                  COURT OF APPEALS OF TENNESSEE

                             AT KNOXVILLE               FILED
                                                       February 27, 1998
JAMES N. RAMSEY, District             )   C/A NO. O3A01-9708-CH-00321
Attorney General, Seventh             )                Cecil Crowson, Jr.
Judicial District,                    )                 Appellate C ourt Clerk
                                      )
     Plaintiff-Appellant,             )
                                      )
                                      )
                                      )   APPEAL AS OF RIGHT FROM THE
                                      )   ROANE COUNTY CHANCERY COURT
v.                                    )
                                      )
                                      )
                                      )
                                      )
TOWN OF OLIVER SPRINGS, et al.,       )
                                      )   HON. FRANK V. WILLIAMS, III,
     Defendants-Appellees.            )   CHANCELLOR



For Appellant                             For Appellees

JOHN KNOX WALKUP                          JAMES M. WEBSTER
Attorney General & Reporter               Oak Ridge, Tennessee
Nashville, Tennessee

MICHAEL E. MOORE
Solicitor General
Nashville, Tennessee

GORDON W. SMITH
Associate Solicitor General
Nashville, Tennessee




                            O P I N IO N




REVERSED AND REMANDED                                              Susano, J.

                                  1
              This is a declaratory judgment action brought by James

N. Ramsey (“Ramsey”), District Attorney General for Anderson

County (Seventh Judicial District).1             He sued the Town of Oliver

Springs (“the Town”) and a number of its officials, seeking a

declaration that the Town’s blanket policy and practice of

prosecuting Anderson County offenses in Roane County is unlawful.

This controversy stems from the fact that, while portions of the

Town are located in three counties -- Anderson, Roane, and Morgan

-- the Town’s City Court is physically located in Roane County.

Based on the parties’ stipulation of facts, the trial court

concluded that the Town could continue to prosecute state cases

arising in Anderson County, in the City Court physically located

in Roane County, provided that it first obtains a waiver of the

right to venue from each defendant.           Ramsey’s appeal followed.



                                    I.   Facts



              The Private Act establishing the City Court of Oliver

Springs provides, in pertinent part, as follows:



              The City Judge shall be vested with
              concurrent jurisdiction with courts of
              general sessions for violations of criminal
              laws, and shall try all offenses against the
              peace and dignity of the Town of Oliver
              Springs.

              The City Judge shall also have jurisdiction
              in and over all cases arising under the state
              laws and ordinances of the Town of Oliver
              Springs and all cases relative to the
              violation of such laws and ordinances and
              offenses against the state or the Town of
              Oliver Springs.



     1
         Anderson County is the only county in the Seventh Judicial District.

                                         2
Chapter 137, 1994 Private Acts, § 1(d) and (e) (“the Private

Act”).   The Private Act does not prescribe a specific location

for the City Court.   Id.



           The Anderson County portion of the Town is located in

the Seventh Judicial District.   The Roane County portion of the

Town is situated within the Ninth Judicial District.



           Generally speaking, a District Attorney has no

authority over cases in districts other than his or her own.      See

T.C.A. § 8-7-103 (Supp. 1997); State v. Campbell, 721 S.W.2d 813,

816-17 (Tenn.Cr.App. 1986).   Accordingly, Ramsey is without

authority to prosecute defendants in the Town’s City Court, so

long as that court holds its sessions in Roane County.



           The parties submitted a stipulation of facts, which is

as follows:



           That the Town of Oliver Springs includes
           portions of Anderson, Roane and Morgan
           Counties.

           That the physical location of the City Court
           for Oliver Springs is in Roane County.

           That the duly elected Judge of the City Court
           for Oliver Springs is Defendant Joseph Van
           Hook. That the duly elected District
           Attorney General for Anderson County, which
           is the Seventh Judicial District, is
           Plaintiff James N. Ramsey.

           That Defendant Grant Lowe is Police Chief for
           the Town of Oliver Springs and Chief Lowe
           brings persons charged in the Anderson County
           portion of Oliver Springs before Judge Joe
           Van Hook sitting as a Court in Roane County.



                                 3
          That Joseph Van Hook as Judge of the City
          Court for Oliver Springs has presided as a
          Judge with General Sessions Court for
          criminal jurisdiction sitting in Roane County
          over criminal charges which arose in the
          Anderson County portion of Oliver Springs
          over the objection of the Plaintiff District
          Attorney for Anderson County.

          That waivers of venue have not been obtained
          from all of the Defendants charged with
          committing crimes in Anderson County who
          appeared before Court. That the Court now
          requires a “waiver of venue” before accepting
          guilty pleas.

          That the Defendants, absent a ruling from a
          Court of competent jurisdiction, intend
          pursuant to 1994 Tenn. Private Acts, Ch. 127
          [sic] to continue exercising the criminal
          jurisdiction for a Sessions Court in the City
          Court of Oliver Springs located in Roane
          County over charges of crimes committed in
          Anderson County.



