Title 40 Criminal Procedure

Chapter 1 Jurisdiction and Venue

§ 40-1-101 — 40-1-103. [Reserved.]

§ 40-1-104. Fraudulent sale of pledged property.

Where cotton, tobacco, produce or other personal property is sold or pledged in violation of § 39-14-116, the courts in the county where the office or place of business of the person or persons having made advances on the produce or property is situated shall have jurisdiction of the cases arising under § 39-14-116, and of the person violating it.

History (5)

Acts 1879, ch. 131, § 2
Shan., § 6587
Code 1932, § 10971
modified
T.C.A. (orig. ed.), § 40-111.

§ 40-1-105. False affidavit to obtain parole or pardon.

The venue in case of a violation of § 39-16-703 in making a misstatement of fact in an affidavit used or intended to be used in securing a parole or pardon for any misdemeanant or felon in this state shall be in the county where the affidavit was made, if it was made in any county in Tennessee, and also in the county of this state where the officer or board has its place of business. In case the affidavit is made before some officer outside the limits of this state, then the venue shall be the county in this state where the officer or board with whom the affidavit is filed has its regular place of business.

History (5)

Acts 1919, ch. 73, § 2
Shan. Supp., § 6700a2
Code 1932, § 11079
modified
T.C.A. (orig. ed.), § 40-113.

§ 40-1-106. Officials defined as magistrates.

The judges of the supreme, appellate, chancery, circuit, general sessions and juvenile courts throughout the state, judicial commissioners and county mayors in those officers' respective counties, and the presiding officer of any municipal or city court within the limit of their respective corporations, are magistrates within the meaning of this title. The judges of chancery and circuit courts have statewide jurisdiction to issue search warrants pursuant to chapter 6, part 1 of this title in any district. All other magistrates have statewide jurisdiction to issue search warrants pursuant to chapter 6, part 1 of this title in any district, county, or jurisdiction, if at least one (1) element of the alleged crime on which the search warrant is based is committed within the jurisdiction of the magistrate.

History (12)

Code 1858, § 4943
Shan., § 6904
Code 1932, § 11428
Acts 1973, ch. 48, § 1
1978, ch. 933, § 2
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-114
Acts 1993, ch. 115, § 3
1993, ch. 241, § 55
2003, ch. 90, § 2
2019, ch. 486, § 14
2024, ch. 892, § 2.

§ 40-1-107. Courts vested with original jurisdiction.

Original jurisdiction of criminal actions is committed to the courts of general sessions, city judges of certain towns and cities, the circuit courts, the criminal courts and the court for the trial of impeachments.

History (6)

Code 1858, § 4965
Shan., § 6926
Code 1932, § 11466
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-115
Acts 1993, ch. 115, § 4.

§ 40-1-108. Original jurisdiction of circuit and criminal courts.

The circuit and criminal courts have original jurisdiction of all criminal matters not exclusively conferred by law on some other tribunal.

History (4)

Code 1858, § 4967
Shan., § 6928
Code 1932, § 11467
T.C.A. (orig. ed.), § 40-116.

§ 40-1-109. Jurisdiction of general sessions courts.

In addition to the jurisdiction in criminal cases as conferred in §§ 16-15-401 and 16-15-501, the court of general sessions is vested with jurisdiction to try and determine and render final judgment in all misdemeanor cases brought before the court by warrant or information where the person charged with the misdemeanor enters a plea of guilty in writing or requests a trial upon the merits and expressly waives an indictment, presentment, grand jury investigation and jury trial. The waiver shall be in writing as provided in Rule 5 of the Tennessee Rules of Criminal Procedure. In such cases, the trial shall proceed before the court without the intervention of a jury, and the court shall enter judgment, and, as an incident thereto, may inflict punishment within the limits provided by law for the particular offense as the court may determine proper under the peculiar circumstances of the case.

Backlinks (1)

16-15-501(c)(1)

History (10)

Code 1858, § 4969
Shan., § 6930
mod. Code 1932, § 11469
Acts 1959, ch. 109, § 5
1967, ch. 360, § 1
1969, ch. 214, § 1
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), §§ 40-117, 40-118
Acts 1983, ch. 334, § 1
1993, ch. 241, § 56.

§ 40-1-110. Judicial acts of general sessions judges.

The judges of the courts of general sessions and other similar courts created by statute throughout the state are authorized to issue any and all process in connection with criminal cases disposed of by them and to do all other judicial acts necessary to effectuate the judgments rendered by them in such cases.

History (2)

Acts 1955, ch. 267, § 2
T.C.A., § 40-119.

§ 40-1-111. Appointment of judicial commissioners or magistrates — Duties — Terms — Compensation — Continuing education — Management rotation.

(a)
1. (1)
  1. (A) The chief legislative body of any county having a population of less than two hundred thousand (200,000), according to the 1970 federal census or any subsequent federal census may appoint, and the chief legislative body of any county having a population of over eight hundred thousand (800,000), according to the 1970 federal census or any subsequent federal census, may initially appoint one (1) or more judicial commissioners whose duty or duties shall include, but not be limited to, the following:
    1. (i) Issuance of search warrants and felony arrest warrants upon a finding of probable cause and pursuant to requests from on-duty law enforcement officers and in accordance with the procedures outlined in chapters 5 and 6 of this title;
    2. (ii) Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103;
    3. (iii) The appointing of attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county;
    4. (iv) The setting and approving of bonds and the release on recognizance of defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county; and
    5. (v) Issuance of injunctions and other appropriate orders as designated by the general sessions judges in cases of alleged domestic violence.
  2. (B)
    1. (i) This subdivision (a)(1)(B)(i) applies to any county having a population of less than two hundred thousand (200,000), according to the 1970 federal census or any subsequent federal census. The term or terms of the officers shall be established by the chief legislative body of the county to which this subdivision (a)(1)(B)(i) applies but shall not exceed a four-year term. No member of the county legislative body of any county to which this subdivision (a)(1)(B)(i) applies shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(i) to the contrary, the presiding general sessions criminal judge of a county to which this subdivision (a)(1)(B)(i) applies may appoint a temporary or part-time judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The legislative body of any county to which this subdivision (a)(1)(B)(i) applies, in appointing, evaluating and making decisions relative to retention and reappointment, shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve.
    2. (ii) Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of over eight hundred thousand (800,000), according to the 1970 federal census or any subsequent federal census, shall be by the general sessions judges of that county. The term or terms of the officers shall be established by the general sessions criminal court judges of the county but shall not exceed a four-year term. No member of the county legislative body of the county shall be eligible for appointment as a judicial commissioner. Notwithstanding the provisions of this subdivision (a)(1)(B)(ii) to the contrary, the presiding general sessions criminal court judge of the county may appoint a temporary, or part-time, judicial commissioner to serve at the pleasure of the presiding judge in case of absence, emergency or other need. The general sessions judges of the county in appointing, evaluating and making decisions relative to retention and reappointment shall take into consideration views, comments and suggestions of the judges of the courts in which the judicial commissioners are appointed to serve.
    3. (iii) Any subsequent term of a judicial commissioner initially appointed by the chief legislative body of any county having a population of not less than one hundred eighty-three thousand one hundred (183,100) nor more than one hundred eighty-three thousand two hundred (183,200), according to the 2010 federal census or any subsequent federal census, shall be by the general sessions judges of that county. In the event that the general sessions judges are unable to agree on the appointment of a judicial commissioner, the appointment shall be made by the chief legislative body of the county; provided, that any appointment made by the chief legislative body of the county shall not be construed to divest the general sessions judges of the supervisory authority over the judicial commissioner.
  3. (C) In any county having a population greater than eight hundred thousand (800,000), according to the 1970 federal census or any subsequent federal census, to be eligible for appointment and service as a judicial commissioner a person must be licensed to practice law in this state.
  4. (D)
    1. (i) Any county, having a population greater than eight hundred thousand (800,000), according to the 1970 federal census or any subsequent federal census, which appoints and makes use of judicial commissioners shall maintain records sufficient to allow an annual determination of whether the use of judicial commissioners is accomplishing the purposes intended.
    2. (ii) On an annual basis the county legislative body shall conduct a public hearing to examine and evaluate the program of judicial commissioners and to determine if the program is being conducted in accordance with law and is contributing to the orderly, effective and fair administration of justice. As a part of the public hearing the county legislative body shall examine the effectiveness of the system of judicial commissioners and hear the opinions of the public concerning the system. The county legislative body shall give notice of the public hearing at least thirty (30) days prior to the meeting. Upon request by the county legislative body, the judicial commissioners must submit any relevant information to the county legislative body at least seven (7) days before the public hearing.
    3. (iii) Following the hearing and not later than April 1 of each year, the county legislative body shall cause to be submitted to the judges of the general sessions criminal court of the county, the chair of the judiciary committee of the senate and the chair of the criminal justice committee of the house of representatives a written report setting forth findings and the overall evaluation of the use of judicial commissioners.
2. (2) The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the chief legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.
(b)
1. (1) Notwithstanding any provision of this section to the contrary, a judge of a court of general sessions in a county having a population of not less than fourteen thousand seven hundred (14,700) nor more than fourteen thousand eight hundred (14,800), according to the 1970 federal census or any subsequent federal census, may appoint one (1) or more judicial commissioners whose duties shall be the same as those prescribed for judicial commissioners in subsection (a). The judge may appoint a commissioner if the county legislative body of the counties noted in subsection (a) does not appoint a judicial commissioner before May 1, 1980. The term of the judicial officer shall be for one (1) year or until the county legislative body appoints a judicial commissioner as provided by subsection (a).
2. (2) A judicial commissioner who is appointed by a general sessions judge as outlined in subdivision (b)(1) shall serve without compensation unless an amount of compensation is specifically established by the county legislative body.
(c) [Deleted by 2024 amendment.]
(d)
1. (1) Notwithstanding subsections (a) and (b), the legislative body of any county having a population of not less than forty-one thousand four hundred (41,400) nor more than forty-one thousand six hundred (41,600), according to the 1990 federal census or any subsequent federal census, may, by resolution, create the position of one (1) or more judicial commissioners.
2. (2) The duties of a commissioner shall include, but are not limited to, the following:
  1. (A) The issuance of arrest warrants upon a finding of probable cause;
  2. (B) The setting of bonds and recognizance in accordance with the procedures outlined in chapters 5 and 6 of this title;
  3. (C) The issuance of search warrants where authorized by the general sessions judge or a judge of a court of record; and
  4. (D) The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103.
3. (3) The term of a judicial commissioner shall be established by the general sessions judge of the county, but in no event shall the term exceed four (4) years.
4. (4) A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the general sessions judge of the county and subject to the approval of the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.
5. (5) A judicial commissioner shall be selected and appointed by the general sessions judge in the county, and shall serve at the pleasure of such general sessions judge, but not longer than the term specified in subdivision (d)(3).
(e)
1. (1) Notwithstanding subsections (a), (b), and (d), any county having a population of not less than three hundred seven thousand (307,000) nor more than three hundred eight thousand (308,000), according to the 2000 federal census or any subsequent federal census, may elect to establish judicial commissioners to assist the general sessions court in accordance with this subdivision (e)(1). The county legislative body may appoint one (1) or more attorneys to serve as judicial commissioners. The duties of a judicial commissioner shall include, but not be limited to the following:
  1. (A) Issuance of arrest and search warrants upon a finding of probable cause in accordance with the procedures outlined in chapters 5 and 6 of this title;
  2. (B) Issuance of mittimus following compliance with the procedures prescribed by § 40-5-103;
  3. (C) Appointing attorneys for indigent defendants in accordance with applicable law and guidelines established by the presiding general sessions judge of the county;
  4. (D) Setting and approving bonds and the release on recognizance of defendants in accordance with chapter 11 of this title; and
  5. (E) Setting bond for the circuit court judges and chancellors in cases involving violations of orders of protection between the hours of nine o'clock p.m. (9:00 p.m.) and seven o'clock a.m. (7:00 a.m.) on weekdays, and on weekends, holidays and at any other time when the judge or chancellor is unavailable to set bond.
2. (2) The term of office for a judicial commissioner shall be established by the county legislative body, but such term shall not exceed four (4) years. A member of the county legislative body is not eligible for appointment as a judicial commissioner.
3. (3) A judicial commissioner shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Fees established and authorized by § 8-21-401 shall be paid to the county general fund upon the services detailed therein being performed by a judicial commissioner.
(f)
1. (1) Beginning January 1, 2010, each judicial commissioner who is appointed to serve pursuant to this section must complete twelve (12) hours of continuing education each calendar year, ten (10) hours of which must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee. The remaining two (2) hours may be completed by attendance at classes sponsored by either the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association, or by local in-service education. At least six (6) hours of the total twelve (12) hours must be taught by a person who is licensed to practice law in this state.
2. (2) Any judicial commissioner who is licensed to practice law in this state is authorized to use continuing legal education credits toward completion of the ten (10) hours, which otherwise must be completed by attendance at conferences or courses sponsored or approved by the Judicial Commissioners Association of Tennessee.
3. (3) All judicial commissioners must complete, as part of the twelve (12) required hours, the following classes:
  1. (A) At least two (2) hours concerning domestic violence or child abuse;
  2. (B) At least one (1) hour concerning bail and bonds; and
  3. (C) At least one (1) hour concerning ethics.
4. (4) All counties for which judicial commissioners are appointed to serve pursuant to this section shall provide all necessary funding for their respective judicial commissioners to complete the continuing education required by this subsection (f).
5. (5) All records indicating satisfaction of the continuing education requirements for judicial commissioners shall be maintained by each county and kept on the file for at least seven (7) years.
6. (6) Notwithstanding this subsection (f), in any county in which the judicial commissioner is selected by the general sessions judge or judges, the county legislative body of such county may elect, by a two-thirds (⅔) majority, to allow each judicial commissioner to receive twelve (12) hours of appropriate continuing education each calendar year under the supervision of the appointing general sessions judge or judges rather than the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association. Further, in any county that has previously made this election, that county may later rescind that action by a subsequent two-thirds (⅔) majority vote of its county legislative body as to allow the judicial commissioners to receive the required training through the Judicial Commissioners Association of Tennessee or the Tennessee Court Clerks Association.
7. (7) Subject to appropriation, funds from the judicial commissioner continuing education account, created in § 67-4-602(k), shall be used by the Judicial Commissioners Association of Tennessee for the development and presentation of continuing education programs, courses and conferences for judicial commissioners in this state.
  Backlinks (1)
  
  67-4-602(k)(6)
(g)
1. (1) Judicial commissioners duly appointed pursuant to this section in any county with a population not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, shall be known as “magistrates.”
2. (2) Any county with a population not less than two hundred seventy-six thousand (276,000) nor more than two hundred seventy-seven thousand (277,000), according to the 1970 federal census or any subsequent federal census, shall have the position of one (1) or more general sessions magistrate.
3. (3) A magistrate must be appointed by a majority of the general sessions judges in the county and serve at the pleasure of the majority of the general sessions judges.
4. (4) The duties of a magistrate include, but are not limited to, the following:
  1. (A) The issuance of arrest warrants upon a finding of probable cause;
  2. (B) The setting of bonds and recognizances in accordance with the procedures outlined in this chapter and chapter 11 of this title; and
  3. (C) The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103.
5. (5) The term of a magistrate must be established by the majority of general sessions judges of the county.
(h)
1. (1) In any county having a population of not less than four hundred thirty-two thousand two hundred (432,200) nor more than four hundred thirty-two thousand three hundred (432,300), according to the 2010 federal census or any subsequent federal census, there is created the position of domestic abuse magistrate.
2. (2) Notwithstanding any other law to the contrary, the domestic abuse magistrate created by this subsection (h) shall be appointed by the judge of the fourth circuit court of any such county and shall hold office for a term of eight (8) years from the date of appointment. The magistrate shall be eligible for reappointment to successive eight-year terms and shall be compensated from the general fund of the county in an amount to be determined by the county legislative body. Upon making a selection, the judge shall reduce the appointment to writing and file it with the fourth circuit court clerk of any county to which this subsection (h) applies. The domestic abuse magistrate, once appointed, shall regularly perform the duties set out in this subsection (h) within the approximate time period that the fourth circuit court begins and ends its daily docket, and the magistrate shall be styled as magistrate judge.
3. (3) To qualify for the position of domestic abuse magistrate, the applicant must:
  1. (A) Be at least thirty (30) years of age;
  2. (B) Be a resident of the county funding the position;
  3. (C) Be an attorney, licensed to practice law in the courts of this state; and
  4. (D) Have served as a judicial commissioner or magistrate pursuant to subsection (a) for at least a full four-year term prior to application.
4. (4) No person who is a judicial commissioner under subsection (a) or a magistrate under subsection (g) prior to the appointment of the domestic abuse magistrate may simultaneously hold that position and the position of domestic abuse magistrate under this subsection (h).
5. (5) For purposes of:
  1. (A) Title 36, chapter 3, part 6, the domestic abuse magistrate shall be considered a “court” as defined in § 36-3-601(3)(A) and (D), and shall have all jurisdiction and authority necessary to serve in that function for the employing county; and
  2. (B) Chapter 5, part 1 of this title, the domestic abuse magistrate shall be considered a “magistrate” as defined in § 40-5-102, and shall have all of the jurisdiction and authority necessary to serve in that function for the employing county, and the domestic abuse magistrate shall complete the judicial continuing education requirements of subsection (f) in the same manner as a judicial commissioner.
6. (6) The domestic abuse magistrate shall have, regardless of whether the case involves alleged domestic abuse, the following duties pursuant to this chapter, the Tennessee Rules of Civil Procedure, the Tennessee Rules of Criminal Procedure, and applicable statutes:
  1. (A) Those conferred upon a court by title 36, chapter 3, part 6;
  2. (B) Issuing or denying temporary or ex-parte orders of protection;
  3. (C) Setting and approving bond in cases of civil and criminal contempt for alleged violations of orders of protection;
  4. (D) Issuing injunctions and other appropriate orders in cases of alleged domestic violence;
  5. (E) Setting and approving of bonds and release on recognizance of defendants in accordance with applicable law;
  6. (F) Issuing mittimus in compliance with § 40-5-103;
  7. (G) Issuing criminal arrest warrants, criminal summons, and search warrants upon a finding of probable cause;
  8. (H) Appointing attorneys for indigent defendants and respondents in accordance with applicable law;
  9. (I) Conducting initial appearances in accordance with Rule 5 of the Tennessee Rules of Criminal Procedure;
  10. (J) Setting and approving bond for probation violation warrants;
  11. (K) Issuing attachments, capias, or conditional bond forfeitures;
  12. (L) Conducting compliance review dockets to examine and report to the appropriate judge any findings and conclusions regarding compliance with court orders;
  13. (M) Conducting initial appearances for any defendant following arrest for a crime involving domestic abuse when conducted pursuant to the requirements imposed by [former] § 36-3-602(c) [repealed]; and
  14. (N) Any other judicial duty not prohibited by the constitution, statute, or applicable rules, when requested by a judge.
7. (7) If the domestic abuse magistrate is carrying out one (1) of the duties of the office under this subsection (h), the failure to appear before the magistrate constitutes failure to appear and shall subject the defendant or respondent to arrest and forfeiture of bond.
8. (8) If the appointed domestic abuse magistrate is absent or unavailable for any reason, the magistrate has the authority to appoint special, substitute, or temporary magistrates to carry out the duties of this section. A substitute magistrate shall be an attorney, licensed to practice law in the courts of this state, a resident of the county of the appointing domestic abuse magistrate, and not less than thirty (30) years of age. An order of appointment for a special, substitute, or temporary magistrate shall be for a fixed period of time and shall be reduced to writing and filed with the fourth circuit court clerk.
9. (9) The domestic abuse magistrate may also accept appointment by the judge of the fourth circuit court to serve as a special master to the fourth circuit court for any purpose established by the judge. The appointment may be made by the judge at the same time as the appointment to the position of domestic abuse magistrate, or at any time during the magistrate's term.
(i) In a county with more than one (1) general sessions judge in which the judicial commissioners are supervised by the general sessions judges, the management and supervision of any judicial commissioners appointed pursuant to this section must rotate between the general sessions judges having criminal jurisdiction in the county on an annual basis.

History (23)

Acts 1978, ch. 933, § 4
1979, ch. 15, § 1
1980, ch. 781, § 1
1981, ch. 209, §§ 1, 2
T.C.A., § 40-120
Acts 1991, ch. 444, § 1
1993, ch. 241, § 57
1998, ch. 984, § 1
2001, ch. 316, §§ 1, 2
2004, ch. 685, § 1
2009, ch. 503, § 1
2010, ch. 989, §§ 1, 2
2012, ch. 890, § 1
2012, ch. 1052, §§ 1, 3
2013, ch. 236, § 33
2016, ch. 531, §§ 2, 3
2017, ch. 222, § 1
2019, ch. 345, § 55
2021, ch. 64, § 47
2022, ch. 900, §§ 3-6
2024, ch. 616, § 1
2024, ch. 683, §§ 1-6
2024, ch. 786, § 1.

Chapter 2 Limitation of Prosecutions

§ 40-2-101. Felonies.

(a) A person may be prosecuted, tried and punished for an offense punishable with death or by imprisonment in the penitentiary during life, at any time after the offense is committed.
(b) Prosecution for a felony offense shall begin within:
1. (1) Fifteen (15) years for a Class A felony;
2. (2) Eight (8) years for a Class B felony;
3. (3) Four (4) years for a Class C or Class D felony; and
4. (4) Two (2) years for a Class E felony.
(c) Notwithstanding subsections (a) and (b), offenses arising under the revenue laws of the state shall be commenced within the three (3) years following the commission of the offense, except that the period of limitation of prosecution shall be six (6) years in the following instances:
1. (1) Offenses involving the defrauding or attempting to defraud the state of Tennessee or any agency of the state, whether by conspiracy or not, and in any manner;
2. (2) The offense of willfully attempting in any manner to evade or defeat any tax or the payment of a tax;
3. (3) The offense of willfully aiding or abetting, or procuring, counseling or advising, the preparation or presentation under, or in connection with, any matter arising under the revenue laws of the state, or a false or fraudulent return, affidavit, claim or document, whether or not the falsity or fraud is with the knowledge or consent of the person authorized or required to present the return, affidavit, claim or document; and
4. (4) The offense of willfully failing to pay any tax, or make any return at the time or times required by law or regulation.
(d) Notwithstanding the provisions of subdivision (b)(3) to the contrary, prosecution for the offense of arson as prohibited by § 39-14-301 shall commence within eight (8) years from the date the offense occurs.
(e) Prosecutions for any offense committed against a child prior to July 1, 1997, that constitutes a criminal offense under [former] § 39-2-601 [repealed], [former] § 39-2-603 [repealed], [former] § 39-2-604 [repealed], [former] § 39-2-606 [repealed], [former] § 39-2-607 [repealed], [former] § 39-2-608 [repealed], [former] § 39-2-612 [repealed], [former] § 39-4-306 [repealed], [former] § 39-4-307 [repealed], [former] § 39-6-1137 [repealed], or [former] § 39-6-1138 [repealed], or under §§ 39-13-502 — 39-13-505, § 39-15-302 or § 39-17-902 shall commence no later than the date the child attains the age of majority or within four (4) years after the commission of the offense, whichever occurs later; provided, that pursuant to subsection (a), an offense punishable by life imprisonment may be prosecuted at any time after the offense has been committed.
(f) For offenses committed prior to November 1, 1989, the limitation of prosecution in effect at that time shall govern.
(g)
1. (1) Prosecutions for any offense committed against a child on or after July 1, 1997, that constitutes a criminal offense under § 39-17-902 shall commence no later than the date the child reaches twenty-one (21) years of age; provided, that if subsection (a) or (b) provides a longer period of time within which prosecution may be brought than this subsection (g), the applicable provision of subsection (a) or (b) shall prevail.
2. (2) Prosecutions for any offense committed against a child on or after July 1, 1997, but prior to June 20, 2006, that constitutes a criminal offense under §§ 39-13-502 — 39-13-505, § 39-13-522 or § 39-15-302 shall commence no later than the date the child reaches twenty-one (21) years of age; provided, that if subsection (a) or (b) provides a longer period of time within which prosecution may be brought than this subsection (g), the applicable provision of subsection (a) or (b) shall prevail.
(h)
1. (1) A person may be prosecuted, tried and punished for any offense committed against a child on or after June 20, 2006, that constitutes a criminal offense under § 39-13-504, § 39-13-505, § 39-13-527 or § 39-15-302, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
2. (2) A person may be prosecuted, tried and punished for any offense committed against a child on or after June 20, 2006, that constitutes a criminal offense under § 39-13-502, § 39-13-503 or § 39-13-522 no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
(i)
1. (1) A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2007, that constitutes a criminal offense under § 39-13-532, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
2. (2) A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2007, that constitutes a criminal offense under § 39-13-531, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
(j) A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2012, that constitutes a criminal offense under § 39-17-902, § 39-17-1003, § 39-17-1004, or § 39-17-1005, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
(k)
1. (1) A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2013, that constitutes a criminal offense under § 39-13-309 or § 39-13-529, no later than fifteen (15) years from the date the child becomes eighteen (18) years of age.
2. (2) A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2013, that constitutes a criminal offense under § 39-13-514 no later than ten (10) years from the date the child becomes eighteen (18) years of age.
3. (3)
  1. (A) A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2013, but prior to July 1, 2015, that constitutes a criminal offense under § 39-13-515 no later than ten (10) years from the date the child becomes eighteen (18) years of age.
  2. (B) A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2015, that constitutes a criminal offense under § 39-13-515 no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
(l)
1. (1) Notwithstanding subsections (b), (g), (h), and (i) to the contrary, a person may be prosecuted, tried, and punished at any time after the commission of an offense if:
  1. (A) The offense was one (1) of the following:
    1. (i) Aggravated rape, as prohibited by § 39-13-502; or
    2. (ii) Rape, as prohibited by § 39-13-503;
  2. (B) The victim was an adult at the time of the offense;
  3. (C) The victim notifies law enforcement or the office of the district attorney general of the offense within three (3) years of the offense; and
  4. (D) The offense is committed:
    1. (i) On or after July 1, 2014; or
    2. (ii) Prior to July 1, 2014, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2014.
2. (2) If subdivision (l)(1) does not apply to the specified offenses, prosecution shall be commenced within the times otherwise provided by this section.
(m) A person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2016, that constitutes the offense of aggravated statutory rape under § 39-13-506(c), no later than fifteen (15) years from the date the child becomes eighteen (18) years of age.
(n) Notwithstanding subsection (b), prosecutions for any offense committed on or after July 1, 2016, that constitutes the offense of aggravated child abuse, or aggravated child neglect or endangerment, under § 39-15-402, shall commence by the later of:
1. (1) Ten (10) years after the child reaches eighteen (18) years of age; or
2. (2) The time within which prosecution must be commenced pursuant to subsection (b).
(o) A person may be prosecuted, tried and punished for any offense committed against a child on or after July 1, 2019, that constitutes the offense of female genital mutilation, under § 39-13-110, no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.
(p) Notwithstanding subsection (b), a person may be prosecuted, tried, and punished for second degree murder, as prohibited by § 39-13-210, that is committed on or after July 1, 2019, at any time after the offense is committed.
(q)
1. (1) Notwithstanding subsections (b), (g), (h), (i), (j), (k), or (m), prosecution for the following offenses, when committed against a minor under eighteen (18) years of age shall commence as provided by this subsection (q):
  1. (A) Trafficking for a commercial sex act, as prohibited by § 39-13-309;
  2. (B) Aggravated rape, as prohibited by § 39-13-502;
  3. (C) Rape, as prohibited by § 39-13-503;
  4. (D) Aggravated sexual battery, as prohibited by § 39-13-504;
  5. (E) Sexual battery, as prohibited by § 39-13-505;
  6. (F) Mitigated statutory rape, as prohibited by § 39-13-506;
  7. (G) Statutory rape, as prohibited by § 39-13-506;
  8. (H) Aggravated statutory rape, as prohibited by § 39-13-506(c);
  9. (I) Indecent exposure, as prohibited by § 39-13-511, when the offense is classified as a felony offense;
  10. (J) Patronizing prostitution, as prohibited by § 39-13-514;
  11. (K) Promotion of prostitution, as prohibited by § 39-13-515;
  12. (L) Continuous sexual abuse of a child, as prohibited by § 39-13-518;
  13. (M) Rape of a child, as prohibited by § 39-13-522;
  14. (N) Sexual battery by an authority figure, as prohibited by § 39-13-527;
  15. (O) Solicitation of a minor, as prohibited by § 39-13-528, when the offense is classified as a felony offense;
  16. (P) Soliciting sexual exploitation of a minor - exploitation of a minor by electronic means, as prohibited by § 39-13-529;
  17. (Q) Aggravated rape of a child, as prohibited by § 39-13-531;
  18. (R) Statutory rape by an authority figure, as prohibited by § 39-13-532;
  19. (S) Unlawful photographing, as prohibited by § 39-13-605, when the offense is classified as a felony offense;
  20. (T) Observation without consent, as prohibited by § 39-13-607, when the offense is classified as a felony offense;
  21. (U) Incest, as prohibited by § 39-15-302;
  22. (V) Sexual exploitation of a minor, as prohibited by § 39-17-1003;
  23. (W) Aggravated sexual exploitation of a minor, as prohibited by § 39-17-1004; or
  24. (X) Especially aggravated sexual exploitation of a minor, as prohibited by § 39-17-1005.
2. (2) A person may be prosecuted, tried, and punished for an offense listed in subdivision (q)(1) at any time after the commission of an offense if:
  1. (A) The victim was under thirteen (13) years of age at the time of the offense; or
  2. (B)
    1. (i) The victim was at least thirteen (13) years of age but no more than seventeen (17) years of age at the time of the offense; and
    2. (ii) The victim reported the offense to another person prior to the victim attaining twenty-three (23) years of age.
3. (3)
  1. (A) Except as provided in subdivision (q)(3)(B), a person may be prosecuted, tried, and punished for an offense listed in subdivision (q)(1) at any time after the commission of an offense if:
    1. (i) The victim was at least thirteen (13) years of age but no more than seventeen (17) years of age at the time of the offense; and
    2. (ii) The victim did not meet the reporting requirements of subdivision (q)(2)(B)(ii).
  2. (B) In order to commence prosecution for an offense listed in subdivision (q)(1) under the circumstances described in subdivision (q)(3)(A), at a date that is more than twenty-five (25) years from the date the victim becomes eighteen (18) years of age, the prosecution is required to offer admissible and credible evidence corroborating the allegations or similar acts by the defendant.
4. (4) This subsection (q) applies to offenses:
  1. (A) Committed on or after July 1, 2019; or
  2. (B) Committed prior to July 1, 2019, unless prosecution for the offense is barred because the applicable time limitation set out in this section for prosecution of the offense expired prior to July 1, 2019.
(r) Notwithstanding subsections (k) and (q), a person may be prosecuted, tried, and punished for any offense committed against a child on or after July 1, 2021, that constitutes the offense of trafficking for commercial sex act under § 39-13-309, at any time after the offense is committed.
(s) Notwithstanding subsection (b) and § 40-2-102, prosecution for an offense committed on or after July 1, 2023, that constitutes the offense of destruction and tampering with governmental records, pursuant to § 39-16-504, or official misconduct, pursuant to § 39-16-402, shall commence within six (6) years from the date the offense occurs.

Backlinks (2)

History (20)

Code 1932, §§ 11481-11483
Acts 1977, ch. 62, § 1
T.C.A. (orig. ed.), §§ 40-201 — 40-203
Acts 1985, ch. 478, § 21
1990, ch. 980, § 17
1997, ch. 214, §§ 1, 2
1998, ch. 962, § 1
2006, ch. 927, § 1
2007, ch. 594, § 5
2012, ch. 1027, § 1
2013, ch. 416, § 1
2014, ch. 836, §§ 1, 2
2015, ch. 310, § 1
2016, ch. 958, § 1
2016, ch. 1032, § 1
2019, ch. 268, § 4
2019, ch. 410, § 1
2019, ch. 499, §§ 5-8
2021, ch. 363, § 1
2023, ch. 22, § 1.

§ 40-2-102. Misdemeanors.

(a) Except as provided in § 62-18-120(g) and subsection (b) of this section, all prosecutions for misdemeanors shall be commenced within the twelve (12) months after the offense has been committed, except gaming, which shall be commenced within six (6) months.
(b) Prosecutions under § 39-16-301 for criminal impersonation accomplished through the use of a fraudulently obtained driver license shall be commenced within one (1) year of the date the driver license expires or within three (3) years of the date the nonexpired driver license was last used to falsely impersonate the person in whose name the driver license was issued, whichever is longer.

Backlinks (1)

40-2-101(s)

History (6)

Code 1858, § 4983 (deriv. Acts 1831, ch. 82)
Shan., § 6942
mod. Code 1932, § 11484
T.C.A. (orig. ed.), § 40-204
Acts 1985, ch. 146, § 1
1999, ch. 374, § 1.

§ 40-2-103. Period of concealment of crime or absence from state.

No period during which the party charged conceals the fact of the crime, or during which the party charged was not usually and publicly resident within the state, is included in the period of limitation.

Backlinks (1)

39-15-301(c)(2)

History (4)

Code 1858, § 4988
Shan., § 6947
mod. Code 1932, § 11488
T.C.A. (orig. ed.), § 40-205.

§ 40-2-104. Commencement of prosecution.

A prosecution is commenced, within the meaning of this chapter, by finding an indictment or presentment, the issuing of a warrant, the issuing of a juvenile petition alleging a delinquent act, binding over the offender, by the filing of an information as provided for in chapter 3 of this title, or by making an appearance in person or through counsel in general sessions or any municipal court for the purpose of continuing the matter or any other appearance in either court for any purpose involving the offense. A prosecution is also commenced, within the meaning of this chapter, by finding an indictment or presentment or the issuing of a warrant identifying the offender by a deoxyribonucleic acid (DNA) profile.

History (8)

Code 1858, § 4987
Shan., § 6946
mod. Code 1932, § 11485
Acts 1975, ch. 258, § 4
1977, ch. 179, §§ 1, 2
T.C.A. (orig. ed.), § 40-206
Acts 2007, ch. 4, § 1
2013, ch. 205, § 1.

§ 40-2-105. Suspension of statute because of irregularities in prosecution.

When the judgment is arrested, or the indictment or presentment quashed for any defect in the indictment or presentment, or for the reason that it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, or when the prosecution is dismissed because of a variance between the allegations of the indictment or presentment and the evidence, and a new indictment or presentment is ordered to be preferred, the time elapsing between the preferring of the first charge, indictment or presentment and the next subsequent term of court must be deducted from the time limited for the prosecution of the offense last charged.

History (2)

Code 1932, § 11486
T.C.A. (orig. ed.), § 40-207.

§ 40-2-106. Suspension on reversal.

When an indictment or presentment is quashed, or the proceedings on the indictment or presentment are set aside, or reversed on writ of error, the time during the pendency of the indictment or presentment so quashed, set aside or reversed shall not be reckoned within the time limited by this chapter, so as to bar any new indictment or presentment for the same offense.

History (2)

Code 1932, § 11487
T.C.A. (orig. ed.), § 40-208.

Chapter 3 Methods of Prosecution

Part 1 General Provisions

§ 40-3-101. Methods enumerated.

No person shall be put to answer any criminal charge, but by presentment, indictment or impeachment; provided, that, in accordance with this chapter, an accused represented by an attorney may waive the right to be tried upon presentment or indictment and consent to prosecution by information.

History (5)

Code 1858, § 4989
Shan., § 6948
mod. Code 1932, § 11489
Acts 1975, ch. 258, § 1
T.C.A. (orig. ed.), § 40-301.

§ 40-3-102. Indictment or presentment.

All violations of the criminal laws may be prosecuted by indictment or presentment of a grand jury, and a presentment may be made upon the information of any one (1) of the grand jury.

History (4)

Code 1858, § 4990 (deriv. Acts 1841-1842, ch. 141, § 4)
Shan., § 6949
Code 1932, § 11490
T.C.A. (orig. ed.), § 40-302.

§ 40-3-103. Information.

(a) All violations of the criminal laws may, with the consent of the accused and the accused's attorney and of the court, be prosecuted upon the filing of an information.
(b) “Information” means a written statement by a district attorney general charging a person with the commission of a criminal offense.
(c)
1. (1) It is the mandatory duty of the court, before consenting to a prosecution by information, to advise the accused in the presence of the accused's attorney of the accused's constitutional right to be tried only upon presentment or indictment of the grand jury of the accused's peers.
2. (2) Upon the accused's agreeing in writing in the presence of the accused's attorney to waive such right, the court may proceed in all respects as in cases prosecuted by indictment or presentment.
3. (3) The written waiver required in subdivision (c)(2) shall be attached to and become a part of the information.

History (2)

Acts 1975, ch. 258, §§ 2, 3
T.C.A., §§ 40-306, 40-307.

§ 40-3-104. Actions in name of state.

All criminal actions are prosecuted in the name of the state of Tennessee against the party charged with the offense.

History (4)

Code 1858, § 4991
Shan., § 6950
Code 1932, § 11491
T.C.A. (orig. ed.), § 40-303.

§ 40-3-105. Prosecution for same offense in both state and municipal court prohibited.

(a) Whenever the commission of any act or the omission to act under certain circumstances constitutes both a violation of state law and a violation of municipal law, notwithstanding the fact that different penalties are provided, no person shall be prosecuted in both a state court and a municipal court for the same offense.
(b) A dismissal on the merits, acquittal or conviction of the offense in one (1) court, pleaded and shown, shall be a bar to prosecution for the offense in the other court.

History (3)

Acts 1971, ch. 183, § 1
1972, ch. 659, § 1
T.C.A., § 40-305.

Part 2 Fraud and Economic Crimes Prosecution Act

§ 40-3-201. Short title.

This part shall be known and may be cited as the “Fraud and Economic Crimes Prosecution Act.”

History (1)

Acts 1984, ch. 998, § 1.

§ 40-3-202. Legislative intent.

The intent of this part is to provide district attorneys general of this state the resources necessary to deal effectively with fraud, economic, and other crimes, and to provide a means for obtaining restitution in bad check cases prior to the institution of formal criminal charges. Subject to the limitations of § 40-3-209(b), the use of any moneys collected under this part shall be directly related to fulfilling the prosecutorial duties of the district attorney general of the district and shall include, but not be limited to, the following:
1. (1) The enhancement of those resources as may already be available in each district for the prosecution of bad check cases, fraud and other economic crimes and to increase assistance to the victims of those crimes by aiding in the collection of restitution;
2. (2) The hiring of expert witnesses including, but not limited to, computer specialists, as the need arises;
3. (3) The expenses of specialized training for staff members to enhance their knowledge of methods of combating fraud and economic crimes and general criminal law enforcement when funds for training are not available; provided, that payment for training shall be limited to in-state programs unless the district attorney general determines that training is essential and not reasonably available within this state;
4. (4) Matching federal grants directly related to prosecutorial duties of the district attorney general;
5. (5) Salaries and salary supplements, which may only be paid through the district attorneys general conference for support staff (subject to the limitation of § 40-3-209(b) on the use of any funds to supplement the salary of any assistant district attorneys); provided, however, that not later than January 1, 2004, the district attorneys general conference shall perform, or cause to be performed, a classification/compensation study of support staff reasonably required for the effective operation of district attorneys general offices;
  Backlinks (1)
  
  40-3-209(b)
6. (6) The purchase of equipment and supplies necessary to carry out the purposes of this part; and
7. (7) The expenses of travel in the performance of official duties of the office that are directly related to prosecution of fraud and economic crimes and general criminal law enforcement when funds for travel are not available, subject to the limitations of the state of Tennessee comprehensive travel regulations. No moneys collected under this part shall be used to pay travel expenses in excess of the rates authorized under state travel regulations.

Backlinks (1)

40-3-207(a)

History (2)

Acts 1984, ch. 998, § 2
2003, ch. 291, § 1.

§ 40-3-203. Bad check restitution program — Application — Fees and charges — Failure to pay bad check.

(a) Before commencing a criminal prosecution in a bad check case, any victim, including any municipal, county or state officer that has received a bad check, may apply to the clerk who serves the court of general criminal jurisdiction in the county where the alleged offense occurred for participation in the bad check restitution program. Upon completion of an application form and the payment of a ten-dollar fee by the victim, the clerk shall forward the form to the district attorney general, who shall then send a letter to the last known address of the alleged violator stating that unless the amount of the check plus the application fee and a handling charge of ten dollars ($10.00) is paid to the holder of the check within fifteen (15) days, a criminal prosecution may be commenced.
(b) The application form shall contain the name and address of the victim, the name and the address of the alleged violator, and shall have attached thereto a photocopy of the bad check. Except in those cases enumerated in § 39-14-121(e), the application shall also contain a sworn statement that the alleged violator has failed to pay the check within ten (10) days of receiving notice of the drawee's refusal to pay.
(c) The application fee shall be forwarded by the clerk to the county trustee as provided in § 40-3-207, with the clerk retaining five dollars ($5.00) as a fee for handling.
(d) In the event the alleged violator does not pay the check and is ultimately convicted of a criminal charge with respect to the check, any order directing the defendant to pay to the holder the amount due on the check shall also direct the defendant to reimburse the application fee paid under this section as well as to pay to the holder a handling fee of ten dollars ($10.00).

History (3)

Acts 1984, ch. 998, § 3
1985, ch. 175, §§ 1, 2
1992, ch. 962, § 4.

§ 40-3-204. Fees in criminal prosecutions.

(a) In criminal prosecutions, judges shall order that fees, in accordance with the schedule listed in subdivisions (b)(1)-(3), be paid by the person or corporations against whom the costs are taxed, and the clerk of the court shall collect those fees when the costs are paid. The state of Tennessee, and any county or political subdivision, shall be exempt from such costs.
(b)
1. (1) Worthless Check Prosecutions. The amount of the fee shall be determined as follows:
  1. (A) If the face amount of the check or sight order is under ten dollars ($10.00), the fee shall be five dollars ($5.00);
  2. (B) If the face amount of the check or sight order is ten dollars ($10.00) or more but less than one hundred dollars ($100), the fee shall be ten dollars ($10.00);
  3. (C) If the face amount of the check or sight order is one hundred dollars ($100) or more but less than three hundred dollars ($300), the fee shall be thirty dollars ($30.00);
  4. (D) If the face amount of the check or sight order is three hundred dollars ($300) or more but less than five hundred dollars ($500), the fee shall be fifty dollars ($50.00); and
  5. (E) If the face amount of the check or sight order is five hundred dollars ($500) or more, the fee shall be seventy-five dollars ($75.00).
2. (2) Forgery Prosecutions. The face amount of the check or money order shall be the determining factor in arriving at the proper fee, and the same schedule that is established for worthless check prosecutions shall be applicable to forgery cases.
3. (3) Other Prosecutions. In all offenses specified in title 39, chapter 14, parts 1 and 6, the fee shall be seventy-five dollars ($75.00), regardless of the amount alleged to have been stolen or taken.

Backlinks (1)

40-3-205

History (2)

Acts 1984, ch. 998, § 4
1994, ch. 902, § 1.

§ 40-3-205. Payment of fees.

The fees set out in § 40-3-204 shall be paid under the following circumstances:
1. (1) In all cases where costs are paid by the defendant as a condition for dismissal of charges pursuant to a plea negotiation;
2. (2) In all cases where the defendant agrees to pay the costs in exchange for a dismissal of charges; and
3. (3) In all cases where the defendant is convicted before a judge or jury.

History (1)

Acts 1984, ch. 998, § 5.

§ 40-3-206. Collection of fees — Clerk's fee.

Any fees collected pursuant to this part shall be collected by the clerk of the court in the same manner in which other costs are collected. The clerk shall be entitled to a reasonable handling fee not to exceed five percent (5%) of the amount collected; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the fee shall not exceed ten percent (10%) of the amount collected.

