           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                             Assigned on Briefs April 28, 2010

                   STATE OF TENNESSEE v. DAVID GILLIAM
                       and JOE EDWARD MCCOWN, III

                  Appeal from the Criminal Court for Hamilton County
                   Nos. 268800 and 268801    Rebecca J. Stern, Judge


                    No. E2009-01079-CCA-R3-CD 1 - Filed July 6, 2010


In this consolidated appeal, the State challenges the trial court’s dismissal of the charges of
official misconduct, see T.C.A. § 39-16-402 (2006), and official oppression, see id. § 39-16-
403, against each defendant. The State contends that the court erroneously concluded that
the defendants, as employees of Corrections Corporation of America, were not public
servants as that term is used in Tennessee Code Annotated sections 39-16-402 and -403.
Because we agree with the State, we reverse the trial court’s order dismissing the charges in
each case and remand the cases to the Criminal Court of Hamilton County.

   Tenn. R. App. P. 3; Judgments of the Criminal Court Reversed and Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and J.C. M CL IN, J., joined.

Lisa Z. Bowman, Chattanooga, Tennessee (on appeal), and Lisa A. Espy, Chattanooga,
Tennessee (at trial), for the appellant, David Gilliam.

Cindy P. Bice, Chattanooga, Tennessee, for the appellant, Joe Edward McCown, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William H. Cox, III, District Attorney General; and William Hall, Assistant District
Attorney General, for the appellee, State of Tennessee.




       1
        In response to the State’s motion, this court consolidated case numbers E2009-01079-CCA-R3-CD
and E2009-01233-CCA-R3-CD into the single case number E2009-01079-CCA-R3-CD.
                                          OPINION

               In July 2008, the State charged the defendants, David Gilliam and Joe Edward
McCown, III, both of whom worked as correctional officers at the Hamilton County
Workhouse, by indictment with one count of official misconduct, see T.C.A. § 39-16-402,
and one count of official oppression, see id. § 39-16-403. Shortly thereafter, defendant
Gilliam moved the trial court to dismiss the indictment on the basis that he, as an employee
of Corrections Corporation of America (“CCA”), did not qualify as a “public servant” as that
term is used in the statutes proscribing official misconduct and official oppression. The trial
court agreed and granted Gilliam’s motion to dismiss on April 27, 2009. Later, defendant
McCown’s counsel orally moved the court to dismiss the charges on the same basis, and the
trial court granted the motion. The State filed a timely notice of appeal pursuant to
Tennessee Rule of Appellate Procedure 3, and this court granted the State’s request to
consolidate the appeals.

               The single question raised in this appeal, whether the defendants in this case
are subject to prosecution via Code sections 39-16-402 and -403, is a question of law subject
to de novo review. Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn. 2010) (“The
construction of a statute and its application to the facts of a case are questions of law, which
we review de novo with no presumption of correctness afforded to the lower court’s
conclusions.”); see also Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn. 2000).

              In an issue of first impression, the defendants in this appeal claim that because
they are correctional officers employed by private prison contractor CCA, they are not
“public servants” and cannot, therefore, be prosecuted under the terms of Code sections 39-
16-402 and -403. The State, citing Alex Friedmann v. Corrections Corporation of America,
No. M2008-01998-COA-R3-CV (Tenn. Ct. App., Nashville, Sept. 16, 2009), perm. app.
denied (Tenn. 2010), contends that the defendants are public servants because they are
performing a service traditionally entrusted to the government.

               Initially, we note that although not cited by the parties or the trial court,
Tennessee Code Annotated section 41-24-108 specifically extends the provisions of Code
sections 39-16-402 and -403 to employees of private prison contractors: “The provisions of
title 39, chapter 16 . . . shall apply to offenses committed by or with regard to inmates
assigned to facilities or programs for which a prison contractor is providing correctional
services.” T.C.A. § 41-24-108 (2006). The unambiguous terms of this statute, which is part
of the Private Prison Contracting Act of 1986, clearly subject the defendants to criminal
liability for “offenses committed . . . with regard to inmates” assigned to the Hamilton
County Workhouse, where the defendants were employed.



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               Moreover, because we agree with the court of appeals that by operating a
correctional facility, a function traditionally performed by the State, CCA and its employees
were engaged in a governmental function, see Alex Friedmann, slip op. at 11, we conclude
that the defendants qualify as public servants as that term is used in Code sections 39-16-402
and -403. Tennessee Code Annotated section 39-16-402 provides:

              (a) A public servant commits an offense who, with intent to
              obtain a benefit or to harm another, intentionally or knowingly:

                     (1) Commits an act relating to the servant’s office or
              employment that constitutes an unauthorized exercise of official
              power;

                     (2) Commits an act under color of office or employment
              that exceeds the servant’s official power;

                     (3) Refrains from performing a duty that is imposed by
              law or that is clearly inherent in the nature of the public
              servant’s office or employment;

                    (4) Violates a law relating to the public servant’s office
              or employment; or

                     (5) Receives any benefit not otherwise authorized by law.