                       II.    Applicable Law



                     A.     Standard of Review



          Since the facts are not in dispute, our review of this

non-jury case is de novo upon the record, with no presumption of

correctness as to the trial court’s judgment.    Ganzevoort v.

Russell, 949 S.W.2d 293, 296 (Tenn. 1997); Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).



                       B.    Right to Venue



          The right of a criminal defendant to venue in the

county in which the crime is alleged to have been committed is

found in Article I, Section 9 of the Tennessee Constitution:



                                  4
          That in all criminal prosecutions, the
          accused hath the right to be heard by himself
          and his counsel; to demand the nature and
          cause of the accusation against him, and to
          have a copy thereof, to meet the witnesses
          face to face, to have compulsory process for
          obtaining witnesses in his favor, and in
          prosecutions by indictment or presentment, a
          speedy public trial, by an impartial jury of
          the County in which the crime shall have been
          committed, and shall not be compelled to give
          evidence against himself.



(Emphasis added).   The portion of this constitutional provision

entitling a defendant to “an impartial jury of the County in

which the crime shall have been committed” literally pertains to

the “vicinage,” or place from which the jurors must be selected;

however, that provision has been interpreted to determine the

venue of the trial as well.   State v. Nichols, 877 S.W.2d 722,

727 (Tenn. 1994); State v. Smith, 906 S.W.2d 6, 8 (Tenn.Cr.App.

1995).



          Other relevant provisions regarding venue are contained

in the Rules of Criminal Procedure.    Rule 18 provides, in

pertinent part, that “[e]xcept as otherwise provided by statute

or by these rules, offenses shall be prosecuted in the county

where the offense was committed.”    Rule 18(a), Tenn.R.Crim.P.

Rule 21 provides for a change of venue upon the defendant’s

motion, or the defendant’s consent to the court’s motion, where

“it appears to the court that, due to undue excitement against

the defendant in the county where the offense was committed or

any other cause, a fair trial probably could not be had.”     Rule

21(a), Tenn.R.Crim.P.




                                 5
            Another provision regarding venue is found at T.C.A. §

40-35-214.    That statute permits a defendant arrested, held or

present in a county other than the one in which the indictment,

presentment or charge is pending, to state in writing his desire

to plead guilty, waive trial in the county where the indictment

is pending or the warrant was issued, and consent to disposition

of the case in the county in which he is present or has been

arrested.    T.C.A. § 40-35-214(a) and (b).   Significantly,

however, such waiver is conditioned on the approval of each

county’s district attorney general and court of criminal

jurisdiction.     Id.



             C.   The Office of District Attorney General



            Article VI, Section 5, of the Tennessee Constitution

provides that a district attorney general shall be elected for

each judicial district for which a judge having criminal

jurisdiction is provided.    Specific provisions regarding district

attorneys general are set forth at T.C.A. § 8-7-101, et seq.

(1993 & Supp. 1997).    T.C.A. § 8-7-101 mandates that “[e]ach

judicial district shall constitute a district attorney general’s

district.”    T.C.A. § 8-7-103 (Supp. 1997) sets forth the duties

of the office.    As pertinent here, that section provides that



            [i]t is the duty of each district attorney
            general to:

            (1) Attend the circuit courts in the
            district, and every other court therein
            having criminal jurisdiction, and prosecute
            on behalf of the state in every case in which
            the state is a party, or is in any wise
            interested;....


                                   6
T.C.A. § 8-7-103(1)(Supp. 1997).



          As noted earlier, a district attorney general is

generally without authority to prosecute cases outside of his or

her district.   See T.C.A. § 8-7-103 (Supp. 1997); State v.

Campbell, 721 S.W.2d 813, 816-17 (Tenn.Cr.App. 1986).     Within his

or her district, however, the degree of discretion afforded the

district attorney is significant.      State v. Superior Oil, Inc.,

875 S.W.2d 658, 660-61 (Tenn. 1994).     In the Superior Oil, Inc.,

case, the Supreme Court expounded on the nature of a district

attorney general’s discretion:



          Although there are various statutes which
          assign duties to the elected constitutional
          office of district attorney general, there
          are no statutory criteria governing the
          exercise of the prosecutorial discretion
          traditionally vested in the officer in
          determining whether, when, and against whom
          to institute criminal proceedings. Indeed,
          it has been often recognized that
          “prosecutorial discretion in the charging
          process is very broad.” “So long as the
          prosecutor has probable cause to believe that
          the accused committed an offense, the
          decision whether to prosecute, and what
          charge to bring before a grand jury generally
          rests entirely within the discretion of the
          prosecution,” limited only by certain
          constitutional constraints.



