question of whether the city has made the failure to appear a separate offense is entirely set aside, the municipal court still has the authority to issue a warrant for the offense which generated the citation.

Tennessee courts, including municipal courts, also have the power to enforce their orders and judgments through the exercise of their contempt powers. If the offender is brought before the municipal court of on a warrant, and subsequently ignores the orders of the court, including the order to appear on a date and time certain, the municipal court may issue a capias for the offender and punish him for contempt under Tennessee Code Annotated, 29-9-101 et seq. Here is AG 89-03 (January 12, 1989) on that point.

Of course, the city court needs to be very careful about insuring that any offender jailed for failure to appear, is brought before the court without unnecessary or unreasonable delay. Here are AG Opinions 295 (May 17, 1983) and 84-283 (October 18, 1984), both of which bear directly on the question of how long an offender can be held for a municipal ordinance violation before he is brought before a magistrate.

Sincerely,

Sidney D. Hemsley
Senior Law Consultant
SDH/

Please remember that these legal opinions were written based on the facts of a given city at a certain time. The laws referenced in any opinion may have changed or may not be applicable to your city or circumstances.

Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this database.