History (2)

Acts 1984, ch. 998, § 6
1995, ch. 456, § 9.

§ 40-3-207. Deposit of fees — Records — Reports — Audits.

(a) The clerk in each county shall deposit all fees collected in accordance with this part in an account with the county trustee in the county of the district attorney general's residence, and expenditures from this fund shall be made by the district attorney general only for the purposes provided in § 40-3-202.
(b) The district attorney general shall keep strict records as to the use of the funds, and shall annually submit to the comptroller of the treasury, for audit and comment, a detailed report of expenditures.
(c) In addition, the account maintained in the trustee's office shall be subject to audit by the comptroller of the treasury as a part of the comptroller of the treasury's regular post audit of county governmental agencies.

Backlinks (1)

40-3-203(c)

History (2)

Acts 1984, ch. 998, § 7
2003, ch. 291, § 2.

§ 40-3-208. Immunity of officials and employees.

The district attorney general and assistant district attorneys general, district attorney general's investigators, district attorney general's secretaries and any other employee of the district attorney general shall not be civilly or criminally liable for acts performed pursuant to this part or in furtherance of the purposes of this part except as those acts relate to expenditure of and accounting for moneys collected under this part.

History (2)

Acts 1984, ch. 998, § 9
2003, ch. 291, § 3.

§ 40-3-209. Prosecuting attorney's office — Compensation not decreased — Authorized and unauthorized use of funds.

(a) Nothing in this part shall be construed to decrease the total salaries, expense funds and allowances that the prosecuting attorney's office is receiving on July 1, 1984.
(b) The district attorney general shall not use any of the funds collected pursuant to this part to supplement the district attorney general's salary, or to supplement the salary of any assistant district attorney general or other employee of a district attorney general, except as provided in § 40-3-202(5); provided, that should the state of Tennessee not have funds available to pay the salary and benefits of any district attorney general, assistant district attorney general or other employee of a district attorney general's office authorized by law to receive pay and benefits from the state of Tennessee, then in that event each district attorney general shall have the authority to transfer an amount from funds collected pursuant to this part sufficient to meet the district attorney general's office payroll to the state general fund, earmarked for payment of the salaries and benefits of the employees of the transferring district attorney general, so long as such funds exist. In no case shall any salaries and benefits so paid be greater than those otherwise authorized by state law. Funds collected pursuant to this part shall be expended only in furtherance of the purposes of this part.
Backlinks (3)

History (3)

Acts 1984, ch. 998, §§ 8, 10
1992, ch. 785, § 1
2003, ch. 291, § 4.

§ 40-3-210. Existing laws not repealed — Fees additional.

This part does not repeal any existing statute and the fees described in this part shall be in addition to those already provided by law.

History (1)

Acts 1984, ch. 998, § 11.

Chapter 4 Proceedings Before General Sessions Courts

§ 40-4-101. Preliminary proceedings.

Judges of the courts of general sessions are authorized and empowered to:
1. (1) Make the preliminary examination and bind over the reputed father in bastardy cases;
2. (2) Summon a jury of inquest in cases of death by accident, as provided in § 38-5-103;
3. (3) Issue a warrant for a prisoner escaped from jail;
4. (4) Examine persons arrested for a crime;
5. (5) Bind a defendant over to court if probable cause be found; and
6. (6) Take bail in bailable offenses brought before the judges.

History (10)

Code 1858, § 4970 (deriv. Acts 1715, ch. 16, § 1
1741, ch. 14, § 10
1777, ch. 8, § 9
1817, ch. 100, § 1
1825, ch. 36, § 4
1831, ch. 4, § 1)
Shan., § 6931
Code 1932, § 11470
T.C.A. (orig. ed.), § 40-401
Acts 1993, ch. 241, § 58.

§ 40-4-102. Investigation by grand jury.

(a) The grand jury shall make an investigation as to the offense charged in a warrant to have been committed, to the end that it may return an indictment or presentment, as prescribed and required by law for the charged offense.
(b) If an indictment or presentment is found against the defendant, the defendant shall then be proceeded with as now required by law in those cases.
(c) If no indictment or presentment is found, the defendant shall be discharged.
(d) The grand jury shall, immediately upon the receipt of the papers in the case, proceed to an investigation, and those cases shall have preference in the order presented over all other cases to be investigated by the grand jury.

History (4)

Acts 1899, ch. 16, § 2
Shan., § 7034a2
Code 1932, § 11576
T.C.A. (orig. ed.), § 40-403.

§ 40-4-103. Plea of guilty.

If the defendant pleads guilty to the charges in the warrant, the proceedings in the case shall then be the same in all respects as now prescribed by law.

History (4)

Acts 1899, ch. 16, § 3
Shan., § 7034a3
Code 1932, § 11577
T.C.A. (orig. ed.), § 40-405.

§ 40-4-104. [Reserved.]

§ 40-4-105. Notice of trial to victim of personal violence.

If the charge is of violence to the person of another, the person on whom the violence has been committed shall be notified of the time and place of trial, so that such person may attend and be heard as a witness. Should the person conceal such person's location so as to avoid the service of notice, or fail to attend after due notice, the trial may be proceeded with as in other cases.

History (5)

Code 1858, §§ 4995, 4996 (deriv. Acts 1849-1850, ch. 247, § 1
1851-1852, ch. 15, § 2)
Shan., §§ 6954, 6955
Code 1932, §§ 11495, 11496
T.C.A. (orig. ed.), § 40-409.

§ 40-4-106. Payment of fine and costs.

On conviction, the offender shall immediately pay the fine and costs, or give security to pay them, or be imprisoned until they are paid. The fine and costs, if paid before execution, shall be paid to the clerk; if paid after execution, to the officer having the execution.

History (4)

Code 1858, §§ 4997, 5002 (deriv. Acts 1847-1848, ch. 55, §§ 2, 7)
Shan., §§ 6956, 6961
Code 1932, §§ 11497, 11501
T.C.A. (orig. ed.), § 40-410.

§ 40-4-107. Security for fine and costs.

One (1) or more persons may become security for the fine and costs by oral undertaking before the judge of the court of general sessions, or by written direction to the judge, and an entry of judgment based thereon.

History (6)

Code 1858, §§ 4998, 5003 (deriv. Acts 1847-1848, ch. 55, §§ 3, 6)
Shan., §§ 6957, 6962
Code 1932, §§ 11498, 11502
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-411
Acts 1993, ch. 241, § 59.

§ 40-4-108. Execution for fine and costs.

If the offender gives security for fines and costs, the judge shall immediately issue execution against the offender and the offender's surety for the fine and costs, returnable as other executions.

History (5)

Code 1858, § 4999 (deriv. Acts 1847-1848, ch. 55, § 4)
Shan., § 6958
Code 1932, § 11499
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-412.

§ 40-4-109. [Reserved.]

§ 40-4-110. Appeal of proceedings.

The proceedings under this chapter may be superseded and removed, by certiorari, to the circuit court of the county, upon good cause shown by petition of any person aggrieved, verified by affidavit, upon the order of any district or criminal judge to whom the petition is presented.

History (4)

Code 1858, § 5012 (deriv. Acts 1847-1848, ch. 55, § 22)
Shan., § 6971
Code 1932, § 11510
T.C.A. (orig. ed.), § 40-414.

§ 40-4-111. Bail pending appeal.

The defendant obtaining writs of certiorari and supersedeas may be discharged from custody upon giving bond and security for the defendant's appearance before the district or criminal court as in other misdemeanor cases.

History (4)

Code 1858, § 5013 (deriv. Acts 1847-1848, ch. 55, § 23)
Shan., § 6972
Code 1932, § 11511
T.C.A. (orig. ed.), § 40-415.

§ 40-4-112. Appeal from sentence imposed.

Notwithstanding any other provision of the law to the contrary, any person convicted of a criminal offense in a court of general sessions has the right to appeal the sentence imposed, without regard to whether the person was convicted upon a plea of guilty or upon a plea of not guilty.

Backlinks (1)

39-15-103(a)

History (2)

Acts 1979, ch. 322, § 1
T.C.A., § 40-417.

§ 40-4-113 — 40-4-115. [Reserved.]

§ 40-4-116. Liability for neglect of duty.

Any failure to comply with the requirements of this chapter by the officers named is a misdemeanor in office, and those officers are liable to judgments on their bonds, by motion, as in other cases of official bonds.

History (4)

Code 1858, § 5010 (deriv. Acts 1851-1852, ch. 159, § 2)
Shan., § 6969
Code 1932, § 11509
T.C.A. (orig. ed.), § 40-422.

§ 40-4-117. Bail — Forfeiture.

(a) In all misdemeanor cases where bond is made for appearance before the court of general sessions, the judge is authorized and empowered to prescribe the amount of bail, either cash or otherwise, within the same discretionary powers as are granted to judges of the circuit and criminal courts by § 40-11-204.
(b) Upon default in appearance of the defendant, the judge before whom the default occurs is authorized to grant relief, lessen or remit liability upon the recognizance in such cases as provided for other courts in §§ 40-11-203 and 40-11-204; and, in the case of cash bonds, the judge may hear proof and order a fine and costs paid out of the cash bond.
(c) The unused surplus of cash bonds and other funds in excess of costs paid for exoneration of sureties shall be disbursed by the clerk as provided by law for forfeitures.

Backlinks (1)

16-15-501(c)(1)

History (3)

Acts 1959, ch. 109, § 10
T.C.A., § 40-424
Acts 1993, ch. 382, § 2.

§ 40-4-118 — 40-4-120. [Reserved.]

§ 40-4-121. Jurisdiction of general sessions courts in certain counties.

(a) In all counties of this state having a population of not less than three hundred seventy thousand (370,000) nor more than four hundred thousand (400,000), according to the federal census of 2000 or any subsequent federal census, legal process in all cases wherein a violation of the laws of the state of Tennessee is charged shall be returnable to the general sessions courts of the various counties coming within §§ 40-4-121 — 40-4-124.
(b) The judges of those courts shall have sole and exclusive jurisdiction, pursuant to the Small Offense Law [repealed], to hear and make final determination of all cases.
(c) Appeals to the rulings of the general sessions courts may be filed as is presently provided by law.
(d) Any preliminary hearing in the general sessions courts shall be conducted in accordance with existing state law.

Backlinks (4)

History (5)

Acts 1970, ch. 464, § 1
1972, ch. 611, § 1
1980, ch. 581, § 1
T.C.A., § 40-427
Acts 2002, ch. 515, § 1.

§ 40-4-122. Municipal courts divested of jurisdiction.

(a) It is expressly provided that the municipal courts which are located in counties of this state coming within §§ 40-4-121 — 40-4-124 shall not have any jurisdiction of cases wherein a violation of the laws of the state of Tennessee is charged and alleged, it being the legislative intent of §§ 40-4-121 — 40-4-124 to vest jurisdiction of those cases in the various general sessions courts of the counties coming within §§ 40-4-121 — 40-4-124. The offenses enumerated in subsection (b) are declared to be state offenses, and any person charged for violation of those offenses shall be tried only in state courts, as provided in § 40-4-121, in which jurisdiction shall be exclusive. Any ordinance presently enacted to regulate any of the enumerated offenses, or to be later enacted, is declared to be void, repealed and of no effect.
(b) The enumerated offenses are as follows:
1. (1) Driving while intoxicated or drugged, as forbidden by § 55-10-401;
2. (2) Failing to stop after a traffic accident, as forbidden by title 55, chapter 10, part 1;
3. (3) Driving while license suspended or revoked, as forbidden by § 55-50-504; and
4. (4) Drag racing, as defined and forbidden by § 55-10-501.

History (2)

Acts 1970, ch. 464, § 2
T.C.A., § 40-428.

§ 40-4-123. Distribution of fines, forfeitures and penalties.

In all counties coming within the provisions of §§ 40-4-121 — 40-4-124, the clerk of the general sessions court, on or before the tenth day of each month, shall pay over to the proper official of any municipality located within the county, fifty percent (50%) of all fines, forfeitures or penalties arising out of those cases disposed of in the general sessions courts during the preceding month where the arrests and prosecution of those cases were made by police officers of any municipality located within any county affected by the provisions of §§ 40-4-121 — 40-4-124. The remainder and all other fines shall be paid and accounted for as provided by law.

History (2)

Acts 1970, ch. 464, § 4
T.C.A., § 40-429.

§ 40-4-124. Effect on private acts and city charters.

Sections 40-4-121 — 40-4-124 shall govern the structure and operation of the general sessions courts in counties falling within the provisions of those sections, notwithstanding any private act or city charter to the contrary, and the operation of any private act or city charter in conflict with these sections is repealed and suspended.

Backlinks (4)

History (2)

Acts 1970, ch. 464, § 6
T.C.A., § 40-430.

Chapter 5 Magistrates and Judicial Commissioners

Part 1 Examination Before Magistrates

§ 40-5-101. “Magistrate” defined.

A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.

Backlinks (2)

History (4)

Code 1858, § 5015
Shan., § 6974
Code 1932, § 11513
T.C.A. (orig. ed.), § 40-602.

§ 40-5-102. Officials who are magistrates.

The following are magistrates within the meaning of this part:
1. (1) The judges of the supreme court;
2. (2) The judges of the circuit and criminal courts;
3. (3) Judicial commissioners;
4. (4) Judges of the courts of general sessions;
5. (5) City judges in cities and towns; and
6. (6) Judges of juvenile courts.

Backlinks (3)

History (8)

Code 1858, § 5016
Shan., § 6975
Code 1932, § 11514
Acts 1978, ch. 933, § 3
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-603
Acts 1993, ch. 115, § 5
1993, ch. 241, § 65.

§ 40-5-103. Examination required before commitment.

No person can be committed to prison for any criminal matter until examination thereof is first had before some magistrate.

Backlinks (6)

History (4)

Code 1858, § 5017 (deriv. Acts 1715, ch. 16, § 1)
Shan., § 6976
Code 1932, § 11515
T.C.A. (orig. ed.), § 40-604.

§ 40-5-104. Subpoena of witnesses.

The magistrate before whom an information is made may issue subpoenas to any part of the state for witnesses on behalf of either the defendant or the state.

History (4)

Code 1858, § 5380 (deriv. Acts 1822, ch. 40, § 1)
Shan., § 7358
Code 1932, § 11963
T.C.A. (orig. ed.), § 40-605.

§ 40-5-105. Disposition by magistrate.

The magistrate is required to reduce the examination of the accused to writing, if the accused submits to an examination, and also all the evidence adduced on both sides, and is authorized to discharge, bail, or commit the accused and to take all necessary recognizances to enforce the appearance of the defendant, the prosecutor or witnesses at the proper court.

History (4)

Code 1858, § 5018 (deriv. Acts 1715, ch. 16, § 1)
Shan., § 6977
Code 1932, § 11516
T.C.A. (orig. ed.), § 40-606.

§ 40-5-106. Officials prohibited from issuing warrants.

No search warrant, arrest warrant or mittimus shall be issued by any state, city or county officer whose compensation is contingent in any manner upon the issuance or nonissuance of a search warrant, arrest warrant or mittimus.

History (2)

Acts 1978, ch. 933, § 5
T.C.A., § 40-607.

Part 2 Judicial Commissioners

§ 40-5-201. Creation of position — Duties.

(a) The legislative body of any county having a metropolitan form of government may, by ordinance, create the position of one (1) or more judicial commissioners.
(b) The duties of the commissioner or commissioners include, but are not limited to, the following:
1. (1) The issuance of arrest warrants upon a finding of probable cause;
2. (2) The setting of bonds and recognizances in accordance with the procedures outlined in this chapter and chapter 6 of this title; and
3. (3) The issuance of mittimus following compliance with the procedures prescribed by § 40-5-103.
(c) The legislative body of any county having a population of not less than twenty-one thousand five hundred (21,500) nor more than twenty-one thousand seven hundred (21,700), according to the 1980 federal census or any subsequent federal census, may, by resolution, create the position of one (1) or more judicial commissioners pursuant to this part.

Backlinks (1)

33-10-404(11)

History (2)

Acts 1983, ch. 86, § 1
1986, ch. 901, § 1.

§ 40-5-202. Term of office — Eligibility for appointment.

The term or terms of the judicial commissioner or commissioners shall be established by the majority of general sessions judges of the county and in no event shall the term or terms exceed four (4) years. No employee, officer or official of the metropolitan government shall be eligible for appointment or serve as a judicial commissioner.

History (1)

Acts 1983, ch. 86, § 1.

§ 40-5-203. Compensation and fees.

The judicial commissioner or commissioners shall be compensated from the general fund of the county in an amount to be determined by the majority of general sessions judges of the county and subject to the approval of the legislative body. Fees established and authorized by § 8-21-401 shall be paid to the general fund upon the services detailed in § 8-21-401 being performed by a judicial commissioner.

History (1)

Acts 1983, ch. 86, § 1.

§ 40-5-204. Appointment — Management rotation.

(a) The judicial commissioner or commissioners shall be appointed by a majority of the general sessions judges in the county and serve at the pleasure of the majority of the general sessions judges.
(b) In a county with more than one (1) general sessions judge in which the judicial commissioners are supervised by the general sessions judges, the management and supervision of any judicial commissioners appointed pursuant to this part must rotate between the general sessions judges having criminal jurisdiction in the county on an annual basis.

History (2)

Acts 1983, ch. 86, § 1
2024, ch. 786, § 2.

Chapter 6 Warrants

Part 1 Search Warrants

§ 40-6-101. “Search warrant” defined.

A search warrant is an order in writing in the name of the state, signed by a magistrate, directed to the sheriff, any constable, or any peace officer of the county, commanding the sheriff, constable or peace officer to search for personal property, and bring it before the magistrate.

History (2)

Code 1932, § 11897
T.C.A. (orig. ed.), § 40-501.

§ 40-6-102. Grounds for issuance.

A search warrant may be issued on any one (1) of the following grounds:
1. (1) Where the property was stolen or embezzled;
2. (2) Where the property was used as the means of committing a felony;
3. (3) Where the property is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom the person may have delivered it, for the purpose of concealing it, or preventing its discovery; and
4. (4) Any other ground provided by law.

History (4)

Code 1858, § 5318
Shan.,§ 7296
mod. Code 1932, § 11898
T.C.A. (orig. ed.), § 40-502.

§ 40-6-103. Probable cause and affidavit.

A search warrant can only be issued on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched.

History (4)

Code 1858, § 5319
Shan., § 7297
Code 1932, § 11899
T.C.A. (orig. ed.), § 40-503.

§ 40-6-104. Examination of complainant.

The magistrate, before issuing the warrant, shall examine on oath the complainant and any witness the complainant may produce, and take their affidavits in writing, and cause them to be subscribed by the persons making the affidavits. The affidavits must set forth facts tending to establish the grounds of the application, or probable cause for believing the grounds exist.

History (2)

Code 1932, § 11900
T.C.A. (orig. ed.), § 40-504.

§ 40-6-105. Issuance of search warrant — Issuance of “no knock” search warrant prohibited.

(a) The magistrate, if satisfied of the existence of the grounds of the application, or that there is probable ground to believe their existence, shall issue a search warrant signed by the magistrate, directed to the sheriff, any constable, or any peace officer, commanding the sheriff, constable, or peace officer immediately to search the person or place named for the property specified, and to bring it before the magistrate.
(b) A magistrate shall not issue a “no knock” search warrant, which expressly authorizes a peace officer to dispense with the requirement to knock and announce the peace officer's presence prior to execution of the warrant.

Backlinks (1)

8-8-201(b)(1)

History (5)

Code 1858, § 5322
Shan., § 7300
mod. Code 1932, § 11901
T.C.A. (orig. ed.), § 40-505
2021, ch. 489, § 5.

§ 40-6-106. Form of warrant.

The warrant may be substantially in the following form:
1. State of Tennessee,
2. County of .
3. To the sheriff or any constable of the county:
  1. Proof by affidavit having been made before me by A. B., that (stating the particular grounds of the application; or, if the affidavits are not positive, “that there is probable cause for believing that,” stating the particular grounds of the application): You are therefore hereby commanded to make immediate search on the person of C. D. (or “in the house of E. F.,” or “in the house situated,” describing it, or any other place to be searched, with reasonable particularity, as the case may be), for the following property (describing it with reasonable particularity); and if you find the same, or any part thereof, to bring it forthwith before me at (stating the place).
  2. This day of , 20. L. M., Magistrate

History (4)

Code 1858, § 5323
Shan., § 7301
Code 1932, § 11902
T.C.A. (orig. ed.), § 40-506.

§ 40-6-107. Return date.

(a) A search warrant shall be executed and returned to the magistrate by whom it was issued within five (5) days after its date, after which time, unless executed, it is void.
(b) All search warrants in this state may be executed either in the daytime or in the nighttime.

History (5)

Code 1858, § 5326
Shan., § 7304
mod. Code 1932, § 11907
Acts 1969, ch. 252, § 1
T.C.A. (orig. ed.), § 40-507.

§ 40-6-108. Exclusionary Rule Reform Act.

(a) Notwithstanding any law to the contrary, any evidence that is seized as a result of executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of Criminal Procedure Rule 41 that is otherwise admissible in a criminal proceeding and not in violation of the constitution of the United States or Tennessee shall not be suppressed as a result of any violation of this part or any violation of Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c).
(b) This section does not limit or prohibit the enforcement of any appropriate civil remedy in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure; provided, however, that unless otherwise provided by federal law or the constitution of Tennessee, if any evidence is seized as a result of a good faith mistake or technical violation, as defined in subsection (c), the individual or government entity shall not be civilly liable.
(c) As used in this section, unless the context otherwise requires, “good faith mistake or technical violation” means:
1. (1) An unintentional clerical error or clerical omission made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, filing and handling of copies, or return and inventory of a search warrant;
2. (2) When the officer to whom the warrant is delivered for execution is not present during the execution but an officer with law enforcement authority over the premises does otherwise execute the search warrant;
3. (3) A reasonable reliance on a statute that is subsequently ruled unconstitutional; or controlling court precedent that is overruled after the issuance of a search warrant, unless the court overruling the precedent orders the new precedent to be applied retroactively.

History (1)

Acts 2011, ch. 252, § 1.

§ 40-6-109. Disclosure of stored wire or electronic communications — Criminal process.

(a) A law enforcement officer, a district attorney general or the district attorney's designee, or the attorney general or the attorney general's designee may require the disclosure of stored wire or electronic communications, as well as transactional records pertaining to the communications, to the extent and under the procedures and conditions provided for by the laws of the United States.
(b) A provider of electronic communication service or remote computing service shall provide the contents of, and transactional records pertaining to, wire and electronic communications in the provider's possession or reasonably accessible to the provider when a requesting law enforcement officer, a district attorney general or the district attorney's designee, or the attorney general or the attorney general's designee complies with the provisions for access to the communications as set forth by the laws of the United States.
(c) Search warrants for production of stored wire or electronic communications and transactional records pertaining to the communications shall have statewide application or application as provided by the laws of the United States when issued by a judge with general criminal jurisdiction over the criminal offense under investigation and to which such records relate. A judge with general criminal jurisdiction over the criminal offense under investigation may also issue orders for production of stored wire or electronic communications and transactional records pertaining to the communications to the extent and under the procedures and conditions provided for by the laws of the United States.
(d) A subpoena for the production of stored wire or electronic communications and transactional records pertaining to the communications may be issued under the procedures for the issuance of subpoenas and to the extent and under the procedures and conditions provided for by the laws of the United States.
(e) Criminal process that authorizes or commands the seizure or production of papers, documents, records, or other things from a recipient may be served by:
1. (1) Delivering a copy to the recipient personally; or
2. (2) Sending a copy by:
  1. (A) Certified or registered mail, return receipt requested;
  2. (B) Express mail; or
  3. (C) Facsimile or electronic transmission, if the copy is sent in a manner that provides proof of delivery.
(f) A recipient-provider who seeks to quash or otherwise challenge the criminal process must seek relief from the court of general criminal jurisdiction in the county from which process issued within the time required for production. The court shall hear and decide the issue as soon as practicable.
(g) When criminal process is served under subsection (e) of this section, the recipient-provider shall provide all of the papers, documents, records, or other things described in the criminal process within twenty (20) business days from the date the criminal process is received, unless:
1. (1) The court, for good cause shown, includes in the process a requirement for production within a period of time that is less than twenty (20) business days;
2. (2) The court, for good cause shown, extends the time for production to a period of time that is more than twenty (20) business days; or
3. (3) The applicant consents to a request from the recipient-provider for additional time to comply with the process.
(h) Criminal process issued under this section must contain a notice on the first page of the document that indicates:
1. (1) That the process was issued under this section;
2. (2) The date before which the recipient-provider must respond to the process; and
3. (3) That the deadline for seeking relief is not altered by the applicant's consent to additional time to respond to the process.
(i) As used in this section, “criminal process” means a subpoena, search warrant or other court order, or such other process authorized under the procedures and conditions provided for by the laws of the United States for the disclosure of stored wire or electronic communications and transactional records pertaining to the communications.
(j) A failure to comply with criminal process issued pursuant to this section by a recipient-provider is punishable as contempt.

History (1)

Acts 2021, ch. 421, § 1.

§ 40-6-110. Searches of cellular telephones and cellular telephone data.

(a) As used in this section:
1. (1) “Cellular telephone” means a wireless telephone authorized by the federal communications commission to operate in the frequency bandwidth reserved for cellular radio telephones;
2. (2) “Cellular telephone data” means any data that is stored in a cellular telephone including telephone numbers, addresses, pictures, documents, texts, videos, music and any other information that is stored in a cellular telephone; and
3. (3) “Law enforcement officer” means any person authorized to effectuate an arrest who is employed by the state, or a county, municipality or metropolitan form of government.
(b) No law enforcement officer shall search, examine, extract or duplicate any cellular telephone data, even if incident to a lawful arrest, unless:
1. (1) The officer has obtained a search warrant issued pursuant to this part or Rule 41 of the Tennessee Rules of Criminal Procedure;
2. (2) The owner of the cellular telephone or the person in possession of the cellular telephone at the time it is seized gives the officer informed consent for the officer to search the cellular telephone; or
3. (3) Exigent circumstances exist at the time of the seizure requiring the officer to search the cellular telephone.
(c) No cellular telephone data that is obtained in violation of this section may be used in any court of law or administrative board as evidence, nor may other evidence that is derived from the illegally obtained data be used as evidence in any such proceeding.
(d) This section shall not apply to any cellular telephone that, at the time of its seizure or discovery, has been abandoned by the owner or person responsible for its abandonment.

History (1)

Acts 2014, ch. 785, § 1.

§ 40-6-111. Searches of medical records and test.

A law enforcement officer may execute a search warrant for medical records or a test to determine the alcohol or drug content, or both, of a person's blood anywhere in this state.

History (1)

Acts 2024, ch. 892, § 1.

Part 2 Arrest Warrants

§ 40-6-201. “Warrant of arrest” defined.

A warrant of arrest is an order, in writing, stating the substance of the complaint, directed to a proper officer, signed by a magistrate, and commanding the arrest of the defendant.

History (4)

Code 1858, § 5023
Shan., § 6982
Code 1932, § 11521
T.C.A. (orig. ed.), § 40-706.

§ 40-6-202. Power of magistrates.

For the apprehension of persons charged with public offenses, magistrates are authorized within their jurisdiction, to issue warrants of arrest, under the rules and regulations prescribed in this part.

History (4)

Code 1858, § 5019
Shan., § 6978
Code 1932, § 11517
T.C.A. (orig. ed.), § 40-701.

§ 40-6-203. Examination of affiant.

(a) Upon information made to any magistrate of the commission of a public offense, the magistrate shall examine, on oath, the affiant or affiants, reduce the examination to writing, and cause the examination to be signed by the person making it.
(b)
1. (1) The examination of the affiant or affiants by the magistrate or lawfully authorized court clerk does not have to take place in a face-to-face meeting of the parties but may be conducted through the use of electronic audio-visual equipment which allows the affiant and the examining official to both view and hear each other simultaneously.
2. (2) Prior to the examination, an affiant shall prepare an affidavit of complaint in conformance with § 40-6-204 and Rule 3 of the Tennessee Rules of Criminal Procedure and shall electronically transmit a facsimile copy of that affidavit to the examining official. After the receipt of a legible facsimile copy of the affidavit of complaint, the examining official shall proceed with the examination upon taking the oath of the affiant. Upon the determination by the examining official that the transmitted facsimile copy is a true copy of the affidavit of complaint of an affiant, the copy shall have the same legal effect as the original affidavit of complaint executed by an affiant.

Backlinks (1)

40-11-142(b)

History (7)

Code 1858, § 5020
Shan., § 6979
Code 1932, § 11518
T.C.A. (orig. ed.), § 40-702
Acts 1999, ch. 51, § 1
2003, ch. 366, § 1
2021, ch. 539, § 3.

§ 40-6-204. Contents of examination.

(a) The written examination shall set forth the facts stated by the affiant or affiants that establish that there is probable cause to believe an offense has been committed and that the defendant committed it.
(b) The affidavit of complaint must contain instructions informing the defendant that if the defendant's charge is dismissed, a no true bill is returned by a grand jury, the defendant is arrested and released without being charged with an offense, or the court enters a nolle prosequi in the defendant's case, the defendant is entitled, upon petition by the defendant to the court having jurisdiction over the action, to the removal and destruction of all public records relating to the case without cost to the defendant.

Backlinks (1)

40-6-203(b)(2)

History (6)

Code 1858, § 5021
Shan., § 6980
Code 1932, § 11519
T.C.A. (orig. ed.), § 40-703
Acts 2003, ch. 366, § 2
2021, ch. 539, § 4.

§ 40-6-205. Issuance of warrant.

(a) If the magistrate is satisfied from the written examination that there is probable cause to believe the offense complained of has been committed and that there is probable cause to believe the defendant has committed it, then the magistrate shall issue an arrest warrant. The finding of probable cause shall be based on evidence, which may be hearsay in whole or in part; provided, however, that there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.
(b) In determining whether to issue an arrest warrant pursuant to subsection (a), or a criminal summons pursuant to § 40-6-215, the following shall apply:
1. (1) If a single or multiple affiants are seeking a warrant of arrest for a felony or misdemeanor offense, and at least one (1) or more of the affiants is a law enforcement officer, as defined by § 39-11-106, the magistrate shall issue an arrest warrant unless the law enforcement officer requests a summons be issued instead;
2. (2) If a single or multiple affiants are seeking a warrant of arrest for a misdemeanor offense, as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall issue a criminal summons. The presumption is overcome if:
  1. (A) The affiant or affiants request a warrant, submit sufficient information demonstrating the need for a warrant, and the magistrate agrees that an arrest warrant should be issued instead of a summons; or
  2. (B) The magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601;
3. (3) If a single or multiple affiants are seeking a warrant of arrest for a felony offense as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall not issue either a criminal summons as provided in § 40-6-215, or an arrest warrant. This presumption is overcome if the magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601.
(c) Notwithstanding this section, if the affiant to an affidavit of complaint for an arrest warrant is the parent or legal guardian of a child who is the victim of alleged criminal conduct, no arrest warrant shall issue to the affiant without the written approval of the district attorney general in the district in which the conduct occurred if:
1. (1) The person the affiant seeks to have arrested was an employee of a local education agency (LEA) at the time of the alleged offense; and
2. (2) The affiant alleges that the LEA employee engaged in conduct that harmed the child of the affiant parent or legal guardian and, at the time of the conduct, the LEA employee had supervisory or disciplinary power over the child.

Backlinks (2)

History (9)

Code 1858, § 5022
Shan., § 6981
Code 1932, § 11520
T.C.A. (orig. ed.), § 40-704
Acts 2003, ch. 366, § 3
2004, ch. 889, § 1
2005, ch. 482, § 3
2009, ch. 390, § 1
2014, ch. 531, § 1.

§ 40-6-206. Time of issuance and return — Misdemeanor cases.

Any process, warrant, precept or summons authorized to be issued by any of the judges or clerks of the court, in any criminal prosecution on behalf of the state, may be issued at any time and made returnable to any day of the term. In a misdemeanor case, if a process, warrant, precept or summons has not been served, returned or quashed within five (5) years from the date of its issuance, the process, warrant, precept or summons shall be automatically terminated and removed from the records.

History (6)

Code 1858, § 5031 (deriv. Acts 1794, ch. 1, § 10)
Shan., § 6991
Code 1932, § 11530
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-705
Acts 1993, ch. 387, § 1.

§ 40-6-207. Form of warrant.

The warrant of arrest may be substantially as follows:
1. State of Tennessee,
2. County of .
3. To any lawful officer of the state:
  1. Information on oath having been made to me that the offense of (designating or describing it) has been committed, and accusing C. D. thereof: You are, therefore, commanded, in the name of the state, forthwith to arrest C. D., and bring C. D. before me, or some other magistrate of the county, to answer the charge. E. F., Magistrate for County.

History (4)

Code 1858, § 5025
Shan., § 6984
Code 1932, § 11523
T.C.A. (orig. ed.), § 40-707.

§ 40-6-208. Contents of warrant.

(a) The warrant should specify the name of the defendant, but if it is unknown to the magistrate, the defendant may be designated in the warrant by any name.
(b) It should also state the offense either by name, or so that it can be clearly inferred.
(c) It should also show, in some part, the county in which issued, the name and initials of the magistrate in office.
(d) The warrant shall include a copy of the affidavit of complaint.

History (5)

Code 1858, §§ 5026, 5027
Shan., §§ 6985, 6986
Code 1932, §§ 11524, 11525
T.C.A. (orig. ed.), §§ 40-708, 40-709
Acts 2003, ch. 366, § 4.

§ 40-6-209. Officer to whom directed.

The warrant should be directed to any lawful officer of the state, but if executed by any officer having authority, it is valid without regard to its direction.

Backlinks (1)

40-6-215(j)

History (4)

Code 1858, § 5024
Shan., § 6983
Code 1932, § 11522
T.C.A. (orig. ed.), § 40-710.

§ 40-6-210. Person by whom executed. [Amendments made by Acts 1996, ch. 753, § 2 contingent on county approval. See the Compiler's Notes.]

A warrant may be executed by any sheriff, or officer acting as sheriff, or the sheriff's deputy, or marshal, or police officer of any city or town, acting within the sheriff's county, or by any person otherwise authorized by law. The reference to “sheriff” or “deputy sheriff” in this section also includes constables in counties of this state having a population of:
3. 3,7004,700
4. 6,0007,800
5. 8,4008,500
6. 8,5358,540
7. 9,2009,570
8. 10,77010,780
9. 11,51211,550
10. 11,70011,900
11. 12,00013,000
12. 14,50014,600
13. 15,30015,500
14. 15,75016,000
15. 17,00017,350
16. 18,00018,200
17. 18,30018,900
18. 19,00019,100
19. 21,00021,500
20. 21,60022,300
21. 23,20023,350
22. 23,35523,391
23. 23,39123,450
24. 23,50023,750
25. 24,00024,255
26. 25,60027,500
27. 27,90028,000
28. 28,55528,600
29. 29,25031,250
30. 31,26033,000
31. 33,70034,000
32. 35,48041,800
33. 41,90050,000
34. 57,55059,400
35. 59,50060,050
36. 60,60062,000
37. 64,00065,000
38. 100,000118,400
39. 118,700200,000
41. according to the 1960 federal census or any subsequent federal census, and Fentress and Hamblen counties.

Backlinks (8)

History (22)

Code 1858, § 5028
Shan., § 6987
Code 1932, § 11526
Acts 1969, ch. 160, § 3
1969, ch. 319, §§ 3, 4
1970, ch. 456, § 1
1970, ch. 496, § 1
1970, ch. 588, §§ 1, 2
1971, ch. 53, §§ 1-3
1971, ch. 231, § 1
1972, ch. 584, § 1
1973, ch. 389, § 1
1974, ch. 631, §§ 1, 2
Private Acts 1976, ch. 242, § 1
Private Acts 1976, ch. 293, § 1
Acts 1977, ch. 239, § 3
1982, ch. 881, § 1
T.C.A. (orig. ed.), § 40-711
Acts 1991, ch. 9, § 4
1992, ch. 973, § 3
Private Acts 1994, ch. 191 § 2
Acts 1996, ch. 753, § 2.

§ 40-6-211. Accuseds outside county — Persons to whom warrant issued — Accused brought before magistrate.

When the person accused has fled, or resides out of the county where the offense was committed, the warrant may issue to any lawful officer of any county in the state, and the accused may be brought before the magistrate issuing the warrant, or any other magistrate.

History (4)

Code 1858, § 5029 (deriv. Acts 1822, ch. 40, § 2)
Shan., § 6988
Code 1932, § 11527
T.C.A. (orig. ed.), § 40-712.

§ 40-6-212. Execution outside county.

When the sheriff, deputy sheriff, coroner or any other officer of any county in this state has possession of a warrant or capias for the arrest of any person charged with the commission of a crime, it is lawful for the sheriff, deputy sheriff, coroner or any other officer to execute that process, and arrest the person so charged in any county in this state. “Sheriff” also includes “constable” in those counties enumerated in § 40-6-210.

Backlinks (3)

History (6)

Acts 1871, ch. 50, § 1
Shan., § 6989
Code 1932, § 11528
Acts 1969, ch. 160, § 3
1969, ch. 319, §§ 3, 4
T.C.A. (orig. ed.), § 40-713.

§ 40-6-213. Execution anywhere in state.

The magistrate issuing the warrant may empower any law enforcement officer to execute the warrant anywhere in the state.

History (5)

Code 1858, § 5030
Shan., § 6990
Code 1932, § 11529
T.C.A. (orig. ed.), § 40-714
Acts 1993, ch. 241, § 66.

§ 40-6-214. Authority of clerks and deputies of general sessions courts.

Clerks of courts of general sessions and their duly sworn deputies have jurisdiction and authority, concurrent with that of the judges of the general sessions court, to issue warrants for the arrest of persons.

History (3)

Acts 1955, ch. 150, § 1
T.C.A., § 40-715
Acts 1993, ch. 241, § 67.

§ 40-6-215. Summons instead of arrest warrant.

(a) As an alternative to an arrest warrant as provided in § 40-6-205, the magistrate or clerk may issue a criminal summons instead of an arrest warrant. In determining whether to issue a criminal summons or an arrest warrant as provided in § 40-6-205, this subsection (a) shall apply:
1. (1) If a single or multiple affiants are seeking a warrant of arrest for a felony or misdemeanor offense, and at least one (1) or more of the affiants is a law enforcement officer, as defined by § 39-11-106, the magistrate shall issue an arrest warrant unless the law enforcement officer requests a summons be issued instead;
2. (2) If a single or multiple affiants are seeking a warrant of arrest for a misdemeanor offense, as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall issue a criminal summons. The presumption is overcome if:
  1. (A) The affiant or affiants request a warrant, submit sufficient information demonstrating the need for a warrant, and the magistrate agrees that an arrest warrant should be issued instead of a summons; or
  2. (B) The magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601;
3. (3) If a single or multiple affiants are seeking a warrant of arrest for a felony offense as defined in § 39-11-110, and none of the affiants is a law enforcement officer, as defined by § 39-11-106, there is a presumption that the magistrate shall not issue either a criminal summons as provided in this section, or an arrest warrant. This presumption is overcome if the magistrate finds an arrest warrant is necessary to prevent immediate danger to a victim of domestic abuse, sexual assault or stalking as defined in § 36-3-601.
(b) The criminal summons shall be in substantially the same form as an arrest warrant except that it shall summon the defendant to appear before the magistrate or court at a stated time and place. It shall give notice to the person summoned that:
1. (1) The defendant is being charged with a state criminal offense;
2. (2) The summons is being issued in lieu of an arrest warrant;
3. (3) The failure to appear in court on the date and time specified is a separate criminal offense regardless of the disposition of the charge for which the person is originally summoned;
4. (4) Failure to appear for booking and processing is a separate criminal offense;
5. (5) An arrest warrant will issue for failure to appear for court or failure to appear for booking and processing;
6. (6) The failure to appear for court or failure to appear for booking and processing shall be punished as provided in § 39-16-609; and
7. (7) The defendant is encouraged to consult with an attorney about the summons.
(c) The summons shall be executed in triplicate and shall include a copy of the affidavit of complaint. When the summons is served, the original is to be returned to the court specified in the summons, one (1) copy, including a copy of the affidavit of complaint, given to the person summoned, and one (1) copy to be sent to the sheriff or other law enforcement agency in the county responsible for booking procedures.
(d) By accepting the summons, the defendant agrees to appear at the sheriff's department, or other law enforcement agency in the county responsible for booking procedures, to be booked and processed as directed by the sheriff's department or other responsible law enforcement agency. If the defendant fails to appear for booking and processing as directed, the court shall issue a bench warrant for that person's arrest. Failure to appear for booking and processing is a separate criminal offense and shall be punished as provided in § 39-16-609.
(e) The sheriff or other law enforcement agency in the county responsible for serving the summons shall provide the defendant with notice of a court time and date the defendant is to appear. The notice shall be given either at the time the summons is served or at the time the defendant is booked and processed, if booking and processing is ordered to occur prior to the first court date. The court date so assigned shall be not less than ten (10) calendar days nor more than forty-five (45) days from service of the summons or booking and processing, if booking and processing is ordered to occur prior to the first court date. The notice shall be explicit as to where and when the court is to convene and shall advise the defendant that the defendant is encouraged to consult with an attorney about the summons. The court clerk, sheriff, or other law enforcement agency shall provide notice to the affiant, or affiants in the case of multiple-affiants, of the date and time when the defendant is required to appear before the court.
(f) If the person summoned fails to appear in court on the date and time specified, the court shall issue a bench warrant for the person's arrest. Failure to appear for court is a separate criminal offense and shall be punished as provided in § 39-16-609.
(g) The summons shall have printed on it in conspicuous block letters the following:
1. NOTICE: YOU ARE CHARGED WITH A STATE CRIMINAL OFFENSE. THIS SUMMONS HAS BEEN ISSUED IN LIEU OF AN ARREST WARRANT. YOUR FAILURE TO APPEAR IN COURT ON THE DAY AND TIME ASSIGNED BY THIS SUMMONS OR THE FAILURE TO APPEAR FOR BOOKING AND PROCESSING WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE PUNISHABLE AS PROVIDED IN T.C.A.§ 39-16-609 REGARDLESS OF THE DISPOSITION OF THE CHARGE FOR WHICH YOU WERE ORIGINALLY SUMMONED. YOU ARE ENCOURAGED TO CONSULT WITH AN ATTORNEY ABOUT THIS SUMMONS. THE SIGNING AND ACCEPTANCE OF THIS SUMMONS IS NOT AN ADMISSION OF GUILT OF THE CRIMINAL OFFENSE.
(h) Each person receiving a summons under this section shall sign the summons indicating knowledge of the notice in subsection (g). The signing of the summons is not an admission of guilt of the criminal offense charged. The signature of each person creates the presumption of knowledge of the notice and a presumption to violate this section if the person should not appear in court as directed or for booking and processing. If the person to receive the summons refuses to sign and accept the summons, the person shall be taken immediately before a magistrate. The magistrate shall order the terms and conditions of the defendant's release to include the posting of bail as provided by chapter 11 of this title.
(i) At the initial or any subsequent appearance of a defendant before the court, the judge may order the posting of bail as provided by chapter 11 of this title, as a condition of the continued or further release of the defendant pending the disposition of the summons.
(j) The criminal summons shall be directed and served as provided by §§ 40-6-209 and 40-6-210 and shall be returned as provided by subsection (c).
(k) This section shall govern all aspects of the issuance of criminal summons, notwithstanding any provision of Rule 4 of the Tennessee Rules of Criminal Procedure to the contrary.
(l) If any subsection, paragraph, sentence, clause or phrase of this section is for any reason held or declared to be invalid, void, unlawful or unconstitutional, that decision shall not affect the validity of the remaining portions of this section.
(m) Notwithstanding this section, if the affiant to an affidavit of complaint for a criminal summons is the parent or legal guardian of a child who is the victim of alleged criminal conduct, no criminal summons shall issue to the affiant without the written approval of the district attorney general in the district in which the conduct occurred if:
1. (1) The person the affiant seeks to have issued a criminal summons was an employee of an local education agency (LEA) at the time of the alleged offense; and
2. (2) The affiant alleges that the LEA employee engaged in conduct that harmed the child of the affiant parent or legal guardian and, at the time of the conduct, the LEA employee had supervisory or disciplinary power over the child.

