April 12, 2012
Dear City Attorney:
You have the following question: Can the city adopt an ordinance making the offenses of driving while using a cell phone illegal where T.C.A. 10-7-307, which contains the Rules of the
Road and other state traffic offenses, does not make such offenses state misdemeanors? As your research correctly indicates, the use of a cell phone while driving in Tennessee is a state traffic offense only with respect to school bus drivers and newly licensed drivers.
Municipal Court Reform Act of 2004
The Municipal Court Reform Act of 2004, became effective on March 1, 2005, and was codified in T.C.A. § 16-18-301 et seq. T.C.A. § 16-18-302(a)(2), as subsequently amended, provides that:
(1) A municipal court possesses jurisdiction in and over cases:
(A) For violation of the laws and ordinances of the municipality; or
(B) Arising under the laws and ordinances of the municipality; and
(2) A municipal court also possesses jurisdiction to enforce any municipal, law or ordinance that mirrors, substantially duplicates or incorporates by cross reference the language of a state criminal statute, if and only if the state criminal statute mirrored, duplicated, or cross-referenced is a Class C misdemeanor and the maximum penalty prescribed by municipal law or ordinance is a civil fine of not in excess of fifty dollars ($50.00).
Under Subsection (a)(2), the municipal court has jurisdiction to enforce municipal laws and ordinances that are specifically “married” to state criminal violations that meet the requirements of that subsection. But as Subsection (a)(1) indicates, municipal court jurisdiction is apparently broader than that: it includes cases “[f]or the violation of,” and “[a]rising under”

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April 12, 2012 the laws and ordinances of the municipality. With respect to that broader jurisdiction, presumably a municipality can create municipal offenses, including traffic offenses, that have no counterpart in state misdemeanors.
Traffic Offenses under T.C.A. §§ 55-10-307 and 308
At the time the Municipal Court Reform Act was passed, T.C.A. § 55-10-307, authorized municipalities to adopt certain state traffic offenses as municipal ordinance violations:
(a) Any incorporated municipality may by ordinance adopt, by reference, any of the appropriate provisions of §§ 55-8-101–
55-8-180; 55-10-101 – 55-10-310, 55-50-301, 55-50-302,
55-50-304, 55-50-305, 55-50-311, 55-10-312, and 55-12-139, and may by ordinance provide additional regulations for the operation of vehicles within the municipality, which shall not be in conflict with the provisions of such sections . All fines, penalties, and forfeitures of bonds imposed or collected under the terms of §§
55-50-311 and 55-50-312, shall be paid over to the appropriate state agency as provided in § 55-50-604.
(b) The offenses enumerated in subdivision (b)(1)-(4) are state offenses and any person arrested for violation of any such offense shall be tried for violation of state law in state courts or in courts having state jurisdiction in which such jurisdiction shall be exclusive. Any existing ordinance presently regulating any of the enumerated offenses and any such ordinance enacted after July 1,
1977, is hereby declared to be void and of no effect. The enumerated offenses are as follows:
(1) Driving while intoxicated or drugged, as prohibited by §
55-10-401;
(2) Failing to stop after a traffic accident, as prohibited by part 1 of this chapter;
(3) Driving while license suspended or revoked, as prohibited by §
55-50-504; and
(4) Drag racing, as defined and prohibited by § 55-10-501.
In addition, T.C.A. § 55-10-308 provided that:
Where §§ 55-8-101–55-8-180 [State Rules of the Road] and
55-10-101–55-10-310 [Duties upon having an accident; hit and run, reckless driving, etc.] apply to territory within the limits of a

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April 12, 2012 municipality, the primary responsibility for enforcing such sections shall be the municipality which shall be further authorized to enforce such additional ordinances for the regulation of the operation of vehicles as it deems proper [with some limitation on enforcement of those provisions by cities of less than 10,000 according to the 2000, or subsequent, federal census].
Additional amendments to what is now T.C.A. § 55-101-3 added other offenses to what is now subsection (a), and listed by specific statute what municipal traffic regulations were included under that statute. The Municipal Court Reform Act amended T.C.A. § 55-10-308, which added restrictions on the enforcement by cities of 10,000 or less of certain traffic regulations on the interstate system.
T.C.A. §§ 55-10-307 and 308 are closely related. They are both the product of Public
Acts 1955, Chapter 329. Section 111 of that Act provided that:
Any incorporated municipality may by ordinance adopt, by reference, any of the appropriate provisions of this Act, and may by ordinance provide additional regulations for the operation of vehicles within said municipality, which shall not be in conflict with the provisions of this Act .
Section 111 became what is now T.C.A. § 55-10-307(a), as amended.
Section 111A of that Act provided that:
Where this Act applies to territory within the limits of a municipality, the primary responsibility for enforcing this Act shall be on the municipality who shall be further authorized to enforce such additional ordinances for the regulation of the operation of vehicles as it deems proper .
Section 111A became what is now T.C.A. 55-10-308, as amended. Both statutes, in similar language, gave municipalities the authority to adopt additional traffic regulations not covered by T.C.A. 55-10-307.
It may be that Tennessee municipalities could have adopted the state rules of the road and other traffic regulations without the benefit of either T.C.A. §§ 55-10-307 and 308. It was said in
City of Chattanooga v. Tennessee Electric Power Company, 112 S.W.2d 385 (1938), that the power to control municipal streets rests primarily in the state, which power the legislature can delegate to the municipalities. It has also been said that “very broad power of regulation, and wide discretion,