Id. at 660 (citing, inter alia, Cooper v. State, 847 S.W.2d 521,

536 (Tenn.Cr.App. 1992); In re Death of Reed, 770 S.W.2d 557, 560

(Tenn.Cr.App. 1989); and State v. Lunati, 665 S.W.2d 739, 746

(Tenn.Cr.App. 1983)).




                                   7
            Generally speaking, the courts of this state have been

protective of the district attorney general’s prosecutorial

discretion.    For example, in the Superior Oil, Inc., case, the

Supreme Court declared a statutory provision2 unconstitutional,

due in large part to its infringement upon the “broad

prosecutorial discretion and awesome responsibility inherent in

the constitutional office” of district attorney general.

Superior Oil, Inc., 875 S.W.2d at 661.          In so holding, the Court

stated that



            [a]lthough the General Assembly may enact
            laws prescribing or affecting the “procedures
            for the preparation of indictments or
            presentments,” it cannot enact laws which
            impede the inherent discretion and
            responsibilities of the office of district
            attorney general without violating Article
            VI, § 5 of the Tennessee Constitution.



Id. (Citation omitted)(emphasis in original).



                     III.   The Parties’ Contentions



            Ramsey contends that a criminal defendant does not

possess a general, unconditional right to waive venue.             He argues

that a change or waiver of venue may only be accomplished

pursuant to Rule 21(a), Tenn.R.Crim.P., or T.C.A. § 40-35-214.

Thus, according to Ramsey, when neither of these provisions



     2
       The statute in question was the Water Quality Control Act of 1977,
which is codified at T.C.A. § 69-3-101, et seq. The Court held
unconstitutional § 69-3-115(d), which required the district attorney general
or the grand jury to obtain authorization from the Commissioner of the
Department of Health and Environment or the Water Quality Control Board prior
to instituting criminal proceedings under the Act. Superior Oil, Inc., 875
S.W.2d at 660-61.

                                      8
apply, offenses committed in the Anderson County portion of

Oliver Springs must be tried in Anderson County.



            In his brief submitted to the trial court, Ramsey also

contends that the Town’s venue waiver policy and practice

improperly allows the Town to retain various court costs, fines

and other funds to which Anderson County would otherwise be

entitled.    He further argues that the Town’s practice

substantially interferes with his ability to discharge the duties

of his office.    This latter position was more fully developed in

an amicus curiae brief submitted to the trial court by the

Tennessee District Attorneys General Conference, in which it is

argued that “the holding of the [City] [C]ourt exclusively in

Roane County impermissibly interferes with the discretion and

responsibility of the District Attorney General for the Seventh

Judicial District.”



            The defendants, on the other hand, contend that the

right to venue, as found in Article I, Section 9, of the

Tennessee Constitution is subject to waiver by a criminal

defendant.    They argue that this right of waiver is not dependent

upon the consent of the district attorney general, and that the

Town’s practice of obtaining waivers of venue, and then

prosecuting defendants in Roane County, is permissible.



                            IV.   Analysis



            It is clear that the Tennessee Constitution confers

upon criminal defendants an absolute right to venue in the county


                                   9
in which the crime was committed.            See Tenn. Const. Article I,

Section 9 (1870); State v. Nichols, 877 S.W.2d 722, 727 (Tenn.

1994); State v. Smith, 906 S.W.2d 6, 8 (Tenn.Cr.App. 1995).                This

constitutional principle prompted3 the drafters of the Rules of

Criminal Procedure to provide that “[e]xcept as otherwise

provided by statute or by these rules, offenses shall be

prosecuted in the county where the offense was committed.”                 Rule

18(a), Tenn.R.Crim.P.         (Emphasis added.)



              The Tennessee Constitution, the Rules of Criminal

Procedure, and the applicable Code provision are all devoid of an

explicit grant of a right to waive the constitutional right to

venue.      That is not to say that venue can never be waived; but

such waiver can occur only under certain circumstances and when

undertaken in conformity with the Rules of Criminal Procedure or

the applicable statutory provision.            As previously indicated, the

Code and Rules of Criminal Procedure contain two provisions

relative to a waiver or change of venue.            The first is Rule 21 of

the Rules of Criminal Procedure, which authorizes a change of

venue, with the defendant’s consent, when it appears to the court

that a fair trial in the county where the offense was committed

is unlikely, due to excessive publicity or excitement.               The

second is T.C.A. § 40-35-214, which allows a defendant to waive

venue in the county in which a charge or an indictment is

pending, and then plead guilty and consent to disposition of the

case in the county in which the defendant has been arrested or is

being held.       However, neither of the aforementioned provisions

are directly applicable in the instant case.                Here we are faced

     3
         See Committee Comment to Rule 18, Tenn.R.Crim.P.

                                        10
with a policy and practice by which criminal defendants execute

waivers of their right to venue in the county in which the

offenses have been committed, i.e., Anderson County, in order to

consent to disposition of their cases in the county in which the

City Court is situated, i.e., Roane County.    Such waivers are

secured to accommodate what is obviously the Town’s expedient

decision to maintain only one courthouse; however, expediency

cannot justify a policy and practice that is contrary to

legislative enactments.