Backlinks (6)

History (7)

Acts 1977, ch. 225, § 1
T.C.A., § 40-716
Acts 2003, ch. 366, § 5
2004, ch. 889, § 2
2005, ch. 482, § 4
2009, ch. 390, § 2
2014, ch. 531, § 2.

§ 40-6-216. Copies of warrants.

(a) A criminal defendant or such defendant's attorney shall have the right to request and receive at a reasonable time a copy of any warrant or summons issued pursuant to this part that is served upon the defendant.
(b) Any agency, department or employee or agent of an agency or department who knowingly refuses to provide a copy of the warrant of arrest or summons to a defendant or the defendant's attorney within a reasonable time upon being requested to do so may be in contempt of the court issuing the warrant or summons. In addition to the punishment for contempt, the agency or department shall be required to pay all attorney fees and court costs reasonably incurred by the defendant or the defendant's attorney in obtaining a copy of the warrant or summons.

History (3)

Acts 1996, ch. 870, § 1
1999, ch. 90, § 1
2003, ch. 366, §§ 6, 7.

§ 40-6-217. Issuance of arrest warrant in lieu of criminal summons.

Notwithstanding any other provision of this part or § 40-5-102, to the contrary, a judge who is licensed to practice law in this state and elected for an eight-year term of office may, upon a finding of probable cause, issue an arrest warrant in lieu of a criminal summons under any circumstances and regardless of whether any of the exceptions set out in §§ 40-6-205 and 40-6-215 are applicable.

History (1)

Acts 2004, ch. 889, § 3.

Part 3 Wiretapping and Electronic Surveillance

§ 40-6-301. Short title.

This part and §§ 39-13-601 — [former] 39-13-603 [repealed] shall be known and may be cited as the “Wiretapping and Electronic Surveillance Act of 1994.”

History (1)

Acts 1994, ch. 964, § 2.

§ 40-6-302. Legislative purpose.

(a) In order to protect the privacy of wire, oral, and electronic communications, to protect the integrity of court and administrative proceedings, to define, on a uniform basis, the circumstances under which a district attorney general may apply to a court of competent jurisdiction for the interception and use of wire, oral, and electronic communications, to define the circumstances under which a judge in a court of competent jurisdiction may authorize the interception and use of wire, oral and electronic communications, and to prohibit any unauthorized interception or use of those communications, it is necessary for the general assembly to define the circumstances and conditions under which the interception of wire, oral and electronic communications may be lawful. In defining these circumstances, the general assembly seeks to strike a balance between an individual's right to privacy and society's legitimate concern in being protected from criminal activity.
(b) In carrying out illegal activities, criminals often make extensive use of wire, oral and electronic communications. The lawful interception of these communications is an indispensable aid to investigative and law enforcement officials in obtaining evidence of illegal activities. Likewise, it is necessary for the general assembly to safeguard the privacy of innocent persons. Through this part and §§ 39-13-601 — [former] 39-13-603 [repealed], the general assembly seeks to prohibit the unauthorized interception of wire, oral and electronic communications and to prohibit the use of illegally obtained wire, oral and electronic communications as evidence in courts and administrative proceedings. The interception of wire, oral or electronic communications, therefore, when no party to the communications has consented to the interception, should be allowed only under compelling circumstances when authorized and supervised by a court of competent jurisdiction and upon a finding of probable cause. Court authorization and supervision ensures that the interception is made only in narrowly defined circumstances and that the information obtained will not be misused. The privacy rights of Tennessee citizens are further protected by limiting the interception of wire, oral, and electronic communications to certain major types of felonies under this code.

History (1)

Acts 1994, ch. 964, § 1.

§ 40-6-303. Definitions.

As used in this part and §§ 39-13-601 — [former] 39-13-603 [repealed], unless the context otherwise requires:
1. (1) “Actual damages” means damages given as compensation; damages given as an equivalent for the injury done; damages in satisfaction of, or in recompense for, loss or injury sustained; those damages awarded to a person as compensation, indemnity, or restitution for harm sustained by the person;
2. (2) “Aggrieved person” means a person who was a party to an intercepted wire, oral or electronic communication, or a person against whom the interception was directed;
3. (3) “Attorney general and reporter” means the attorney general and reporter of Tennessee;
4. (4) “Contents,” when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport or meaning of that communication;
5. (5) “Court of record” means any circuit or criminal court in the state of Tennessee;
6. (6) “District attorney general” means the district attorney general of any judicial district where jurisdiction exists to prosecute an offense that is grounds for an intercept order under § 40-6-305, or the judicial district where the interception of communications is to occur;
7. (7) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by the aid of wire, radio, electromagnetic, photooptical or photoelectronic facilities, but does not include:
  1. (A) Any wire or oral communication;
  2. (B) Any communication made through a tone-only paging device; or
  3. (C) Any communication from a “tracking device” as defined in 18 U.S.C. § 3117;
8. (8) “Electronic communications service” means any service which provides to users of the service the ability to send or receive wire or electronic communications;
9. (9) “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:
  1. (A) Any telephone or telegraph instrument, equipment or facility or any component thereof:
    1. (i) Furnished to the subscriber or user by a provider of wire or electronic service in the ordinary course of business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business;
    2. (ii) Being used by a provider of wire or electronic communication service in the ordinary course of its business; or
    3. (iii) Being used by an investigative or law enforcement officer in the ordinary course of that officer's duties;
  2. (B) A hearing aid or similar device being used to correct sub-normal hearing to not better than normal;
10. (10) “Electronic storage” means:
  1. (A) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication; and
  2. (B) Any storage of communication by an electronic communication service for purposes of backup protection of that communication;
11. (11) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device;
12. (12) “Investigative or law enforcement officer” means:
  1. (A) In all counties having a population in excess of two hundred fifty thousand (250,000), according to the 1990 federal census or any subsequent federal census:
    1. (i) Any officer of the state or a political subdivision of the state, who:
      1. (a) Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305; and
      2. (b) Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the Tennessee peace officer standards and training commission or the Tennessee bureau of investigation; or
    2. (ii) Any attorney authorized by law to prosecute those offenses; and
  2. (B) In all other counties:
    1. (i) An agent of the Tennessee bureau of investigation, who:
      1. (a) Is empowered by law to conduct investigations of or to make arrests for offenses enumerated in § 40-6-305; and
      2. (b) Has successfully completed a training course on the interception and use of wire, oral and electronic communications approved by the bureau; or
    2. (ii) Any attorney authorized by law to prosecute those offenses;
13. (13) “Judge of competent jurisdiction” means a judge presiding over any court of record as defined in this part and §§ 39-13-601 — [former] 39-13-603 [repealed] in the state of Tennessee;
14. (14) “Oral communication” means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation, but “oral communication” does not include any electronic communication;
15. (15) “Pen register” means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached, but “pen register” does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communication services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;
16. (16) “Provider of wire or electronic communications service” means an entity which holds itself out to the public as engaged in the business of transmitting messages through the use of wire communication or electronic communication, as both terms are defined in this section;
17. (17) “Readily accessible to the general public” means, with respect to a radio communication, that the communication is not:
  1. (A) Scrambled or encrypted;
  2. (B) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communications;
  3. (C) Carried on a subcarrier or other signal subsidiary to a radio transmission; or
  4. (D) Transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication;
18. (18) “Recorded device” means the tangible medium upon which sounds and/or images are recorded or otherwise stored, which includes any original phonograph record, disk, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds and/or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original; and
19. (19) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged as a provider of wire or electronic communications service in providing or operating those facilities for the transmission of communications.

History (4)

Acts 1994, ch. 964, § 3
1996, ch. 903, § 1
2006, ch. 777, § 1
2009, ch. 440, §§ 1, 2.

§ 40-6-304. Order for electronic surveillance — Application — Required findings — Expiration of order — Recordings — Evidence — Motions to suppress.

(a) Each application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction in the district where the interception of a wire, oral or electronic communication is to occur, or in any district where jurisdiction exists to prosecute the underlying offense to support an intercept order under § 40-6-305. The application shall state the investigative or law enforcement officer's authority to make the application and shall include the following information:
1. (1) Identity of the investigative or law enforcement officer making the application, and the district attorney general authorizing the application;
2. (2) A full and complete statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that an order should be issued, including:
  1. (A) Details as to the particular offense that has been, is being, or is about to be committed;
  2. (B) A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
  3. (C) A particular description of the type of communications sought to be intercepted; and
  4. (D) The identity of all persons, if known, committing the offense and whose communications are to be or may be intercepted;
3. (3) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
4. (4) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
5. (5) A full and complete statement of the facts concerning all previous applications known to the individuals authorizing and making the application, made to any judge for authorization to intercept wire, oral or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each application; and
6. (6) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain results.
(b) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
(c) Upon an application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or electronic communications within the district in which the judge is sitting, and outside that district but within this state in the case of a mobile interception device, if the judge determines on the basis of the facts submitted by the applicant that:
1. (1) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 40-6-305;
2. (2) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
3. (3) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
4. (4) There is probable cause for belief that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.
Backlinks (2)
- 40-6-308(a)
- 40-6-308(c)
(d)
1. (1) Each order authorizing the interception of any wire, oral or electronic communication under this part or §§ 39-13-601 — [former] 39-13-603 [repealed] shall specify:
  1. (A) The identity of all persons, if known, whose communications are to be or may be intercepted;
  2. (B) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
  3. (C) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
  4. (D) The identity of the agency authorized to intercept the communications, and the identity of the person authorizing the application; and
  5. (E) The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
2. (2) An order authorizing the interception of a wire, oral or electronic communication under this part or §§ 39-13-601 — [former] 39-13-603 [repealed] shall, upon the request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the applicant with all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian, or other person furnishing facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing the facilities or assistance.
(e) No order entered under this section may authorize or approve the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty (30) days. The thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten (10) days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) and the court making the findings required by subsection (c). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty (30) days. Every order and extension of an order shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in a way as to minimize the interception of communications not otherwise subject to interception under this part or §§ 39-13-601 — [former] 39-13-603 [repealed], and must terminate upon attainment of the authorized objective, or in any event in thirty (30) days. In the event the intercepted communication is in a code or foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after interception. An interception under this part or §§ 39-13-601 — [former] 39-13-603 [repealed] may be conducted in whole or in part by state personnel, or by an individual operating under a contract with the state, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
(f)
1. (1) The contents of any wire, oral or electronic communication intercepted by any means authorized by this part or §§ 39-13-601 — [former] 39-13-603 [repealed] shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral or electronic communication under this subsection (f) shall be done in a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions of the order, the recordings shall be made available to the judge issuing the order and sealed under the judge's direction. All recordings of wire, oral or electronic communications shall be treated as confidential and shall not be open for inspection by members of the public. Custody of the recordings shall be wherever the judge orders. The recordings shall not be destroyed except upon an order of the issuing judge and in any event shall be kept for ten (10) years; provided, that upon the agreement of the person whose communications were intercepted, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of all recordings at any time. Duplicate recordings may be made for use or disclosure, pursuant to § 40-6-306(a) and (b) for investigations, upon an order of the issuing judge. All duplicate recordings or written transcripts shall be treated as confidential and shall not be open for inspection by members of the public. Upon an order of the issuing judge, the contents of any wire, oral or electronic communication may be unsealed and used while giving testimony, pursuant to § 40-6-306(c). The presence of the seal provided for by this subsection (f), or a satisfactory explanation for the absence of the seal, shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom under § 40-6-306(c). All wire, oral or electronic communications that are not disclosed while giving testimony retain their confidential character and shall not be open for inspection by members of the public. Immediately following duplication or use while giving testimony, the recordings shall be returned to the judge issuing the order and resealed under the judge's direction.
2. (2) Applications made and orders granted under this section shall be treated as confidential and shall not be open for inspection by members of the public. Applications and orders shall be sealed by the judge and custody shall be wherever the judge directs. The applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge and in any event shall be kept for ten (10) years. Upon the agreement of the person named in the order or application, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of such applications and orders at any time.
3. (3) Any violation of this subsection (f) may be punished as contempt of the issuing or denying judge.
4. (4) Within a reasonable time, but not later than ninety (90) days after the termination of an order of approval under subsections (c) and (d), or an order authorizing an extension under subsection (e), or the denial of an order under subsection (c), the issuing or denying judge shall cause an inventory to be served on the persons named in the order or application and any other parties to intercepted communications as determined by the judge exercising judicial discretion in the interest of justice. The inventory shall include notice of:
  1. (A) The fact of entry of the order or the application;
  2. (B) The date of the entry and the period of authorized interception, or the denial of the application; and
  3. (C) The fact that during the period wire, oral or electronic communications were or were not intercepted.
5. (5) The judge, upon the filing of a motion, may, in the judge's discretion, make available to the person or the person's counsel for inspection any portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the inventory required by this subsection (f) may be postponed for ninety (90) days. At the end of this period, the judge may allow additional ninety-day extensions, but only on further showing of good cause.
(g) The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court unless each party, not less than ten (10) days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized. This ten-day period may be waived by the judge if the judge finds that it was not possible to furnish the party with the information ten (10) days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.
(h)
1. (1) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state of Tennessee or a political subdivision of the state may move to suppress the contents of any intercepted wire, oral or electronic communication, or evidence derived therefrom, on the grounds that:
  1. (A) The communication was unlawfully intercepted;
  2. (B) The order of authorization under which it was intercepted is insufficient on its face; or
  3. (C) The interception was not made in conformity with the order of authorization. The motion shall be made before the trial, hearing or proceeding, unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, oral or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this part or §§ 39-13-601 — [former] 39-13-603 [repealed]. The judge, upon the filing of a motion by the aggrieved person, may, in the judge's discretion, make available portions of the intercepted communication, or evidence derived therefrom, as the judge determines to be in the interest of justice.
2. (2) In addition to any other right to appeal, the state has the right to appeal from an order granting a motion to suppress made under subdivision (h)(1), or the denial of an application for an order of approval, if the district attorney general certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within thirty (30) days after the date the order was entered and shall be diligently prosecuted.

Backlinks (1)

40-6-305

History (2)

Acts 1994, ch. 964, § 5
2005, ch. 87, § 1.

§ 40-6-305. Interception of communications for evidence of certain crimes.

A district attorney general may apply to a judge of competent jurisdiction for, and the judge may grant, in conformity with § 40-6-304, an order authorizing the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made when interception may provide evidence of:
1. (1) The commission of criminal homicide, as defined in § 39-13-201;
2. (2) Criminal conspiracy, as defined in § 39-12-103, to commit criminal homicide;
3. (3) The commission of a violation of § 39-17-417(j);
4. (4) The commission of, or conspiracy to commit, a criminal gang offense by a criminal gang member, as defined in § 40-35-121; or
5. (5) The commission of trafficking a person for a commercial sex act, as defined in § 39-13-309.

Backlinks (5)

History (4)

Acts 1994, ch. 964, § 6
1996, ch. 680, § 1
2011, ch. 493, § 1
2015, ch. 435, § 1.

§ 40-6-306. Disclosure of communications to law enforcement officers.

(a) Any investigative or law enforcement officer who, by any means authorized by this part or §§ 39-13-601 — [former] 39-13-603 [repealed], has obtained knowledge of the contents of any wire, oral or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
Backlinks (1)
- 40-6-304(f)(1)
(b) Any investigative or law enforcement officer who, by any means authorized by this part or §§ 39-13-601 — [former] 39-13-603 [repealed], has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom may use the contents to the extent the use is appropriate to the proper performance of the officer's official duties.
(c) Any person who has received, by any means authorized by this part or §§ 39-13-601 — [former] 39-13-603 [repealed], any information concerning a wire, oral or electronic communication, or evidence derived therefrom, intercepted in accordance with this part or §§ 39-13-601 — [former] 39-13-603 [repealed] may disclose the contents of that communication or derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the state of Tennessee, or a political subdivision of the state, or of the United States, or a political subdivision of the United States.
Backlinks (1)
- 40-6-304(f)(1)
(d) Nothing in this part or §§ 39-13-601 — [former] 39-13-603 [repealed] shall be construed as permitting the interception of a wire, oral or electronic communication that is made privileged by law unless the judge issuing the order for the interception finds probable cause to believe that all parties to the privileged communication are criminally responsible for the commission of a homicide offense, conspiracy to commit a homicide offense or commission of a violation of § 39-17-417(j).
(e) When an investigative or law enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized in this part, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order of authorization, the contents thereof and evidence derived therefrom, may be disclosed or used as provided in subsections (a) and (b). The contents and any evidence derived therefrom may be used under subsection (c) when authorized by a judge of competent jurisdiction where the judge finds on subsequent application that the contents were otherwise intercepted in accordance with this part or §§ 39-13-601 — [former] 39-13-603 [repealed]. The application shall be made as soon as practicable after the interception.

Backlinks (1)

39-13-601(c)(2)(A)

History (2)

Acts 1994, ch. 964, § 7
1996, ch. 680, § 2.

§ 40-6-307. Use of contents in evidence.

Whenever a wire, oral or electronic communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in a trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state of Tennessee, or a political subdivision of the state if the disclosure of that information would be in violation of this part or §§ 39-13-601 — [former] 39-13-603 [repealed].

History (1)

Acts 1994, ch. 964, § 8.

§ 40-6-308. Reports.

(a) Within thirty (30) days after the expiration of an order or each extension of an order entered under § 40-6-304(c) and (e), or the denial of an order approving an interception, the issuing or denying judge shall report to the attorney general and reporter:
1. (1) The fact that an order or extension was applied for;
2. (2) The kind of order or extension applied for;
3. (3) The fact that the order or extension was granted as applied for, was modified, or was denied;
4. (4) The period of interceptions authorized by the order and the number and duration of any extensions of the order;
5. (5) The offense specified in the order or application, or the extension of an order;
6. (6) The identity of the applying investigative or law enforcement officer or agency making the application and the person authorizing the application; and
7. (7) The nature of the facilities from which, or the place where, communications were to be intercepted.
(b) In March of each year the attorney general and reporter shall report to the administrative office of the United States courts, the speaker of the senate and the speaker of the house of representatives:
1. (1) The information required by subdivisions (a)(1)-(7) with respect to each application for an order or extension made during the preceding calendar year;
2. (2) A general description of the interceptions made under the order or extension, including:
  1. (A) The approximate nature and frequency of incriminating communications intercepted;
  2. (B) The approximate nature and frequency of other communications intercepted;
  3. (C) The approximate number of persons whose communications were intercepted; and
  4. (D) The approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
3. (3) The number of arrests resulting from interceptions made under the order or extension, and the offenses for which arrests were made;
4. (4) The number of trials resulting from the interceptions;
5. (5) The number of motions to suppress made with respect to the interceptions, and the number granted or denied;
6. (6) The number of convictions resulting from the interceptions and the offenses for which the convictions were obtained and the general assessment of the importance of the interceptions; and
7. (7) The information required by subdivisions (b)(2)-(6) with respect to orders or extensions obtained in a preceding calendar year.
(c) Whenever an order authorizing interception is entered pursuant to § 40-6-304(c), the order shall require that reports be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Reports shall be made at ten-day intervals, with the first report required on the tenth day after the interception begins or is extended. However, in cases where orders for multiple telephones have been issued by a single judge and pertain to the same investigation, the issuing judge may direct that all progress reports be consolidated into a single report and filed at such times as directed by the judge.

History (3)

Acts 1994, ch. 964, § 9
2014, ch. 984, § 2
2024, ch. 618, § 1.

§ 40-6-309. Application of law.

Notwithstanding any other provision of law to the contrary, this part and §§ 39-13-601 — [former] 39-13-603 [repealed] shall govern the interception and use of wire, oral and electronic communications in this state.

History (1)

Acts 1994, ch. 964, § 12.

§ 40-6-310. Construction of ambiguous provisions.

Any ambiguity in this part or §§ 39-13-601 — [former] 39-13-603 [repealed] shall be resolved in favor of the aggrieved party and against the state.

History (1)

Acts 1994, ch. 964, § 13.

§ 40-6-311. Pen register or trap and trace order.

Any circuit or criminal court judge may issue a pen register or trap and trace order pursuant to the provisions and requirements of 18 U.S.C. § 3123 et seq.

History (1)

Acts 1996, ch. 903, § 2.

Chapter 7 Arrest

Part 1 General Provisions

§ 40-7-101. Persons by whom arrests made.

An arrest may be made either by:
1. (1) An officer under a warrant;
2. (2) An officer without a warrant; or
3. (3) A private person.

History (4)

Code 1858, § 5032
Shan., § 6992
Code 1932, § 11531
T.C.A. (orig. ed.), § 40-801.

§ 40-7-102. Offense in presence of magistrate.

When a public offense is committed in the presence of a magistrate, the magistrate may, by verbal or written order, command any person to arrest the offender, and then proceed as if the offender had been brought before the magistrate on a warrant of arrest.

History (4)

Code 1858, § 5036
Shan., § 6996
Code 1932, § 11535
T.C.A. (orig. ed.), § 40-802.

§ 40-7-103. Grounds for arrest by officer without warrant.

(a) An officer may, without a warrant, arrest a person:
1. (1) For a public offense committed or a breach of the peace threatened in the officer's presence;
2. (2) When the person has committed a felony, though not in the officer's presence;
3. (3) When a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested has committed the felony;
4. (4) On a charge made, upon reasonable cause, of the commission of a felony by the person arrested;
5. (5) Who is attempting to commit suicide;
6. (6) At the scene of a traffic accident who is the driver of a vehicle involved in the accident when, based on personal investigation, the officer has probable cause to believe that the person has committed an offense under title 55, chapters 8 and 10. This subdivision (a)(6) shall not apply to traffic accidents in which no personal injury occurs or property damage is less than one thousand dollars ($1,000), unless the officer has probable cause to believe that the driver of the vehicle has committed an offense under § 55-10-401;
7. (7) Pursuant to § 36-3-619;
8. (8) Who is the driver of a vehicle involved in a traffic accident either at the scene of the accident or up to four (4) hours after the driver has been transported to a health care facility, if emergency medical treatment for the driver is required and the officer has probable cause to believe that the driver has violated § 55-10-401;
9. (9) When an officer has probable cause to believe a person has committed the offense of stalking, as prohibited by § 39-17-315;
10. (10) Who is the driver of a motor vehicle involved in a traffic accident, who leaves the scene of the accident, who is apprehended within four (4) hours of the accident, and the officer has probable cause to believe the driver has violated § 55-10-401; or
11. (11) Pursuant to § 55-10-119.
(b) If a law enforcement officer has probable cause to believe that a person has violated one (1) or more of the conditions of release imposed pursuant to chapter 11, part 1 of this title, and verifies that the alleged violator received notice of the conditions, the officer shall, without a warrant, arrest the alleged violator regardless of whether the violation was committed in or outside the presence of the officer.
Backlinks (3)
(c) Unless a law enforcement officer has probable cause to believe that an offense has been committed, no officer, except members of the Tennessee highway patrol acting pursuant to § 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle.

Backlinks (1)

55-10-119

History (16)

Code 1858, § 5037
Shan., § 6997
Code 1932, § 11536
Acts 1957, ch. 82, § 1
1981, ch. 401, § 1
T.C.A. (orig. ed.), § 40-803
Acts 1986, ch. 754, § 1
1990, ch. 980, § 18
1993, ch. 484, § 1
1994, ch. 1002, § 1
1995, ch. 507, § 7
1999, ch. 138, § 4
2005, ch. 296, § 1
2005, ch. 482, § 2
2012, ch. 737, § 2
2024, ch. 942, § 2.

§ 40-7-104. Time of arrest by officer.

Arrests by officers for public offenses may be made on any day and at any time.

History (4)

Code 1858, § 5033
Shan., § 6993
Code 1932, § 11532
T.C.A. (orig. ed.), § 40-804.

§ 40-7-105. Assistance to officer acting on warrant.

Every person shall aid an officer in the execution of a warrant if the officer requires the person's aid and is present and acting in its execution.

History (4)

Code 1858, § 5035
Shan., § 6995
Code 1932, § 11534
T.C.A. (orig ed.), § 40-805.

§ 40-7-106. Notice of authority and grounds for arrest — Telephone call.

(a) When arresting a person, the officer shall inform the person of the officer's authority and the cause of the arrest, and exhibit the warrant if the officer has one, except when the person is in the actual commission of the offense or is pursued immediately after an escape.
(b) No person under arrest by any officer or private citizen shall be named in any book, ledger or any other record until after the person has successfully completed a telephone call to an attorney, relative, minister or any other person that the person shall choose, without undue delay. One (1) hour shall constitute a reasonable time without undue delay. However, if the arrested person does not choose to make a telephone call, then the person shall be booked or docketed immediately.

History (5)

Code 1858, § 5038
Shan., § 6998
Code 1932, § 11537
Acts 1965, ch. 298, § 1
T.C.A. (orig. ed.), § 40-806.

§ 40-7-107. Authority of officer to break in.

To make an arrest, either with or without a warrant, the officer may break open any outer or inner door or window of a dwelling house if, after notice of the officer's office, authority and purpose, the officer is refused admittance.

History (4)

Code 1858, § 5039
Shan., § 6999
Code 1932, § 11538
T.C.A. (orig. ed.), § 40-807.

§ 40-7-108. Resistance to officer.

(a) A law enforcement officer, after giving notice of the officer's identity as an officer, may use or threaten to use force that is reasonably necessary to accomplish the arrest of an individual suspected of a criminal act who resists or flees from the arrest.
(b) Notwithstanding subsection (a), the officer may use deadly force to effect an arrest only if all other reasonable means of apprehension have been exhausted or are unavailable, and where feasible, the officer has given notice of the officer's identity as an officer and given a warning that deadly force may be used unless resistance or flight ceases, and:
1. (1) The officer has probable cause to believe the individual to be arrested has committed a felony involving the infliction or threatened infliction of serious bodily injury; or
2. (2) The officer has probable cause to believe that the individual to be arrested poses a threat of serious bodily injury, either to the officer or to others unless immediately apprehended.
(c) All law enforcement officers, both state and local, shall be bound by this section and shall receive instruction regarding implementation of this section in law enforcement training programs.

History (6)

Code 1858, § 5040
Shan., § 7000
Code 1932, § 11539
T.C.A. (orig. ed.), § 40-808
Acts 1985, ch. 359, § 1
1990, ch. 980, § 19.

§ 40-7-109. Arrest by private person — Grounds.

(a) A private person may arrest another:
1. (1) For a public offense committed in the arresting person's presence;
2. (2) When the person arrested has committed a felony, although not in the arresting person's presence; or
3. (3) When a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed the felony.
(b) A private person who makes an arrest of another pursuant to §§ 40-7-109 — 40-7-115 shall receive no arrest fee or compensation for the arrest.

Backlinks (2)

History (5)

Code 1858, § 5042
Shan., § 7002
Code 1932, § 11541
Acts 1965, ch. 279, § 1
T.C.A. (orig. ed.), § 40-816.

§ 40-7-110. Arrest by private person — Time.

A private person may make an arrest for a felony at any time.

History (4)

Code 1858, § 5034
Shan., § 6994
Code 1932, § 11533
T.C.A. (orig. ed.), § 40-817.

§ 40-7-111. Arrest by private person — Notice of grounds.

A private person making an arrest shall, at the time of the arrest, inform the person arrested of the cause of the arrest, except when the person is in the actual commission of the offense, or when arrested on pursuit.

History (4)

Code 1858, § 5043
Shan., § 7003
Code 1932, § 11542
T.C.A. (orig. ed.), § 40-818.

§ 40-7-112. Arrest by private person — Notice of intention to make arrest — Use of force to enter dwelling house.

If the person to be arrested has committed a felony, and a private person, after notice of the person's intention to make the arrest, is refused admittance, the arresting person may break open an outer or inner door or window of a dwelling house to make the arrest.

Backlinks (1)

40-7-113(b)

History (4)

Code 1858, § 5044
Shan., § 7004
Code 1932, § 11543
T.C.A. (orig. ed.), § 40-819.

§ 40-7-113. Disposition of person arrested by private person.

(a) A private person who has arrested another for a public offense shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to an officer.
(b) An officer may take before a magistrate, without a warrant, any person who, being engaged in the commission of a public offense, is arrested by a bystander and delivered to the officer, and anyone arrested by a private person as provided in §§ 40-7-109 — 40-7-112, and delivered to the officer.

History (4)

Code 1858, §§ 5041, 5045
Shan., §§ 7001, 7005
Code 1932, §§ 11540, 11544
T.C.A. (orig. ed.), §§ 40-820, 40-821.

§ 40-7-114. Pursuit after escape.

If a person arrested escapes or is rescued, the person from whose custody the arrested person escaped or was rescued may immediately pursue and retake the arrested person at any time and in any place within the state.

History (4)

Code 1858, § 5046
Shan., § 7006
Code 1932, § 11545
T.C.A. (orig. ed.), § 40-822.

§ 40-7-115. Breaking in to retake escaped prisoner.

To retake the party escaping or rescued, the person pursuing may, after notice of that person's intention and refusal of admittance, break open any outer or inner door or window of a dwelling house.

Backlinks (1)

40-7-109(b)

History (4)

Code 1858, § 5047
Shan., § 7007
Code 1932, § 11546
T.C.A. (orig. ed.), § 40-823.

§ 40-7-116. Theft — Detention of suspect by merchant or peace officer.

(a) A merchant, a merchant's employee, or agent or a peace officer who has probable cause to believe that a person has committed or is attempting to commit the offense of theft, as defined in § 39-14-103, may detain that person on or off the premises of the mercantile establishment if the detention is done for any or all of the following purposes:
1. (1) To question the person, investigate the surrounding circumstances, obtain a statement, or any combination thereof;
2. (2) To request or verify identification, or both;
3. (3) To inform a peace officer of the detention of that person, or surrender that person to the custody of a peace officer, or both;
4. (4) To inform a peace officer, the parent or parents, guardian or other private person interested in the welfare of a minor of the detention and to surrender the minor to the custody of that person; or
5. (5) To institute criminal proceedings against the person.
(b) Probable cause to suspect that a person has committed or is attempting to commit the offense of theft may be based on, but not limited to:
1. (1) Personal observation, including observation via closed circuit television or other visual device;
2. (2) Report of personal observation from another merchant;
3. (3) Activation of an electronic or other type of mechanical device designed to detect theft; or
4. (4) Personal observation of dressing rooms, including observation via closed circuit television, two-way mirrors, or other visual devices, shall be limited to observation by a person of the same sex as the person being observed. No observation shall be lawful unless notices are posted in the dressing rooms that monitoring may occur.
Backlinks (1)
- 40-7-117
(c) A merchant, a merchant's employee or agent, or a peace officer who detains, questions or causes the arrest of any person suspected of theft shall not be criminally or civilly liable for any legal action relating to the detention, questioning or arrest if the merchant, merchant's employee or agent, or peace officer:
1. (1) Has reasonable grounds to suspect that the person has committed or is attempting to commit theft;
2. (2) Acts in a reasonable manner under the circumstances; and
3. (3) Detains the suspected person for a reasonable period of time.
(d) The merchant may use a reasonable amount of force necessary to protect the merchant, to prevent escape of the person detained, or to prevent the loss or destruction of property.
(e) A “reasonable period of time”, for the purposes of this section, is a period of time long enough to accomplish the purpose set forth in this section, and shall include any time spent awaiting the arrival of a law enforcement officer or the parents or guardian of a juvenile suspect, if the merchant or the merchant's employee or agent has summoned a law enforcement officer, the parents or a guardian.

History (4)

Acts 1957, ch. 164, §§ 1, 3
T.C.A., §§ 40-824, 40-826
Acts 1983, ch. 326, § 2
1990, ch. 1030, § 17.

§ 40-7-117. Theft of property valued at more than $500 in retail or wholesale establishments — Arrest by peace officer without warrant.

Any peace officer may arrest without warrant any person the officer has probable cause for believing has committed theft of property with a value of more than five hundred dollars ($500) in retail or wholesale establishments. “Probable cause,” as used in this section, includes, but is not limited to, the statement of a merchant containing facts and circumstances demonstrating that the officer relied on the elements enumerated in § 40-7-116(b).

History (4)

Acts 1957, ch. 164, § 2
T.C.A., § 40-825
Acts 1983, ch. 326, § 3
1990, ch. 1030, § 18.

§ 40-7-118. Use of citations in lieu of continued custody of an arrested person.

(a) As used in this section, unless the context otherwise requires:
1. (1) “Citation” means an order prepared as a written or electronic citation and issued by a peace officer on paper or on an electronic data device requiring a person accused of violating the law to appear in a designated court or government office at a specified date and time. The signature of the person to whom the order is issued is required, and the order must be filed, electronically or otherwise, with a court having jurisdiction over the alleged offense;
2. (2) “Magistrate” means any state judicial officer, including the judge of a municipal court, having original trial jurisdiction over misdemeanors or felonies; and
3. (3)
  1. (A) “Peace officer” means an officer, employee or agent of government who has a duty imposed by law to:
    1. (i) Maintain public order;
    2. (ii) Make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and
    3. (iii) Investigate the commission or suspected commission of offenses; and
  2. (B) “Peace officer” also includes an officer, employee or agent of government who has the duty or responsibility to enforce laws and regulations pertaining to forests in this state.
(b)
1. (1) A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer's presence, or who has taken custody of a person arrested by a private person for the commission of a misdemeanor, shall issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate. If the peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether the person is to be arrested and taken into custody or arrested and issued a citation in accordance with this section in lieu of continued custody. The warrant or capias shall specify the action to be taken by the serving peace officer who shall act accordingly.
2. (2)
  1. (A) This subsection (b) does not apply to an arrest for the offense of driving under the influence of an intoxicant as prohibited by § 55-10-401, unless the offender was admitted to a hospital, or detained for medical treatment for a period of at least three (3) hours, for injuries received in a driving under the influence incident.
  2. (B) This subsection (b) does not apply to any misdemeanor offense for which § 55-10-207 or § 55-12-139 authorizes a traffic citation in lieu of arrest, continued custody and the taking of the arrested person before a magistrate.
3. (3) A peace officer may issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate if a person is arrested for:
  1. (A) The offense of theft which formerly constituted shoplifting, in violation of § 39-14-103;
  2. (B) Issuance of bad checks, in violation of § 39-14-121;
  3. (C) Use of a revoked or suspended driver license in violation of § 55-50-504, § 55-50-601 or § 55-50-602;
  4. (D) Assault or battery as those offenses are defined by common law, if the officer believes there is a reasonable likelihood that persons would be endangered by the arrested person if a citation were issued in lieu of continued physical custody of the defendant; or
  5. (E) Prostitution, in violation of § 39-13-513, if the arresting party has knowledge of past conduct of the defendant in prostitution or has reasonable cause to believe that the defendant will attempt to engage in prostitution activities within a reasonable period of time if not arrested.
(c) A peace officer may arrest and take a person into custody if:
1. (1) A reasonable likelihood exists that the arrested person will fail to appear in court; or
2. (2) The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized.
(d) No citation shall be issued under this section if:
1. (1) The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;
2. (2) There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
3. (3) The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation;
4. (4) [Deleted by 2019 amendment.]
5. (5) [Deleted by 2019 amendment.]
6. (6) The person demands to be taken immediately before a magistrate or refuses to sign the citation;
7. (7) The person arrested is so intoxicated that the person could be a danger to the person's own self or to others;
8. (8) There are one (1) or more outstanding arrest warrants for the person; or
9. (9) The person is subject to arrest pursuant to § 55-10-119.
Backlinks (2)
- 55-10-207(h)(1)
- 70-1-310(c)
(e)
1. (1) In issuing a citation, the officer shall:
  1. (A) Prepare a citation that includes the name and address of the cited person, the offense charged, and the time and place of appearance;
  2. (B) Have the offender sign the citation. The officer shall deliver one (1) copy to the offender and retain the other; and
  3. (C) Release the cited person from custody.
2. (2)
  1. (A) An electronic signature may be used to sign a citation issued electronically and has the same force and effect as a written signature.
  2. (B) Whenever a citation is issued electronically, the officer shall provide the cited person with a paper copy of the citation.
  3. (C) Replicas of citation data sent by electronic transmission must be sent within three (3) days of the issuance of the citation to the court having jurisdiction over the alleged offense.
(f) By accepting the citation, the defendant agrees to appear at the arresting law enforcement agency prior to trial to be booked and processed. Failure to so appear is a Class A misdemeanor.
(g) 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 the person's court date, the court shall issue a bench warrant for the person's arrest.
(h) Whenever a citation has been prepared, delivered and filed with a court as provided in this section, a duplicate copy of the citation constitutes a complaint to which the defendant shall answer. The duplicate copy shall be sworn to by the issuing officer before any person authorized by law to administer oaths.
(i) Nothing in this section shall be construed to affect a peace officer's authority to conduct a lawful search even though the citation is issued after arrest.
(j) Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation or who knowingly gives a false or assumed name or address commits a Class A misdemeanor, regardless of the disposition of the charge for which the person was originally arrested. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
(k) Whenever an officer makes a physical arrest for a misdemeanor and the officer determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d), the officer shall note the reason for not issuing a citation on the arrest ticket. An officer who, on the basis of facts reasonably known or reasonably believed to exist, determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d) shall not be subject to civil or criminal liability for false arrest, false imprisonment or unlawful detention.
(l)
1. (1) Each citation issued pursuant to this section shall have printed on it in large, conspicuous block letters the following:
  1. NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS CITATION OR AT THE APPROPRIATE POLICE STATION FOR BOOKING AND PROCESSING WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE WHICH IS PUNISHABLE BY A JAIL SENTENCE OF ELEVEN (11) MONTHS AND TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).
2. (2) Each person receiving a citation under this section shall sign this citation indicating the knowledge of the notice listed in subdivision (l)(1). The signature of each person creates a presumption of knowledge of the notice and a presumption of intent to violate this section if the person should not appear as required by the citation.
3. (3) Whenever there are changes in the citation form notice required by this subsection (l), a law enforcement agency may exhaust its existing supply of citation forms before implementing the new citation forms.
(m) This section shall govern all aspects of the issuance of citations in lieu of the continued custody of an arrested person, notwithstanding any provision of Rule 3.5 of the Tennessee Rules of Criminal Procedure to the contrary.
(n) In cases in which:
1. (1) The public will not be endangered by the continued freedom of the suspected misdemeanant; and
2. (2) The law enforcement officer has reasonable proof of the identity of the suspected misdemeanant,
3. (3) [Deleted by 2019 amendment.]
4. the general assembly finds that the issuance of a citation in lieu of arrest of the suspected misdemeanant will result in cost savings and increased public safety by allowing the use of jail space for dangerous individuals and/or felons and by keeping officers on patrol. Accordingly, the general assembly encourages all law enforcement agencies to so utilize misdemeanor citations and to encourage their personnel to use those citations when reasonable and according to law.

Backlinks (8)

History (14)

Acts 1981, ch. 500, §§ 1, 2
T.C.A., § 40-827
Acts 1983, ch. 200, § 1
1984, ch. 553, §§ 1, 2
1985, ch. 320, §§ 1-8, 10, 11
1988, ch. 932, § 1
1989, ch. 591, § 113
1991, ch. 16, § 1
1993, ch. 241, §§ 68-70
1996, ch. 644, § 1
2002, ch. 619, § 1
2012, ch. 737, § 3
2019, ch. 316, §§ 1-4
2020, ch. 781, §§ 1, 2.

§ 40-7-119. Strip searches restricted.

(a) As used in this section, “strip search” means having an arrested person remove or arrange some or all of the person's clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments of the arrested person.
(b) No person arrested for a traffic, regulatory or misdemeanor offense, except in cases involving weapons, a controlled substance or controlled substance analogue, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance, a controlled substance analogue or other contraband.

History (3)

Acts 1982, ch. 759, § 1
T.C.A., § 40-828
Acts 2012, ch. 848, § 28.

§ 40-7-120. Release citations for misdemeanants.

(a) As used in this section, except as otherwise specifically indicated:
1. (1) “Citation” means a written order issued by a sheriff requiring a person accused of violating the law to appear in a designated court at a specified date and time. The order shall require the signature of the person to whom it is issued; and
2. (2) “Magistrate” means any state judicial officer, including the judge of a municipal court, having original trial jurisdiction over misdemeanors or felonies.
(b) A sheriff or sheriff's designee may, at a county jail, issue a release citation to any person who has been arrested for a violation of law which is punishable as a misdemeanor and who has been booked and processed for that violation.
(c) The citation shall demand the person cited to appear in court at a stated time and place, and it shall state the name and address of the person cited, the name of the issuing sheriff and the offense charged. The time specified on the citation to appear shall be as fixed by the sheriff issuing the citation.
(d) The citation shall be executed in triplicate, the original to be delivered to the court specified in the citation, one (1) copy to be given to the person cited, and one (1) copy to be retained by the sheriff issuing the citation. The original citation delivered to the court shall be sworn to by the issuing sheriff before a magistrate or official lawfully assigned that duty by a magistrate. The person cited shall signify the person's acceptance of the citation and the person's agreement to appear in court as directed by signing the original citation.
(e) Whenever a release citation has been prepared, accepted and the original citation delivered to the court as provided in this section, the original citation delivered to the court shall constitute a complaint to which the person cited must answer, and neither the arresting officer nor the sheriff issuing the citation shall be required to file any other affidavit of complaint with the court.
(f) The signature of the person cited shall create a presumption of knowledge of notice to appear and a presumption of intent to violate this section if the person should not appear as required by the citation.
(g) The citation must give notice to the person cited that the person's failure to appear as ordered is punishable as a separate misdemeanor offense. Each citation issued pursuant to this section must have printed on it in large, conspicuous block letters, the following:
1. NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS CITATION WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE WHICH IS PUNISHABLE BY A JAIL SENTENCE OF UP TO ELEVEN (11) MONTHS, TWENTY-NINE (29) DAYS AND/OR A FINE OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500).
(h) Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation commits a separate misdemeanor offense, regardless of the disposition of the charge for which the person was originally arrested, and upon conviction shall be punished by imprisonment in the county jail or workhouse for not more than eleven (11) months, twenty-nine (29) days, or by a fine of not more than two thousand five hundred dollars ($2,500) or, in the discretion of the court, by both imprisonment and fine. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
(i) If the person cited fails to appear in court on the date and time specified, the court may issue a bench warrant for the person's arrest.
(j) Nothing in this section shall be construed to affect a sheriff's authority to conduct a lawful search even though the citation is issued after arrest.
(k) No citation shall be issued under this section if:
1. (1) The person arrested requires medical examination or medical care, or if the person is unable to care for the person's own safety;
2. (2) A reasonable likelihood exists that the arrested person will fail to appear in court;
3. (3) The person demands to be taken immediately before a magistrate or refuses to sign the citation;
4. (4) The person arrested is so intoxicated that the person could pose a danger to the person's own self or to others;
5. (5) There are one (1) or more outstanding arrest warrants for the person;
6. (6) There is a reasonable likelihood that the offense would continue or resume, or that persons or property would be endangered by the arrested person;
7. (7) The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation; and
8. (8) The prosecution of the offense for which the person was arrested, or of another offense, would thereby be jeopardized.
(l) This section governs all aspects of the issuance of release citations to an arrested person, notwithstanding any provision of Rule 3.5 of the Tennessee Rules of Criminal Procedure to the contrary.
(m) No sheriff may issue a release citation as authorized in this section after the issuance of a mittimus.
(n) This section is intended to be in addition and supplemental to § 40-7-118, and shall not be construed to supersede that section as it existed on July 1, 1989.
(o) This section does not apply to any county having a metropolitan form of government with a population of more than four hundred seventy thousand (470,000), according to the 1980 federal census or any subsequent federal census.