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April 12, 2012 in the exercise of the police power, are held to be vested in municipalities touching the use of its streets, and that those police powers also extend to state highways running through cities.” [Steil v. City of Chattanooga, 152 S.W.2d 624, 626 (Tenn. 1941); Collier v. Baker, 27 S.W.2d 185
(1930); Blackburn v. Dillon, 225 S.W.2d 47 (Tenn. 1949).]
But it was also said in Nichols v. Tullahoma Open Door, 640 S.W.2d 13 (Tenn. Ct. App.
1982), that, generally, a municipality must exercise the police power delegated to it by the legislature in the manner directed by the legislature. For that reason, it can be argued that the
General Assembly intended T.C.A. § 55-10-307 to limit municipalities to making only the state rules of the road, and traffic regulations not inconsistent with those rules, municipal ordinance violations. But if that is so, it still is not clear what additional traffic regulations the General
Assembly intended that municipalities could adopt under T.C.A. § 55-10-307 and T.C.A. §
55-10-308. As indicated above, Public Acts 1955, chapter 329, § 111 says that municipalities can adopt the state rules of the road and as municipal ordinance violations,
“and may by ordinance provide additional regulations for the operation of vehicles within said municipality, which shall not be in conflict with the provisions of this Act .” But as noted above, Section 111A appears much broader, providing that:
Where this Act applies to territory within the limits of a municipality, the primary responsibility for enforcing this Act shall be on the municipality who shall be further authorized to enforce such additional ordinances for the regulation of the operation of vehicles as it deems proper.
T.C.A. § 55-10-307 was subsequently amended by Public Acts 1977, Chapter 470, § 2, which made certain offenses exclusively state offenses, and that amendment became what is now
T.C.A. § 55-10-307(b). I suspect that Public Acts 1977, Chapter 470, § 2, resulted from a practice by municipalities of making the offenses listed therein municipal ordinance violations under the authority Public Acts 1955, Chapter 329 gave them to adopt traffic ordinances in addition to the state rules of the road. I have no proof to support that suspicion, but note that in Briggs v. Union
City, 531 S.W.2d 106 (Tenn. 1975), a defendant appealed to the circuit court his conviction in the city court for a DUI ordinance violation. The questions in that case were whether a defendant was entitled to a jury trial upon appeal of his conviction to the circuit court, and whether the circuit court had the authority to suspend the license of the defendant. In holding that the answer to the first question was yes, and that the answer to the second question was no, the Court mentioned the Rules of the Road:
Section 59-1028 T.C.A. provides that Tennessee municipalities may adopt by reference §§ 59-801–59-881 (Rules of the Road) and §§
59-1001–59-1030 (accidents, arrest, crimes and penalties). It is

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April 12, 2012 significant that the power to adopt does not extend to § 59-1031 proscribing operation of vehicles by persons under the influence of intoxicants or narcotic drugs . [At 107] [Emphasis is mine.]
In spite of the Court’s observation that the DUI statute was not found in the State Rules of the Road, it did not hold that the city court had no jurisdiction to adopt a DUI ordinance. The
Court simply declared that the penalty the circuit court could impose was limited to the penalty the city court could impose, which did not include the suspension of driver licenses, following which it strongly advised municipal courts they weren’t equipped to handle DUI cases:
The appellate jurisdiction of the circuit court in a driving-while- under-the-influence case originating in a municipal court is limited to the penalty or forfeiture legally imposed by city ordinance and the circuit court may impose no greater sanction. The simple fact is that municipal courts in Tennessee are not so structured as to deal effectively with cases of this character, and municipalities would be well advised to present these charges by state’s warrants and pursue them in general sessions courts. [At 107-08]
At best, that case sent a mixed message as to the effect of T.C.A. § 55-10-307, but may have been the catalyst that prompted the General Assembly a short time later to make certain offenses, including DUI, exclusively state offenses. But even if that is true, if the General Assembly had been generally concerned that municipalities were exceeding their authority by adopting as municipal ordinance violations state traffic violations that did not reflect the State Rules of the
Road, it could have hit the problem with a hammer rather than a fly swatter, by making it clear that with respect to traffic offenses, T.C.A. §§ 55-10-307 and 308 limited municipalities to adopting as municipal ordinance violations the State Rules of the Road rather than simply making a small number of state traffic law violations exclusively state law violations.
Case law interpreting T.C.A. § 55-10-307 that follows Union City, above, gives us little guidance on the question of what T.C.A. § 55-10-307 means (there is no case law interpreting
T.C.A. § 55-10-308). But in Davis v. City of Chattanooga, 54 S.W.3d 248 (Tenn. 2001), the
Tennessee Supreme Court observed that T.C.A. § 55-10-307 was the statute that authorized the city to adopt the ordinance under which the defendant had been convicted of reckless driving. It upheld T.C.A. § 55-10-307 against a challenge that it violated the Class Legislation Clause of
Article XI, § 8 of the Tennessee Constitution (against a charge that it distinguished between municipalities and unincorporated areas of the state, and permitted different punishments for identical or similar offenses). In that respect the Davis Court suggests that were it not for the existence of T.C.A. § 55-10-307, the city would not have had the authority to make reckless driving