             The Tennessee Constitution does not expressly grant to

a defendant an absolute right to waive venue.     Furthermore, we do

not find within the constitutional right to venue, an implied

right to waive venue.    Thus it is clear that, by enacting T.C.A.

§ 40-35-214 and adopting Rule 21, Tenn.R.Crim.P., the General

Assembly has placed certain limitations on the manner and

circumstances under which the right to be tried in the county

where the offense was committed can be waived by a criminal

defendant.    Such legislative restrictions are presumptively

valid; generally speaking, the legislature has the power to enact

any law that is not expressly or impliedly prohibited by the

state or federal constitution.     Dennis v. Sears, Roebuck & Co.,

446 S.W.2d 260, 266 (Tenn. 1969); Crowe v. John W. Harton Mem’l

Hosp., 579 S.W.2d 888, 892 (Tenn.App. 1979).



          With regard to the qualification in T.C.A. § 40-35-214

that a waiver of venue under its terms is subject to the approval

of the district attorney, we note that a similar requirement

regarding waiver of the right to a grand jury investigation and


                                  11
trial by jury4 has recently been upheld by the Court of Criminal

Appeals in State v. Brackett, 869 S.W.2d 936 (Tenn.Cr.App. 1993).

In that case, the Court of Criminal Appeals held that a district

attorney could withhold consent, pursuant to Rule 5(c)(2),

Tenn.R.Crim.P., to a trial in general sessions court without a

jury, as opposed to a jury trial in the county criminal court.

Id. at 939.         In so holding, the Court of Criminal Appeals noted

that



                [f]or many of the reasons the defendant is
                guaranteed the right to trial by jury in the
                criminal case, there exists a basis for the
                state, on behalf of its people, to exercise
                the same entitlement.



Id.



                We believe that the same logic applies in the instant

case.       It is clear that, absent special circumstances, venue for

a criminal proceeding lies within the county in which the offense

was committed.         Tenn. Const. Article I, Section 9 (1870); Rule

18(a), Tenn.R.Crim.P.           The legislature, by enacting T.C.A. § 40-

35-214 and adopting Rule 21, Tenn.R.Crim.P., has placed valid

restrictions on the circumstances under which venue may be

changed.        In situations where Rule 21, Tenn.R.Crim.P., and T.C.A.

§ 40-35-214 are not implicated, a district attorney general has

the prerogative to insist that a defendant be prosecuted in the

county in which the offense was committed.




       4
           See Rule 5(c)(2), Tenn.R.Crim.P.

                                          12
          In this case, the Town of Oliver Springs has

implemented a policy and practice that necessarily involves a

waiver of a criminal defendant’s right to venue in the county

where the crime was committed.   This is not in conformity with

either of the aforementioned provisions for a change of venue;

nor are we aware of any authority conveying a general, unfettered

right to waive venue upon one who is facing criminal charges.

Furthermore, the implementation of this practice by the Town

clearly impinges upon the ability of the Anderson County District

Attorney General to discharge the duties of his office, in that

it effectively takes cases arising within his own jurisdiction

out of his hands.   We find nothing unconstitutional about the

Private Act on its face; nevertheless, the venue waiver procedure

implemented by the Town pursuant to that Act violates the

statutory scheme requiring each district attorney to exercise

certain prosecutorial responsibilities with respect to criminal

violations occurring within his or her district.   See T.C.A. § 8-

7-101, et seq. (1993 & Supp. 1997).   As noted earlier, “laws

which impede the inherent discretion and responsibilities of the

office of district attorney general” are impermissible.     State v.

Superior Oil, Inc., 875 S.W.2d 658, 661 (Tenn. 1994).



                          V.   Conclusion



          Accordingly, we hold that the Town’s blanket policy and

practice of trying Anderson County cases in Roane County,

premised, as it is, on the false proposition that a defendant has

an absolute right to waive venue, constitutes an unlawful

expansion of a defendant’s right to waive venue beyond that


                                 13
permitted by the provisions of Rule 21(a), Tenn.R.Crim.P., and

T.C.A. § 40-35-214.   It therefore results that the decision of

the trial court is reversed.   Costs at the trial level and on

this appeal are taxed to the appellees.    This case is remanded to

the trial court for the entry of an order enjoining the

defendants from continuing to implement the policy and practice

held to be illegal in this opinion.



                                      __________________________
                                      Charles D. Susano, Jr., J.


CONCUR:



_________________________
Herschel P. Franks, J.



_________________________
Don T. McMurray, J.




                                14