Backlinks (3)

History (2)

Acts 1989, ch. 556, §§ 1-3
2019, ch. 486, §§ 5, 6.

§ 40-7-121. Body cavity searches — Warrant requirement — Waiver — Liability.

(a) As used in this section, unless the context otherwise requires, “body cavity search” means an inspection, probing or examination of the inside of a person's anus, vagina or genitals for the purpose of determining whether the person is concealing evidence of a criminal offense, a weapon, a controlled substance, a controlled substance analogue or other contraband.
(b) No person shall be subjected to a body cavity search by a law enforcement officer or by another person acting under the direction, supervision or authority of a law enforcement officer unless the search is conducted pursuant to a search warrant issued in accordance with Rule 41 of the Tennessee Rules of Criminal Procedure.
(c) The issue of whether a person subjected to a body cavity search consented to the search is irrelevant and shall not be considered in determining whether the search was a valid one under this section, unless the consent is in writing on a preprinted form and contains the following language:
1. 1. I knowingly and voluntarily consent to have my body cavities searched immediately by law enforcement personnel in the manner provided by the laws of Tennessee. By signing this consent form, I knowingly and voluntarily waive my right to require that a warrant be obtained from an appropriate judge or magistrate before my body cavities are searched.
  2. I understand that a body cavity search may involve both visual and physical probing into my genitals and anus.
  3. I understand that I would not be prejudiced or penalized by declining to give my consent to be searched in this manner.
(d) Nothing in this section shall be construed as amending or altering the relevant statutory and common law with regard to strip searches that do not meet the definition of a “body cavity search.”
(e) This section shall not apply to a body cavity search conducted pursuant to a written jail or prison security procedures policy if the policy requires such a search at the time it was conducted.
(f) A law enforcement officer who conducts or causes to be conducted a body cavity search in violation of this section, and the governmental entity employing that officer, shall be subject to a civil cause of action as now provided by law.
(g) Body cavity searches conducted pursuant to this section must be performed by a licensed physician or a licensed nurse.
(h) No physician, registered nurse, or licensed practical nurse, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability as a result of the search or examination, except for any damages or criminal liability that may result from the negligence, gross negligence, willful misconduct or unlawful conduct of the person conducting the examination or search. Neither the hospital nor other employer of health care professionals, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability, except for negligence, gross negligence, willful misconduct or unlawful conduct, as a result of the act of examination or search.

History (3)

Acts 1993, ch. 490, § 1
2002, ch. 569, § 1
2012, ch. 848, § 29.

§ 40-7-122. Fee for booking and processing of persons subject to arrest or summons.

In addition to any other fees the sheriff is entitled to demand and receive in accordance with § 8-21-901, a county legislative body may vote to impose an additional fee of not more than ten dollars ($10.00) for the booking and processing of each person subject to arrest or summons. The fee shall be collected at the same time and in the same manner as other fees are collected by a sheriff in accordance with title 8, chapter 21, part 9. The fee shall not be charged to any person determined by the court to be indigent.

History (1)

Acts 2007, ch. 586, § 2.

§ 40-7-123. Development of standardized written procedure of verifying citizenship status.

(a) The Tennessee peace officer standards and training commission shall develop a standardized written procedure for verifying the citizenship status of individuals who are arrested, booked, or confined for any period in a county or municipal jail or detention facility and reporting to the appropriate immigration and customs enforcement detention and removal operations field office those individuals who may be in violation of the Immigration and Naturalization Act (8 U.S.C § 1101 et seq.).
(b) When a person is arrested, booked or confined for any period in the jail of the county or any municipality, the keeper of the jail shall utilize the above-referenced procedure to verify the citizenship status of each arrested, booked, or otherwise confined individual and report those individuals to the appropriate immigration and customs enforcement detention and removal operations field office if the keeper of the jail determines that the individual is in violation of the Immigration and Naturalization Act, or if such status cannot be determined.
(c) This section shall not apply to any county or municipality that has entered into and is operating under a memorandum of understanding with the United States department of homeland security concerning enforcement of federal immigration laws.
(d) This section shall not apply to any county or municipality while it participates in the United States immigration and customs enforcement criminal alien program (CAP).

Backlinks (2)

History (1)

Acts 2010, ch. 1112, § 1.

§ 40-7-124. Immunity from prosecution for possession of drug paraphernalia when officers alerted of presence of hypodermic needle or other sharp objects prior to search.

(a) Before searching a person, a person's premises, or a person's vehicle, a law enforcement officer may ask the person whether the person is in possession of a hypodermic needle or other sharp object that may cut or puncture the officer, or whether a hypodermic needle or other sharp object is on the premises or in the vehicle to be searched. If there is a hypodermic needle or other sharp object on the person, on the person's premises, or in the person's vehicle, and the person alerts the law enforcement officer of such before the search, the person shall not be charged with or prosecuted for possession of drug paraphernalia for the hypodermic needle or other sharp object.
(b) Subsection (a) does not apply to any other drug paraphernalia that may be present and found during the search.

History (1)

Acts 2015, ch. 77, § 1.

§ 40-7-125. Verification of citizenship status of arrestees.

(a) When a person is arrested, booked, or confined for any period in the jail of a county or municipality, the arresting law enforcement agency and the keeper of a jail shall collaborate to verify the citizenship status of the person and the sheriff shall report the status of persons who are not lawfully present within the United States or whose status cannot be determined to the district attorneys general conference.
(b) As used in this section, except as provided in subsection (c), a person is “not lawfully present within the United States” if:
1. (1) The person cannot provide:
  1. (A) A social security card or number that can be verified with the social security administration in accordance with federal law;
  2. (B) A valid Tennessee driver license or photo identification license issued by the department of safety;
  3. (C) A permanent resident card, also known as a green card, issued by the United States citizenship and immigration services;
  4. (D) An F-1 or M-1 student visa, issued by the United States department of state;
  5. (E) A J-1 visa, issued by the United States department of state;
  6. (F) An official birth certificate issued by a state, jurisdiction, or territory of the United States or a United States government-issued certified birth certificate;
  7. (G) A valid, unexpired United States passport;
  8. (H) A certificate of citizenship (form N560 or N561);
  9. (I) A certificate of naturalization (form N550, N570, or N578);
  10. (J) A B-2 visa, issued by the United States department of state; or
  11. (K) A valid, unexpired e-passport issued by a foreign country and an Electronic System for Travel Authorization approval issued by the United States department of state through the Visa Waiver Program; or
2. (2) The individual has been granted parole under 8 U.S.C. § 1182(d)(5), temporary protected status, deferred action, deferred enforced departure, or similar exercise of administrative grace or prosecutorial discretion.
(c) If an individual cannot produce the documentation listed in subdivision (b)(1), then a law enforcement officer or jailer may presume the individual is lawfully present in the United States based on the officer's personal knowledge of the individual.
(d) The requirements of this section are in addition to the requirements in § 40-7-123.

History (1)

Acts 2024, ch. 1008, § 1.

Part 2 Uniform Law on Fresh Pursuit

§ 40-7-201. Short title.

This part shall be known and may be cited as the “Uniform Law on Fresh Pursuit.”

History (3)

Acts 1939, ch. 146, § 8
C. Supp. 1950, § 11546.1 (Williams, § 11546.8)
T.C.A. (orig. ed.), § 40-809.

§ 40-7-202. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Fresh pursuit” includes fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony;
  1. (A) It also includes the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed;
  2. (B) “Fresh pursuit” does not necessarily imply instant pursuit, but pursuit without unreasonable delay; and
2. (2) “State” includes the District of Columbia.

History (3)

Acts 1939, ch. 146, §§ 4, 5
C. Supp. 1950, §§ 11546.5, 11546.6 (Williams, §§ 11546.4, 11546.5)
T.C.A. (orig. ed.), §§ 40-810, 40-811.

§ 40-7-203. Power of officers from other states to arrest.

(a) Any member of a duly organized state, county or municipal peace unit of another state, who enters this state in fresh pursuit, and continues within this state in that fresh pursuit, of a person in order to arrest the person on grounds that the person is believed to have committed a felony in that other state, shall have the same authority to arrest and hold the person in custody as has any member of any duly organized state, county or municipal peace unit of this state to arrest and hold in custody a person on the ground that the person is believed to have committed a felony in this state.
(b) This section shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.

Backlinks (1)

40-7-204(a)

History (3)

Acts 1939, ch. 146, §§ 1, 3
C. Supp. 1950, §§ 11546.2, 11546.4 (Williams, §§ 11546.1, 11546.3)
T.C.A. (orig. ed.), §§ 40-812, 40-813.

§ 40-7-204. Examination by magistrate.

(a) If an arrest is made in this state by an officer of another state in accordance with § 40-7-203, the officer shall, without unnecessary delay, take the person arrested before a magistrate who shall conduct a hearing for the purpose of determining the lawfulness of the arrest.
(b) If the magistrate determines that the arrest was lawful, the magistrate shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state, or admit the person to bail for that purpose.
(c) If the magistrate determines that the arrest was unlawful, the magistrate shall discharge the person arrested.

History (3)

Acts 1939, ch. 146, § 2
C. Supp. 1950, § 11546.3 (Williams, § 11546.2)
T.C.A. (orig. ed.), § 40-814.

§ 40-7-205. Certification of law to other states.

It is the duty of the secretary of state to certify a copy of this part to the executive department of each of the states of the United States.

History (3)

Acts 1939, ch. 146, § 6
C. Supp. 1950, § 11546.7 (Williams, § 11546.6)
T.C.A. (orig. ed.), § 40-815.

Chapter 8 Rewards for Apprehension

§ 40-8-101. Offer of reward by governor.

(a) The governor is authorized to offer a reward for information leading to the apprehension, arrest and conviction of a person or persons who have committed, attempted to commit or conspired to commit a criminal offense in this state. Any reward offered shall not exceed the following amounts for the following classification of offenses:
1. (1) Fifty thousand dollars ($50,000) for an offense that is classified as a Class A or B felony; and
2. (2) Five thousand dollars ($5,000) for an offense that is classified as a Class C, D or E felony.
(b) The fifty-thousand-dollar and five-thousand-dollar reward maximums imposed by subsection (a) shall apply only to state appropriated funds. The governor may increase the amount of any reward offered by use of funds from the reward pool fund created in this part.
(c) When the governor offers a reward pursuant to this section, the governor may place any reasonable conditions upon collection of the reward as the governor deems advisable or necessary.

Backlinks (2)

History (11)

Code 1858, §§ 183, 5335 (deriv. Acts 1805, ch. 44, § 1
1837-1838, ch. 170, § 1)
Acts 1881, ch. 157, §§ 1, 2
Shan., §§ 233, 7313
Code 1932, §§ 175, 11915
Acts 1971, ch. 40, § 1
1971, ch. 284, § 1
modified
1980, ch. 636, § 8
T.C.A. (orig. ed.), § 40-901
Acts 1997, ch. 284, § 4.

§ 40-8-102. Reward for persons obstructing railroad tracks.

The governor shall, when officially informed that an obstruction has been placed upon any railroad track by any person, for the purpose of derailing the locomotive, tender or cars, offer a reward for the offender's apprehension and conviction.

Backlinks (1)

40-8-103(a)

History (4)

Code 1858, §§ 184, 5336 (deriv. Acts 1855-1856, ch. 94, § 11)
Shan., §§ 234, 7314
Code 1932, §§ 176, 11916
T.C.A. (orig. ed.), § 40-902.

§ 40-8-103. Conditions for reward.

(a) No person is entitled to the reward offered under §§ 40-8-101 and 40-8-102 until the offender is delivered to the civil authority, and confined in jail or admitted to bail.
(b) No person is entitled to the reward unless the offender is apprehended within five (5) years from the date of the governor's proclamation, and before the prosecution of the offense is barred by lapse of time.

History (4)

Code 1858, §§ 5337, 5338
Shan., §§ 7315, 7316
Code 1932, § 11918
T.C.A. (orig. ed.), §§ 40-903, 40-904.

§ 40-8-104. Payment of reward.

The reward will be paid by the state treasurer, upon the warrant of the commissioner of finance and administration, by order of the governor, drawn in favor of the person who may, in the opinion of the governor, be entitled to the reward.

History (9)

Code 1858, § 5339 (deriv. Acts 1805, ch. 44, § 2
1837-1838, ch. 170, § 1)
Acts 1881, ch. 157, § 2
Shan., § 7317
Code 1932, § 11919
modified
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
T.C.A. (orig. ed.), § 40-905.

§ 40-8-105. Reward pool fund.

The governor is authorized to establish and administer a “reward pool fund” which shall be a special account in the state general fund. All monetary donations or gifts made by private citizens and corporations for the purpose of offering a reward or enhancing a state-funded reward offered pursuant § 40-8-101, for information leading to the apprehension, arrest and conviction of a person or persons who have committed, attempted to commit or conspired to commit a criminal offense in this state shall be deposited in the reward pool fund and invested for the benefit of the fund by the state treasurer pursuant to § 9-4-603. Amounts in the fund shall not revert to the general fund of the state but shall, together with interest income credited to the fund, remain available for expenditure in subsequent fiscal years. Except as provided in § 40-8-106, the governor shall have the sole discretion to determine if and how much of the fund shall be offered in a particular criminal case. However, if the donor places any lawful restrictions or instructions on use of the donation at the time it is given, those restrictions or instructions shall be honored.

Backlinks (2)

History (2)

Acts 1997, ch. 284, § 5
2017, ch. 246, § 3.

§ 40-8-106. Reward.

(a) A reward of one thousand dollars ($1,000) shall be awarded to any person whose report of voter fraud through the state election coordinator's voter fraud hotline leads to a conviction. If more than one (1) person reports the same incident of voter fraud, the reward shall be divided and equally distributed to each person.
(b) The reward awarded pursuant to subsection (a) shall be paid from the reward pool fund, created by § 40-8-105.

Backlinks (1)

40-8-105

History (1)

Acts 2017, ch. 246, § 2.

Chapter 9 Uniform Criminal Extradition Act

§ 40-9-101. Short title.

This chapter shall be known and may be cited as the “Uniform Criminal Extradition Act.”

History (2)

Acts 1951, ch. 240, § 28 (Williams, § 11935.26)
T.C.A. (orig. ed.), § 40-1001.

§ 40-9-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:
1. (1) “Executive authority” includes the governor, and any person performing the functions of governor in a state other than this state;
2. (2) “Governor” includes any person performing the functions of governor by authority of the law of this state; and
3. (3) “State,” referring to a state other than this state, refers to any other state or territory organized or unorganized of the United States.

History (2)

Acts 1951, ch. 240, § 1 (Williams, § 11935.1)
T.C.A. (orig. ed.), § 40-1002.

§ 40-9-103. Warrant of arrest for crime in another state.

Whenever any person within this state is charged on the oath of any credible person before any judge or other magistrate of this state with the commission of a crime in any other state, and, except in cases arising under § 40-9-113, with having fled from justice; or whenever a complaint has been made before any judge or other magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in that other state and that the accused has been charged in that other state with the commission of the crime, and, except in cases arising under § 40-9-113, has fled therefrom and is believed to have been found in this state, the judge or magistrate shall issue a warrant directed to the sheriff of the county in which the oath or complaint is filed directing the sheriff to apprehend the person charged, wherever the person may be found in this state, and bring the person before the issuing judge or magistrate or any other judge, court or magistrate who may be conveniently accessible to the place where the arrest may be made, to answer the charge or complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

Backlinks (2)

History (2)

Acts 1951, ch. 240, § 13 (Williams, § 11935.13)
T.C.A. (orig. ed.), § 40-1003.

§ 40-9-104. Arrest without warrant for felony in another state.

The arrest of a person may be lawfully made by an officer or a private citizen without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one (1) year; but when so arrested, the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against the person under oath setting forth the ground for the arrest as in § 40-9-103. Thereafter, the person's answer shall be heard as if the person had been arrested on a warrant.

History (2)

Acts 1951, ch. 240, § 14 (Williams, § 11935.14)
T.C.A. (orig. ed.), § 40-1004.

§ 40-9-105. Commitment awaiting extradition.

If, from the examination before the judge or magistrate, it appears that the person held is the person charged with having committed the crime alleged and that the person probably committed the crime, and, except in cases arising under § 40-9-113, that the person has fled from justice, the judge or magistrate must commit the person to jail by a warrant reciting the accusation for a time specified in the warrant as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail as provided in § 40-9-106, or until the accused is legally discharged.

History (2)

Acts 1951, ch. 240, § 15 (Williams, § 11935.15)
T.C.A. (orig. ed.), § 40-1005.

§ 40-9-106. Admission to bail.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, the judge or magistrate must admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in any sum that the judge or magistrate deems proper, for the person's appearance before the judge or magistrate at a time specified in the bond or undertaking, and for the person's surrender, to be arrested upon the warrant of the governor of this state.

Backlinks (3)

History (2)

Acts 1951, ch. 240, § 16 (Williams, § 11935.16)
T.C.A. (orig. ed.), § 40-1006.

§ 40-9-107. Forfeiture of bail.

If the prisoner is admitted to bail, and fails to appear and surrender according to the condition of the person's bond, the court, by proper order, shall declare the bond forfeited. Recovery may be had on the bond in the name of the state as in the case of other bonds or undertakings given by the accused in criminal proceedings within this state.

History (2)

Acts 1951, ch. 240, § 18 (Williams, § 11935.18)
T.C.A. (orig. ed.), § 40-1007.

§ 40-9-108. Disposition of prisoner on expiration of time specified in warrant of commitment — No discharge pending proceedings before governor.

(a) If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant, bond or undertaking, the judge or magistrate may discharge the accused or recommit the accused to a further day, or may again take bail for the accused's appearance and surrender, as provided in § 40-9-106; and at the expiration of the second period of commitment, or if the accused has been bailed and appeared, according to the terms of the bond or undertaking, the judge or magistrate may either discharge the accused, or require the accused to enter into a new bond or undertaking, to appear and surrender at another day.
(b) Whenever any fugitive from justice awaiting extradition to another state files a protest or requests a hearing before the governor of this state, prior to the returning of the fugitive to the other state, no judge or court in this state shall have the authority to order the release or discharge of the fugitive, pending the final disposition of the extradition proceeding before the governor. Likewise, the surety on any bail or appearance bond shall not be released from liability until final disposition of the matter by the governor of this state.

History (3)

Acts 1951, ch. 240, § 17 (Williams, § 11935.17)
1965, ch. 238, § 1
T.C.A. (orig. ed.), § 40-1008.

§ 40-9-109. Governor's duty to cause arrest and extradition of fugitives.

Subject to the qualifications of this chapter and the provisions of the Constitution of the United States controlling, and acts of congress in pursuance of the United States Constitution, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state any person charged in that state with treason, a felony or another crime, who has fled from justice and is found in this state.

History (2)

Acts 1951, ch. 240, § 2 (Williams, § 11935.2)
T.C.A. (orig. ed.), § 40-1009.

§ 40-9-110. Contents of demands from other states.

No demand for the extradition of a person charged with a crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

History (2)

Acts 1951, ch. 240, § 3 (Williams, § 11935.3)
T.C.A. (orig. ed.), § 40-1010.

§ 40-9-111. Investigation by prosecuting officer.

When a demand is made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with a crime, the governor may call upon the attorney general and reporter or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to the governor the situation and circumstances of the person so demanded, and whether the person ought to be surrendered.

History (2)

Acts 1951, ch. 240, § 4 (Williams, § 11935.4)
T.C.A. (orig. ed.), § 40-1011.

§ 40-9-112. Allegations required in demand for extradition.

A warrant of extradition must not be issued unless the documents presented by the executive authority making the demand show that:
1. (1) Except in cases arising under § 40-9-113, the accused was present in the demanding state at the time of the commission of the alleged crime, and thereafter fled from the state;
2. (2) The accused is now in this state; and
3. (3) The accused is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that the accused has been convicted of a crime in that state and has escaped from confinement or broken parole.

Backlinks (1)

40-9-113

History (2)

Acts 1951, ch. 240, § 5 (Williams, § 11935.5)
T.C.A. (orig. ed.), § 40-1012.

§ 40-9-113. Acts resulting in crime in state in which accused is not present.

The governor of this state may surrender, on demand of the executive authority of any other state, any person in this state charged in that other state in the manner provided in § 40-9-112 with committing an act in this state, or in a third state, intentionally resulting in crime in the state whose executive authority is making the demand. The provisions of this chapter not otherwise inconsistent shall apply to such cases, notwithstanding that the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

Backlinks (3)

History (2)

Acts 1951, ch. 240, § 6 (Williams, § 11935.6)
T.C.A. (orig. ed.), § 40-1013.

§ 40-9-114. Guilt or innocence not inquired into.

The guilt or innocence of the accused as to the crime of which the accused is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this chapter shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.

History (2)

Acts 1951, ch. 240, § 20 (Williams, § 11935.20)
T.C.A. (orig. ed.), § 40-1014.

§ 40-9-115. Demand for person held on charge of crime in Tennessee.

If a criminal prosecution has been instituted against the person under the laws of this state and is still pending, the governor, at the governor's discretion, either may surrender the person on the demand of the executive authority of another state, or may hold the person until the person has been tried and discharged, or convicted and punished in this state.

History (2)

Acts 1951, ch. 240, § 19 (Williams, § 11935.19)
T.C.A. (orig. ed.), § 40-1015.

§ 40-9-116. Issuance of warrant of arrest.

If the governor decides that the demand should be complied with, the governor shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshal, coroner or other person whom the governor may think fit to entrust with the execution of the arrest warrant. The warrant must substantially recite the facts necessary to the validity of its issuance.

History (2)

Acts 1951, ch. 240, § 7 (Williams, § 11935.7)
T.C.A. (orig. ed.), § 40-1016.

§ 40-9-117. Recall or reissuance of warrant.

The governor may recall the governor's warrant of arrest, or may issue another warrant whenever the governor deems proper.

History (2)

Acts 1951, ch. 240, § 21 (Williams, § 11935.21)
T.C.A. (orig. ed.), § 40-1017.

§ 40-9-118. Authority given by governor's warrant.

(a) The warrant shall authorize the officer or other person to whom directed to arrest the accused at any place where the accused may be found within the state and to command the aid of all sheriffs and other peace officers in the execution of the warrant, and to deliver the accused, subject to this chapter, to the duly authorized agent of the demanding state.
(b) Whether the prisoner or fugitive so charged is bound to appear before any court, committed to jail or discharged, any person authorized by the warrant of the governor of this state may at any time take the accused person or fugitive into custody, and the apprehension shall immediately be a discharge of the bond or other proceeding, if there is one pending in any court of this state.
(c) Every officer or other person empowered to make the arrest shall have the same authority in arresting the accused to command assistance in the arrest, as sheriffs and other officers have by law in the execution of any criminal process directed to them, with the same penalties against those who refuse their assistance.

History (3)

Acts 1951, ch. 240, §§ 8, 9 (Williams, §§ 11935.8, 11935.9)
1965, ch. 238, § 2
T.C.A. (orig. ed.), §§ 40-1018, 40-1019.

§ 40-9-119. Information to person arrested — Habeas corpus.

No person arrested upon a warrant shall be delivered over to the agent whom the executive authority demanding the person has appointed to receive the person, unless the person has been informed of the demand made for surrender and of the crime with which the person is charged, and that the person has the right to demand legal counsel. If the prisoner, the prisoner's friends or counsel shall state that the person or they desire to test the legality of the arrest, the prisoner shall be taken forthwith before a judge of a court of record in this state, who shall fix a reasonable time to be allowed the prisoner within which to apply for a writ of habeas corpus. When the writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the public prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.

History (2)

Acts 1951, ch. 240, § 10 (Williams, § 11935.10)
T.C.A. (orig. ed.), § 40-1020.

§ 40-9-120. Confinement of prisoner en route.

The officer or person executing the governor's warrant of arrest or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which the prisoner may pass. The keeper of the county or city jail must receive and safely keep the prisoner until the person having charge of the prisoner is ready to proceed on the person's route, that person being chargeable with the expense of keeping.

History (2)

Acts 1951, ch. 240, § 12 (Williams, § 11935.12)
T.C.A. (orig. ed.), § 40-1022.

§ 40-9-121. Demand for fugitive from Tennessee.

(a) The governor of this state may demand of the executive authority of any other state or territory, any fugitive from justice, or other person charged with treason, felony or other crime in this state and may appoint an agent to demand and receive the person and return the person to this state.
(b) When it is desired to have returned to this state a person charged in this state with a crime, and the person is imprisoned or is held under criminal proceedings then pending against the person in another state or territory, or the District of Columbia, the governor of this state may agree with the executive authority of the other state or territory for the extradition of the person before the conclusion of the proceedings or the person's term of sentence in the other state or territory, or the District of Columbia, upon condition that the person be returned to the other state or territory at the expense of this state as soon as the prosecution in this state is terminated.
(c) The governor of this state may also surrender on demand of the executive authority of any other state or territory, any person in this state who is charged in the manner provided in this chapter with having violated the laws of the state or territory whose executive authority is making the demand, even though the person left the demanding state involuntarily.

Backlinks (1)

40-9-126(a)(1)

History (7)

Code 1858, §§ 185, 5340 (deriv. Acts 1847-1848, ch. 121)
Shan., §§ 235, 7318
Code 1932, §§ 177, 11920
mod. C. Supp. 1950, § 11924.1
Acts 1967, ch. 270, § 1
1968, ch. 618, § 1
T.C.A. (orig. ed.), § 40-1023.

§ 40-9-122. Warrant to agent to return prisoner.

Whenever the governor of this state demands a person charged with a crime in this state from the chief executive of any other state, or from the chief justice or an associate justice of the supreme court of the District of Columbia authorized to receive such demand under the laws of the United States, the governor shall issue a warrant under the seal of this state, to some agent, commanding the agent to receive the person so charged if delivered to the agent and convey the person to the proper officer of the county in this state in which the offense was committed.

History (2)

Acts 1951, ch. 240, § 22 (Williams, § 11935.22)
T.C.A. (orig. ed.), § 40-1024.

§ 40-9-123. Application for requisition of person charged with crime.

When the return to this state of a person charged with a crime in this state is required, the district attorney general, for the county in which the offense is committed, shall present to the governor written application for a requisition for the return of the person charged. The application shall state the name of the person so charged; the crime charged against the person; the approximate time, place and circumstances of its committal; and the state in which the accused is believed to be, including the location of the accused therein at the time the application is made. The application shall also certify that in the opinion of the district attorney general the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.

Backlinks (1)

40-9-126(a)(4)

History (3)

Acts 1951, ch. 240, § 23 (Williams, § 11935.23)
modified
T.C.A. (orig. ed.), § 40-1025.

§ 40-9-124. Application for requisition of escapee, bail jumper, parole violator, probationer, or community corrections violator.

When the return to this state is required for a person who has been convicted of a felony in this state and has escaped from confinement, broken the terms of the person's bail, court-ordered probation, probation pursuant to § 40-35-501(a)(3), or has escaped from or broken the terms of a sentence to any community based alternative to incarceration pursuant to chapter 36 of this title, the district attorney general for the county in which the offense was committed, the director of probation and parole, or the warden of the institution or sheriff of the county from which the escape was made, shall present to the governor a written application for a requisition for the return of the escaped person, in which application shall be stated the name of the person, the crime of which the person was convicted, the circumstances of the person's escape from confinement or placement in the community-based alternative to incarceration, or of the breach of the terms of the person's bail, any form of probation, or parole, and the state in which the person is believed to be, including the location of the person therein at the time application is made. In the case of an application for requisition for escape from, or a breach in the terms of a sentence to, a community based alternative to incarceration, only the district attorney general for the county in which the original offense was committed or the county in which the escape occurred shall have the authority to file the application with the governor.

Backlinks (1)

8-8-201(b)(1)

History (5)

C. Supp. 1950, § 11924.2
modified
T.C.A. (orig. ed.), § 40-1026
Acts 1991, ch. 241, § 1
2012, ch. 727, § 9.

§ 40-9-125. Form and contents of application.

(a) The application shall be verified by affidavit, shall be executed in triplicate and shall be accompanied by three (3) certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the magistrate, stating the offense with which the accused is charged.
(b) The prosecuting officer may also attach any other affidavits and other documents in triplicate as the officer deems proper to be submitted with the application.
(c) One (1) copy of the application with the action of the governor indicated by endorsement thereof, and one (1) of the certified copies of the indictment or complaint or information and affidavit, shall be filed in the office of the secretary of state to remain of record in that office.
(d) The other two (2) copies of all papers shall be forwarded with the governor's requisition.

Backlinks (1)

40-9-126(a)(4)

History (3)

Acts 1951, ch. 240, § 23 (Williams, § 11935.23)
1968, ch. 618, § 2
T.C.A. (orig. ed.), § 40-1027.

§ 40-9-126. Expenses paid by state.

(a)
1. (1) The demanding agent appointed by the governor under § 40-9-121 to return any fugitive from justice under this chapter to this state for trial in the proper county in which the offense is alleged to have been committed or to other proper official or prison, as the case may be, is authorized to employ a guard or escort sufficient to so return the fugitive from justice to this state and contract the other expenses as are absolutely required in performing the duties of the agent.
2. (2) In no event shall more than one (1) person be named or designated as demanding agent in any extradition proceeding and only one (1) person shall be paid expenses in returning any fugitive to this state.
3. (3) An alternate agent may be named and designated, who shall be authorized to go and return the fugitive only when the original demanding agent named or designated is unable to make the trip and return the fugitive.
4. (4) No guard or escort shall be authorized, and no expenses for a guard or escort shall be paid, unless a request for a guard or escort is set forth and certified to by the district attorney general in the written application for the issuance of requisition papers as now authorized under §§ 40-9-123 — 40-9-125.
(b)
1. (1) Except as provided in § 40-9-127, all of the costs and expenses incurred in the return of any fugitive from justice to this state under this chapter shall be paid out of the treasury of the state of Tennessee on the certificate of the governor by the warrant of the commissioner of finance and administration.
2. (2) The costs and expenses incurred, subsequent to the issuance of the warrant or requisition by the governor of Tennessee when the demanding agent is unable to return the fugitive from justice to this state under this chapter, after making a bona fide effort to do so, shall be paid in the manner provided for in subdivision (b)(1).
(c)
1. (1) The mileage reimbursement for the demanding agent who returns the fugitive shall be the same as the reimbursement received by a state employee using a personal vehicle for the convenience of the state, in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter and all other actual and necessary expenses.
2. (2) “All other actual and necessary expenses” means and includes the actual expenses for meals and lodging for the demanding agent, alternate agent, guard, escort and the fugitive, plus any other actual expense that the demanding agent might be required to pay in the responding state as a prerequisite to the release of custody of the fugitive to the demanding agent. It also means and includes other items and the costs of those items as now allowed or which may be allowed regular employees of the state of Tennessee under current or subsequent state travel regulations.
3. (3) The mileage travel allowance shall include all miles traveled both inside or outside this state. No separate travel allowance shall be allowed any guard, escort or fugitive unless the travel is made by public transportation and in that event the actual cost of the public transportation will be reimbursed to the agent, guard or escort.
4. (4) No mileage travel allowance will be paid unless the personal automobile of the agent is actually used in travel.
5. (5) Any municipality or other governmental agency in this state which may own, lease or contract for the use of an airplane for the purpose of air travel facilities, and the airplane facilities are used in going after and returning any fugitive from another state, shall be reimbursed the cost of the plane fare for the demanding agent, alternate agent, guard and fugitive in the amount as may be charged by any regular commercial airline, plus other expenses as may be necessary for meals, lodging and the actual expenses incurred in going to and from the airport.
(d)
1. (1) The demanding agent shall make out an itemized statement of the agent's actual and necessary expenses as to the number of miles traveled, including the compensation to be paid any guard and swear to those expenses.
2. (2) The itemized statement in subdivision (d)(1) shall be submitted to the governor of this state as a condition precedent to the certificate by the governor directing the payment of the account.
3. (3) Payment to the guard shall be by separate warrant based on the certificate of the governor.

History (16)

Code 1858, §§ 5341, 5342 (deriv. Acts 1847-1848, ch. 121)
Acts 1901, ch. 96, §§ 1, 2
1905, ch. 447, § 1
Shan., §§ 7319-7320 a1, a2
Code 1932, §§ 11921-11924
Acts 1939, ch. 70, § 1
mod. C. Supp. 1950, § 11924.3
Acts 1951, ch. 34, § 1
modified
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
Acts 1961, ch. 119, §§ 1, 2
1963, ch. 121, § 1
1971, ch. 244, § 1
T.C.A. (orig. ed.), §§ 40-1028—40-1031
Acts 1991, ch. 107, § 1.

§ 40-9-127. Expenses paid by county.

(a) When a warrant is sworn before any general sessions judge or any indictment returned by a grand jury, charging any person with a felonious crime and the person has absconded beyond the borders of this state, and on authority of the district attorney general, then the county mayor of the county in which the crime has been committed shall pay to the sheriff or to one (1) officer named by the district attorney general of the county who has gone for the person the same mileage allowance received by a state employee using a personal vehicle for the convenience of the state in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter for each mile necessarily traveled in going and coming, both inside and outside the state of Tennessee, and reasonable expenses for meals and lodging. The person so designated shall be known as the “demanding agent,” and shall be empowered to contract with another person to accompany the demanding agent on the trip and to serve as guard, the person having been first approved in writing by the authorities who appointed the demanding agent. Only the demanding agent shall be paid the mileage allowance, as provided in this subsection (a), with only the actual expenses of the guard being paid. When the guard travels with the demanding agent in the personal automobile of the demanding agent, or in any automobile belonging to any political subdivision or agency, no allowance will be granted the guard for transportation expense, and when commercial transportation is used, then only the actual cost of fare.
(b) The demanding agent shall be reimbursed the actual money expended by the demanding agent for transportation costs of the fugitive with no reimbursement being allowed when the fugitive is returned in the personal automobile of the demanding agent and only actual cost of fare for the fugitive when a commercial carrier is used. The demanding agent shall further be reimbursed reasonable expenses of meals and lodging for the fugitive, plus any and all costs, paid by the agent, that are imposed by the responding state as a prerequisite to release of custody of the fugitive to the demanding agent.
(c) Upon the sheriff's or named officer's return, the sheriff or officer shall give to each official named in this section an itemized statement supported with receipts for each item of expense and make a sworn affidavit covering all expenditures. The receipt of the sheriff or named officer so returning the fugitive charged with a felonious crime shall be a voucher for the amount thereof of the chair of the board of county commissioners in the sheriff's settlement with the county; provided, that no designation by the county mayor shall be necessary to authorize the sheriff or named officer to act and draw pay under this section, and that the county mayor shall have no power to designate any person. The officers named by the district attorney general of the county shall not exceed two (2); one (1) to be designated as demanding agent and one (1) to be designated as guard, for each fugitive returned under this section.
(d) In this section, “reasonable expenses” are determined to be in close cost proximity as allowed state employees in the pamphlet, “State of Tennessee — Comprehensive Travel Regulations.”
(e) This section shall apply only when the case is actually tried by a jury, or the defendant pleads guilty.
(f) All sums paid by any county or the county mayor, to the sheriff or named officer for returning an absconding felon shall be certified to the clerk of the criminal court of the county and all sums then to be assessed as part of the costs of the court in the case.

Backlinks (2)

History (10)

Acts 1953, ch. 176, § 1 (Williams, § 11923.1)
1957, ch. 271, § 1
1961, ch. 119, § 3
1963, ch. 359, § 1
1971, ch. 244, § 2
1977, ch. 307, § 1
impl. am. Acts 1978, ch. 934, §§ 16, 36
T.C.A. (orig. ed.), § 40-1032
Acts 1991, ch. 107, § 2
2003, ch. 90, § 2.

§ 40-9-128. Trial for crimes not specified in requisition.

After a person has been brought back to this state upon extradition proceedings, the person may be tried in this state for other crimes which the person may be charged with having committed here, as well as that specified in the requisition for the person's extradition.

History (2)

Acts 1951, ch. 240, § 24 (Williams, § 11935.24)
T.C.A. (orig. ed.), § 40-1033.

§ 40-9-129. Construction of chapter.

This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History (2)

Acts 1951, ch. 240, § 25 (Williams, § 11935.25)
T.C.A. (orig. ed.), § 40-1034.

§ 40-9-130. Waiver.

(a) Nothing in this chapter shall be deemed to constitute a waiver by this state of its right, power or privilege to try a demanded person for a crime committed within this state, or of its right, power or privilege to regain custody of a person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
(b) In the event that the return of a person imprisoned or held under criminal proceedings pending against the person in this state, is requested by another state or territory, by a demand made upon the governor of this state by the executive authority of the other state or territory in the manner provided in this chapter, the governor of this state may, without waiving the rights, power, privileges or jurisdiction of this state in any way, enter into an agreement with the executive authority of the other state or territory for the extradition of the person to the other state or territory, before the conclusion of such proceedings or the person's term of sentence in this state, with or without the condition that at a time agreed upon by the governor of this state and the executive authority of the other state or territory, the person returned to the other state or territory shall be returned to this state. This agreement shall provide that the expense of returning a person to the other state or territory and of returning a person from the other state or territory to this state, if applicable, shall be paid by the other state or territory.
(c) Any waiver of extradition from this state to another state or territory for the purposes of trial, sentence or punishment in the other state or territory, made by a person imprisoned or held under criminal proceedings pending against the person in this state, shall include a waiver of extradition for the return of a person to this state from the other state or territory for trial, sentence or punishment in this state on the charges against the person at the time of the execution of this waiver, at any time agreed upon by the governor of this state and executive authority of the other state or territory, at the time of this waiver or any later time.

History (2)

Acts 1968, ch. 618, § 3
T.C.A., § 40-1035.

Chapter 10 Preliminary Examination

§ 40-10-101. Notice of charge and right to counsel.

When the defendant is brought before a magistrate upon arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate shall immediately inform the defendant of the offense with which the defendant is charged, and of the defendant's right to aid of counsel in every stage of the proceedings.

History (4)

Code 1858, § 5048
Shan., § 7008
Code 1932, § 11547
T.C.A. (orig. ed.), § 40-1101.

§ 40-10-102. Time allowed to procure counsel.

The magistrate shall allow the defendant a reasonable time to send for counsel, and, if necessary, shall adjourn the examination for that purpose.

History (4)

Code 1858, § 5049
Shan., § 7009
Code 1932, § 11548
T.C.A. (orig. ed.), § 40-1102.

§ 40-10-103. Separation and exclusion of witnesses.

The magistrate may make any orders on the examination, in reference to keeping the witnesses separate and apart, or excluding the witnesses during the examination of other witnesses or of the defendant, that the magistrate may think best for the attainment of justice, and shall, on demand of either party, put all witnesses under the rule.

History (4)

Code 1858, § 5061
Shan., § 7020
Code 1932, § 11559
T.C.A. (orig. ed.), § 40-1114.

§ 40-10-104. Bail.

If the defendant is committed to jail for a bailable offense, the magistrate shall endorse on the commitment the amount of the bail required, and sign the endorsement. The sheriff of the county to which the defendant is committed may discharge the defendant, upon the defendant giving sufficient bail in the sum required, and make immediate return to the court to which the defendant is bound to appear of the bail bond or undertaking.

History (4)

Code 1858, § 5066
Shan., § 7025
Code 1932, § 11565
T.C.A. (orig. ed.), § 40-1119.

§ 40-10-105. Election by prisoner to perform hard labor.

(a) The defendant, if charged with a misdemeanor and ordered to be committed to the county jail, may elect to perform hard labor for the county pending trial.
(b) It is the duty of the magistrate committing the defendant to inform the defendant of the right to make an election for hard labor, and of the advantages accruing by that election; and if the defendant so elects, the magistrate shall make an order allowing the defendant to do so and shall certify that election to the court at which the defendant is required to appear.
(c) It is the duty of the sheriff to carry every person in the sheriff's custody charged with a misdemeanor before the judge of the court of general sessions within twenty-four (24) hours after receiving the person into custody. It is the duty of the judge to inform the prisoner of the prisoner's right to make an election for hard labor and of the advantages accruing to the prisoner by that election; and if the prisoner elects to perform hard labor, the judge shall make an order allowing the prisoner to do so and shall certify that election to the court at which the prisoner is required to appear. If the prisoner is convicted when tried, it is the duty of the court in determining punishment to take into consideration the amount of labor performed by the defendant; and if the defendant is acquitted, the net amount so earned by the defendant under the election to perform hard labor shall be delivered to the defendant by the county trustee, who shall take the defendant's receipt therefor, which shall be the defendant's voucher.
(d) This section shall apply only to counties as may, by a majority vote of the county legislative bodies at a regular or special session, elect to avail themselves of the right to the labor of a defendant.
(e) The earnings of a defendant under this section shall be the same as that of a misdemeanant inmate and shall be paid to the county trustee and held by the trustee until the final disposition of the prosecution. If the defendant is convicted, it shall be applied by the trustee as the hire of convicts is applied.

Backlinks (4)

History (4)

Code 1932, § 11564
impl. am. Acts 1978, ch. 934, §§ 7, 36
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-1120.

§ 40-10-106. Reports on elections to perform hard labor.

(a) It is the duty of such magistrate to render to the grand jury of the county on the first day of each jury session of the court, a statement in writing and under oath, of the name of each defendant charged with a misdemeanor committed to the county jail by the magistrate, the date of conviction, and whether or not the magistrate gave the defendant the information required by § 40-10-105.
(b) It is the duty of the sheriff to render to the grand jury of the sheriff's county, on the first day of each jury session of the court, a statement in writing and under oath, of the name of every person charged with a misdemeanor coming into the sheriff's custody since the sheriff's last preceding statement, when the sheriff received the defendant, and when the sheriff carried the defendant before the judge of the court of general sessions, as provided in § 40-10-105.
(c) It is the duty of the judge of the court of general sessions to render to the grand jury of the county on the first day of each jury session of the circuit or criminal court, a statement in writing and under oath, of the name of each defendant brought before the judge by the sheriff under § 40-10-105, of the date when the defendant was so brought before the judge, and whether or not the judge gave the defendant the information required by § 40-10-105.

Backlinks (1)

8-8-201(b)(1)

History (3)

Code 1932, § 11564
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-1121.

§ 40-10-107. Bond of witnesses.

On holding the defendant to answer, the magistrate shall take from each material witness examined by the magistrate on the part of the state a written undertaking, in the sum of two hundred fifty dollars ($250), to appear and testify, at the court at which the defendant is required to answer, on the second day of the term.

Backlinks (1)

40-10-108

History (4)

Code 1858, § 5067
Shan., § 7026
Code 1932, § 11566
T.C.A. (orig. ed.), § 40-1122.

§ 40-10-108. Form of bond.

The undertaking entered into pursuant to § 40-10-107 may be in substance as follows:
1. State of Tennessee,
2. County of
3. We, A. B., C. D., and E. F., witnesses against G. H., charged with a public offense, do each bind ourselves to appear at the next term of the (circuit) court of County, on the second day of the term, to give evidence against G. H., and, in case of failure, to pay the state of Tennessee two hundred fifty dollars ($250).
4. This day of , 20.
5. A. B.,
6. C.D.,
7. E.F.

History (4)

Code 1858, § 5068
Shan., § 7027
Code 1932, § 11567
T.C.A. (orig. ed.), § 40-1123.

§ 40-10-109. Increase of bond — Surety.

Whenever the magistrate has good cause to believe that a witness for the prosecution will not appear to testify, the magistrate may require the witness to enter into a similar undertaking in a larger sum and with sufficient security.