T.C.A. § 39-16-402(a). Code section 39-16-403 provides:

              (a) A public servant acting under color of office or employment
              commits an offense who:

                      (1) Intentionally subjects another to mistreatment or to
              arrest, detention, stop, frisk, halt, search, seizure, dispossession,
              assessment or lien when the public servant knows the conduct
              is unlawful; or

                     (2) Intentionally denies or impedes another in the
              exercise or enjoyment of any right, privilege, power or
              immunity, when the public servant knows the conduct is
              unlawful.



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T.C.A. § 39-16-403. Code section 39-16-401 defines the term public servant:

              (3) “Public servant” means a person elected, selected, appointed,
              employed, or otherwise designated as one (1) of the following
              even if the public servant has not yet qualified for office or
              assumed the duties:

                     (A) An officer, employee, or agent of government;

                     (B) A juror or grand juror;

                     (C) An arbitrator, referee, or other person who is
              authorized by law or private written agreement to hear or
              determine a cause or controversy;

                     (D) An attorney at law or notary public when
              participating in performing a governmental function;

                      (E) A candidate for nomination or election to public
              office; or

                     (F) A person who is performing a governmental function
              under claim of right although not legally qualified to do so.

T.C.A. § 39-16-401. As the court of appeals explained,

              [W]e conclude, without difficulty, that . . . CCA is operating that
              facility as the functional equivalent of a state agency . . . . The
              providing of prisons is a responsibility that the State cannot
              delegate to a private entity. While the State can contract with a
              private entity such as CCA to operate a prison consistent with
              the provisions of the Private Prison Contracting Act of 1986, the
              ultimate responsibility to provide for its prisoners belongs to the
              State of Tennessee.

Alex Friedmann, slip op. at 12. As the court observed, our state constitution requires that the
State provide for “the erection of safe prisons, the inspection of prisons, and the humane
treatment of prisoners.” Tenn. Const. art. 1, § 32; see Alex Friedmann, slip op. at 11. We
conclude, as did the court of appeals, that the performance of this constitutionally mandated
duty cannot be “considered anything less than a governmental function.” Alex Friedmann,

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slip op. at 11. As such, the defendants, whose job was the oversight of and provision for the
incarcerated, were likewise performing a governmental function, a function, we would add,
that our Code gives them the lawful right to do. Cf. State v. Lankford, 51 S.W.3d 212, 217
(Tenn. Crim. App. 2001) (“There is nothing in the escape statute to support treating
out-of-state prisoners housed in private prison facilities differently from in-state prisoners
housed in similar facilities. The defendants were no less in ‘custody,’ for the purposes of the
[Tennessee escape] statute, than would be a Tennessee prisoner housed in a private facility
pursuant to a contract between the Tennessee commissioner of correction and a private prison
company.”).

               As further support for our conclusion, we observe that this court, in Lankford,
concluded that the defendants in that case, Montana prisoners housed in a CCA facility in
this state, were in “custody” as that term is used in Code section 39-16-601. That statute
provides: “‘Custody’ means under arrest by a law enforcement officer or under restraint by
a public servant pursuant to an order of a court.” T.C.A. § 39-16-601(2). Because
employees of private prison contractors are not law enforcement officers, see id. § 39-11-
106(21) (“‘Law enforcement officer’ means an officer, employee or agent of government
who has a duty imposed by law to . . . [m]aintain public order; or . . . [m]ake arrests for
offenses, whether that duty extends to all offenses or is limited to specific offenses; and . .
. [i]nvestigate the commission or suspected commission of offenses.”), this court’s
conclusion that Lankford and McKeon had satisfied the “custody” requirement necessarily
included a conclusion that they were “under restraint by a public servant.”

              The trial court’s reliance on Younger v. State, 205 S.W.3d 494 (Tenn. Ct. App.
2006), is misplaced. There, the court of appeals concluded that “the proper defendant for
negligence claims arising from the action of private contractors, or their employees, in
operating correctional facilities is the contractor, and not the State.” Younger v. State, 205
S.W.3d 494, 499 (Tenn. Ct. App. 2006). As such, this holding has no bearing on the issue
whether the defendants in this case are public servants under the terms of Code section 39-
16-402 and -403.

             Because Code section 41-24-108 specifically extends criminal liability under
Code sections 39-16-402 and -403 to the employees of private prison contractors, we
conclude that those statutes apply to the defendants in this case. Further, because the
defendants were performing a governmental function, they qualify as public servants as that
term is used in Code sections 39-16-402 and -403. In consequence, the trial court
erroneously dismissed the indictments in this case.

             Accordingly, the judgments of the trial court are reversed, and the cases are
remanded to the trial court for further proceedings.

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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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