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April 12, 2012 a municipal ordinance violation. But the Court said nothing about the broad language of both
T.C.A. § 55-10-307(a) and T.C.A. § 55-10-308, which gives municipalities the authority to adopt additional traffic regulations.
Similarly, in State v. Godsey, 165 S.W.2d 667 (Ct. Crim. App. 2004), the question was whether a conviction for the municipal ordinance violation of reckless driving before the Municipal
Court Reform Act was passed could be used for the purpose of declaring the defendant a habitual motor vehicle offender. The defendant also sought to show that the city’s reckless driving ordinance was invalid because it did not “mirror” the state reckless driving statute for failing to adopt the penalty provision of the state statute (T.C.A. § 55-10-205(b)). The Court pointed to the authority of the City of Chattanooga to adopt the offense of reckless driving under T.C.A. §
55-10-307 because it was one of the offenses enumerated in that statute as eligible for adoption as a municipal ordinance violation. The offense of reckless driving is a Class B misdemeanor carrying a fine of up to $500 and a six month jail sentence. The offense of reckless driving under the city’s municipal ordinance carried a fine of not less than $5 on the first offense, not less than $10 on the second offense, and not less than $25 on the third offense, and not less than $50 on all subsequent offenses. Godsey, too, hints that absent T.C.A. § 50-55-307(a) the city could not have adopted the offense of reckless driving as a municipal ordinance violation.
But through all the amendments to T.C.A. § 55-10-307, the language in both T.C.A. §§
55-10-307(a) and 55-10-308 giving municipalities the authority to adopt additional traffic ordinances remains in those statutes.
That is true notwithstanding the restrictive limitation on municipal courts in T.C.A. § 16-18-302(a)(2), to enforce municipal ordinances that “mirror” or substantially duplicate or incorporate by cross reference the language of a state criminal statute, but only if the maximum penalty for the state law violation, and the municipal ordinance violation, is
$50.
In the traffic context, it appears that to the extent that any conflict existed between T.C.A.
§ 16-18-302(a) and T.C.A. § 55-10-307(a), it was resolved by the introductory language to T.C.A.
§ 16-18-302(a): “Notwithstanding any provision of law to the contrary....” T.C.A. § 16-18-301
(b)(1) defined the term “any provision of the law to the contrary,” as “includes, but is not limited to, any conflicting provision of any general statute, local law, private act, charter provision, municipal law or municipal ordinance....” T.C.A. § 16-18-302(a), then, by itself appears to have given municipalities the authority to enforce the state law violations contained in all of T.C.A., Title 55, including those violations enumerated in T.C.A. § 55-10-307(a), but it also knocked the legal underpinning from under all the municipal ordinance violations based on T.C.A. § 55-10-307 that carried a fine of more than $50. It also gave municipal courts jurisdiction over state offenses contained in Title 55, that did not appear in T.C.A. § 55-10-307, for example some motor vehicle

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April 12, 2012 title and registration display requirements in T.C.A., Title 55, Chapters 2 and 3, and some vehicle weight limitations in T.C.A., Title 55, Chapter 6, which were Class C misdemeanors and did not appear to carry a fine of over $50.
In all events, read together, T.C.A. §§ 55-10-307 and 308, strongly suggest that a city could adopt traffic laws not inconsistent with the Rules of the Road, including a general prohibition on using a cell phone while driving, except that where the cell phone usage falls under the Rules of the
Road, specifically T.C.A. §§ 55-8-192, 55-8-199, and under T.C.A. § 55-50-310, those offenses should be charged under the municipal ordinance counterparts to those statutes.
Sincerely,
Sidney D. Hemsley
Legal Consultant