History (4)

Code 1858, § 5069
Shan., § 7028
Code 1932, § 11568
T.C.A. (orig. ed.), § 40-1124.

§ 40-10-110. Minors as witnesses.

Minors, being material witnesses for the prosecution, may also be required, in the discretion of the magistrate, to procure sureties who will undertake for their appearance to testify, or the magistrate may issue subpoenas and have those minors instantly summoned to appear and testify.

History (5)

Code 1858, § 5070
Shan., § 7029
Code 1932, § 11569
T.C.A. (orig. ed.), § 40-1125
Acts 1984, ch. 515, § 1.

§ 40-10-111. Commitment of witnesses.

Any witness required to enter into an undertaking, with or without security, shall, on failure or refusal, be committed to jail.

Backlinks (1)

40-10-112

History (4)

Code 1858, § 5071
Shan., § 7030
Code 1932, § 11570
T.C.A. (orig. ed.), § 40-1126.

§ 40-10-112. Bail of witnesses.

In case of commitment pursuant to § 40-10-111, the magistrate shall state in the commitment the amount of the undertaking and whether security is required. The witness shall be discharged by the sheriff on entering into the undertaking as required.

History (4)

Code 1858, § 5072
Shan., § 7031
Code 1932, § 11571
T.C.A. (orig. ed.), § 40-1127.

§ 40-10-113. Magistrates acting in association.

Any magistrate to whom information is made, or before whom any defendant is brought, may associate with the magistrate one (1) or more magistrates of the same grade, and the powers and duties in this chapter prescribed may be executed and performed by them.

History (4)

Code 1858, § 5075
Shan., § 7034
Code 1932, § 11574
T.C.A. (orig. ed.), § 40-1130.

§ 40-10-114. Waiver of preliminary hearing — Objection by state.

The preliminary hearing may not be waived by the defendant if the state makes a timely objection, for good cause shown, to the defendant's request for waiver.

History (1)

Acts 2015, ch. 329, § 1.

Chapter 11 Bail

Part 1 Admission to Bail

§ 40-11-101. Short title.

Sections 40-11-101 — 40-11-144 shall be known as and may be cited as the “Release from Custody and Bail Reform Act of 1978.”

Backlinks (7)

History (2)

Acts 1978, ch. 506, § 1
T.C.A., § 40-1201.

§ 40-11-102. Bailable offenses.

Before trial, all defendants shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great. After conviction, defendants are bailable as provided by § 40-11-113, § 40-11-143 or both.

History (2)

Acts 1978, ch. 506, § 2
T.C.A., § 40-1202.

§ 40-11-103. Methods of release.

(a) Sections 40-11-101 — 40-11-144 shall be supplemental to the laws providing for and regulating professional bail bondsmen, who may continue to secure the bail bonds provided for in §§ 40-11-101 — 40-11-144, but only as provided for in § 40-11-122, and consistently with all other laws and regulations pertaining to those laws.
(b) Nothing in §§ 40-11-101 — 40-11-144 shall prevent the release of a person charged with a traffic violation under the terms and conditions of §§ 40-11-145 and 40-11-146.

History (2)

Acts 1978, ch. 506, § 3
T.C.A., § 40-1203.

§ 40-11-104. Authority to release defendants.

(a) Any magistrate may release the defendant on the defendant's own recognizance pursuant to § 40-11-115 or § 40-11-116 or admit the defendant to bail pursuant to § 40-11-117 or § 40-11-122 at any time prior to or at the time the defendant is bound over to the grand jury. The trial court may release the defendant on the defendant's own recognizance pursuant to § 40-11-115, admit the defendant to bail under § 40-11-116, § 40-11-117 or § 40-11-122, or alter bail or other conditions of release pursuant to § 40-11-144 at any time prior to conviction or thereafter, except where contrary to law.
(b) When a defendant has been released to appear as directed by the officer setting bail, and such defendant fails to appear as ordered, any new bail set shall be posted only pursuant to § 40-11-118 or § 40-11-122.

History (3)

Acts 1978, ch. 506, § 4
T.C.A., § 40-1204
Acts 2012, ch. 994, § 1.

§ 40-11-105. Right to bail — Bail by clerk — Maximum amounts.

(a)
1. (1) When the defendant has been arrested or held to answer for any bailable offense, the defendant is entitled to be admitted to bail by the committing magistrate, by any judge of the circuit or criminal court, or by the clerk of any circuit or criminal court; provided, that if admitted to bail by the clerk of any circuit or criminal court, the defendant has a right to petition the judge of the circuit or criminal court if the defendant feels that the bail set is excessive, and shall be given notice of this fact by the clerk.
2. (2) The clerk of any circuit or criminal court may only admit the defendant to bail when the judge is not present in the court and the clerk reasonably believes that the judge will not be present within three (3) hours after the defendant has been committed to the county or city jail, following arrest.
(b) Except as provided in subsection (c), in no event may a clerk set the amount of bail in excess of:
1. (1) One thousand dollars ($1,000) if the defendant is charged with a misdemeanor;
2. (2) Ten thousand dollars ($10,000) if the defendant is charged with a felony that does not involve a crime committed against a person;
3. (3) Fifty thousand dollars ($50,000) if the defendant is charged with a felony that involves a crime committed against a person; or
4. (4) One hundred thousand dollars ($100,000) if the defendant is charged with some form of homicide.
(c) A clerk may set the amount of bail in excess of the listed amounts in subsection (b) if the defendant is deemed a risk of flight pursuant to § 40-11-118.

History (3)

Acts 1978, ch. 506, § 5
T.C.A., § 40-1205
Acts 2012, ch. 1011, §§ 2, 3.

§ 40-11-106. Authority to take bail — Appeal.

(a) If bail has been set, any sheriff, any magistrate or other officer having authority to admit to bail in the county where the defendant is arrested, confined or legally surrendered may take bail in accordance with the provisions of §§ 40-11-101 — 40-11-144 and release the defendant to appear as directed by the officer setting bail. The sheriff or peace officer shall give a numbered receipt to the defendant to mandate an accounting for the bail so taken and within a reasonable time deposit the bail with the clerk of the court having jurisdiction of the offense.
(b)
1. (1) Under this part, it is the responsibility of the sheriff or judicial commissioner to determine the sufficiency of the surety and validity of any bond, and once a sheriff or judicial commissioner has taken bail under this subsection (b), that action shall be presumed to be valid. Once a sheriff or judicial commissioner has taken bail or refused to take bail, the jurisdiction of the court having jurisdiction of the offense shall be limited to the issue of whether the sheriff or judicial commissioner has abused discretion. A surety which meets the requirements of § 40-11-122(1) or (2) shall be deemed sufficient if it is certified by the circuit court clerk of the county where the defendant resides to the sheriff, magistrate, or other appropriate officer in the county where the defendant was arrested, confined or legally surrendered.
2. (2) However, any defendant, claiming that a sheriff or judicial commissioner has acted arbitrarily or capriciously, may, by motion, file an appeal to the court having jurisdiction of the offense. Upon appeal, it is the court's duty to determine whether the sheriff or judicial commissioner has acted arbitrarily or capriciously.
3. (3) This subsection (b) shall not be used to prevent a commercial bonding agency from posting bond for any individual when the commercial bondsman has previously been approved and authorized to make bonds and the bondsman has been so authorized by the presiding judge.
(c) Before the sheriff, magistrate or other officer admits to bail and releases a defendant who is arrested for any kidnapping offense involving a hostage or victim, the releasing authority shall make all reasonable and diligent efforts to notify the hostage or victim of the alleged offense that the defendant has been admitted to bail and is being released. If the hostage or victim is under the age of eighteen (18) or otherwise unavailable, the releasing authority shall make all reasonable and diligent efforts to notify the family, if any, of the hostage or victim that the defendant is being released.

Backlinks (4)

History (5)

Acts 1978, ch. 506, § 6
1981, ch. 237, § 1
T.C.A., § 40-1206
Acts 1984, ch. 911, § 1
1988, ch. 648, § 1.

§ 40-11-107. Taking bail before commitment.

The committing magistrate or the city court clerk of any incorporated municipality or city or that person's deputies, before whom a defendant is brought for examination on a warrant of arrest, are authorized to take bail, either for the defendant's appearance for examination or for the defendant's appearance at court to answer the charge.

History (2)

Acts 1978, ch. 506, § 7
T.C.A., § 40-1207.

§ 40-11-108. Taking bail after commitment.

If the defendant is committed to jail in default of bail, the committing magistrate or sheriff or the city court clerk of any incorporated municipality or city or the person's deputies may take bail at any time thereafter, for defendant's appearance at the court having cognizance of the offense.

History (2)

Acts 1978, ch. 506, § 8
T.C.A., § 40-1208.

§ 40-11-109. Taking bail after indictment.

After indictment, the sheriff, upon executing the capias or writ of arrest, may take bail from the defendant for the defendant's appearance to answer the charge.

History (2)

Acts 1978, ch. 506, § 9
T.C.A., § 40-1209.

§ 40-11-110. Bail for material witness.

(a) If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that the witness has refused or will refuse to respond to process, the court may require the witness to give bail under § 40-11-117 or § 40-11-122 for appearance as a witness, in an amount fixed by the court.
(b) If the person fails to give bail, the court may commit the person to the custody of the sheriff, pending final disposition of the proceeding in which the testimony is needed, may order the person's release if the person has been detained for an unreasonable length of time, and may modify at any time the requirement as to bail.
(c) If the person does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited as provided in § 40-11-120 or § 40-11-139.

History (2)

Acts 1978, ch. 506, § 10
T.C.A., § 40-1210.

§ 40-11-111. Bail for persons under disability.

(a) Individuals who are unable to perform activities of daily living as the result of a severe and persistent mental illness, or individuals who have been adjudicated mentally incompetent, or infants, need not personally make the deposit or execute the bail bond as may be required under §§ 40-11-101 — 40-11-144, but the deposit and execution may be made for such individuals by anyone found by the sheriff or clerk taking the bond to be a responsible substitute.
(b) For the purposes of this section, an individual shall be considered to have a severe and persistent mental illness if:
1. (1) Such individual has a psychiatric diagnosis or symptoms consistent with a psychiatric diagnosis as specified in the latest edition of the American Psychiatric Association Diagnostic and Statistical Manual; and
2. (2) Such individual has delusions, hallucinations, extremely disorganized thinking or other significant disruptions of consciousness, memory, and perception that are not attributable solely to the acute effects of alcohol or other drugs; and
3. (3) Such individual has a documented medical history of the items listed in subdivisions (b)(1) and (2).
(c) For purposes of this section, unless the context otherwise requires:
1. (1) “Delusions” means fixed, clearly false beliefs; and
2. (2) “Hallucinations” means clearly erroneous perceptions of reality.

History (3)

Acts 1978, ch. 506, § 11
T.C.A., § 40-1211
Acts 2010, ch. 937, § 1.

§ 40-11-112. Arrest warrant issued for failure to comply with conditions.

(a) Upon an increase in the amount of bail required, the court having jurisdiction at the time of the increase shall declare a forfeiture and may issue a warrant for the arrest of the defendant.
(b) Upon the defendant's failure to comply with any condition of a bail bond or recognizance release, the court having jurisdiction at the time of the failure shall declare a forfeiture and may issue a warrant for the arrest of the defendant; provided, that, if the defendant is charged with a Class A, B, C, or D felony, then the court shall issue a warrant for the arrest of the defendant.
Backlinks (1)
- 40-11-148(c)

History (3)

Acts 1978, ch. 506, § 12
T.C.A., § 40-1212
Acts 2024, ch. 1055, § 2.

§ 40-11-113. Admission to bail pending appeal.

(a)
1. (1) In the cases in which the defendant may be admitted to bail upon appeal, the order admitting the defendant to bail may be made either by the court wherein the judgment was rendered, or the judge of the rendering court, by the court of criminal appeals, or any judge of the court of criminal appeals, or by the supreme court, or any supreme court justice.
2. (2) In any case in which any person has been admitted to bail following the person's arrest or indictment, the bail bond, security or cash deposit shall continue and be valid and binding pending any trial proceeding and appellate review, and no additional or new bail shall be required unless ordered by the court wherein the judgment of the conviction was rendered, or the judge of the rendering court, or by the court of criminal appeals, or any judge of the court of criminal appeals, or by the supreme court, or any supreme court judge.
3. (3) Nothing in this section shall prevent any of the rendering courts, the court of criminal appeals or the supreme court or any judge or justice of those courts from reducing or increasing the amount of bail required pending appellate review.
4. (4) If any person admitted to bail pending appeal is indicted for or convicted of a separate felony offense while released on bail, the bail shall be revoked and the defendant committed immediately.
(b) If a defendant is convicted of first degree murder, a Class A felony or a violation of § 39-11-117, § 39-12-205, § 39-13-304, § 39-13-402, § 39-13-503, § 39-13-504, § 39-13-518, § 39-13-1004, § 39-15-402, § 39-17-107, § 39-17-417(b), § 39-17-417(c)(1), § 39-17-417(i), § 39-17-1004 or § 39-17-1005, the judge shall revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial, or related post-guilt determination hearings.
(c) If the defendant is convicted of any other felony offense, the judge may revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial and related post-guilt determination hearings.
(d) Before a judge admits to bail pending appeal and releases a defendant who is convicted of any kidnapping offense, for which bail is authorized, involving a hostage or victim, the judge shall make all reasonable and diligent efforts to notify the hostage or victim of the offense that the defendant has been admitted to bail pending appeal and is being released. If the hostage or victim is under eighteen (18) years of age or is otherwise unavailable, the judge shall make all reasonable and diligent efforts to so notify the family, if any, of the hostage or victim.

Backlinks (1)

40-11-102

History (12)

Acts 1978, ch. 506, § 13
1979, ch. 224, § 1
1979, ch. 318, § 16
1979, ch. 397, § 1
1981, ch. 449, § 2
1982, ch. 567, §§ 1, 2
T.C.A., § 40-1213
Acts 1988, ch. 648, § 2
1991, ch. 347, §§ 1, 3
1995, ch. 498, § 1
2021, ch. 545, § 15
2022, ch. 643, § 1.

§ 40-11-114. Contents of written undertaking.

(a) Bail, when not given in open court, is given by a written undertaking, containing the conditions of release, the agreement of the defendant to appear in the court having jurisdiction of the offense as directed by the court and/or an amount to be paid for nonappearance, signed by the defendant, and if made under § 40-11-122(2), signed also by court-approved and sufficient surety or sureties. The written undertaking must be approved by the officer taking it.
(b) An electronically transmitted facsimile copy of a written undertaking shall have the same legal effect as the original written undertaking. An electronically transmitted facsimile copy of a written undertaking signed by the defendant shall have the same legal effect as the written undertaking signed by the defendant.

History (3)

Acts 1978, ch. 506, § 14
T.C.A., § 40-1214
Acts 1999, ch. 52, § 1.

§ 40-11-115. Release on recognizance or unsecured bond — Imposition of least restrictive conditions of release — Factors considered.

(a)
1. (1) Any person charged with a bailable offense may, before a magistrate authorized to admit the person to bail, be ordered released pending trial:
  1. (A) On the person's personal recognizance;
  2. (B) Upon the execution of an unsecured appearance bond in an amount specified by the magistrate; or
  3. (C) With conditions of release, pursuant to this section and § 40-11-116, which may include the deposit of bail.
2. (2) In making a determination pursuant to subdivision (a)(1), the magistrate shall give first consideration to ensuring the safety of the community. If the magistrate orders that the person be released pending trial, then the magistrate must impose the least restrictive conditions of release that will reasonably ensure the appearance of the person as required and the safety of the community.
(b) In determining under subsection (a) whether or not a defendant shall be released, and if so, the least restrictive conditions of release that will reasonably ensure the appearance of the defendant as required and the safety of the community, the magistrate must consider any available results of a validated pretrial risk assessment conducted regarding the defendant for use in the jurisdiction and the defendant's financial resources. In making this determination, the magistrate may also consider:
1. (1) The defendant's length of residence in the community;
2. (2) The defendant's employment status;
3. (3) The defendant's prior criminal record, including prior releases on recognizance or bail;
4. (4) Whether, at the time of being charged with the offense, the defendant was on release pending trial, sentencing, or appeal in connection with another offense;
5. (5) The nature of the offense, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance and the safety of the community;
6. (6) Any substance use or mental health issues that would be better addressed in a community-based treatment program; and
7. (7) Any other factors indicating the defendant's ties to the community or bearing on the defendant's risk of willful failure to appear, including, but not limited to, whether the defendant is lawfully present in this state.
(c) Any person charged only with a violation of § 55-50-504 whose driving privilege was cancelled, suspended, or revoked under § 40-24-105 solely because of a failure to pay litigation taxes, court costs, or fines assessed as a result of the disposition of any offense under the criminal laws of this state, and who does not have a prior conviction for failure to appear under § 39-16-609 within the previous ten (10) years, must be ordered released pending trial on the person's personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the magistrate.
(d) Notwithstanding subsection (a), a person charged with any of the following offenses shall not be released on their own recognizance without the approval of a general sessions judge, criminal court judge, or circuit court judge having jurisdiction over the current charges:
1. (1) A Class A felony;
2. (2) A Class B felony;
3. (3) Aggravated assault, as defined in § 39-13-102;
4. (4) Aggravated assault against a law enforcement officer or first responder, as defined in § 39-13-116; or
5. (5) Domestic assault, as defined in § 39-13-111, if the violation is a felony offense.
(e) A defendant charged with a violation of § 39-13-102 or § 39-13-116 that involves strangulation of the victim shall not be released on the defendant's personal recognizance or upon execution of an unsecured bond. The magistrate must require the defendant to post bail to reasonably ensure the appearance of the person as required and the safety of the community, in addition to any other conditions of release imposed.

Backlinks (3)

History (8)

Acts 1978, ch. 506, § 15
T.C.A., § 40-1215
2021, ch. 409, §§ 6-8
2023, ch. 362, § 1
2023, ch. 440, § 4
2024, ch. 612, §§ 1, 2
2024, ch. 976, § 6
2024, ch. 1063, § 2.

§ 40-11-116. Conditions on release.

(a) If a magistrate determines that conditions of release are necessary, then the magistrate must impose the least onerous conditions reasonably likely to ensure the safety of the community and the defendant's appearance in court.
(b) If conditions on release are found necessary, the magistrate may impose one (1) or more of the following conditions:
1. (1) Release the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court. This supervisor shall maintain close contact with the defendant, assist the defendant in making arrangements to appear in court, and, where appropriate, accompany the defendant to court. The supervisor shall not be required to be financially responsible for the defendant, nor to forfeit money in the event the defendant fails to appear in court. The department of correction and its officers are not to be considered an appropriate qualified organization or person under this section;
2. (2) Impose reasonable restrictions on the activities, movements, associations and residences of the defendant; and/or
3. (3) Impose any other reasonable restriction designed to ensure the safety of the community and the defendant's appearance, including, but not limited to, the deposit of bail pursuant to § 40-11-117.
(c) A person charged with any of the following offenses shall not be released pursuant to subdivision (b)(1) without the approval of a general sessions judge, criminal court judge, or circuit court judge having jurisdiction over the current charges:
1. (1) A Class A felony;
2. (2) A Class B felony;
3. (3) Aggravated assault, as defined in § 39-13-102;
4. (4) Aggravated assault against a law enforcement officer or first responder, as defined in § 39-13-116; or
5. (5) Domestic assault, as defined in § 39-13-111, if the violation is a felony offense.
(d) If the magistrate imposes conditions on release of a defendant charged with a Class A, B, C, or D felony and pretrial services are available within the county, then the court shall also require the defendant to participate in pretrial monitoring to ensure that the defendant is complying with the conditions. If the defendant fails to comply with the conditions of release, then the pretrial monitoring agency shall notify the court having jurisdiction of the defendant's failure to comply.

Backlinks (3)

History (8)

Acts 1978, ch. 506, § 16
T.C.A., § 40-1216
Acts 2001, ch. 443, §§ 1, 2
2012, ch. 727, § 10
2023, ch. 362, § 2
2024, ch. 612, §§ 3, 4
2024, ch. 976, § 7
2024, ch. 1055, § 1.

§ 40-11-117. Bail security required.

If the magistrate determines that a release on recognizance or with conditions will not reasonably ensure the safety of the community and the appearance of the defendant as required, then the magistrate must require bail to be given.

Backlinks (3)

History (3)

Acts 1978, ch. 506, § 17
T.C.A., § 40-1217
Acts 2024, ch. 612, § 5.

§ 40-11-118. Execution and deposit — Bail set no higher than necessary — Factors considered — Bonds and sureties.

(a)
1. (1) Any defendant for whom bail has been set may execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money in cash equal to the amount of the bail. The clerk may accept a deposit by means of a debit card or mobile cash application and, if the clerk accepts such methods of payment, may charge a fee to pay for any cost charged to the clerk for accepting the applicable method of payment.
2. (2) Upon depositing this sum, the defendant shall be released from custody subject to the conditions of the bail bond. Bail must be set as low as the court determines is necessary to reasonably ensure the safety of the community and the appearance of the defendant as required.
(b) In determining the amount of bail necessary to reasonably assure the appearance of the defendant while at the same time protecting the safety of the public, the magistrate shall consider the following:
1. (1) The defendant's length of residence in the community;
2. (2) The defendant's employment status and history and financial condition; provided, that, the defendant's ability to pay shall not be considered;
3. (3) The defendant's family ties and relationships;
4. (4) The defendant's reputation, character and mental condition;
5. (5) The defendant's prior criminal record, record of appearance at court proceedings, record of flight to avoid prosecution or failure to appear at court proceedings;
6. (6) The nature of the offense and the apparent probability of conviction and the likely sentence;
7. (7) The defendant's prior criminal record and the likelihood that because of that record the defendant will pose a risk of danger to the community;
8. (8) The identity of responsible members of the community who will vouch for the defendant's reliability; however, no member of the community may vouch for more than two (2) defendants at any time while charges are still pending or a forfeiture is outstanding; and
9. (9) Any other factors indicating the defendant's ties to the community or bearing on the risk of the defendant's willful failure to appear, including, but not limited to, whether the defendant is lawfully present in this state.
(c)
1. (1) Whenever a court's judgment includes the requirement that the defendant pay a fine or cost, the court may require that the payment of the fine or cost be secured by surety bond or other appropriate undertaking if such defendant has a history of past due fines and costs. A parent, guardian or other responsible party may be permitted to act as surety in order to guarantee the payment of the fine or cost.
2. (2) Notwithstanding any other provision of law to the contrary, unless the surety executes a bond or agreement which specifically makes the surety liable for the fine, cost, or restitution, no surety shall be held liable for the fine, cost or restitution without the surety's consent.
(d)
1. (1)
  1. (A) Unless the court determines that the requirement would not be in the best interest of justice and public safety, when the court is determining the amount and conditions of bail to be imposed upon a defendant who has been charged with driving under the influence of an intoxicant, under § 55-10-401, vehicular assault, under § 39-13-106, aggravated vehicular assault, under § 39-13-115, vehicular homicide, under § 39-13-213(a)(2), or aggravated vehicular homicide, under § 39-13-218, and the alleged offense involved the use of alcohol, the court shall require the defendant to operate only a motor vehicle equipped with a functioning ignition interlock device if:
    1. (i) The offense resulted in a collision involving property damage;
    2. (ii) A minor was present in the vehicle at the time of the alleged offense;
    3. (iii) The defendant's driver license has previously been suspended for a violation of § 55-10-406; or
    4. (iv) The defendant has a prior conviction for:
      1. (a) Reckless driving, under § 55-10-205;
      2. (b) Reckless endangerment, under § 39-13-103;
      3. (c) Driving under the influence of an intoxicant, under § 55-10-401;
      4. (d) Vehicular assault, under § 39-13-106;
      5. (e) Aggravated vehicular assault, under § 39-13-115;
      6. (f) Vehicular homicide, under § 39-13-213(a)(2); or
      7. (g) Aggravated vehicular homicide, under § 39-13-218.
  2. (B) If the court imposes a condition under subdivision (d)(1)(A), then the defendant must demonstrate compliance with the condition by submitting proof of ignition interlock installation to the district attorney general's office within ten (10) days of being released on bail. Proof of compliance may be submitted electronically. If the court determines the defendant is indigent, the court shall order the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419.
    Backlinks (1)
    
    55-10-419(a)(2)(A)
  3. (C) If the court does not require the defendant to operate only a motor vehicle equipped with a functioning ignition interlock device, then the court shall include in its order written findings on why the requirement would not be in the best interest of justice and public safety.
2. (2) If the defendant is charged with an offense listed in subdivision (d)(1) and has one (1) or more prior convictions for any of the listed offenses and is not subject to the requirements of subsection (f), then the court shall also consider the use of special conditions for the defendant, including the following:
  1. (A) The use of transdermal monitoring devices or other alternative alcohol monitoring devices. If the court orders the use of a monitoring device on or after July 1, 2016, and determines the defendant is indigent, then the court shall order the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
  2. (B) The use of electronic monitoring with random alcohol or drug testing; or
  3. (C) Pretrial residency in an in-patient alcohol or drug rehabilitation center.
  Backlinks (1)
  
  55-10-419(a)(2)(B)
3. (3) As used in this subsection (d), “court” includes any person authorized by § 40-11-106 to take bail.
(e) After an inquiry pursuant to § 40-7-123 into the citizenship status of a defendant who is arrested for causing a traffic accident resulting in either the death or serious bodily injury, as defined in § 55-50-502, of another while driving without a valid driver license and evidence of financial responsibility as required by § 55-12-139, if it is determined that the defendant is not lawfully present in the United States, when determining the amount of bail, the defendant may be deemed a risk of flight.
(f)
1. (1)
  1. (A) If the judge or magistrate determines that a person charged with vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218 on or after July 1, 2015, has a prior alcohol-related conviction, the use of a transdermal monitoring device shall be a condition of the person's bail agreement.
  2. (B) If a person is charged with a third or subsequent offense of driving under the influence of an intoxicant under § 55-10-401 and the alleged offense involved the use of alcohol, then the judge or magistrate shall order the person, upon release on bail, to wear a transdermal alcohol monitoring device for a minimum period of ninety (90) days of continuous sobriety without any confirmed drinking or tampering events, unless the person's criminal case is resolved prior to the completion of the ninety-day period.
2. (2) All expenses associated with a person being subject to a transdermal monitoring device as a condition of bail shall be paid by that person. If the person believes there are legitimate medical reasons why the person is unable to be subject to the order, those reasons may be presented at the person's first appearance before a general sessions court judge or judge of a court of record. After hearing from the person subject to monitoring, the judge may waive, modify, or affirm an order requiring that person to be subject to transdermal monitoring.
3. (3) The offender shall choose an entity from a list approved by the court to provide, administer, and monitor the transdermal device ordered as a condition of bail. However, any entity placed on the approved list must have the ability to monitor the person's device on a daily basis and report any violation to the court having jurisdiction over the person's case by no later than the business day next following the violation. The person on bail shall remain subject to transdermal monitoring for the duration of the time the person is released on bail, unless the judge or magistrate specifically provides otherwise.
4. (4) If the report from the transdermal monitoring entity to the judge indicates that the person being monitored violated the conditions of release, the judge may issue a capias for the person's arrest for violation of bond conditions.
5. (5) As used in this subsection (f):
  1. (A) “Alcohol-related conviction” means the person has been convicted prior to the instant conviction of a violation of § 39-13-213(a)(2), § 39-13-106, § 39-13-218, or § 55-10-401; and
  2. (B) “Transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
(g)
1. (1) Except as provided in subdivision (g)(2), if a person is required as a condition of bond to submit to transdermal monitoring, global positioning monitoring, as defined in § 40-11-152, or other alternative monitoring, it is a Class B misdemeanor:
  1. (A) For that person to knowingly tamper with, remove, or vandalize the monitoring device; or
  2. (B) For any person to knowingly aid, abet, or assist the person in tampering with, removing, or vandalizing a monitoring device.
2. (2) If a person violates subdivision (g)(1) and the monitoring device is damaged as a result of the violation, then the offense may be punished as theft under § 39-14-105, after determining value under § 39-11-106.
3. (3) If an entity monitoring the device becomes aware that there has been an attempt to tamper with, disable, remove, or otherwise make the device ineffective, or if the bonding agent becomes aware the person has violated any bond condition ordered by the court, then the entity monitoring the device shall promptly give notice of the violation to the court with jurisdiction over the person and the surety of the person's bail bond.
4. (4) The court shall take such action as the case may require, including, but not limited to, the revocation of bail. Additionally, the violation also constitutes grounds for surrender under § 40-11-132.

Backlinks (6)

History (19)

Acts 1978, ch. 506, § 18
1982, ch. 620, § 1
T.C.A., § 40-1218
Acts 1992, ch. 946, § 1
1996, ch. 851, § 1
2010, ch. 867, § 1
2011, ch. 487, §§ 1, 2
2012, ch. 1011, § 1
2015, ch. 490, §§ 1, 2
2016, ch. 876, § 4
2016, ch. 993, § 10
2018, ch. 1046, § 3
2022, ch. 999, § 1
2022, ch. 1134, §§ 1, 2
2023, ch. 116, § 4
2024, ch. 612, § 6
2024, ch. 869, § 1
2024, ch. 874, § 1
2024, ch. 1063, § 3.

§ 40-11-119. Return of deposit to defendant.

If the conditions of the bail bond have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the defendant, unless the court orders otherwise, the entire sum which had been deposited.

History (2)

Acts 1978, ch. 506, § 19
T.C.A., § 40-1219.

§ 40-11-120. Forfeiture of defendant's bail deposit.

If the defendant released upon recognizance under § 40-11-115 or posting bail bond under § 40-11-118 does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of the order or forfeiture shall be mailed forthwith by the clerk to the defendant at the defendant's last known address. If the defendant does not appear and surrender to the court having jurisdiction within thirty (30) days from the date of the forfeiture or, within that period, satisfy the court that appearance and surrender by the defendant are impossible and not the defendant's fault, the court shall enter judgment for the state against the defendant for the amount of the bail and costs of the court proceedings. The deposit made in accordance with § 40-11-118 shall be applied to payment of the judgment and costs. Any balance of the judgment and costs may be enforced and collected in the same manner as a judgment entered in a civil action.

Backlinks (1)

40-11-110(c)

History (2)

Acts 1978, ch. 506, § 20
T.C.A., § 40-1220.

§ 40-11-121. Judgment for fine and costs — Deposit applied to payment.

If a judgment for fine and court costs, or either, is entered in the prosecution of a cause in which a deposit had been made by defendant, the deposit shall be applied to the payment of the judgment.

History (2)

Acts 1978, ch. 506, § 21
T.C.A., § 40-1221.

§ 40-11-122. Bail bond secured by real estate or sureties.

In lieu of the bail deposit provided for in § 40-11-118, any defendant for whom bail has been set may execute a bail bond which may be secured as provided in this section. The bail bond may be secured by:
1. (1) Real estate situated in this state with nonexempt unencumbered equity owned by the defendant or the defendant's surety worth one and one-half (1½) times the amount of bail set. If the bail bond is secured by real estate, the defendant or the defendant's surety shall execute a deed of trust conveying the real estate in trust to the clerk who shall immediately file the deed of trust in the office of the register of the county in which the real estate is situated. The costs of preparation of the deed of trust and recordation shall be paid by the defendant;
  Backlinks (1)
  
  40-11-106(b)(1)
2. (2) A written undertaking signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer. Sureties under this section shall not be professional bondsmen or attorneys; or
  Backlinks (1)
  
  40-11-114(a)
3. (3) A solvent corporate surety or sureties or a professional bail bondsman as approved, qualified or regulated by §§ 40-11-101 — 40-11-144 and part 3 of this chapter. No bond shall be approved unless the surety on the bond appears to be qualified.

Backlinks (6)

History (2)

Acts 1978, ch. 506, § 22
T.C.A., § 40-1222.

§ 40-11-123. Sufficiency of sureties — Evidence.

(a) Each of the sureties shall be worth the amount expressed in the undertaking, subject to the execution; but the court, magistrate or officer in taking bail may allow more than two (2) sureties to justify severally in amounts less than that expressed in the undertaking, if the whole qualification is equivalent to two (2) sufficient sureties.
(b) The district attorney general, or the court, magistrate or officer, may examine the sureties on oath touching their sufficiency, in any manner that the district attorney general, or the court, magistrate or officer may deem proper. The court or magistrate may also receive other testimony, either for or against the sufficiency of sureties.

History (2)

Acts 1978, ch. 506, §§ 23, 24
T.C.A., § 40-1223.

§ 40-11-124. List of approved and qualified professional bondsmen — Certification required — Rules concerning qualifications.

(a) The clerk, sheriff, municipal courts and other inferior courts shall have available a list of professional bondsmen or other sureties approved and qualified as solvent by the courts of record with criminal jurisdiction within the county. These approved lists shall be provided by the judges of those courts. No undertaking shall be accepted unless the professional bondsman or other surety is so certified as approved.
(b) In counties having a population of seven hundred seventy thousand (770,000) or more, according to the 1980 federal census or any subsequent federal census, the rules concerning the qualifications of bail bond companies as established by the criminal court of record shall be applicable in any inferior court in the county. The clerk of any such inferior court shall have the duty and the responsibility to enforce the rules.

Backlinks (1)

40-11-403

History (3)

Acts 1978, ch. 506, § 37
T.C.A., § 40-1224
Acts 1987, ch. 423, § 2.

§ 40-11-125. Approval of bondsmen withheld, withdrawn or suspended.

(a) In addition to the requirements of part 3 of this chapter regulating professional bondsmen, approval of a professional bondsman or other surety may be withheld, withdrawn or suspended by any court if, after investigation, it appears that a bondsman:
1. (1) Has been guilty of violating any of the laws of this state relating to bail bonds;
2. (2) Has a final judgment of forfeiture entered against the bondsman which remains unsatisfied;
3. (3) Is guilty of professional misconduct as described in § 40-11-126; or
4. (4) If applying for approval as a professional bondsman, has been convicted in any state of the United States of two (2) or more misdemeanors which are equivalent to Tennessee Class A or Class B misdemeanors; provided, however, that the misdemeanor convictions shall have occurred within five (5) years of the date the application for approval is filed.
(b) Any court withholding, withdrawing or suspending a bondsman or other surety under this section shall notify the bondsman in writing of the action taken, accompanied by a copy of the charges resulting in the court's action. If, within twenty (20) days after notice, the bail bondsman or surety files a written answer denying the charges or setting forth extenuating circumstances, the court shall call a hearing within a reasonable time for the purpose of taking testimony and evidence on any issues of fact made by the charges and answer. The court shall give notice to the bail bondsman, or to the insurer represented by the bondsman, of the time and place of the hearing. The parties shall have the right to produce witnesses, and to appear personally with or without representation by counsel. If, upon a hearing, the court determines that the bail bondsman is guilty as alleged in the charges, the court shall thereupon withhold, withdraw or suspend the bondsman from the approved list, or suspend the bondsman for a definite period of time to be fixed in the order of suspension.
Backlinks (1)
- 40-11-319(d)
(c) The clerk of the court and the sheriff of the county shall be notified of the action of the court and the offending bondsman stricken from the approved list.
(d) Any applicant for approval whose application has been denied, withheld, suspended or revoked shall have the right of appeal to the next highest court having criminal jurisdiction, and the appeal shall be heard de novo.

Backlinks (2)

History (3)

Acts 1978, ch. 506, § 38
T.C.A., § 40-1225
Acts 2013, ch. 169, § 1.

§ 40-11-126. “Unprofessional conduct” defined for bondsmen and surety agents.

In addition to the criminal sanctions elsewhere provided by law, the following is deemed unprofessional conduct and no bondsman or surety agent shall:
1. (1) Suggest or advise the employment of or name for employment any particular attorney to represent the bondsman's principal;
2. (2) Pay a fee or rebate or give or promise anything of value to any clerk of court, jailer, police officer, peace officer, committing magistrate or any other person who has power to arrest or hold in custody, or to any public official or public employee in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond or the forfeiture of the bail bond;
3. (3) Pay a fee or rebate or give anything of value to an attorney in bail bond matters except in defense of any action on a bond;
4. (4) Pay a fee or rebate or give or promise anything of value to the principal or anyone in the principal's behalf;
5. (5) Participate in the capacity of an attorney at a trial or hearing of one on whose bond the person is a surety;
6. (6) Solicit business directly or indirectly, by active or passive means, or engage in any other conduct which may reasonably be construed as intended for the purpose of solicitation of business in any place where prisoners are confined or in any place immediately surrounding where prisoners are confined;
7. (7) Surrender a principal or ask any court to be relieved from a bail bond arbitrarily or without good cause;
  Backlinks (1)
  
  40-11-151
8. (8) Accept anything of value from a principal except the premium; provided, that the bondsman shall be permitted to accept collateral security or other indemnity from the principal which shall be returned upon final termination of liability on the bond. The collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond. When a bail bondsman accepts collateral, the bondsman shall give a written receipt for the collateral, and this receipt shall give in detail a full description of the collateral received and the terms of redemption; or
  Backlinks (1)
  
  40-11-151
9. (9) Engage in the business of a professional bondsman or surety without maintaining a permanent business office, business telephone and appropriate signage indicating that the office is a professional bail bond business.

Backlinks (1)

40-11-125(a)(3)

History (5)

Acts 1978, ch. 506, § 39
T.C.A., § 40-1226
Acts 2001, ch. 281, § 1
2008, ch. 1030, §§ 1, 2
2009, ch. 239, § 1.

§ 40-11-127. Charges preferred against bondsman.

Upon motion, any district attorney general may prefer charges to have a bail bondsman stricken from the approved list pursuant to § 40-11-125 with the same provisions for notice, answer and hearing before the court, and the same right of appeal.

History (2)

Acts 1978, ch. 506, § 40
T.C.A., § 40-1227.

§ 40-11-128. Certain persons disqualified as bondsmen.

The following persons or classes shall not be bail bondsmen or agents of bail bondsmen or surety companies and shall not directly or indirectly receive any benefits from the execution of any bail bond: jailers, attorneys, police officers, convicted felons, committing magistrates, municipal or magistrate court judges, clerks or deputy clerks, sheriffs, deputy sheriffs and constables, and any person having the power to arrest or having anything to do with the control of federal, state, county or municipal prisoners.

History (2)

Acts 1978, ch. 506, § 41
T.C.A., § 40-1228.

§ 40-11-129. Sureties not discharged by irregularities.

No sureties are discharged by reason of:
1. (1) The want of any of the qualifications required in this part;
2. (2) There not being the requisite number of sureties;
3. (3) Any other agreement than is expressed in the undertaking;
4. (4) Infancy, lunacy or any other incapacity of any of the other parties thereto; or
5. (5) The defendant not having joined in the same.

History (2)

Acts 1978, ch. 506, § 25
T.C.A., § 40-1229.

§ 40-11-130. Duration of bond or recognizance.

(a)
1. (1) If a defendant in a criminal case executes a bond or recognizance before any court or other person authorized by law to take a bond or recognizance for the defendant's personal appearance before a court to answer a criminal charge and there has not been a disposition pursuant to § 40-11-138(b), the bond or recognizance shall be valid and binding upon the defendant and the defendant's sureties, until the time allowed by law for the defendant to appeal a finding of guilt to the court of criminal appeals. If the defendant timely appeals, the defendant shall be required to make a new bond to the court of criminal appeals, unless there has not been a disposition pursuant to § 40-11-138(b) and the trial judge, after examination of the original bond, sets out in a written order that the original bond is sufficient. The court shall use its discretion in determining whether the bond at issue should be changed. No presumption is otherwise intended to be raised in this section. If the time for appealing to the court of criminal appeals expires and the defendant has not filed an appeal, the bondsman, if there has not been a disposition pursuant to § 40-11-138(b), may be required to surrender the defendant to the court for service of the sentence.
2. (2) If the defendant files a timely appeal and the trial court judge orders that a new bond be made, the new bond or recognizance shall be made to the court of criminal appeals and shall not terminate until the final state court to which the defendant may appeal has rendered a decision on the appeal. Upon the conclusion of the appellate process, the bondsman shall be required to surrender the defendant.
(b)
1. (1) If the defendant is placed on pretrial, post-plea or judicial diversion, community correction, fined or if the defendant's sentence is suspended and probation granted, any such action shall constitute a disposition pursuant to § 40-11-138(b), the bond or recognizance is terminated, and the bondsman or other surety shall be released from the bondsman's or surety's obligations.
2. (2) If the court orders that the defendant is required to make a new bond or recognizance while on any of the programs set out in subdivision (b)(1), the new bond or recognizance shall be made to the court granting the placement. The new bond or recognizance shall not terminate until the defendant has completed the period of court-ordered supervision or until the defendant's diversion, community correction or probation is revoked. If the defendant's diversion, community correction or probation is revoked, the bondsman may be required to surrender the defendant.
(c)
1. (1) A defendant is not required to make any bond or recognizance other than that which is required by subsection (a) or (b), unless ordered to do so by the appropriate court, because the:
  1. (A) Bond is insufficient in amount;
  2. (B) Defendant's sureties are insolvent;
  3. (C) Bail is forfeited; or
  4. (D) Court finds other good and sufficient cause for doing so.
2. (2) If the defendant is required to make another bond or recognizance for any reason set out in subdivision (c)(1), the sureties on the original bond may surrender the defendant and be released on the bond, as is provided by law.

History (6)

Acts 1978, ch. 506, § 26
T.C.A., § 40-1230
Acts 1991, ch. 347, § 2
1997, ch. 504, § 1
2005, ch. 378, § 1
2007, ch. 239, §§ 1-3.

§ 40-11-131. Defects in bond no defense.

Where a bail bond or recognizance is executed by the accused, it shall be valid and binding on the accused and the accused's sureties for the accused's personal appearance before the court as prescribed by law or, if not payable or conditioned as prescribed by law for the appearance of the accused before the court from term to term of the court, it shall be held as if the bond or recognizance had expressly so stipulated and conditioned on its face, and no defect in the bond or recognizance shall avail the defendant and the accused's sureties upon default to appear.

History (2)

Acts 1978, ch. 506, § 27
T.C.A., § 40-1231.

§ 40-11-132. Exoneration of bail bondsman or surety by surrender of defendant.

At any time, the bail bondsman or surety may surrender the defendant in their exoneration or the defendant may personally surrender to the officer. Surrender by a bail bondsman or surety shall be for good cause including, but not limited to, the following:
1. (1) The defendant has violated the contractual provisions between the defendant and the bondsman;
2. (2) The bondsman or surety has good cause to believe the defendant will not appear as ordered by the court having jurisdiction;
3. (3) A forfeit, conditional or final, has been rendered against the defendant;
4. (4) The defendant has failed to appear in court either as ordered by the court or as commanded by any legal process; or
5. (5) The defendant has been arrested while on bond.

Backlinks (4)

History (3)

Acts 1978, ch. 506, § 28
T.C.A., § 40-1232
Acts 2001, ch. 426, §§ 3, 4.

§ 40-11-133. Arrest of defendant by bail bondsman or other authorized person.

(a) For the purposes of §§ 40-11-132, 40-11-203, and 40-11-204, the bail bondsman or surety may arrest the defendant on a certified copy of the undertaking, at any place either in or out of the state, or may, by written authority endorsed on the certified copy, authorize another person to make the arrest. In the event that circumstances prevent the obtaining of a certified copy of the undertaking or capias from the clerk's office at the time of the arrest or surrender, a duplicate copy of the same shall suffice until such time that a certified copy can be obtained from the clerk's office.
(b) After the payment of the forfeiture, the bail bondsman or surety may arrest the defendant on a certified copy of the capias, or may, by a written authority endorsed on the certified copy, authorize another person to make the arrest.
(c) Any capias issued pursuant to a forfeit, whether the forfeit is conditional or final, shall remain in full force and effect until the defendant is apprehended and returned to the criminal justice system, and a disposition is entered in the defendant's case.
(d) Any approved bail bondsman in good standing is authorized to return the defendant to the jurisdiction for which the bail bond is obligated for the defendant's appearance; provided, the bail bondsman is liable for the expenses of returning the defendant and the defendant is located within this state.
(e) A professional bondsman or the agent of a professional bondsman who is arresting a defendant pursuant to this section is prohibited from:
1. (1) Making a representation that the professional bondsman or the agent of the professional bondsman is a member of a law enforcement organization;
2. (2) Wearing clothing or a uniform intended to give the impression that the professional bondsman or the professional bondsman's agent is employed by, affiliated with, or acting in the capacity of a law enforcement organization; or
3. (3) Wearing clothing bearing an identifying title other than “Bail Bondsman”.

