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Municipal Technical Advisory Service (MTAS)

Original Author: Ashburn, Melissa
Date of Material: 06/28/2002

Jails and inmates
Police--Arrest procedure

Sheriff's Legal Obligation to Accept Prisoners

Reviewed Date: 07/01/2021
MTAS was asked about the obligation of a sheriff to accept and house prisoners arrested by municipal officers.

June 28, 2002

Re: Sheriff’s legal obligation to accept prisoners

Dear Chief,

Consultant Rex Barton has advised me that you have requested an opinion concerning the legal duty of a sheriff to accept all arrested persons, whether arrested by a county or municipal officer.

The Tennessee Code states that the county jail is to be used as a prison for the safekeeping or confinement of several classes of persons, including all those “committed thereto by authority of law.” T.C.A. ' 41-4-103(a)(7). All persons arrested must be taken “without unnecessary delay before the nearest appropriate magistrate.” Tennessee Rule of Criminal Procedure 5(a). If the evidence indicates that an offense has been committed and that there is probable cause to believe that the person in question committed the offense, the magistrate will bind the person over to the grand jury and either release the person pursuant to applicable law or commit the person to jail by written order. T.C.A. ' 40-5-105,106. This written order from the magistrate is called a mittimus, and it generally directs the jailer to receive and keep the person. The willful failure to obey a court order is punishable as contempt. T.C.A. ' 29-9-102(3). Thus, a county jail does not have the authority to refuse to accept an individual accompanied by a valid mittimus, even in the event of jail overcrowding. Tennessee Attorney General Opinion No. 89-65.

The Tennessee Supreme Court has held that the criminal statutes and rules permit “a temporary holding without a mittimus.” State v. Mitchell, 593 S.W.2d 280, 282 (Tenn. 1980); Wynn v. State, 181 S.W.2d 332, 334 (Tenn. 1944). The Tennessee Attorney General has relied on those Supreme Court decisions to conclude that “commitment,” as used in the applicable statute (T.C.A.' 41-4-103) is not limited in its meaning to a formal commitment pursuant to a mittimus; instead that provision includes those committed for a “temporary holding without a mittimus” because such persons are being held by authority of law. Accordingly, the Tennessee Attorney General has opined that it “is not within a sheriff’s authority to refuse to accept a person to be held prior to the issuance of a mittimus.” Tennessee Attorney General Opinion No. 94-41.

It is therefore my opinion that the county sheriff cannot refuse to accept into custody any individual arrested by a municipal officer, as he has an affirmative duty to house such persons.

I have enclosed copies of the two Attorney General opinions cited herein. I hope this information is helpful. Thank you for consulting with MTAS.


Melissa A. Ashburn
Legal Consultant

Main Document(s):
file Sheriff%27s Legal Obligation to Accept Prisoners public.doc