History (9)

Acts 1978, ch. 506, § 31
T.C.A., § 40-1233
Acts 1987, ch. 423, § 4
1991, ch. 347, § 4
2001, ch. 426, § 1
2003, ch. 303, § 1
2010, ch. 799, § 1
2011, ch. 367, § 2
2021, ch. 520, § 4.

§ 40-11-134. Sheriff assisting bail bondsman or surety in arrest.

The bail bondsman or surety is also entitled to the aid of the sheriff of any county in this state in making the arrest, within the bounds of the sheriff's county, by producing a certified copy of the bail bond, and, in person or by agent, accompanying the officer to receive the person arrested.

Backlinks (1)

40-11-135

History (2)

Acts 1978, ch. 506, § 32
T.C.A., § 40-1234.

§ 40-11-135. Return of bail bond after arrest.

The sheriff making the arrest under § 40-11-134 shall return the copy of the bail bond, with an endorsement of the sheriff's action, in the same manner as the sheriff is required to return a capias.

Backlinks (1)

8-8-201(b)(1)

History (2)

Acts 1978, ch. 506, § 33
T.C.A., § 40-1235.

§ 40-11-136. Surrender to sheriff.

The surrender shall be made to the sheriff of the county in which the defendant is bound to answer for the offense, whether by change of venue or otherwise, and the sheriff is not bound to accept the surrender unless made at the place of holding the court in that county, or at the county jail.

History (3)

Acts 1978, ch. 506, § 30
T.C.A., § 40-1236
2006, ch. 745, § 1.

§ 40-11-137. Duty of bail bondsman or surety upon surrendering defendant — Hearing.

(a) Upon surrendering the defendant, the bail bondsman or surety shall, as soon as is reasonably practicable, go before any court having jurisdiction authorized to admit to bail, and notify the officer of the surrender.
(b)
1. (1) Any court having jurisdiction so notified shall have the defendant brought before it as soon as practicable, and within seventy-two (72) hours, and determine whether or not the surrender was for good cause.
2. (2)
  1. (A) If the court having jurisdiction finds that the surrender was arbitrary or not for good cause, it may order the defendant rereleased upon the same undertaking or impose other conditions as provided by law.
  2. (B) If the surrender is found to be for good cause, the court having jurisdiction shall approve the surrender by endorsement upon the bail bond or by other writing, and it shall be the duty of the surrendering bail bondsman to deliver the written approval or copy of the approval to the sheriff.
3. (3) This subsection (b) shall not apply where a surrender is based on a conditional or final judgment of forfeiture issued by the court having jurisdiction over the defendant.
(c) The court shall fix the amount of premium to be refunded, if any.

Backlinks (1)

40-11-141(a)

History (3)

Acts 1978, ch. 506, § 29
T.C.A., § 40-1237
Acts 2012, ch. 685, § 1.

§ 40-11-138. Release of bail bondsmen or sureties from obligations.

(a) If the conditions of the bail bond have been performed and the defendant has been discharged from the defendant's obligations in the cause, the clerk of the court shall return to the bondsman the deposit of any cash. If the bail has been secured by real estate, the clerk of the court shall immediately prepare and forward to the register a written release of the deed of trust on the real estate. The costs of the release shall be paid by the defendant.
(b)
1. (1) A bail bondsman or surety shall be released from an obligation under a bail bond if the charge against the surety's principal is disposed of by acquittal, agreement with the state, whether diversion or otherwise, or retirement.
2. (2)
  1. (A) If the charge is disposed of by conviction or a plea of guilty, the bond shall remain in effect until the court renders the defendant's sentence.
  2. (B) After conviction or a plea of guilty, and before the court renders the defendant's sentence, the bond shall not be forfeited against a surety, shall not be included in the calculation of a professional bondsman's capacity or solvency, or otherwise negatively impact the surety.
Backlinks (2)
- 40-11-130(a)(1)
- 40-11-130(b)(1)
(c) If after the bond has been active and in effect for three (3) years and the state has failed to seek an original indictment before a grand jury against the defendant covered by the bond, the bond shall not be forfeited against the surety and shall not be included in the calculation of a professional bondsman's capacity, solvency, or otherwise negatively impact the surety involved.

History (7)

Acts 1978, ch. 506, § 34
T.C.A., § 40-1238
Acts 1988, ch. 877, § 1
1989, ch. 109, § 1
2013, ch. 388, § 2
2014, ch. 922, § 1
2017, ch. 262, § 1.

§ 40-11-139. Forfeiture of bail security — Notice to defendant and sureties — List or database of fugitives.

(a) If the defendant whose release is secured under § 40-11-122 does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of the order of forfeiture shall be immediately sent by regular mail by the clerk of the court to the defendant at the defendant's last known address. The defendant's surety will be served with scire facias upon the forfeiture entered and a capias shall be issued for the defendant. When the defendant, who failed to appear pursuant to conditions of a bail bond, is arrested on a capias, the surety on the defendant's forfeited bond is released.
(b) After the expiration of one hundred eighty (180) days from the date surety is served with scire facias or scire facias is returned to the clerk unserved or undelivered, the court may enter judgment for the state against the defendant and the defendant's sureties for the amount of the bail and costs of the proceedings.
(c) No execution shall issue upon a final forfeit, nor shall proceedings be taken for its enforcement until the expiration of thirty (30) days after its entry.
(d) If a court issues a bench warrant due to a defendant's failure to appear on a felony or on a Class A or Class B misdemeanor that is violent or sexual in nature as determined by the court, or if a defendant is charged with a failure to appear, then the defendant shall be placed on any available state or federal list or database as a fugitive from justice, without limitation, within ten (10) business days of the defendant's failure to appear. A surety is not liable for any undertaking if the defendant has not been placed on such a database within the time required by law.
(e) The surety is only responsible for costs in accordance with § 40-11-201.

Backlinks (1)

40-11-110(c)

History (10)

Acts 1978, ch. 506, § 35
1979, ch. 160, § 1
T.C.A., § 40-1239
Acts 1997, ch. 504, § 2
2011, ch. 367, § 1
2013, ch. 388, § 1
2016, ch. 963, § 1
2019, ch. 105, § 1
2023, ch. 260, § 1
2024, ch. 1048, § 1.

§ 40-11-140. Execution on judgment.

(a)
1. (1) If judgment is entered in favor of the state on any bail bond, the district attorney general shall have execution issued on the judgment and delivered immediately to the sheriff to be executed by levy on the cash deposited with the clerk of the court or on the real estate described in the deed of trust.
2. (2) The cash shall be used to satisfy the judgment and costs.
3. (3) The real estate shall be sold in the same manner as in execution sales in civil actions and the proceeds of the sale shall be used to satisfy the judgment, all court costs and prior encumbrances, if any.
4. (4) The balance shall be returned to the grantor of the deed of trust.
(b) The real estate so sold may be redeemed in the same manner as real estate may be redeemed after judicial or execution sales in civil actions.
(c) A bond forfeiture shall be collected within the earlier of either five (5) years from the date the defendant failed to appear or the date of last activity in the case, after which time collection from the surety shall be forever barred.

History (4)

Acts 1978, ch. 506, § 36
T.C.A., § 40-1240
Acts 2004, ch. 753, § 1
2015, ch. 517, § 2.

§ 40-11-141. Release during trial — Revocation.

(a) A defendant released before trial shall continue on release during trial or release pending trial under the same terms and conditions as were previously imposed, unless the court determines pursuant to § 40-11-137 or § 40-11-144 that other terms and conditions or termination of release are necessary to assure the defendant's presence during trial, or to assure that the defendant's conduct will not obstruct the orderly and expeditious progress of the trial.
(b) If after the defendant is released upon personal recognizance, an unsecured personal appearance bond, or any other bond approved by the court, the defendant violates a condition of release, is charged with an offense committed during the defendant's release, or engages in conduct which results in the obstruction of the orderly and expeditious progress of the trial or other proceedings, then the court may revoke and terminate the defendant's bond and order the defendant held without bail pending trial or without release during trial.

History (3)

Acts 1978, ch. 506, § 42
T.C.A., § 40-1241
Acts 2011, ch. 57, § 1.

§ 40-11-142. Due diligence to determine person’s criminal history.

(a) After an officer arrests a person, but prior to the determination of bail for the arrest offense by the judge or magistrate, due diligence must be exercised in determining the existence of any prior arrest or conviction. The results of this investigation must be made a part of the person's law enforcement file.
(b) Using due diligence to determine a person's criminal history means making use of all available databases, including the Tennessee bureau of investigation interstate identification index (III), the Tennessee criminal history database, driver license history, relevant information related to those prior convictions provided pursuant to § 40-6-203, and other official records regarding the person's prior criminal and arrest history.

History (3)

Acts 2016, ch. 1075, § 1
2023, ch. 260, § 2
2024, ch. 1048, §§ 2, 3.

§ 40-11-143. Change in bail or conditions of release.

A motion for a change in bail or other conditions of release shall be by written motion, served upon opposing counsel or upon the defendant personally if the defendant is not represented by counsel, within a time reasonable under the circumstances before the hearing on the motion. In granting or denying a motion for a change in bail or other conditions of release, the court shall set forth in writing the reasons for its action.

Backlinks (1)

40-11-102

History (2)

Acts 1978, ch. 506, § 44
T.C.A., § 40-1243.

§ 40-11-144. Review of release decision.

(a) The actions by a trial court from which an appeal lies to the supreme court or court of criminal appeals in granting, denying, setting or altering conditions of the defendant's release shall be reviewable in the manner provided in the Tennessee Rules of Appellate Procedure.
(b) If the action to be reviewed is that of a court from which an appeal lies to a court inferior to the supreme court or court of criminal appeals, review shall be sought in the next higher court upon writ of certiorari.

Backlinks (8)

History (3)

Acts 1978, ch. 506, § 45
1981, ch. 449, § 2
T.C.A., § 40-1244.

§ 40-11-145. “Guaranteed arrest or bail bond certificate” defined.

As used in this section and § 40-11-146, “guaranteed arrest or bail bond certificate” means a printed card or other certificate issued by an association to any of its members, which is signed by the member and contains a printed statement that the association and the surety company are both licensed to do business in this state and that the guaranteed arrest or bail bond certificate is issued pursuant to the terms of this section and § 40-11-146, and:
1. (1) The bond guarantees the appearance of the person whose signature appears on the card or certificate; and
2. (2) That the surety company will, in the event of the failure of the person to appear in court at the time set for appearance, pay any fine or forfeiture imposed upon the person in an amount not to exceed one thousand dollars ($1,000).

Backlinks (1)

40-11-103(b)

History (4)

Acts 1967, ch. 292, § 1
T.C.A., §§ 40-1241, 40-1245
Acts 1984, ch. 620, § 1
1992, ch. 688, § 1.

§ 40-11-146. Guaranteed arrest or bail bond certificate in lieu of cash bail.

A guaranteed arrest or bail bond certificate presented by the person whose signature appears thereon shall be accepted in lieu of cash bail in an amount not to exceed five thousand dollars ($5,000) as an arrest or bail bond to guarantee the appearance of the person in any court in this state, at the time required by the court, when the person is arrested for violation of any traffic law of the state or traffic ordinance of any municipality therein relating to the operation of a motor vehicle. The guaranteed arrest or bail bond certificate shall be subject to all of the limitations appearing on its face; but, when accepted, shall be subject to the same forfeiture and enforcement provision as a bail bond or cash bond. However, the violation must have been committed prior to the expiration date shown on the guaranteed arrest or bail bond certificate.

Backlinks (2)

History (5)

Acts 1967, ch. 292, § 2
T.C.A., §§ 40-1242, 40-1246
Acts 1984, ch. 620, § 2
1992, ch. 688, § 2
1995, ch. 270, § 1.

§ 40-11-147. Admission to bail after arrest in one county upon a warrant issued in another county.

A defendant arrested in one county on a warrant issued in another county for the commission of an offense for which the maximum punishment is imprisonment for ten (10) years or less is entitled to be admitted to bail in the county of arrest by the same officials and in the same manner as if arrested in the county issuing the warrant, subject to the following provisions:
1. (1) The appropriate clerk or magistrate shall fix the amount of bail to be required and shall set the amount forth on the face of the warrant; and
2. (2) The sheriff of the county in which the arrest is made, or the sheriff's deputy, shall transmit the undertaking of bail to the sheriff of the county from which the warrant issued, who shall return it to the court as provided in § 40-11-106.

Backlinks (1)

8-8-201(b)(1)

History (2)

Acts 1978, ch. 866, § 1
T.C.A., § 40-1247.

§ 40-11-148. Bail for defendant charged with commission of crime while free on bail.

(a) If a defendant has been released pursuant to § 40-11-115 or § 40-11-116, or has been admitted to and released on bail for a criminal offense, whether prior to or during trial or pending appeal, and the defendant is charged with the commission of one (1) or more bailable offenses while released, then the defendant shall only be released pursuant to § 40-11-118 or § 40-11-122, and the magistrate or judge shall set the defendant's bail on each new offense in an amount not less than twice that which is customarily set for the offense charged.
(b)
1. (1) When the court is determining the amount and conditions of bail to be imposed upon a defendant who is charged with driving under the influence of an intoxicant under § 55-10-401, vehicular assault under § 39-13-106, aggravated vehicular assault under § 39-13-115, vehicular homicide under § 39-13-213(a)(2), or aggravated vehicular homicide under § 39-13-218, the court shall consider the use of special conditions for such defendant, including, but not limited to, the conditions set out in subdivision (b)(2), if the offense for which bail is being set was committed while the defendant was released on bail for a prior charge of violating any offense listed in this subdivision (b)(1).
2. (2) The special conditions the court shall consider pursuant to subdivision (b)(1) are:
  1. (A) [Deleted by 2022 amendment.]
  2. (B) The use of a transdermal monitoring device or other alternative alcohol monitoring devices. However, if the court orders the use of a monitoring device on or after July 1, 2016, and the court determines the defendant to be indigent, the court shall order that the portion of the costs of the device that the defendant is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
  3. (C) The use of electronic monitoring with random alcohol or drug testing; or
  4. (D) Pretrial residency in an in-patient alcohol or drug rehabilitation center.
3. (3) As used in this subsection (b), “court” includes any person authorized by § 40-11-106 to take bail.
(c) If a defendant charged with a Class A, B, C, or D felony has been arrested pursuant to a warrant issued under § 40-11-112(b) for failure to comply with the conditions of release, then the defendant shall only be released by a criminal or circuit court judge.

History (10)

Acts 1981, ch. 351, § 1
T.C.A., § 40-1248
Acts 2010, ch. 867, § 2
2011, ch. 487, § 3
2016, ch. 876, § 5
2016, ch. 993, § 11
2018, ch. 1046, § 3
2022, ch. 1134, § 3
2023, ch. 362, § 3
2024, ch. 1055, § 3.

§ 40-11-149. Attorney not permitted to sign bond in criminal case.

(a) It is an offense for an attorney practicing in any of the courts of this state to sign any bond, or enter into any recognizance, as surety for the appearance of any person, other than a member of the attorney's immediate family, in any criminal case pending against the person in any of the courts in this state.
(b) A violation of subsection (a) is a Class C misdemeanor with no incarceration permitted.

History (1)

Acts 1989, ch. 591, § 2.

§ 40-11-150. Additional factors in determining amount of bail — Conditional release — Discharge of conditions — Notification to law enforcement.

(a) In addition to the factors set out in § 40-11-118, in making a decision concerning the amount of bail required for the release of a defendant who is arrested for the offense of child abuse, child neglect, or child endangerment, as defined in § 39-15-401; the offense of aggravated child abuse, aggravated child neglect, or aggravated child endangerment, as defined in § 39-15-402; the offense of stalking, aggravated stalking, or especially aggravated stalking, as defined in § 39-17-315; a violation of § 39-15-507 or § 39-15-508, involving neglect or aggravated neglect of an elderly or vulnerable adult; a violation of § 39-15-510 or § 39-15-511 involving abuse or aggravated abuse of an elderly or vulnerable adult; any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(5), (10), or (11), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, the magistrate shall review the facts of the arrest and detention of the defendant and determine whether the defendant is:
1. (1) A threat to the alleged victim;
2. (2) A threat to public safety; and
3. (3) Reasonably likely to appear in court.
Backlinks (1)
- 39-13-113(c)
(b) Before releasing a person arrested for or charged with an offense specified in subsection (a), or a violation of an order of protection, the magistrate shall make findings on the record, if possible, concerning the determination made in accordance with subsection (a), and shall impose one (1) or more conditions of release or bail on the defendant to protect the alleged victim of any such offense and to ensure the appearance of the defendant at a subsequent court proceeding. The conditions may include:
1. (1) An order enjoining the defendant from threatening to commit or committing specified offenses against the alleged victim;
2. (2) An order prohibiting the defendant from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, either directly or indirectly;
3. (3) An order directing the defendant to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;
4. (4) An order prohibiting the defendant from using or possessing a firearm or other weapon specified by the magistrate;
5. (5) An order prohibiting the defendant from possession or consumption of alcohol, controlled substances or controlled substance analogues;
6. (6) An order requiring the defendant to carry or wear a global positioning monitoring system device and, if able, pay the costs associated with operating that device and electronic receptor device provided to the victim, pursuant to § 40-11-152; and
7. (7) Any other order required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.
(c) Concurrent with the imposition of one (1) or more conditions of release, the magistrate shall:
1. (1) Issue a written order for conditional release containing the conditions of the release on a form prepared by the administrative office of the courts, in consultation with the Tennessee task force against domestic violence, and distributed to judges and magistrates by the administrative office of the courts;
2. (2) Immediately distribute a copy of the order to the law enforcement agency having custody of the defendant, which agency shall file and maintain the order in the same manner as is done for orders of protection; and
3. (3) Provide the law enforcement agency with any available information concerning the location of the victim in a manner that protects the safety of the victim.
(d) The law enforcement agency having custody of the defendant shall provide a copy of the conditions to the defendant upon the defendant's release. Failure to provide the defendant with a copy of the conditions of release does not invalidate the conditions if the defendant has notice of such conditions.
(e) If conditions of release are imposed without a hearing, the defendant may request a prompt hearing before the court having jurisdiction of the offense for which the defendant was arrested or is charged to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.
(f) When a defendant who is arrested for or charged with an offense specified in subsection (a) or with a violation of an order of protection is released from custody, the law enforcement agency having custody of the defendant shall:
1. (1) Use all reasonable means to immediately notify the victim of the alleged offense of the release and of the address and telephone number of the nearest source of assistance to victims of domestic violence, including, but not limited to, shelters, counseling centers or other appropriate community resources; and
2. (2) Send the victim at the victim's last known address a copy of any conditions of release. If the victim is present at the time the conditions are imposed, a copy of the conditions may be given to the victim at that time; provided, that failure to furnish the victim a copy of any conditions of release shall not constitute negligence per se by the law enforcement agency.
(g) Release of a defendant who is arrested for or charged with a crime specified in subsection (a) or with a violation of an order of protection shall not be delayed because of the requirements of subsection (f).
(h)
1. (1) Any offender arrested for the offense of stalking, aggravated stalking, or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the alleged victim is a victim as defined in § 36-3-601, shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the offender may, however, release the offender in less than twelve (12) hours if the official finds that the offender is not a threat to the alleged victim.
2. (2) The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of the arrest in order to establish the beginning of the twelve-hour period required by this subsection (h).
3. (3) If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (h)(1).
4. (4) If an order of protection or restraining order has been issued against an offender arrested for an offense listed in subdivision (h)(1), but the offender has not been served with the order prior to incarceration, the offender shall be served whenever possible with the order prior to the offender's release from incarceration. If an order has not been served on the offender at the conclusion of the offender's twelve-hour holding period, the offender may be released, but the order shall be served as soon as possible after the release. Service remains valid on an offender if it is made after the offender is released from incarceration rather than while incarcerated for the twelve-hour hold period.
Backlinks (1)
- 39-13-113(c)
(i)
1. (1) A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
2. (2) If the violation of the condition of release does not also constitute a violation of § 39-13-113, then the release condition violation must be punished as provided in § 40-11-154. The bail of the person violating the condition of release may be revoked by the court having jurisdiction of the original offense.
(j)
1. (1) If a defendant upon whom conditions of release have been imposed pursuant to this section is for any reason discharged or released from those conditions, the discharging or releasing court shall notify all law enforcement agencies within its jurisdiction that the defendant is no longer subject to the conditions originally imposed.
2. (2) The administrative office of the courts, in consultation with the domestic violence state coordinating council, shall prepare a discharge from conditions of release notification form to send to law enforcement agencies as required by subdivision (j)(1) and shall distribute the form to all courts with the authority to discharge or release a defendant from conditions of release.
(k)
1. (1) A magistrate or other official shall not release an offender arrested for a violation of § 39-15-510 or § 39-15-511, involving abuse or aggravated abuse of an elderly or vulnerable adult, or for a violation of § 39-15-507 or § 39-15-508, involving neglect or aggravated neglect of an elderly or vulnerable adult, within twelve (12) hours of the time of arrest. However, the magistrate or other official duly authorized to release the offender may release the offender in less than twelve (12) hours if the magistrate or other official finds that the offender is not a threat to the alleged victim.
2. (2) The findings shall be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of arrest in order to establish the beginning of the twelve-hour period required by this subsection (k).
3. (3) If the offender is released prior to the conclusion of the twelve-hour period, the official shall make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the twelve-hour period mandated in subdivision (k)(1).
4. (4)
  1. (A) A person who violates a condition of release imposed pursuant to this section shall be subject to immediate arrest with or without a warrant as provided in § 40-7-103(b). If the violation of the condition of release also constitutes the offense of violation of a protective order as prohibited by § 39-13-113, the person shall be charged with the offense, and the bail of the person violating the condition of release may be revoked by the court having jurisdiction of the offense.
  2. (B) If the violation of the condition of release does not also constitute a violation of § 39-13-113, then the release condition violation must be punished as provided in § 40-11-154. The bail of the person violating the condition of release may be revoked by the court having jurisdiction of the original offense.
(l)
1. (1)
  1. (A) Any officer who has reason to believe that a defendant under arrest may pose a substantial likelihood of serious harm to the defendant or to others may make a recommendation to the community mental health crisis response service that the defendant be evaluated by a member of such service to determine if the defendant is subject to admission to a hospital or treatment resource pursuant to § 33-6-403.
  2. (B) The assessment of the defendant by a member of a community mental health crisis response service shall be completed within twelve (12) hours from the time the defendant is in custody or the magistrate or other official with the authority to determine bail shall set bail and admit the defendant to bail, when appropriate. However, if the assessment is being conducted at the end of the twelve-hour period, the member of the community mental health crisis response service may complete the assessment. The magistrate or other official duly authorized to release the defendant may, however, release the accused in less than twelve (12) hours if the official determines that sufficient time has or will have elapsed for the victim to be protected.
  3. (C) If the assessment of the defendant by the member of the community mental health crisis response service indicates that the defendant does not meet the standards of § 33-6-403, the officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall so report to the magistrate or other official with the authority to determine bail and such magistrate or official shall set bail and admit the defendant to bail, when appropriate.
2. (2) The officer who has reasonable cause to believe that the defendant may pose a substantial likelihood of serious harm shall note the time the defendant was taken into custody for purposes of beginning the twelve-hour assessment period provided in subdivision (l)(1)(B).
(m)
1. (1) Following the arrest of a person for any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a domestic abuse victim as defined in § 36-3-601, the court or magistrate shall make a finding whether there is probable cause to believe the respondent either:
  1. (A) Caused serious bodily injury, as defined in § 39-11-106, to the alleged domestic abuse victim; or
  2. (B) Used or displayed a deadly weapon, as defined in § 39-11-106.
2. (2) If the court or magistrate finds probable cause to believe that one (1) or both of the circumstances in subdivision (m)(1) did occur, unless the court or magistrate finds that the offender no longer poses a threat to the alleged victim or public safety, the court or magistrate shall impose the twelve-hour hold period and victim notification requirements in accordance with subsection (h).
3. (3) Prior to the offender's release on bond, the court or magistrate shall issue a no contact order containing all of the bond conditions set out in this section that are applicable to the protection of a domestic abuse victim.
(n)
1. (1) Following the arrest of a person for the offense of aggravated assault, under § 39-13-102(a)(1)(i), (a)(1)(iii), or (a)(1)(iv), in which the alleged victim of the offense is a domestic abuse victim as defined in § 36-3-601, the court or magistrate shall make a finding whether there is probable cause to believe the respondent:
  1. (A) Caused serious bodily injury, as defined in § 39-11-106, to the alleged domestic abuse victim;
  2. (B) Strangled or attempted to strangle the alleged domestic abuse victim; or
  3. (C) Used or displayed a deadly weapon, as defined in § 39-11-106.
  Backlinks (1)
  
  40-11-152(b)(2)
2. (2) If the court or magistrate finds probable cause to believe that one (1) or more of the circumstances in subdivision (n)(1) did occur, then unless the court or magistrate finds the offender no longer poses a threat to the alleged victim or public safety:
  1. (A) The court or magistrate may, in addition to the twelve-hour hold period and victim notification requirements in subsection (h), extend the twelve-hour hold period up to twenty-four (24) hours after the time of arrest; and
  2. (B) Prior to the defendant's release on bond, the court or magistrate shall:
    1. (i) Issue a no contact order containing all bond conditions set out in this section that are applicable to the protection of the domestic violence victim; and
    2. (ii) Order the defendant to wear a global positioning monitoring system device as set forth in § 40-11-152(b)(2).
Backlinks (1)
- 40-11-152(b)(2)

Backlinks (3)

History (24)

Acts 1995, ch. 410, § 1
1996, ch. 710, § 1
1997, ch. 487, § 1
1999, ch. 128, §§ 1, 2
1999, ch. 138, §§ 1-3
2000, ch. 633, § 1
2001, ch. 309, §§ 1-5
2004, ch. 780, § 1
2005, ch. 482, §§ 5, 6
2006, ch. 920, §§ 5, 6
2008, ch. 868, § 4
2010, ch. 937, § 2
2010, ch. 981, § 5
2011, ch. 406, § 1
2012, ch. 848, § 30
2015, ch. 245, § 1
2015, ch. 375, §§ 1, 2
2016, ch. 720, § 1
2018, ch. 586, § 2
2018, ch. 1050, § 7
2021, ch. 500, §§ 16, 17
2022, ch. 828, § 1
2024, ch. 942, §§ 3, 4
2024, ch. 1033, §§ 2, 3.

§ 40-11-151. Notice to person employing bail bondsman.

Any person utilizing the services of a professional bail bondsman or bonding agent shall receive a copy of the following notice with the person's bail bond. No changes may be made in the substance of the notice; but minor printing adjustments may be made. The notice may be printed on the face, back or as a separate attachment to the bond.
1. NOTICEIF YOU USE A PROFESSIONAL BONDSMAN:
  1. Amount of Charges to You. The premium fee for your bond should not be more than ten percent (10%) of the face amount of your bond. For example, if your bond is $2,500, the premium on the bond should not be more than $250. In addition to this amount, the law also permits a one-time $25 initiation fee, (T.C.A. § 40-11-316).
  2. Insist on a Receipt. The law, (T.C.A. § 40-11-304), requires a bail bondsman to keep a duplicate receipt. The receipt must show the name of the person paying money or pledging property, the name of the person for whom it was paid, the account or purpose for which it is received, and the suit, action or matter in which the money is paid.
  3. Collateral That Can Be Required. If a bondsman insists on collateral in addition to the ten percent (10%) premium fee, you may wish to talk to another bondsman. However, a bondsman may accept collateral, and if the bondsman accepts collateral, the bondsman must give you a written receipt for the collateral, and the receipt shall give in detail a full description of the collateral received and the terms of redemption as required by T.C.A. § 40-11-126(8).
  4. A BONDSMAN MAY NOT LOCK YOU BACK UP OR SURRENDER YOU ARBITRARILY OR WITHOUT GOOD CAUSE. GOOD CAUSE MAY INCLUDE YOUR FAILURE TO PERFORM YOUR OBLIGATIONS UNDER THE CONTRACT YOU HAVE WITH YOUR BONDSMAN (T.C.A. § 40-11-126(7) & § 40-11-132).

History (1)

Acts 1997, ch. 245, § 1.

§ 40-11-152. Global positioning monitoring system as a condition of bail.

(a) As used in this part:
1. (1) “Global positioning monitoring system”:
  1. (A) Means a system that electronically determines and reports the location of an individual through the use of a transmitter or similar device worn by the individual that transmits latitude and longitude data to a monitoring entity through global positioning satellite technology; and
  2. (B) Does not include a system that contains or operates global positioning system technology, radio frequency identification technology, or any other similar technology that is implanted in or otherwise invades or violates the individual's body; and
2. (2) “Qualified contract service provider” means a private or public entity that:
  1. (A) Meets the qualifications of § 55-10-426;
  2. (B) Has a written agreement with the issuing court that designates specific persons to receive notifications and alerts as required by subsection (i); and
  3. (C) Maintains a monitoring center that is staffed twenty-four (24) hours a day, seven (7) days a week and capable of immediately notifying the law enforcement employee designee and the appropriate emergency communications dispatch center of violations by call, text message, or electronic mail as required by subsection (i).
(b)
1. (1) Pursuant to § 40-11-150, the court or magistrate may order a defendant who is arrested for the offense of stalking, aggravated stalking, or especially aggravated stalking, as defined in § 39-17-315, any criminal offense defined in title 39, chapter 13, in which the alleged victim of the offense is a victim as defined in § 36-3-601(5), (11), or (12), or is in violation of an order of protection as authorized by title 36, chapter 3, part 6, to do the following as a condition of bail:
  1. (A) Wear a global positioning monitoring system device and pay the costs associated with operating that system in relation to the defendant; and
  2. (B) If the alleged victim of the offense consents after receiving the information described by subsection (d), pay the costs associated with providing the victim with a cellular device application or an electronic receptor device that:
    1. (i) Is capable of receiving the global positioning monitoring system information from the device worn by the defendant;
    2. (ii) Notifies the victim if the defendant is at or near a location that the defendant has been ordered to refrain from going to or near under § 40-11-150; and
    3. (iii) Notifies the victim if the defendant is within a prescribed proximity of the victim's cellular device or electronic receptor device.
2. (2) Pursuant to § 40-11-150(n), if the court or magistrate finds probable cause to believe that one (1) or more of the circumstances in § 40-11-150(n)(1) did occur, then unless the court or magistrate finds the offender no longer poses a threat to the alleged victim or public safety and makes such a finding in a written order, the court or magistrate shall order a defendant who is charged with the offense of aggravated assault, as defined in § 39-13-102(a)(1)(A)(i), (a)(1)(A)(iii), or (a)(1)(A)(iv), in which the alleged victim of the offense is a domestic abuse victim, as defined in § 36-3-601, to do the following as a condition of bail:
  1. (A) Wear a global positioning monitoring system device and pay the costs associated with operating that system in relation to the defendant; and
  2. (B) If the alleged victim of the offense consents after receiving the information described in subsection (d), pay the costs associated with providing the victim with a cellular device application or an electronic receptor device that:
    1. (i) Is capable of receiving the global positioning monitoring system information from the device worn by the defendant;
    2. (ii) Notifies the victim if the defendant is at or near a location that the defendant has been ordered to refrain from going to or near under § 40-11-150; and
    3. (iii) Notifies the victim if the defendant is within a prescribed proximity of the victim's cellular device or electronic receptor device.
  Backlinks (1)
  
  40-11-150(n)(2)(B)(ii)
3. (3) If a defendant is released without a global positioning monitoring system device, then the court shall make reasonable efforts to directly contact the victim and notify the victim that the offender will be released without a global positioning monitoring system device and the victim will not be provided with access to notifications of the offender's proximity.
(c) Before imposing a condition described by subsection (b), the magistrate must afford an alleged victim an opportunity to provide the magistrate with a list of areas from which the victim would like the defendant excluded and shall consider the victim's request, if any, in determining the locations the defendant will be ordered to refrain from going to or near. If the magistrate imposes a condition described by subsection (b), the magistrate shall specifically describe the locations that the defendant has been ordered to refrain from going to or near and the minimum distances, if any, that the defendant must maintain from those locations.
(d) Before imposing a condition described by subdivision (b)(2), the magistrate must provide to an alleged victim information regarding:
1. (1) The victim's right to participate in a global positioning monitoring system or to refuse to participate in that system and the procedure for requesting that the magistrate terminate the victim's participation;
2. (2) The manner in which the global positioning monitoring system technology functions and the risks and limitations of that technology, and the extent to which the system will track and record the victim's location and movements;
3. (3) Any locations that the defendant is ordered to refrain from going to or near and the minimum distances, if any, that the defendant must maintain from those locations;
4. (4) Any sanctions that the magistrate may impose on the defendant for violating a condition of bond imposed under this section;
5. (5) The procedure that the victim is to follow, and support services available to assist the victim, if the defendant violates a condition of bond or if the global positioning monitoring system equipment fails;
6. (6) Community services available to assist the victim in obtaining shelter, counseling, education, child care, legal representation, and other assistance available to address the consequences of domestic violence; and
7. (7) The fact that the victim's communications with the magistrate concerning the global positioning monitoring system and any restrictions to be imposed on the defendant's movements are not confidential.
(e) In addition to the information described by subsection (d), the magistrate shall provide to an alleged victim who participates in a global positioning monitoring system under this section the name and telephone number of an appropriate person employed by a local law enforcement agency who the victim may call to request immediate assistance if the defendant violates a condition of bond imposed under this section.
(f) In determining whether to order a defendant's participation in a global positioning monitoring system under this section, the magistrate shall consider the likelihood that the defendant's participation will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the alleged victim before trial.
(g) An alleged victim may request that the magistrate terminate the victim's participation in a global positioning monitoring system at any time. The magistrate may not impose sanctions on the victim for requesting termination of the victim's participation in or refusing to participate in a global positioning monitoring system under this section. If a victim voluntarily chooses not to utilize a cellular device application that supports offender proximity monitoring or is noncompliant with correct usage of the application, then the special duty exception to the public duty doctrine does not apply, and the qualified contract service provider and the manufacturer of the global positioning monitoring system device are immune from civil or criminal liability resulting from the victim's choice or noncompliance.
(h) A defendant ordered to wear a global positioning monitoring system device or to provide the victim with a cellular device application or an electronic receptor device pursuant to subsection (b) shall pay all costs associated with operating that system in relation to the defendant and all costs associated with providing the victim with a cellular device application or an electronic receptor device. The defendant is not eligible for assistance from the electronic monitoring indigency fund, as established pursuant to § 55-10-419, regardless of whether the defendant is indigent.
(i) The magistrate who imposes a condition described by subsection (b) shall order the entity that operates the global positioning monitoring system to notify the law enforcement employee designated in subsection (e) and the appropriate emergency communications dispatch center if a defendant violates a condition of bond imposed under this section.
(j) This section shall not limit the authority of the magistrate to impose any other reasonable conditions of bond or enter any orders of protection under other applicable statutes.
(k) The global positioning monitoring of any defendant ordered pursuant to this section shall be provided by the county or municipality in which the court ordering the monitoring is located and shall not be provided by the board of parole. Each such county or municipality shall enter into a written agreement with a qualified contract service provider.
(l) When arresting a person for an offense described in subsection (b), the arresting officer shall provide the alleged victim with a document that notifies the alleged victim of the following regarding the global positioning monitoring system:
1. (1) When considering bail, the magistrate may order the person who is arrested to carry or wear a global positioning monitoring system device;
2. (2) The victim's right to participate in a global positioning monitoring system or to refuse to participate in the system and the procedure for requesting the magistrate to terminate the victim's participation;
3. (3) The manner in which the global positioning monitoring system technology functions and the risks and limitations of that technology, and the extent to which the system will track and record the victim's location and movements;
4. (4) The victim's right to provide the magistrate with a list of areas from which the victim would like the defendant excluded from going to or near;
5. (5) The fact that the victim's communications with the magistrate concerning the global positioning monitoring system and any restrictions to be imposed on the defendant's movements are not confidential; and
6. (6) Any other information that the administrative office of the courts finds necessary to properly inform an alleged victim about the global positioning monitoring system.
(m) A qualified contract service provider and the manufacturer of the global positioning monitoring system device are not civilly or criminally liable for injuries or damages resulting from actions of the defendant when the actions of those entities and the entities' employees are in accordance with this section and done in good faith and without gross negligence or malice.

Backlinks (6)

History (4)

Acts 2011, ch. 406, § 2
2019, ch. 505, § 9
2024, ch. 969, § 2
2024, ch. 1033, §§ 4-9.

§ 40-11-153. Release within twelve hours of the time of arrest prohibited for certain offenses — Exceptions — Requirements.

(a) Any defendant arrested for the offense of unauthorized camping on state property, as defined in § 39-14-414; vandalism, as described in § 39-14-408(b)(1); rioting, as defined in § 39-17-302; aggravated rioting, as defined in § 39-17-303; inciting to riot, as defined in § 39-17-304; disrupting a meeting or procession, as described in § 39-17-306; or obstructing a highway, as described in § 39-17-307(a)(1) shall not be released within twelve (12) hours of the time of arrest. The magistrate or other official duly authorized to release the defendant may, however, release the defendant in less than twelve (12) hours if the official finds that the defendant is not likely to immediately resume the criminal behavior based on the circumstances of the arrest and the defendant's prior criminal history, if any.
(b) The findings of the magistrate or other official duly authorized to release the defendant must be reduced to writing. The written findings must be attached to the warrant and shall be preserved as a permanent part of the record. The arresting officer shall make official note of the time of the arrest in order to establish the beginning of the twelve-hour period required by this section.

History (1)

Acts 2020 (2nd Ex. Sess.), ch. 3, § 21.

§ 40-11-154. Violation of condition of release — Penalties and exclusions.

(a) It is an offense to knowingly violate a condition of release imposed pursuant to this part.
(b) A violation of subsection (a) is a Class A misdemeanor.
(c) A defendant shall not be convicted of both a violation of this section and a violation of § 39-13-113(i) if the facts supporting the prosecution arise out of the same criminal conduct.
(d) A person who violates subsection (a) may be arrested with or without a warrant as provided in § 40-7-103(b).

Backlinks (2)

History (1)

Acts 2024, ch. 942, § 1.

Part 2 Forfeiture of Bail

§ 40-11-201. Conditional judgment on failure to appear.

(a) If the defendant who gives bail or makes a cash deposit as provided in part 1 of this chapter does not appear according to the undertaking, a conditional judgment may be entered against the defendant and the defendant's sureties, or against the defendant alone, in case of a deposit, or the court may grant an extension.
(b) No forfeiture or conditional forfeiture of any appearance or bail bond shall be rendered in any case where a statement of a licensed physician is furnished to the court showing that the principal in the bond is prevented from attending by some mental or physical disability, or where evidence of the defendant's incarceration is furnished to the court.
(c) The appearance or bail bond shall remain in full force and effect until the principal is physically or mentally able to appear, or until a detainer against the principal is filed with the detaining authority. On the filing of a detainer, the bondsman and sureties shall remain liable for the expenses of returning the principal to this jurisdiction for trial when the principal is released by the detaining authority. If the detainer request is refused or if the detaining authority releases the principal notwithstanding the filing of the detainer, the surety shall not be liable in the undertaking. It shall be the duty of the bondsman or surety to present to the presiding court, in a timely manner, all appropriate documentation evidencing that the detainer was properly filed or refused, or that the detaining authority released the principal notwithstanding the filing of the detainer. The liability of any bondsman or surety shall not exceed the amount of the bail bond. After trial, however, if it is necessary to return the principal to the detaining authority in another jurisdiction, all expenses incurred in the return shall be paid by the state of Tennessee. As used in this subsection (c), “detainer” includes any means of requesting a defendant be returned to this jurisdiction, including, but not limited to, a detainer, habeas corpus, or extradition.

Backlinks (2)

History (13)

Code 1858, § 5177
Shan., § 7141
Code 1932, § 11688
modified
Acts 1967, ch. 333, § 1
1977, ch. 370, § 1
T.C.A. (orig. ed.), § 40-1301
Acts 1988, ch. 579, § 1
2007, ch. 255, §§ 1, 2
2008, ch. 1131, § 1
2010, ch. 866, § 1
2015, ch. 517, § 1
2017, ch. 100, § 1.

§ 40-11-202. Scire facias.

A scire facias shall issue to notify the defendant and the defendant's sureties to show cause why the judgment shall not be made final.

Backlinks (1)

40-17-111

History (4)

Code 1858, § 5178
Shan., § 7142
Code 1932, § 11689
T.C.A. (orig. ed.), § 40-1302.

§ 40-11-203. Exoneration by surrender of defendant.

(a) After the liability of the bail bondsman or surety has become fixed by forfeiture, and before payment, the bail bondsman or surety may be exonerated from the liability by the surrender of the defendant and the payment of all costs; but may be exonerated from costs also if, in the opinion of the court, the bail bondsman or surety has been in no fault.
(b) It is left to the sound discretion of the court whether the bail bondsman or surety shall be relieved from the liability of bail to any and to what extent.

Backlinks (2)

History (4)

Code 1858, §§ 5180, 5181 (deriv. Acts 1811, ch. 2)
Shan., §§ 7144, 7145
Code 1932, §§ 11693, 11694
T.C.A. (orig. ed.), § 40-1303.

§ 40-11-204. Relief on forfeited recognizances.

(a)
1. (1) Except as provided in subsection (b), the judges of the general sessions, circuit, criminal and supreme courts may receive, hear and determine the petition of any person who claims relief is merited on any recognizances forfeited, and so lessen or absolutely remit the same, less a clerk's commission of five percent (5%) of the original paid final forfeiture or one thousand dollars ($1,000), whichever is less, and do all and everything therein as they shall deem just and right, and consistent with the welfare of the state, as well as the person praying for relief. This power shall extend to the relief of those against whom final judgment has been entered whether or not the judgment has been paid, as well as to the relief of those against whom proceedings are in progress.
2. (2) Cities, which have adopted home rule, may elect to authorize their city court judges to lessen or remit forfeitures in accordance with this section if those judges have jurisdiction to hear state misdemeanor cases.
(b) In counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the clerk's commission authorized by this section shall be ten percent (10%) of the forfeiture or one thousand dollars ($1,000), whichever is less.

Backlinks (3)

History (10)

Code 1858, §§ 5182, 5183 (deriv. Acts 1788, ch. 32, § 2)
Acts 1915, ch. 29, § 1
Shan., §§ 7146, 7147
Code 1932, §§ 11695, 11696
Acts 1974, ch. 599, § 1
T.C.A. (orig. ed.), § 40-1304
Acts 1987, ch. 423, § 5
1993, ch. 96, § 1
1995, ch. 456, § 7
1997, ch. 386, § 1.

§ 40-11-205. Refund of forfeiture payments on reversal.

Money paid into the treasury by virtue of a judgment of the circuit or criminal court upon a forfeited recognizance shall be refunded to the party paying the same, upon the reversal of the judgment by the supreme court, on appeal or writ of error duly prosecuted. The commissioner of finance and administration shall give the party a warrant for the money upon the production of a certified copy of the judgment of reversal.

History (7)

Code 1858, § 5184 (deriv. Acts 1835-1836, ch. 70)
Shan., § 7148
Code 1932, § 11697
impl. am. Acts 1937, ch. 33, §§ 24, 29
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
T.C.A. (orig. ed.), § 40-1305.

§ 40-11-206. State purchase of land sold to collect on forfeiture.

In all cases where land or lands shall be sold at sheriff's sale for the purpose of collecting the amount due on forfeited appearance bonds in criminal cases, the state shall be authorized to purchase any of the lands. The amount paid by the state for the purchase of the lands shall in no case be greater than the amount of the bond upon which forfeiture has been taken and upon which the forfeiture the execution was issued.

Backlinks (5)

History (4)

Acts 1921, ch. 140, § 1
Shan. Supp., § 7148a1
Code 1932, § 11698
T.C.A. (orig. ed.), § 40-1306.

§ 40-11-207. Notice to district attorney general of sale of land.

In all cases of sales under execution issued to collect the amount of forfeiture taken upon appearance bonds in criminal cases, it is the duty of the sheriff to send to the district attorney general for the district in which the sale is to be made a copy of the advertisement of the sale.

Backlinks (1)

8-8-201(b)(1)

History (5)

Acts 1921, ch. 140, § 2
Shan. Supp., § 7148a2
Code 1932, § 11699
modified
T.C.A. (orig. ed.), § 40-1307.

§ 40-11-208. Bid by district attorney general.

The district attorney general for the district in which the sale is to be made shall then determine the amount or amounts which the property should bring at a fair sale, and, if the district attorney general thinks it expedient to do so, shall, in person or by agent, bid the property in for the state of Tennessee at a sum that the district attorney general thinks the property is reasonably worth. The amount at which the property is purchased shall in no event exceed the amount of the forfeiture for the satisfaction of which execution has been issued and the sale held.

Backlinks (2)

History (6)

Acts 1921, ch. 140, § 2
1925, ch. 63, § 1
Shan. Supp., § 7148a3
Code 1932, § 11700
modified
T.C.A. (orig. ed.), § 40-1308.

§ 40-11-209. Certificate of district attorney general.

The district attorney general for the district in which the sale is to be made shall thereupon issue and deliver a certificate to the sheriff of the county conducting the sale, where the land or lands are situated. The certificate shall be in the following words and figures:
1. State of Tennessee, County of
2. day of (year)
3. I, , district attorney general for the judicial district do hereby certify that I have purchased on the day of (year) on behalf of and in the name of the State of Tennessee at a sale under execution at the courthouse, in County, Tennessee from the sheriff of County, said execution having been issued to collect the sum of dollars, the amount of the forfeiture taken upon the appearance bond of indicted day of (year) by the grand jury of County, upon a charge of the following described real estate for the sum of $.
4. DESCRIBED REAL ESTATE
5. The above described real estate having been levied upon as the property of , surety upon the appearance bond of the aforementioned defendant, viz.,
6. This land having been purchased and bid in by me on behalf of and in the name of the State of Tennessee, under and by virtue of the authority vested in me by Tennessee Code Annotated §§ 40-11-206 — 40-11-208, and acts amendatory thereto.
7. This certificate is issued by me and delivered to the sheriff of County aforesaid in lieu of the sum of $ bid by me.
9. District Attorney General for the Judicial District

History (5)

Acts 1925, ch. 63, § 1
Shan. Supp., § 7148a4
Code 1932, § 11701
modified
T.C.A. (orig. ed.), § 40-1309.

§ 40-11-210. Disposition of copies of certificate.

The district attorney general shall issue a separate certificate in duplicate, for each separate plot of land offered for sale by the sheriff under §§ 40-11-206 — 40-11-208 and so purchased by the district attorney general, one (1) copy of the certificate to be delivered to the sheriff and one (1) copy to the clerk of the court having jurisdiction of the cause to be retained by the clerk in the records of the court.

History (5)

Acts 1925, ch. 63, § 1
Shan. Supp., § 7148a5
Code 1932, § 11702
modified
T.C.A. (orig. ed.), § 40-1310.

§ 40-11-211. Certificate received and delivered to state or county.

The sheriff shall receive the certificate in lieu of money, as now provided by law, which certificate the sheriff shall in lieu of money turn over and deliver to the state of Tennessee, or to the county, whichever may be the one entitled to the proceeds of the sale under the execution.

Backlinks (1)

8-8-201(b)(1)

History (4)

Acts 1925, ch. 63, § 1
Shan. Supp., § 7148a6
Code 1932, § 11703
T.C.A. (orig. ed.), § 40-1311.

§ 40-11-212. Sheriff's deed delivered to district attorney general.

Upon delivery of the certificate by the district attorney general to the sheriff, the sheriff shall issue a deed to the state for the lands so purchased by the state and deliver it to the district attorney general in whose district the purchase is made.

Backlinks (2)

History (5)

Acts 1925, ch. 63, § 1
Shan. Supp., § 7148a7
Code 1932, § 11704
modified
T.C.A. (orig. ed.), § 40-1312.

§ 40-11-213. Delivery of deed to county.

In all cases where the county is entitled to the proceeds of the sale under execution, under sales as provided in §§ 40-11-206 — 40-11-212 after the expiration of the period of redemption provided in § 40-11-215, the commissioner of finance and administration shall issue a deed for lands purchased under execution to the county so entitled to the deed upon the demand of the county mayor of that county.

History (9)

Acts 1925, ch. 63, § 1
Shan. Supp., § 7148a8
Code 1932, § 11705
impl. am. Acts 1937, ch. 33, § 24
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
impl. am. Acts 1978, ch. 934, §§ 16, 36
T.C.A. (orig. ed.), § 40-1313
Acts 2003, ch. 90, § 2.

§ 40-11-214. Payment of costs — Notice to clerk of court.

(a) Whenever property has been purchased by the state, under §§ 40-11-206 — 40-11-215, it is the duty of the district attorney general to certify to the commissioner of finance and administration the amount of costs incurred by the sheriff in making the sale, including the fees and commissions of the sheriff for making the sale, and forward same, together with the sheriff's deed, to the commissioner. Upon receipt of the certification, the amount of costs so certified shall be paid by the commissioner to the sheriff, as other criminal costs are paid.
(b) The commissioner shall notify the clerk of the court wherein the forfeiture was taken of the amount of the purchase price and of the costs so paid.

History (8)

Acts 1921, ch. 140, § 3
Shan. Supp., § 7148a9
Code 1932, § 11706
impl. am. Acts 1937, ch. 33, §§ 24, 29
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
modified
T.C.A. (orig. ed.), § 40-1314.

§ 40-11-215. Redemption of property.

(a) The owner or owners of the property sold and bought by the state under §§ 40-11-206 — 40-11-215 shall be entitled to redeem the property within two (2) years from the date of the sale by paying the amount for which the property was purchased by the state, together with all costs of the sale, and six percent (6%) interest on the purchase price and costs.
(b) The redemption shall be made by paying the funds to the clerk of the court in the county in which the forfeiture was originally taken. The clerk shall thereupon issue to the party a certificate of redemption, which certificate shall divest all title of the state in and to the lands.
(c) A report of all lands so redeemed shall be made monthly to the commissioner of finance and administration, accompanied by the sums paid for the redemption.
(d) If the lands are not redeemed within the period of two (2) years, title thereto shall vest absolutely in the state, and the state shall have the right to convey the title to any purchaser who shall pay the amount of the purchase price and costs, and interest thereon from the date of sale. Any deeds, however, after the redemption period has expired, shall be made by the commissioner of finance and administration.

Backlinks (3)

History (8)

Acts 1921, ch. 140, § 4
Shan. Supp., §§ 7148a10-7148a13
Code 1932, §§ 11707-11710
impl. am. Acts 1937, ch. 33, § 24
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
T.C.A. (orig. ed.), §§ 40-1315 — 40-1318
Acts 2005, ch. 429, § 11.

Part 3 Professional Bondsmen

§ 40-11-301. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Available capacity” is a professional bondsman's capacity reduced by the total amount of bail, expressed in dollars, which the professional bondsman has outstanding and from which the professional bondsman has not been released;
2. (2) “Capacity” is the total amount of bail, expressed in dollars, on which a professional bondsman may act as surety;
3. (3) “Equity in real estate” is determined by taking the fair market value of the real estate and subtracting from that value all outstanding liens and encumbrances. For purposes of establishing fair market value, either the county property assessor's appraisal or an opinion of value from a licensed real estate broker may be used; and
4. (4)
  1. (A) “Professional bondsman” means any person, firm, partnership or corporation, engaged for profit in the business of furnishing bail, making bonds or entering into undertakings, as surety, in criminal proceedings, or for the appearance of persons charged with any criminal offense or violation of law or ordinance punishable by fine, imprisonment or death, before any of the courts of this state, including municipal courts or securing the payment of fines, judgments or damages imposed and of costs assessed by those courts upon preliminary or final disposition thereof;
  2. (B) “Professional bondsman” or “bondsman” extends to and includes the agents, representatives or employees of a professional bondsman, or those acting for the bondsman, whether with or without compensation or salary. The business of a professional bondsman shall be limited to the acts, transactions and undertakings enumerated in subdivision (4)(A) and to no others.

Backlinks (3)

History (7)

Acts 1939, ch. 199, § 1
C. Supp. 1950, § 11715.1
T.C.A. (orig. ed.), § 40-1401
Acts 1983, ch. 16, §§ 1-3
1984, ch. 760, § 1
1985, ch. 394, § 1
2003, ch. 303, § 3.

§ 40-11-302. Applicability of part — Exclusion from insurance company laws — Acting as sureties — Bonding capacity.

(a) This part shall apply to all professional bondsmen, but shall not apply to or affect those persons, firms, partnerships or corporations engaged exclusively in the business of making judicial or other bonds, or providing or furnishing indemnity, as surety, in suits or actions of a purely civil nature; and shall not apply to persons, firms, partnerships or corporations, which become bondsmen without receiving consideration from, or as an accommodation to, an accused in a single transaction; provided, that if those persons, firms, partnerships or corporations shall undertake to furnish bail, make appearance bonds or enter into similar undertakings, as surety, for a consideration in a criminal case, then this part shall apply to them in respect of such transactions, as well as to those engaged exclusively in the business of a professional bondsman. All provisions of this part will apply to agents of insurance companies making appearance bonds in the criminal trial or lower courts and in the court of criminal appeals and supreme court of Tennessee.
(b) A professional bondsman, as defined in § 40-11-301, is specifically excluded from the laws governing insurance companies and any regulatory authority exercised by the department of commerce and insurance except as provided in subsections (c) and (d).
(c) A professional bondsman may act as surety on the following civil bonds, to a maximum of ten thousand dollars ($10,000), without qualifying with the department as an insurance company or agent being subject to the laws governing insurance companies or agents, so long as the court regulating the professional bondsman's criminal bonding activities has established regulations for the civil bonding activities of the professional bondsman which, at a minimum, shall require a ten percent (10%) security. These bonds are: appeal, attachment, certiorari, cost, detainer, injunction, lis pendens, possession and restraining order. A professional bondsman may act as surety on appearance and contempt bonds without qualifying with the department as an insurance company or agent.
(d) Any professional bondsman acting as surety under subsection (c) shall also be subject to the following:
1. (1) The commissioner of commerce and insurance may investigate the civil bonding activities of any professional bondsman;
2. (2) After investigation, if the commissioner has reasonable grounds to believe that the civil bonding activities are not in the best interest of the general public, the commissioner shall make a report of the investigation and any recommendations, and forward a copy to the court regulating the professional bondsman; and
3. (3) The court, after receipt of the commissioner's report, shall hold a hearing and enter any orders that the court deems appropriate.
(e) A professional bondsman's capacity, in those judicial districts where a professional bondsman uses collateral pledged with the court to underwrite bonds written by the professional bondsman, shall be determined as follows:
1. (1) Where the collateral pledged is cash, or an item readily converted to cash such as a certificate of deposit, the professional bondsman's capacity shall be not less than fifteen (15) times the amount of the collateral pledged;
2. (2) Where the collateral pledged is equity in real estate, the professional bondsman's capacity shall be not less than ten (10) times the value of the equity pledged as collateral.
(f) An individual sole proprietor professional bondsman, or the bondsman's agent, as an officer of the court, shall be permitted to answer court, surrender a defendant based upon one (1) or more of the grounds set forth in § 40-11-132, obtain an extension of time, or respond to a court's request for information without the necessity of obtaining legal counsel.
(g) Any documents relating to the assignment of collateral shall be delivered to the presiding judge of the judicial district where the professional bondsman is approved. The presiding judge shall enter an order designating which clerk shall maintain the collateral documents.
(h) Subject to the procedure set forth in this subsection (h), a surety may deliver to the court an investment certificate, including a certificate of deposit, in order to establish or increase the surety's capacity. So long as the procedure set forth is followed, a court shall not refuse to accept the investment certificate. When taking an investment certificate, including a certificate of deposit, the following procedure shall be followed:
1. (1) The surety shall purchase the investment certificate in the surety's name from a financial institution regulated by the state or federal government. The investment certificate shall be insured by the federal deposit insurance corporation (FDIC);
2. (2) The surety shall then execute an assignment of the investment certificate to the clerk of the court with criminal jurisdiction using the following form:
  1. ASSIGNMENT OF SECURITY INTEREST TO THE STATE OF TENNESSEE
  2. Please print
  4. Assignor's name and name of personSocial Security or FEN/EIN:
  5. executing this assignment:
  8. Title(s) of person executing this assignment(i.e., owner, partner, president, secretary, etc.):
  11. Assignor's mailing address (Number and Street or P.O. Box, City, State, ZIP Code):
  14. Name of Professional Bondsman in whose behalf the assignment is executed (name as it is used on approved list):
  17. Description of Security: ID Number of CD or other security:
  19. Name of account or payee of Security (as First maturity date, if any:
  20. it reads on the CD or other security):
  22. Dollar Amount of Security (in words): Dollar Amount of Security (in
  23. numbers):
  25. Name of Financial Institution:
  27. Mailing address of Financial Institution(Number and Street or P.O. Box, City, State, ZIP Code) & telephone number:
  29. In order to provide security to the State of Tennessee (including all future liability), the Assignor specified above, for and on the behalf of the professional bondsman named above, assigns and sets over irrevocably to the State of Tennessee a security interest in and to the Security described above.
  31. Assignor agrees that this assignment gives to the State of Tennessee separately the exclusive right to redeem, collect and withdraw any part of or the full amount of the Security to be applied as a payment to satisfy a final forfeit judgment after the judgment becomes final against the Assignor and/or the professional bondsman named above in accordance with Tenn. Code Ann. § 40-11-101, et seq. The right of the State of Tennessee to apply the Security shall not be affected by a subsequent change in the trade name or business location of the person or entity on whose behalf this assignment is executed.
  33. Assignor understands and agrees that by this assignment, all use of and control over the disposition of the Security is relinquished. The Security is to be held by the financial institution identified above for the sole use and subject to the exclusive control of the State of Tennessee. Interest on the Security shall be paid to the Assignor.
  35. Assignor's Signature: Assignor's name in print: Date:
  37. Notary stamp or seal:
  38. Sworn to or affirmed before me on this day of 20
  40. Signature of Notary Public in and for the State of Tennessee:
  43. My Commission Expires:
  45. This is notification by the assessor to the financial institution of the terms of this assignment.
(3) At the same time the surety shall also deliver to the clerk of the court with criminal jurisdiction an acknowledgment signed by the institution issuing the investment certificate using the following form:
2. The Financial Institution acknowledges the assignment of the Security for payment of final judgments of forfeiture to the State of Tennessee. We certify that we have recorded the assignment and have retained a copy. We certify that we do not have, nor do we have knowledge of, anyone else having any lien, encumbrance, right, hold, claim to or obligation of the Security. We accept the Security with knowledge that it has been irrevocably posted as collateral, and we agree to act as the sole agent for the purpose of holding the Security for the State of Tennessee. We agree to comply with the instructions of the Court (on behalf of the State of Tennessee) directing disposition of the Security without further notice to or consent by the Assignor. We further agree not to exercise any set of rights we may have with respect to the Security or to otherwise impede, hinder, delay, prevent, obstruct or interfere with the Court's right to direct payment of, redeem, or collect any part (or the full amount) of the Security promptly.
4. Name of Financial Institution andOfficer's Title:
5. Officer Executing this Document
6. (Type or print):
8. Officer's Signature: Date:
10. Notary stamp or seal:
13. Sworn to or affirmed before me on this day of 20
15. Signature of Notary Public in and for the State of Tennessee:
18. My Commission Expires:

History (10)

Acts 1939, ch. 199, § 2
C. Supp. 1950, § 11715.2
impl. am. Acts 1971, ch. 137, § 2
Acts 1976, ch. 550, § 1
T.C.A. (orig. ed.), § 40-1402
Acts 1985, ch. 394, § 2
2001, ch. 426, § 2
2003, ch. 303, § 4
2015, ch. 416, § 1
2022, ch. 800, § 1.

§ 40-11-303. Semiannual report of bondsmen.

(a) Every professional bondsman licensed to do business in this state shall, not later than January 31 and July 31 of each year, file with the clerk of the circuit or criminal court of each county in which the bondsman is furnishing bail or bonds securing costs and fines, etc., a report of the bondsman's assets and liabilities as of the preceding December 31 and June 30, respectively. This report shall show in detail:
1. (1) The separate parcels of real estate owned, the value thereof, and the amount of mortgages, liens, taxes and all other encumbrances and by whom held;
2. (2) All personal property of every character owned, including chattels, cash, accounts, notes and bills receivable; contracts; stocks, bonds and other securities; and other security or collateral, and the character and value thereof, held to secure payment of any debt owing to the bondsman;
3. (3) The full amount of the bondsman's liability as surety on bonds, bail, secured costs and fines, and the names and addresses of the bondsman's principals, and the case or suit in which filed, in all incompleted transactions or undertakings;
4. (4) The full amount of the bondsman's liabilities on forfeitures of bonds or bail, in which either conditional or final judgments have been entered against the bondsman in any court and which remain unsatisfied;
5. (5) All bills, notes and accounts payable; endorsements and other debts, obligations and liabilities;
6. (6) The name and address of each agent, representative or employee of the bondsman authorized to bind the bondsman on bonds, bail and other contracts or undertakings of suretyship; and
7. (7) The name and address of each person having an interest in the bondsman's business, either as an individual or partner; or, in case the bondsman is a corporation, the name and address of each officer and the office held, director and stockholder thereof and the capital paid in and the capital stock issued and outstanding.
(b) Any professional bondsman who willfully refuses to file such report or withholds any of the information called for thereby shall be dealt with as provided in §§ 40-11-305 and 40-11-306.

Backlinks (2)

History (4)

Acts 1939, ch. 199, § 3
C. Supp. 1950, § 11715.3
T.C.A. (orig. ed.), § 40-1403
Acts 2016, ch. 689, § 1.

§ 40-11-304. Receipts furnished by bondsmen.

(a) It is the duty of a professional bondsman in all transactions with any persons, whether an accused, or those representing or purporting to represent an accused, whenever money or other consideration or thing of value is collected or received by the bondsman as surety, to furnish a receipt showing the name of the person paying the money or other thing of value, the name of the person for whom paid, the suit, action or matter in which the money is paid and the account or purpose for which it is received or is to be applied, and to keep a duplicate copy of every receipt.
(b) Any failure, refusal or neglect to furnish receipts or keep duplicates of receipts is declared to be unlawful.

History (3)

Acts 1939, ch. 199, § 10
C. Supp. 1950, § 11715.10
T.C.A. (orig. ed.), § 40-1404.

§ 40-11-305. Investigation of solvency.

The judge of any court of this state in which any professional bondsman executes criminal bonds, furnishes bail or secures costs and fines as surety, is empowered to inquire at any time into the solvency of any bondsman and to investigate and determine the value of the bondsman's assets and extent of the bondsman's liabilities, and to this end may, in the judge's discretion, appoint as many as three (3) investigators and/or appraisers to assist the court and who shall be empowered, when appointed, to investigate, appraise and report upon the value and extent of the bondsman's assets and liabilities. Each investigator and/or appraiser so appointed shall be entitled to receive reasonable compensation, not to exceed ten dollars ($10.00) a day, out of the general funds of the county, whenever their accounts for services are approved for payment by the judge ordering the investigation.

Backlinks (1)

40-11-303(b)

History (3)

Acts 1939, ch. 199, § 4
C. Supp. 1950, § 11715.4
T.C.A. (orig. ed.), § 40-1405.

§ 40-11-306. Prohibition of execution of bonds.

If, after its investigation, the court finds that the bondsman:
1. (1) Is insolvent;
2. (2) Is not financially able to discharge the obligations of the bondsman's liabilities as surety;
3. (3) Has failed, refused or neglected to make the semiannual reports of assets and liabilities as required in § 40-11-303;
4. (4) Has made and filed false semiannual reports; or
5. (5) Has failed to furnish the court with information touching upon solvency, when called for;
6. then the court may order that the bondsman be prohibited from executing bonds, bail or other undertakings as surety in the court until the court becomes satisfied that the bondsman has complied with this part or the orders of the court, or that the bondsman is again financially solvent, and the court shall impose any other reasonable limitation on the total liability of the bondsman's undertakings in the court.

Backlinks (1)

40-11-303(b)

History (3)

Acts 1939, ch. 199, § 4
C. Supp. 1950, § 11715.4
T.C.A. (orig. ed.), § 40-1406.

§ 40-11-307. Charges for fixing case prohibited.

It is unlawful for any professional bondsman, while acting on the bondsman's own behalf, or for any third person or persons, or in concert with them, in any negotiation, transaction or dealing with a person charged with a criminal offense or other violation of law, or with any person or persons purporting to represent or act for the one so charged, to charge, demand, contract for, accept, collect or receive any sum of money, fee, compensation, premium or other consideration, return, or favor of any character, directly or indirectly, upon any promise, offer, representation or holding out the inducement that the professional bondsman:
1. (1) Can or will attempt to effect, procure, bring about, arrange or “fix” the disposition, dismissal or compromise of any criminal action or prosecution;
2. (2) Can or will attempt to arrange, bargain for or “fix” the amount of fine or costs, and/or term of imprisonment to be imposed, or any particular action of a court, in any criminal case, contempt proceeding or other penal action in any court; or
3. (3) Can or will attempt to stop, prevent, obstruct, impede, interfere with, retard or delay the prosecution of any criminal charge against an accused, or the process of the law in respect thereof, or that the bondsman will cause to be done any of the things enumerated in this subdivision (3).

Backlinks (1)

40-11-311(a)

History (3)

Acts 1939, ch. 199, § 5
C. Supp. 1950, § 11715.5
T.C.A. (orig. ed.), § 40-1407.

§ 40-11-308. Guarantees of immunity prohibited.

It is unlawful for any professional bondsman, while acting on the bondsman's own behalf, or while acting for or through any third person or persons, or in concert with them, to solicit, demand, procure, exact, receive or collect any money or other thing of value or any other consideration, promise, favor or return of any character, directly or indirectly, from any person or persons, upon the agreement, promise, offer, representation, pretense or holding out the inducement, that the bondsman can or will:
1. (1) Provide, furnish or guarantee to the person or persons, or to any person, persons or group of persons, immunity or protection from prosecution, arrest, investigation or indictment for any criminal offense or violation of law; or
2. (2) Influence, persuade, “fix,” order or direct any public official defined under §§ 38-3-102 and 38-3-103 as a “conservator of the peace,” or any member of a grand or petit jury, or district attorney general or prosecuting officer, to provide or furnish any immunity or protection referred to in this section, or to fail, neglect or omit to do or perform any act or official duty whatsoever toward the prosecution, suppression or prevention of criminal offenses or violations of law, and it is also unlawful for any professional bondsman to cause or procure any of these acts or things to be done.

History (4)

Acts 1939, ch. 199, § 8
C. Supp. 1950, § 11715.8
modified
T.C.A. (orig. ed.), § 40-1408.

§ 40-11-309. Fixing of cases prohibited.

(a) It is unlawful for any professional bondsman to do or perform any act, engage in any negotiations, enter into any agreement or transaction, pay or give any money or other thing of value or offer or attempt to do so directly or indirectly, whether alone, or by or through others acting for the bondsman, or in the bondsman's behalf or in concert with others, or at the bondsman's instance or request, or whether with or without consideration, as surety or otherwise, with the intent, purpose or design of:
1. (1) Effecting, procuring, bringing about, arranging for or “fixing” the disposition, dismissal or compromise of any criminal action or prosecution or of arranging, bargaining for, or “fixing” the amount of fine or costs, and/or term of imprisonment or for any particular action of a court, judge, grand or petit jury or prosecuting attorney, in any criminal case, contempt proceeding or other penal action or offense before any court;
2. (2) Stopping, preventing, obstructing, impeding, interfering with, retarding or delaying the prosecution of any criminal charge against an accused, or the processes of law in respect thereof;
3. (3) Procuring sheriffs or their deputies, constables, police officers or other peace officers or any prosecutor of criminal offenses or violations to abandon or withdraw from the prosecution of the offenses or violations;
4. (4) Procuring witnesses to disappear or be concealed;
5. (5) Arranging for the loss or disappearance of bonds, court papers, exhibits or other evidence in criminal cases; or
6. (6) Doing or performing any other act to accomplish the disposition and dismissal of any charge against an accused person by any other means whatever than through the processes and agencies established by law.
(b) Nothing in this section shall deny to any professional bondsman or deprive the bondsman of the right and privilege of presenting to the court any matters affecting the legal liability of the bondsman as surety for an accused in any case where the question of liability is before the court for consideration or disposition.
(c) Nothing in this section shall be construed as conferring upon any professional bondsman the right to appear for or on behalf of an accused as an attorney at law in any action, suit, transaction or dealing with or before the court, whether in open court or at chambers.

History (4)

Acts 1939, ch. 199, § 6
C. Supp. 1950, § 11715.6
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-1409.

§ 40-11-310. Giving or procuring legal assistance unlawful.

It is unlawful for any professional bondsman to aid, counsel or advise any person accused of a criminal offense or violation of law, or those purporting to act for or represent the accused in respect of any matter relating or pertaining to the charge pending against the accused or to the disposition or dismissal thereof, except as to matters relating to the contract of suretyship on the bond, bail or similar undertaking, or to the contract relating to the securing and payment of any fine or costs, being negotiated for or posted in the pending case; nor shall any professional bondsman, directly or indirectly, retain, hire or employ, or pay for the services of an attorney at law to aid, counsel, advise or represent any person accused of criminal offense or violation of law, or those purporting to act for or represent the accused, in any case, suit or matter, in which the professional bondsman is surety for those persons, nor divide with or pay to any attorney any part of the compensation received by the bondsman for services as surety of an accused.

Backlinks (1)

40-11-311(a)

History (3)

Acts 1939, ch. 199, § 7
C. Supp. 1950, § 11715.7
T.C.A. (orig. ed.), § 40-1410.

§ 40-11-311. Illegal contracts void — Recovery of payments and penalty.

(a) Any contract, agreement, promise, transaction or other similar undertaking, entered into between a professional bondsman and any other person or persons, wherein the bondsman charges, demands, contracts for, accepts, collects or receives any sum of money, fee, compensation, premium, gratuity or other consideration, return or favor of any character, in consideration of the bondsman's performance of, or the bondsman's promise, offer or attempt to do or perform, directly or indirectly, any of the acts or things declared to be unlawful by §§ 40-11-307 — 40-11-310, are declared to be against public policy, illegal and void.
(b) Any person or persons, who pay out money or part with any other thing of value under the contract, agreement, promise, transaction or undertaking may file suit, for that person or for the use of that person or persons for whom the person paid the money or delivered the other thing of value to the bondsman, in any court having jurisdiction thereof and recover the consideration so paid or parted with and, in addition, a forfeiture in an amount equal to twice the sum of money paid or twice the value of any other consideration parted with or both, as the case may be.

History (3)

Acts 1939, ch. 199, § 9
C. Supp. 1950, § 11715.9
T.C.A. (orig. ed.), § 40-1411.

§ 40-11-312. Penalty.

A violation of this part is a Class B misdemeanor.

History (4)

Acts 1939, ch. 199, § 12
C. Supp. 1950, § 11715.12
T.C.A. (orig. ed.), § 40-1412
Acts 1989, ch. 591, § 112.

§ 40-11-313. Peace officers, their deputies, and certain county officials prohibited from acting as professional bondsmen.

(a) It is unlawful for any person while serving as a constitutionally elected peace officer, or as such officer's deputy, or any duly elected or appointed county official to act as a professional bondsman, directly or indirectly.
(b) This section shall not apply to any duly elected member of the county legislative body.

History (1)

Acts 1999, ch. 13, § 2.

§ 40-11-314. [Reserved.]

§ 40-11-315. Reduction or refund of premium on bail, bond or surety.

(a) Whenever any professional bondsman, as defined in § 40-11-301, furnishes bail, makes bond or furnishes surety for the appearance, before any court in this state, of any person charged with a criminal offense or a violation of any law, by means of a contract for a specified period of time, in which the bondsman acts as surety for appearance, the premium on the contract shall be reduced or refunded upon surrender of the person charged with the criminal offense or violation of a law in an amount in direct proportion of the percentage of the unexpired term of the contract to the total amount of the premium, unless that person is arrested on an additional criminal charge while released on bail or if the bond or surety is forfeited or revoked by the court having jurisdiction of that person or if the court accepts the surrender of the defendant based upon one (1) or more of the grounds set forth in § 40-11-132.
(b) If the premium is payable in equal installments, no further payment shall be due or payable upon surrender of the bonded person to the court. This section applies only to those contracts made on or after July 1, 1972.

History (3)

Acts 1972, ch. 827, §§ 1, 2
T.C.A., § 40-1415
Acts 2003, ch. 303, § 2.

§ 40-11-316. Maximum premium — Initiation fee.

(a) Professional bondsmen and agents of insurance companies making appearance bonds of a criminal nature shall not assess more than ten percent (10%) of the amount of the face value of the bond for premium fee and related charge or charges, and the premium fee and related charge or charges shall not be assessed but one (1) time during the first twelve (12) months of the pendency of the charge or charges and indictment or indictments in either the trial court or any lower court. If a premium renewal fee and any related charge or charges are assessed after the first twelve (12) months of the bond, the renewal fee and charge shall not exceed twenty percent (20%) of the original fee and charges. In the event the case is appealed to the court of criminal appeals or the supreme court of Tennessee, there may be charged only one (1) additional premium fee which also shall not exceed ten percent (10%) of the face value of the appearance bond for that court or courts.
(b) In addition to the charge authorized in subsection (a), professional bondsmen and agents of insurance companies making appearance bonds of a criminal nature may assess a one-time bond initiation fee of not more than twenty-five dollars ($25.00).
(c) Notwithstanding subsection (a), if a professional bondsman, or agent of an insurance company, is making a criminal appearance bond for a defendant who is not a resident of Tennessee, the bondsman or agent may assess up to fifteen percent (15%) of the amount of the face value of the bond for premium fee and related charges but only one (1) time during the first twelve (12) months of the bond. If a premium renewal fee and any related charges are assessed after the first twelve (12) months of the bond, the premium renewal fee and charges shall not exceed twenty percent (20%) of the original premium fee and charges. If the case is appealed to the court of criminal appeals or the supreme court of Tennessee, there may be charged only one (1) additional premium fee, which shall not exceed ten percent (10%) of the face value of the appearance bond for that court or courts.
(d) A professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature may agree to accept the premiums and initiation fees, set forth in subsections (a), (b), and (c), in equal installments; provided, that no interest or other fees, with the exception of transaction fees paid to third parties as costs for processing payments, are charged for the installment payments, and the full amount of the premium is to be paid during the first twelve (12) months of the bond.
(e) If the professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature charges a premium renewal fee as authorized under subsection (a) or (c), the professional bondsman or agent may agree to accept the premium renewal fee and any associated charges in equal installments; provided, that no interest or other fees, with the exception of transaction fees paid to third parties as costs for processing payments, are charged for the installment payments and the full amount of the premium renewal fee and any associated charges are to be paid within twelve (12) months of the initial assessment of the premium renewal fees.
(f) A professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature may seek indemnification for any actual costs incurred by the professional bondsman in collecting any payment due under subsections (d) and (e), including attorney's fees and court costs; provided, that those costs are paid to third parties and that no portion of those fees is shared with, or retained by, the professional bondsman, with the exception of post-judgment interest as provided for under § 47-14-121.
(g) Nothing in this section shall limit the rights of the professional bondsman or an agent of an insurance company making appearance bonds of a criminal nature to seek indemnification for the costs, including reasonable attorney's fees and court costs, associated with attempting to apprehend, return, or surrender a forfeiting defendant.

History (6)

Acts 1976, ch. 549, § 1
T.C.A., § 40-1416
Acts 1985, ch. 279, § 1
1987, ch. 423, §§ 1, 3
2015, ch. 334, § 1
2016, ch. 658, §§ 1, 2.

§ 40-11-317. Criminal background check — Experience — Bankruptcy.

(a) In addition to any other qualifications required by law, the petition or license application for a person seeking to become a professional bondsman shall have attached to it an affidavit setting forth the criminal history, if any, of the petitioner or applicant. If the affidavit is found to be inaccurate, the petitioner or applicant shall be immediately disqualified as a professional bonding person. In addition, the applicant or petitioner shall submit to a criminal history background check by the Tennessee bureau of investigation as provided for under § 38-6-109 and shall be responsible for any fees for the criminal history background check. The results of the criminal background check shall be submitted by the Tennessee bureau of investigation to the clerks of the court responsible for regulating the activities of the professional bondsman.
(b) Any applicant for approval as a bonding company owner shall have had two (2) years' experience writing bail in this state as a full-time qualified agent for a Tennessee professional bonding company in good standing.
(c) If a court finds that a bondsman has individually or as a corporation owner been discharged in a bankruptcy proceeding leaving unsatisfied outstanding forfeitures with any court, then the court may order that the bondsman be prohibited from executing bonds, bail or other undertakings as surety in the court.

History (3)

Acts 1998, ch. 663, § 1
2006, ch. 816, § 1
2012, ch. 841, § 1.

§ 40-11-318. Bounty hunting.

(a) “Bounty hunting” means a person acting as an agent of a professional bondsman who attempts to take or takes into custody a person who has failed to appear in court and whose bond has been forfeited, for a fee, the payment of which is contingent upon the taking of a person into custody and returning the person to the custody of the professional bondsman for whom the bounty hunter works. “Bounty hunting” does not include the taking into custody of a person by a professional bondsman if the professional bondsman is arresting a person with whom the professional bondsman, or the company or surety for whom the professional bondsman acts as an approved agent, has contracted.
(b)
1. (1) The following persons are prohibited from serving as a bounty hunter in this state:
  1. (A) A person who has been convicted of a felony in any state; or
  2. (B) A person who has been convicted of two (2) or more Class A or Class B misdemeanors in this state, or equivalent offenses in any other state, within the past five (5) years.
2. (2) A violation of subdivision (b)(1) is a Class A misdemeanor.
(c) Before a bounty hunter takes into custody any person who has failed to appear in court, the bounty hunter shall comply with § 40-11-401, make a good faith effort to verify the person's address, and present to the office of the appropriate law enforcement officer of the political subdivision where the taking will occur:
1. (1) A certified copy of the underlying criminal process against the defendant;
2. (2) A certified copy of the bond or capias;
3. (3) Proper credentials from a professional bondsman in Tennessee verifying that the bounty hunter is an agent of a professional bondsman; and
4. (4) A pocket card, with identifying photo, certifying that the bounty hunter has completed the training required by § 40-11-401.
(d) Failure to present all of the proper credentials as specified in this section to the office of the appropriate law enforcement officer prior to taking any person into custody shall be punishable as a Class A misdemeanor.
(e) A professional bondsman, who knowingly employs a convicted felon to act as an agent of the bondsman for purposes of taking into custody a person who failed to appear in court, commits a Class A misdemeanor.
(f) Any resident of this state who is a United States citizen and who intends to perform the functions of a bounty hunter as defined in subsection (a), shall submit to a criminal history background check as provided by § 38-6-109 at the sheriff's office at the county of the person's permanent residence. The person requesting the criminal history background check shall be responsible for any fees associated with the background check. The criminal background check shall include fingerprint checks against state and federal criminal records maintained by the Tennessee bureau of investigation (TBI) and the federal bureau of investigation (FBI). The sheriff's office shall maintain files in their respective counties on bounty hunters requesting a criminal history background check. A sheriff may charge a fee of not more than two hundred dollars ($200) for each background check performed pursuant to this subsection (f) and in addition to the background check fees payable to the TBI, the FBI and any designated vendor.
(g) No bounty hunter shall wear, carry, or display any uniform, badge, shield, card, or other item with any printing, insignia, or emblem that purports to indicate or copies or resembles an item that indicates that such bounty hunter is an employee, officer, or agent of any local, state, or federal government or any political subdivision of any local, state, or federal government. Any time a bounty hunter is engaged in the functions of bounty hunting, the bounty hunter shall wear clothing that clearly identifies the person as a bounty hunter and prominently displays the words “bounty hunter”.
(h) Nothing in this section gives a bounty hunter legal defense or privilege to violate any traffic laws or criminal statutes.

Backlinks (1)

40-11-401(b)

History (7)

Acts 1998, ch. 1019, § 1
2001, ch. 430, § 1
2011, ch. 456, § 1
2014, ch. 759, § 1
2018, ch. 826, §§ 1-5
2018, ch. 885, § 1
2021, ch. 520, §§ 1, 2.

§ 40-11-319. Notice of arrest of bondsman.

(a) A professional bondsman who is arrested in this state for a felony, or is arrested in another state or by the federal government for the equivalent of a felony in this state, shall notify, in writing, within seventy-two (72) hours of the arrest, the court or courts in which the professional bondsman is qualified.
(b) The written notice shall contain the following information:
1. (1) Date of the arrest;
2. (2) Location of the arrest;
3. (3) Offense for which the bondsman was arrested;
4. (4) The name and address of the law enforcement agency making the arrest;
5. (5) The court before which the professional bondsman is to appear;
6. (6) The date of the initial court appearance; and
7. (7) Any other information the professional bondsman may want to include.
(c) Upon receipt of the notice, if the court believes it is warranted, the court shall proceed under § 40-11-125.
(d) Failure to comply with this section shall result in an automatic suspension of the professional bondsman until the court conducts a hearing pursuant to § 40-11-125(b), or until the criminal charges against the professional bondsman are resolved.

History (1)

Acts 1999, ch. 104, § 1.

§ 40-11-320. Prerequisite to employing bounty hunter.

Before employing a bounty hunter to apprehend a defendant, a professional bail bondsman shall make a reasonable effort to verify the defendant's address.

History (1)

Acts 2001, ch. 430, § 2.

Part 4 Continuing Education for Professional Bail Bonding Agents

§ 40-11-401. Continuing education required.

(a) Each professional bail bondsman or bonding agent individually, including partners, officers and directors of a corporation engaged for profit who are qualified as professional bail bondsmen or bonding agents, making bonds or entering into undertakings as surety in criminal proceedings as defined in § 40-11-301, shall obtain eight (8) hours of continuing education credits during each twelve-month period beginning on January 1, 1997. For the purpose of this part, “agent” means a professional bail bondsman or professional bail bonding agent, including those who are licensed as limited insurance representatives by the department of commerce and insurance pursuant to title 56, chapter 6, part 1 and the regulations of that department.
(b) Each person acting as a bounty hunter pursuant to § 40-11-318, including a professional bondsman acting as a bounty hunter, must obtain eight (8) hours of continuing education credits during each twelve-month period beginning on January 1, 2022, and at least five (5) of the eight (8) hours must have a specific focus on bounty hunting.

Backlinks (3)

History (3)

Acts 1996, ch. 856, § 1
1997, ch. 265, §§ 1, 2
2021, ch. 520, § 3.

§ 40-11-402. Certificate of compliance.

Each agent shall file annually, along with the first semiannual report as described in § 40-11-303, a certificate of compliance of continuing education with the clerk of the criminal or civil court of each county in which the agent is furnishing bail or bonds securing costs and fines. This certificate shall show in detail the names, locations, dates and hours of each course attended, along with the signature of the agent attesting that all continuing educational requirements have been completed.

History (1)

Acts 1996, ch. 856, § 1.

§ 40-11-403. Noncompliance.

If an agent does not obtain the required eight (8) continuing education hour credits within each twelve-month period as described in § 40-11-401, and have the necessary certificate of compliance filed with the clerk of the court by January 15 of each year, the clerk shall, by certified mail, notify the agent that the agent is not in compliance with the continuing education requirements of this part and the number of hours the agent lacks to be in compliance. If the agent has not furnished the clerk with a certificate of compliance with continuing education requirements within sixty (60) days of receiving the notice of noncompliance, the clerk shall notify the judge of the court who shall then suspend the agent from furnishing bail or bonds securing costs and fines, and remove the agent's name from the list of qualified and approved professional bondsmen, as described in § 40-11-124, until the agent completes the continuing education credits and properly files the required certificate with the court.

History (1)

Acts 1996, ch. 856, § 1.

§ 40-11-404. Courses — Certificate of compliance — Fees.

(a) The Tennessee Association of Professional Bail Agents shall provide all continuing education courses, and shall issue certificates of compliance to certify attendance of the agents to the clerks of the courts. The certificates shall be prepared and delivered to all agents who have completed the requirements by December 15 of the year before filing is required. In no event shall a certificate be issued to an agent who has not completed the attendance requirements for that calendar year.
(b) The Tennessee Association of Professional Bail Agents shall either provide or contract for a minimum of eight (8) hours of in-person continuing education classes to be held on a regular basis in each of the grand divisions and may provide additional classes as necessary. The association may also provide or contract for one (1) or more virtual classes. The association is authorized to subcontract with any of its sub associations for classes. A schedule of these classes must be provided to all agents. The association shall not charge more than four hundred fifty dollars ($450) annually for the eight (8) hours of continuing education, and the cost of any course with less than eight (8) hours must be prorated.
(c) The fee charged for attending continuing education classes shall not be increased or decreased based upon a person's membership or lack of membership in the Tennessee Association of Professional Bail Agents.

History (3)

Acts 1996, ch. 856, § 1
2000, ch. 749, § 1
2023, ch. 417, § 1.

§ 40-11-405. Rights of trial judges — Appeal from nonapproval of bondsman.

Nothing in this part shall be construed as altering or infringing upon the right of the trial judge to approve bondsmen who are licensed under this part. An appeal from a trial judge's failure to approve a licensed bondsman shall be taken as provided by law.

History (1)

Acts 1996, ch. 856, § 1.

§ 40-11-406. Continuing education class requirements — Review of criminal background — Applicant appeal rights — Fees — Liability. [Effective on January 1, 2025.]

(a) A person shall not attend a continuing education class under this part who has been convicted in any state of a crime equivalent to:
1. (1) A felony in this state; or
2. (2) Two (2) or more misdemeanors that are equivalent to Class A or Class B misdemeanors in this state if the misdemeanor convictions occurred within five (5) years of the date of the continuing education class.
(b)
1. (1) Not less than ninety (90) days before a scheduled continuing education class, an applicant seeking to attend a continuing education class pursuant to this part must submit to a criminal history background check as provided by § 38-6-109, with the results being reported as follows:
  1. (A) An applicant who has been previously approved as a professional bondsman or an agent of a professional bondsman must have the results reported to the clerk of a court of record with criminal jurisdiction within a county in which the professional bondsman or the agent is approved to write appearance bonds;
  2. (B) An applicant who will be seeking approval as a professional bondsman or as an agent of a professional bondsman must have the results reported to the clerk of a court of record with criminal jurisdiction within a county in which the prospective professional bondsman or agent will be seeking approval to write appearance bonds; and
  3. (C) All other applicants must have the results reported to the clerk of a court of record with criminal jurisdiction within the county in which the applicant resides.
2. (2) The criminal history background check required by this section must include fingerprint checks against state and federal criminal records maintained by the Tennessee bureau of investigation and the federal bureau of investigation. The applicant is responsible for any fees associated with the criminal history background check.
(c)
1. (1) Upon receipt of a criminal history background check, the clerk of the court of record with criminal jurisdiction shall review the background check to determine whether the applicant has a disqualifying criminal history. The clerk may consult with the office of the district attorney general for the judicial district in making the determination required by this subdivision (c)(1).
2. (2) If the clerk determines that an applicant has a disqualifying criminal history, then the clerk must inform the applicant and the Tennessee Association of Professional Bail Agents not less than sixty (60) days prior to the scheduled continuing education class that the applicant is ineligible to attend the continuing education class.
3. (3) If the clerk fails to come to a decision, then the applicant is presumed to have no disqualifying criminal history.
(d)
1. (1) If the applicant believes that the decision of the clerk is in error or that there are extenuating circumstances that would permit attendance notwithstanding the criminal history, then the applicant may appeal the clerk's decision within ten (10) days to the court of record with criminal jurisdiction within the county where the criminal history background check was received.
2. (2) All appeals must be in writing, setting forth the grounds for the appeal.
3. (3) The court hearing the appeal shall give written notice of its decision not less than fifteen (15) days before the scheduled continuing education class. If the court fails to provide written notice within the time period prescribed by this subdivision (d)(3), then the court must give written notice as to when the decision will occur, or if no such notice is given, then the clerk's decision is deemed final.
(e) An applicant has a right to appeal the court's decision to the court of criminal appeals within thirty (30) days.
(f) The clerk of the criminal court is authorized to charge a fee of not more than ten dollars ($10.00) to receive and process the application and the criminal history background check.
(g) The Tennessee Association of Professional Bail Agents and its agents, contractors, and employees are not liable to any person for damages resulting from a determination made pursuant to this section.

History (1)

Acts 2023, ch. 417, § 2.

Chapter 12 Grand Jury Proceedings

Part 1 General Provisions

§ 40-12-101. Impaneling bystanders.

Whenever a sufficient number of the jurors of the original panel fail to attend before the grand jury is formed, the court may impanel the grand jury of so many of the original panel as may attend, and the rest of bystanders. If none of the original panel attend or no jurors have been appointed, the grand jury may consist entirely of bystanders.

History (4)

Code 1858, §§ 4016, 4017 (deriv. Acts 1817, ch. 130 (131 in Scott's Revisal), § 2)
Shan., §§ 5828, 5829
Code 1932, §§ 10022, 10023
T.C.A. (orig. ed.), § 40-1502.

§ 40-12-102. Persons guilty of conspiracy ineligible.

(a) No person who has been guilty of any offense declared in § 39-12-103, relating to conspiracy to take human life or to injure persons or destroy property, shall be competent to sit or serve on any grand or traverse jury and it is the duty of the court to carefully exclude all such persons from the juries, both grand and petit.
(b) When the court is informed, or has reason to suspect, that any person presented as a juror is guilty of any of the offenses listed in subsection (a), it shall call witnesses, if necessary, and examine fully into the truth of the charge.
(c) The court shall dismiss from the grand jury any person who has been selected and afterwards shown to be implicated in any offense listed in subsection (a).

History (6)

Acts 1897, ch. 52, § 3
Shan., § 6696a3
Code 1932, § 11070
modified
T.C.A. (orig. ed.), § 40-1504
Acts 1996, ch. 675, § 22.

§ 40-12-103. Reconvening to consider felony.

The judges of the circuit and criminal courts are authorized at any time during the same term of court to reconvene the grand jurors when, during the same term of court and after the jurors have been discharged, a criminal offense which is a felony has been committed in the jurisdiction.

History (4)

Acts 1899, ch. 324, § 1
Shan., § 5836a1
Code 1932, § 10035
T.C.A. (orig. ed.), § 40-1515.

§ 40-12-104. Application to testify by person having knowledge of commission of offense.

(a) Any person having knowledge or proof of the commission of a public offense triable or indictable in the county may testify before the grand jury.
(b) The person having knowledge or proof shall appear before the foreman. The person may also submit the sworn affidavits of others whose testimony the person wishes to have considered.
(c) The person shall designate two (2) grand jurors who shall, with the foreman, comprise a panel to determine whether the knowledge warrants investigation by the grand jury. The panel may consult the district attorney general or the court for guidance in making its determination. The majority decision of the panel shall be final and shall be promptly communicated to the person along with reasons for the action taken.
(d) Submission of an affidavit which the person knows to be false in any material regard shall be punishable as perjury. An affiant who permits submission of a false affidavit, knowing it to be false in any material regard, is guilty of perjury. Any person subsequently testifying before the grand jury as to any material fact known by the person to be false is guilty of perjury.

Backlinks (1)

40-12-107

History (4)

Acts 1978, ch. 727, § 1
modified
T.C.A., § 40-1626
Acts 1995, ch. 213, §§ 1-4.

§ 40-12-105. Notice of grand jury meeting to be posted by court clerk.

(a) The clerk of the court having trial level criminal jurisdiction in each county of this state shall cause to be published, not less than thirty (30) days nor more than forty (40) days before the grand jury meets, the following notice in a newspaper of general circulation in the county:
1. “It is the duty of your grand jurors to investigate any public offense which they know or have reason to believe has been committed and which is triable or indictable in this county. Any person having knowledge or proof that an offense has been committed may apply to testify before the grand jury subject to the provisions of Tennessee Code Annotated, § . The foreman in this county is presently: [Here list foreman and the foreman's address]
2. “The grand jury will next meet on , the day of , 20, at . You may be prosecuted for perjury for any oral or written statement which you make under oath to the grand jury, when you know the statement to be false, and when the statement touches on a matter material to the point in question.”
(b) In addition to the other duties required by this section, the clerk shall post a written notice in the form set forth in subsection (a) in a place convenient to the public at the county courthouse.
(c) Failure by the clerk to perform the duties required by this section is a misdemeanor and grounds for removal from office.

History (3)

Acts 1978, ch. 727, § 2
1982, ch. 805, § 1
T.C.A., § 40-1627.

§ 40-12-106. Prosecution of persons applying to testify not barred — Express immunity.

Notwithstanding any contrary provisions of law, no person applying to testify before the grand jury shall be immune from prosecution based upon testimony subsequently given pursuant to the application, except under express grant of immunity by the grand jury.

Backlinks (1)

40-12-107

History (3)

Acts 1978, ch. 727, § 3
impl. am. Acts 1979, ch. 399, § 1
T.C.A., § 40-1628.

§ 40-12-107. Supplemental to present law.

Sections 40-12-104 — 40-12-106 are intended to supplement existing law relative to the rights, powers and duties involved in the grand jury process. Nothing in this part shall be construed in derogation of existing law, absent plain and irreconcilable conflict with §§ 40-12-104 — 40-12-106.

History (2)

Acts 1978, ch. 727, § 4
T.C.A., § 40-1629.

Part 2 Investigative Grand Juries

§ 40-12-201. Use of investigative grand jury.

(a) Notwithstanding any other provision of law to the contrary, whenever a district attorney general, within the district attorney general's respective jurisdiction, or the attorney general and reporter has reason to believe that criminal activity involving a violation of or a conspiracy to violate:
1. (1) Section 39-14-903, relating to money laundering;
2. (2) Sections 39-17-902(b), 39-17-911 and 39-17-1005, relating to the distribution of certain materials to minors or the use of a minor for obscene purposes;
3. (3) Section 39-17-417, relating to controlled substances or § 39-17-454, relating to controlled substance analogues;
4. (4) Sections 39-16-401 — 39-16-405, relating to misconduct involving public officials and employees;
5. (5) Sections 39-16-101 — 39-16-108, relating to bribery;
6. (6) Section 39-12-204, relating to racketeer influenced and corrupt organizations;
7. (7) Sections 39-17-501 — 39-17-507, relating to gambling; or
8. (8) Sections 39-16-501 — 39-16-507, relating to interference with government operations;
9. has occurred, the district attorney general or the attorney general and reporter may apply to a committee comprised of two (2) members of the district attorneys general conference and the attorney general and reporter for consent to file a petition to have an investigative grand jury convened to consider the matters specified in the application.
(b) The attorney general and reporter shall appoint a district attorney general from each grand division to serve as potential members of the committee and shall notify the executive director of the district attorneys general conference of the appointments.
(c) The attorney general and reporter shall reappoint the district attorneys general as from time to time may be necessary.
(d)
1. (1) When an application for an investigative grand jury is made by the attorney general and reporter pursuant to this part, the executive director shall designate one (1) or more of the district attorneys general appointed by the attorney general and reporter to serve on the committee.
2. (2) If the application is made by a district attorney general, the executive director shall designate either two (2) of the district attorneys general appointed by the attorney general and reporter to serve on the committee or shall designate one (1) of the district attorneys general and the district attorney general making the application.
(e)
1. (1) The district attorney general or district attorneys general so designated to serve on the committee shall not reside in the same grand division as the county where the grand jury would be seated.
2. (2) In the case where an application is filed by the attorney general and reporter, the district attorney general for the district where the criminal activity is alleged to have occurred shall be one (1) of the two (2) members of the district attorneys general conference serving on the committee.
(f) The application shall be in writing, shall specify the crimes to be investigated, any persons believed to have knowledge of the crimes to be investigated and the basis of the district attorney general's or attorney general and reporter's knowledge of the matters set forth in the application.
(g) The application shall be filed at the office of the attorney general and reporter in Nashville.

Backlinks (4)

History (3)

Acts 1990, ch. 1051, § 1
1996, ch. 1012, § 8
2012, ch. 848, § 31.

§ 40-12-202. Committee review of application.

(a) Upon receipt or the making of an application for an investigative grand jury, the attorney general and reporter shall immediately notify the other members of the committee described in § 40-12-201.
(b) The committee shall meet in person as soon as is reasonably possible to consider the application.
(c) Consent to file the petition must be by unanimous vote of the committee.
(d) The district attorney general shall be notified in writing of the committee's action on the application.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-203. Filing of petition.

(a) Upon the receipt of written approval of the committee, the district attorney general may file a written petition with the clerk of the circuit court, or criminal court in counties where the court has been established, for the county where the criminal activity allegedly occurred to convene an investigative grand jury to consider the matters set forth in the petition.
(b) The petition shall be made upon oath or affirmation and shall contain:
1. (1) An allegation that one (1) or more of the offenses described in § 40-12-201 has occurred;
2. (2) The basis of the district attorney general's knowledge of the commission of the offenses; and
3. (3) Sufficient facts to establish probable cause to believe the crimes specified in the petition have been committed.
(c) The petition shall also have appended to it the written consent of the committee which approved the filing of the petition.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-204. Record of filing.

(a) Upon the filing of a petition to convene an investigative grand jury, the clerk shall mark the petition as filed, note the date and time of filing on the petition, and shall record the filing of the petition in records kept for proceedings under this part.
(b) The clerk shall then immediately forward the petition to the presiding judge of the judicial district.

Backlinks (1)

40-12-205(d)(2)

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-205. Grant or denial of petition.

(a) Upon receipt of a petition to convene an investigative grand jury, the presiding judge shall consider the petition in camera.
(b) Any oral argument before the judge by the district attorney general shall be in the sole discretion of the presiding judge.
(c) The judge shall grant the petition if the judge finds that:
1. (1) The crimes alleged to have taken place are among those set forth in § 40-12-201; and
2. (2) There is probable cause to believe the criminal activity set forth in the petition has taken place.
(d)
1. (1) The judge shall enter an order in writing respecting whether an investigative grand jury shall be convened.
2. (2) The order will be filed by the clerk of the court and entered in records described in § 40-12-204.
3. (3) The clerk shall forward a copy to the district attorney general.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-206. Members — Powers.

(a) The grand jury convened pursuant to this part shall consist of thirteen (13) members and up to five (5) alternates.
(b) The alternates shall be present at all times during grand jury proceedings, but shall not take part in the deliberations or vote of the grand jury unless the alternate has been made a regular member of the grand jury upon motion of the district attorney general made to the court and alleging that a regular member is no longer able to serve.
(c) Any grand jury ordered convened pursuant to this part shall be:
1. (1) Impaneled by the presiding judge in the same manner as the regular grand jury;
2. (2) Directed by the presiding judge to investigate the crimes specified in the petition; however, nothing in this subsection (c) shall be construed as preventing indictment for any offense found by the grand jury to have occurred in the course of its investigation; and
3. (3) Retain all powers, duties and responsibilities of the regular grand jury.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-207. Persons present during proceedings.

The district attorney general, the witness under examination, an interpreter when needed and, for the purpose of taking the evidence, a stenographer may be present while the investigative grand jury is in session, but no person other than jurors and alternates may be present while the grand jury is deliberating or voting.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-208. Record of proceedings.

(a) All proceedings, except when the investigative grand jury is deliberating or voting, shall be recorded stenographically.
(b) Any unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution.
(c) The recording, the reporter's notes or any transcript prepared from the recording or notes shall remain in the custody or control of the district attorney general unless otherwise ordered by the court in a particular case.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-209. Confidentiality of proceedings and documents.

(a)
1. (1) No person who by virtue of the person's official position has knowledge of the filing of an application for consent, the action of the committee on the application, the filing of a petition to convene an investigative grand jury, or any action on the petition, shall disclose that knowledge except in accordance with this section.
2. (2) All written records of applications, committee action, petitions and orders are declared to be confidential and subject to disclosure only in accordance with this section.
3. (3) A grand juror, an interpreter, a stenographer, a typist who transcribes recorded testimony, a district attorney general or any person to whom disclosure is made pursuant to this section, § 40-12-210 or § 40-12-212 shall not disclose matters occurring before the grand jury except in accordance with those sections. No obligation of secrecy may be imposed on any person except in accordance with this section.
(b) Disclosure otherwise prohibited by this part of documents and proceedings before a grand jury convened under this part may be made to:
1. (1) The district attorney general for use in the performance of the district attorney general's duty; and
2. (2) Government personnel, including personnel of the federal government or a subdivision of the state, as those personnel are deemed necessary by the district attorney general to assist the district attorney general in the performance of the district attorney general's duties.
(c)
1. (1) Any person to whom documents and proceedings before a grand jury convened under this part are disclosed under subdivision (b)(2) shall not utilize those documents or proceedings for any purpose other than assisting the district attorney general in the performance of the district attorney general's duties.
2. (2) The district attorney general shall promptly notify the judge convening the grand jury pursuant to this part of the names of all persons to whom disclosure of grand jury documents or proceedings is made and shall certify that the district attorney general has advised the person of the person's obligation of secrecy under this part.

Backlinks (1)

40-12-211

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-210. Conditions for disclosure of proceedings and documents.

Disclosure of grand jury documents and proceedings may also be made under this part when:
1. (1) Directed by a court preliminarily to or in connection with a judicial proceeding;
2. (2) Disclosure is made by the district attorney general to another grand jury; or
3. (3) Permitted by a court upon motion of the defendant showing grounds exist for a motion to dismiss the indictment because of matters occurring before the grand jury.

Backlinks (1)

40-12-209(a)(3)

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-211. Breach of confidentiality — Penalty.

A violation of § 40-12-209 shall be punished as criminal contempt.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-212. Indictments.

The finding and return of indictments as well as the form of any indictment returned by a grand jury convened pursuant to this part shall be in the same manner and form as indictments returned by the regular grand jury.

Backlinks (1)

40-12-209(a)(3)

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-213. Subpoena power — Examination of witnesses.

Notwithstanding any other provision of law to the contrary, when a grand jury is convened pursuant to this part, the district attorney general shall:
1. (1) Have the authority to compel by subpoena the testimony of witnesses before the grand jury; and
  Backlinks (1)
  
  40-12-214
2. (2) Be present to examine witnesses coming before the grand jury, as well as to give legal advice to the grand jury as to matters cognizable by it.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-214. Subpoenas to banks exempt from notice requirement.

Subpoenas issued pursuant to § 40-12-213(1) shall not be subject to the provisions of §§ 45-10-106 and 45-10-107 requiring notice to a bank customer of a subpoena issued to a bank for the records of a customer.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-215. Grant of immunity.

(a) The district attorney general shall have the authority to grant transactional or use immunity to a witness if the district attorney general determines that immunity is necessary to compel testimony from the witness.
(b) The immunity shall be given to the witness in writing and shall be signed by the district attorney general.
(c) The immunity granted witnesses pursuant to Tennessee Rules of Criminal Procedure, Rule 6(j)(6) shall have no application to a grand jury convened pursuant to this part.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-216. Witness' right to consult counsel.

A witness before a grand jury convened pursuant to this part shall have the right to leave the grand jury room to consult the witness's counsel at reasonable intervals and for a reasonable period of time upon the request of the witness.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-217. Dissolution — Extension of time to complete investigation.

(a) When a grand jury convened pursuant to this part has completed its investigation, the district attorney general shall promptly file a notice of dissolution with the clerk of the court where the petition seeking the grand jury's empanelling was filed.
(b)
1. (1) Upon the filing of the notice required by subsection (a), the functions of the grand jury shall cease and it shall be considered dissolved.
2. (2) In no event, except as provided in this section, shall a grand jury convened pursuant to this part remain impaneled for a period of time to exceed six (6) months from the day it is sworn.
(c)
1. (1) Should a period of time exceeding six (6) months be necessary for the grand jury to complete its work, the district attorney general may file an application with the committee described in § 40-12-201 requesting permission to petition the empanelling judge for an extension of the grand jury for a period of time not to exceed six (6) months from the date the petition is granted.
2. (2) The application shall specify why additional time is necessary for the completion of the investigation.
3. (3) If the committee unanimously agrees that an extension of time is necessary, it shall grant written consent to petition the empanelling judge for an extension of the grand jury for the period requested.
4. (4) This written consent shall accompany the petition to the empanelling judge who shall grant the petition if the judge finds an extension of time to be necessary for the grand jury to complete its investigation.
5. (5) No more than two (2) six-month extensions may be obtained pursuant to this section.

History (1)

Acts 1990, ch. 1051, § 1.

§ 40-12-218. Construction of part.

Unless explicitly provided for in this part, nothing in this part shall be construed as repealing or amending any law dealing with the formation, function, duties and responsibilities of the regular grand jury.

History (1)

Acts 1990, ch. 1051, § 1.

Chapter 13 Indictments

Part 1 General Provisions

§ 40-13-101. “Indictment” defined.

(a) An indictment is an accusation in writing presented by the grand jury of the county charging a person with an indictable offense.
(b) Wherever in this code “indictment” is used, it shall be taken to include presentment whenever the context so requires or will permit.

History (2)

Code 1932, §§ 10750, 11622
T.C.A. (orig. ed.), §§ 40-1701, 40-1702.

§ 40-13-102. Offenses indictable.

All felonies and all misdemeanors are indictable offenses.

History (2)

Code 1932, § 11621
T.C.A. (orig. ed.), § 40-1703.

§ 40-13-103. Prosecutor required.

No district attorney general shall prefer a bill of indictment to the grand jury without a prosecutor marked on the bill or indictment, unless otherwise expressly provided by law.

Backlinks (1)

39-15-401(e)(2)(B)

History (5)

Code 1858, § 5096 (deriv. Acts 1801, ch. 30, § 1)
Shan., § 7058
Code 1932, § 11602
modified
T.C.A. (orig. ed.), § 40-1704.

§ 40-13-104. Prosecutor not required.

A prosecutor is dispensed with and the district attorney general may file bills of indictment, officially, and without a prosecutor marked on the bill of indictment, in the following cases:
1. (1) Upon a presentment;
2. (2) Upon an inquest of willful homicide or murder;
3. (3) Upon a recognizance to answer for a breach of the peace, or other inferior offense, committed in the presence of and taken notice of by any judge from the judge's own view;
4. (4) Upon a charge of gaming;
5. (5) Upon a charge of drawing a lottery or vending lottery tickets;
6. (6) Upon a charge of keeping a billiard table without a license;
7. (7) Upon a charge of violation of graves;
8. (8) Upon a charge against a county legislative body or a county mayor for failing to provide safe prisons;
9. (9) Upon an order of the circuit or criminal court to file an indictment, officially, which may be made when it appears to the court that an indictable offense has been committed, and that no one will be prosecutor;
10. (10) Upon information made to the district attorney general by a judge of the court of general sessions, upon the judge's own knowledge, of an indictable offense, committed during the sitting of the court;
11. (11) Upon a report of the clerk of the chancery court that an executor, administrator or guardian has neglected or refused for thirty (30) days after a subpoena has been served to appear before the clerk and settle the accounts;
12. (12) Upon a charge of violating the laws to suppress the use, importation or sale of prohibited weapons;
13. (13) Upon a charge of violating the laws against illegal voting, and to preserve the purity of elections;
14. (14) Against the clerk of any court who knowingly and willfully, with intent and purpose to affect the result of a case depending or decided in the clerk's court, makes a false entry, fails to make an entry directed by law or makes an imperfect transcript of the proceedings had in the clerk's court, and being in the clerk's office;
15. (15) Upon a charge of violating the laws pertaining to intoxicating liquors;
16. (16) Upon a charge of violating the laws to suppress private banking;
17. (17) Upon a charge of cutting, writing upon, defacing, disfiguring or damaging public buildings;
18. (18) Upon a charge against a clerk of converting to the clerk's own use, investing, using or lending money, property or effects in the clerk's custody, to be paid or delivered, according to law or order of court, to any party, witness, officer or other person;
19. (19) Upon an indictment for sedition, conspiracies and riots;
20. (20) Upon an indictment for disturbing or obstructing a public officer in the discharge of the officer's official duties;
21. (21) Upon a charge for violating the game and fish laws;
22. (22) Upon an indictment against a sheriff for permitting a prisoner in the sheriff's custody to be put to death by violence;
23. (23) Upon a charge of trespass upon lands or injury to or removal of property in violation of § 39-14-408;
24. (24) Upon a charge of child abuse in violation of § 39-15-401 or any other offense against the person in which a child is the victim; and
25. (25) Any other cases provided by law.

History (37)

Code 1858, § 5097 (deriv. Acts 1803, ch. 59
1817, ch. 61, § 4
1820, ch. 4, § 2
1820, ch. 13, § 2
1822, ch. 40, § 13
1824, ch. 5, § 5
1827, ch. 85, § 3
1829, ch. 101, § 5
1831, ch. 81, § 2
1835-1836, ch. 47, § 5
1837-1838, ch. 26, § 1
1837-1838, ch. 125, § 3
1837-1838, ch. 137, § 5
1841-1842, ch. 31, § 14
1841-1842, ch. 65
1841-1842, ch. 129, § 4
1847-1848, ch. 45, § 4
1847-1848, ch. 124, §§ 1, 2
1851-1852, ch. 167, § 2)
Acts 1865, ch. 15, § 2
1873, ch. 104, § 2
1881, ch. 45, § 2
1883, ch. 251, § 4
1903, ch. 444, § 2
Shan., §§ 3169, 6503a4, 7059
mod. Code 1932, §§ 7822, 10837, 11603
modified
Acts 1968, ch. 563, §§ 1, 2
impl. am. Acts 1973, ch. 81, §§ 2, 6
1977, ch. 482, § 13
impl. am. Acts 1978, ch. 846, § 3
impl. am. Acts 1978, ch. 934, §§ 7, 36
impl. am. Acts 1979, ch. 68, § 3
impl. am. Acts 1980, ch. 875, § 2
T.C.A. (orig. ed.), § 40-1705
Acts 1996, ch. 675, §§ 23-25
2003, ch. 90, § 2.

§ 40-13-105. Concurrence in true bill.

An indictment cannot be found without the concurrence of at least twelve (12) grand jurors and, when so found, shall be endorsed a “true bill,” and the endorsement signed by the foreman.

History (4)

Code 1858, § 5093
Shan., § 7055
Code 1932, § 11600
T.C.A. (orig. ed.), § 40-1706.

§ 40-13-106. Endorsement when indictment not found.

If twelve (12) grand jurors do not concur in finding an indictment, the fact may be made known by endorsing the words “Not found” or other words of the same purport on the papers signed by the foreman.

History (4)

Code 1858, § 5094
Shan., § 7056
Code 1932, § 11601
T.C.A. (orig. ed.), § 40-1707.

§ 40-13-107. Endorsement of names of witnesses.

It is the duty of the foreman of the grand jury to endorse on the indictment or, if it is a presentment, on the subpoena the names of the witnesses so sworn by the foreman and sign same officially, but the omission to endorse the names of those witnesses on the indictment or subpoena shall in no case invalidate the finding of the indictment or presentment, if the witnesses were, in point of fact, sworn by the foreman according to law.

History (4)

Acts 1875, ch. 30, § 2
Shan., § 7054
Code 1932, § 11599
T.C.A. (orig. ed.), § 40-1708.

§ 40-13-108. Presentation of indictment.

An indictment, when found by the grand jury and endorsed as prescribed by this part, shall be presented by the foreman to the clerk of the court who shall file the indictment as provided by law.

History (5)

Code 1858, § 5098
Shan., § 7060
Code 1932, § 11604
T.C.A. (orig. ed.), § 40-1709
Acts 2003, ch. 64, § 1.

§ 40-13-109. Entry in minutes of felony indictments.

All indictments for public offenses of the grade of felony, returned into court by the grand jury with the endorsement a “true bill” shall be entered by the clerk with the return in full on the minutes of the court and the originals compared with the entry by the judge before the judge signs the proceedings of the day.

Backlinks (1)

40-13-110(b)

History (4)

Code 1858, § 5138 (deriv. Acts 1839-1840, ch. 105, §§ 1, 2)
Shan., § 7101
Code 1932, § 11647
T.C.A. (orig. ed.), § 40-1710.

§ 40-13-110. Copies of minutes — New indictment.

(a) A copy of the minutes shall be as good and valid as the originals if, at any time, the latter are lost, destroyed, misplaced or purloined.
(b) In the absence of the entry provided for in § 40-13-109, the court may, in any of the contingencies mentioned in subsection (a), on proof of the fact, direct a new indictment to be preferred at the term at which the proof is made or at a subsequent term.

History (4)

Code 1858, §§ 5139, 5140 (deriv. Acts 1839-1840, ch. 105, § 1)
Shan., §§ 7102, 7103
Code 1932, §§ 11648, 11649
T.C.A. (orig. ed.), §§ 40-1711, 40-1712.

§ 40-13-111. Inspection of indictment before arrest.

When an indictment is found against any person not in actual custody or who has not given bail to answer to the indictment, that indictment shall not be inspected by any person except the judge and clerk of the court and the district attorney general until the defendant has been arrested.

History (4)

Code 1858, § 5099
Shan., § 7061
Code 1932, § 11605
T.C.A. (orig. ed.), § 40-1714.

§ 40-13-112. Disclosure of indictment before arrest.

(a) No judge, attorney, clerk, other officer of the court or grand juror shall disclose the fact of any indictment found until the defendant has been arrested or given bail for appearance to answer the indictment; however, nothing in this section shall preclude law enforcement from releasing information contained within the indictment or the fact of the indictment for the purpose of apprehending the subject of the indictment.
(b) A violation of subsection (a) is a Class A misdemeanor punishable, on conviction, as a Class A misdemeanor.
(c) This section does not apply to any disclosure by the issuance of process.

History (6)

Code 1858, §§ 5100, 5101
Shan., §§ 7062, 7063
Code 1932, §§ 11606, 11607
T.C.A. (orig. ed.), § 40-1715
Acts 1989, ch. 591, §§ 1, 6
2008, ch. 643, § 1.

Part 2 Form and Sufficiency

§ 40-13-201. Form generally.

An indictment must contain in the caption or body of the indictment, the name of the state, county and court; the term in and at which the indictment is preferred; and must conclude “against the peace and dignity of the state of Tennessee.”

History (2)

Code 1932, § 11623
T.C.A. (orig. ed.), § 40-1801.

§ 40-13-202. Statement of offense.

The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in a manner so as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. In no case are the words “force and arms” or “contrary to the form of the statute” necessary.

History (4)

Code 1858, §§ 5114, 5115
Shan., §§ 7077, 7078
mod. Code 1932, § 11624
T.C.A. (orig. ed.), § 40-1802.

§ 40-13-203. Certainty as to person charged.

The indictment must be certain as to the person charged; but when the person's name is unknown to the grand jury, it may be so alleged without further identification or the person may be indicted under any name by which the person is generally known.

History (4)

Code 1858, § 5116
Shan., § 7079
mod. Code 1932, § 11625
T.C.A. (orig. ed.), § 40-1803.

§ 40-13-204. Presumptions and matters of judicial notice.

Presumptions of law and matters of which judicial notice is taken need not be stated.

History (4)

Code 1858, § 5118
Shan., § 7081
mod. Code 1932, § 11626
T.C.A. (orig. ed.), § 40-1804.

§ 40-13-205. Description of common law crimes.

In an indictment for an offense which was indictable at common law, the offense may be charged or described substantially as at common law; or it will be sufficient to describe the offense according to the general rules laid down in this chapter.

History (4)

Code 1858, §§ 5119, 5120 (deriv. Acts 1829, ch. 23, § 72)
Shan., §§ 7082, 7083
mod. Code 1932, § 11627
T.C.A. (orig. ed.), § 40-1805.

§ 40-13-206. Alternative allegations.

(a) When the offense may be committed by different forms, by different means or with different intents, the forms, means or intents may be alleged in the same count in the alternative.
(b) When an act is criminal, if producing different results, the differing results may be charged in the same count in the alternative.

History (4)

Code 1858, § 5121
Shan., § 7084
mod. Code 1932, §§ 11628, 11629
T.C.A. (orig. ed.), §§ 40-1806, 40-1807.

§ 40-13-207. Time of offense.

The time at which the offense was committed need not be stated in the indictment, but the offense may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding of the indictment, unless the time is a material ingredient in the offense.

History (4)

Code 1858, § 5124
Shan., § 7087
Code 1932, § 11632
T.C.A. (orig. ed.), § 40-1808.

§ 40-13-208. Place of offense.

It is not necessary for the indictment to allege where the offense was committed, but the proof shall show a state of facts bringing the offense within the jurisdiction of the county in which the indictment was preferred.

History (4)

Code 1858, § 5125
Shan., § 7088
Code 1932, § 11633
T.C.A. (orig. ed.), § 40-1809.

§ 40-13-209. Allegation of ownership of property.

(a) When any property, upon or in relation to which the offense was committed:
1. (1) Belongs to several partners or owners, it is sufficient to allege the ownership to be in any one (1) or more of those partners or owners; or
2. (2) When the property is quasi public property, or belongs to an association, society or collection of individuals, such as churches, schoolhouses, lodges, etc., it is sufficient for the indictment to allege ownership in that association, society or collection of individuals by the name by which it is commonly known.
(b) It is sufficient to describe property in any manner which may sufficiently identify the property, upon or in relation to which the offense charged was committed.

History (4)

Code 1858, § 5127
Shan., § 7090
mod. Code 1932, § 11635
T.C.A. (orig. ed.), § 40-1810.

§ 40-13-210. Jurisdiction to support alleged judgment.

In pleading a judgment or other determination or proceeding before a court or officer, it is not necessary to state the facts conferring jurisdiction, but the judgment, determination or proceeding may be stated to have been duly given or made, but the facts required to give the jurisdiction shall appear on the trial.

History (4)

Code 1858, § 5128
Shan., § 7091
Code 1932, § 11636
T.C.A. (orig. ed.), § 40-1811.

§ 40-13-211. Description of instrument destroyed or withheld.

When an instrument which is the subject of an indictment has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment, and established on the trial, the misdescription of the instrument is immaterial.

History (4)

Code 1858, § 5132
Shan., § 7095
Code 1932, § 11640
T.C.A. (orig. ed.), § 40-1812.

§ 40-13-212. Alleging fraud.

(a) In all prosecutions for offenses where the fraudulent possession or concealment of the thing constitutes the offense, it shall be sufficient to allege in the indictment that the party charged did fraudulently keep in possession or conceal the thing, without averring the particular species of fraud the party intended to commit or that any particular person was intended to be defrauded.
(b) In indictments, when an intent to injure or defraud the public, and not a particular individual, is required to constitute the offense, it is sufficient to allege an intent to injure or defraud generally, without naming the particular person, state, government or body corporate intended to be defrauded.

History (5)

Code 1858, §§ 5126, 5134 (deriv. Acts 1829, ch. 23, §§ 73, 74
1841-1842, ch. 48, §§ 5, 6)
Shan., §§ 7089, 7097
Code 1932, §§ 11634, 11643
T.C.A. (orig. ed.), §§ 40-1813, 40-1814.

§ 40-13-213. Alleging perjury.

(a) In an indictment for perjury or subornation of perjury, it is not necessary to set forth in the pleadings either:
1. (1) Records or proceedings with which the oath is connected; or
2. (2) The commission or authority of the court or person before whom the perjury was committed.
(b) It is sufficient in a perjury case to give the substance of the controversy or matter in respect to which the offense was committed, in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned.

History (4)

Code 1858, §§ 5129, 5130 (deriv. 23 George II, ch. 11)
Shan., §§ 7092, 7093
Code 1932, §§ 11637, 11638
T.C.A. (orig. ed.), § 40-1815.

§ 40-13-214. Alleging libel.

An indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter upon which the indictment is founded, but it is sufficient to state generally that defamatory matter was published concerning the person and the fact that it was so published shall be established on trial.

History (4)

Code 1858, § 5131
Shan., § 7094
Code 1932, § 11639
T.C.A. (orig. ed.), § 40-1816.

§ 40-13-215. Alleging possession of counterfeit money.

In indictments for fraudulently keeping in possession or concealing counterfeit money or bank notes, it is not necessary to aver in the indictment that the party charged intended to pass or impose the counterfeit money or bank notes on the community as good money, but it shall appear in proof that the counterfeit money or bank notes were possessed or concealed with the fraudulent intent that they should get into circulation and with a knowledge that they were counterfeit.

History (4)

Code 1858, § 5135 (deriv. Acts 1841-1842, ch. 48, § 5)
Shan., § 7098
Code 1932, § 11644
T.C.A. (orig. ed.), § 40-1817.

§ 40-13-216. Alleging conspiracy.

Indictments for conspiracy framed under any of the provisions of title 39, chapter 12, part 1 shall not be held insufficient by reason of the general nature of the charges preferred or for embracing more than one (1) of the offenses in the same indictment.

History (5)

Acts 1897, ch. 52, § 2
Shan., § 6696a5
mod. Code 1932, § 11071
T.C.A. (orig. ed.), § 40-1818
Acts 1996, ch. 675, § 26.

§ 40-13-217. Alleging gaming.

(a) All laws made for the prevention, discouraging or suppression of gaming shall be construed as remedial and not penal statutes and no presentment or indictment in such case shall be quashed for want of form.
(b) In presentments and indictments for gaming, it is sufficient to charge the general name of the game at which the defendant or defendants played, without setting forth and describing with or against whom they may have bet or played.
(c) In prosecutions for keeping any gaming table or device under § 39-17-505, it is sufficient to charge that the defendant kept or exhibited, or was interested or concerned in keeping or exhibiting, a gaming table or device for gaming, without describing the table or device more particularly, or alleging in what manner the defendant was concerned in the keeping or exhibiting, or alleging or proving that any money was bet at the gaming table or device.

History (5)

Code 1858, §§ 4883, 4885, 5136 (deriv. Acts 1824, ch. 5, § 5)
Shan., §§ 6819, 6821, 7099
Code 1932, §§ 11292, 11293, 11645
T.C.A. (orig. ed.), §§ 40-1819 — 40-1821
Acts 1996, ch. 675, § 27.

§ 40-13-218. Alleging dealing in futures.

In all prosecutions for dealing in futures, no prosecutor shall be required and it is sufficient to charge that the defendant did game, wager or deal in futures, without setting forth with whom the defendant dealt, but the indictment or presentment shall charge a violation of some of the provisions of the section, either in terms or substance.

History (6)

Acts 1883, ch. 251, § 4
Shan., § 3169
Code 1932, § 7822
modified
T.C.A. (orig. ed.), § 40-1822
Acts 1996, ch. 675, § 28.

§ 40-13-219. Allegations concerning intoxicating liquor.

(a) In the prosecution for the purchase of intoxicating liquor in violation of title 39, chapter 17, part 7, it shall not be necessary to allege in the indictment or presentment or to prove the name of the person from whom the intoxicating liquors were bought.
(b) It shall not be necessary for the second or subsequent indictment or presentment for selling or tippling intoxicating liquors, bitters or other compounds in violation of title 39, chapter 17, part 7, to allege or charge a former indictment or presentment and conviction thereon for the violation. The original indictment or presentment and record of conviction or certified copies of the same from any circuit or criminal court shall be prima facie evidence of a former indictment or presentment and conviction on the indictment or presentment upon the trial for any second or subsequent violation of title 39, chapter 17, part 7.
(c) In any indictment or presentment for receiving, possessing or transporting intoxicants in violation of §§ 39-17-703 — 39-17-706, it shall not be necessary to negate the exceptions contained in those sections, or that the intoxicating liquor was received, possessed, shipped or transported for any of the purposes set out in § 39-17-705, but those exceptions may be relied upon as a defense and the burden of establishing the exception shall be upon the person claiming the benefit of the exception.

History (8)

Acts 1905, ch. 422, § 2
1917, ch. 5, § 2
1917, ch. 12, § 8
Shan., §§ 6795a5, 6795a8, 6798a15
Code 1932, §§ 11211, 11213, 11222
modified
T.C.A. (orig. ed.), §§ 40-1823 — 40-1825
Acts 1996, ch. 675, §§ 29-31.

§ 40-13-220. Alleging grave-robbing.

The indictment for the offense of unlawfully and willfully digging open a grave, or unlawfully and willfully taking up or carrying away the dead body, or any part of the body, need not specify what grave or whose dead body has been violated or disturbed.

History (4)

Code 1858, § 5137 (deriv. Acts 1831, ch. 81, § 2)
Shan., § 7100
Code 1932, § 11646
T.C.A. (orig. ed.), § 40-1826.

§ 40-13-221. Alleging embezzlement and breach of trust.

Any indictment charging a felonious taking or appropriation of the personal property of another, of any value, with intent to convert the property to the use of the defendant and to deprive the true owner of the property, shall be deemed a good and sufficient indictment for embezzlement or fraudulent breach of trust.

History (2)

Code 1932, § 11642
T.C.A. (orig. ed.), § 40-1828.

Part 3 Capias

§ 40-13-301. Capias for more than one offense.

(a) When a defendant is indicted for more than one (1) offense of the same class or grade, at the same term of the court, the clerk shall issue but one (1) capias to the same county, which shall specify on its face the number of cases for which the defendant or defendants are indicted, at that term of the court, of the same grade or class.
(b) The sheriff or other officer arresting the defendant or defendants shall, if bail is given, take bond in a sum sufficient to cover all the cases mentioned in the capias.
(c)
1. (1) If the county has the costs to pay, there shall be no fees taxed against the county for the several officers and clerks, but as of one (1) cost.
2. (2) However, if the defendant pays the costs, the court may order full costs to the several officers as if separate process had been issued and served throughout.

Backlinks (1)

8-8-201(b)(1)

History (4)

Acts 1859-1860, ch. 96, § 2
Shan., § 7066
Code 1932, § 11610
T.C.A. (orig. ed.), § 40-1903.

§ 40-13-302. Bail.

(a) Upon arrest made on a capias, if the offense is bailable, bail may be taken in the manner prescribed in chapter 11, part 1 of this title.
(b) After a defendant is committed to jail under a capias, if the offense is bailable, the defendant may be discharged upon giving bail as prescribed by chapter 11, part 1 of this title.

History (4)

Code 1858, §§ 5105, 5106 (deriv. Acts 1805, ch. 37)
Shan., §§ 7068, 7069
Code 1932, §§ 11612, 11613
T.C.A. (orig. ed.), §§ 40-1905, 40-1906.

§ 40-13-303. Mailing and filing of return.

(a) If served by an officer not of the county to which it is returnable, the return may be made by depositing the capias in any post office, sealed up, directed to the clerk of the court at the courthouse of the originating county with the title of the case endorsed on the envelope and the postage paid.
(b) The undertaking of bail, if any, shall also be returned with each capias.
(c) The postage paid upon process sent by mail shall constitute a part of the bill of costs.
(d) The clerk of the court to whom packages are addressed according to this section shall take them from the post office and file them without delay.

History (4)

Code 1858, §§ 5108-5111
Shan., §§ 7071-7074
Code 1932, §§ 11615-11618
T.C.A. (orig. ed.), §§ 40-1908 — 40-1911.

§ 40-13-304. Failure to execute capias.

Any sheriff failing to execute the capias, from want of due diligence, commits a Class C misdemeanor.

History (5)

Code 1858, § 5112
Shan., § 7075
Code 1932, § 11619
T.C.A. (orig. ed.), § 40-1912
Acts 1989, ch. 591, § 113.

Chapter 14 Rights of Defendants

Part 1 General Provisions

§ 40-14-101. Speedy trial — Right to be heard.

In all criminal prosecutions, the accused is entitled to a speedy trial and to be heard in person and by counsel.

Backlinks (1)

37-1-124(d)(7)(A)

History (4)

Code 1858, § 4992 (deriv. Const. 1834, art. 1, § 9)
Shan., § 6951
Code 1932, § 11492
T.C.A. (orig. ed.), § 40-2001.

§ 40-14-102. Right to counsel.

Every person accused of any crime or misdemeanor whatsoever is entitled to counsel in all matters necessary for the person's defense, as well to facts as to law.

History (4)

Code 1858, § 5205 (deriv. Acts 1794, ch. 1, § 71)
Shan., § 7169
Code 1932, § 11733
T.C.A. (orig. ed.), § 40-2002.

§ 40-14-103. Right to appointed counsel — Administrative fees.

(a) If unable to employ counsel, the defendant is entitled to have counsel appointed by the court.
(b)
1. (1) A defendant, who is provided with court-appointed counsel, including a defendant in a termination of parental rights case, shall be assessed by the court at the time of appointment a nonrefundable administrative fee in the amount of fifty dollars ($50.00). The administrative fee shall be assessed only one time per case and shall be waived or reduced by the court upon a finding that the defendant lacks financial resources sufficient to pay the fifty-dollar fee. The fee may be increased by the court to an amount not in excess of two hundred dollars ($200) upon a finding that the defendant possesses sufficient financial resources to pay the fee in the increased amount. The administrative fee shall be payable, at the court's discretion, in a lump sum or in installments; provided, however, that the fee shall be paid prior to disposition of the case or within two (2) weeks following appointment of counsel, whichever occurs first. Prior to disposition of the case, the clerk of the court shall inform the judge whether the administrative fee assessed by the court has been collected. Failure to pay the administrative fee assessed by the court shall not reduce or in any way affect the rendering of services by court-appointed counsel; provided, however, that the defendant's willful failure to pay the fee may be considered by the court as an enhancement factor when imposing sentence if the defendant is found guilty of criminal conduct, and may also be considered by the court as evidence of the defendant's financial responsibility, or lack thereof, in a determination of the best interest of the child.
2. (2) The administrative fee shall be separate from and in addition to any other contribution or recoupment assessed pursuant to law for defrayal of costs associated with the provision of court-appointed counsel. The clerk of the court shall retain a commission of five percent (5%) of each dollar of administrative fees collected and shall transmit the remaining ninety-five percent (95%) of each dollar to the state treasurer for deposit in the state's general fund.
3. (3) If the administrative fee is not paid prior to disposition of the case, then the fee shall be collected in the same manner as costs are collected; provided, however, that upon disposition of the case, moneys paid to the clerk, including any cash bond posted by the defendant, shall be allocated to taxes, costs and fines and then to the administrative fee and any recoupment ordered. The administrative fee and any recoupment or contribution ordered for the services of court-appointed counsel shall apply and shall be collected even if the charges against the defendant are dismissed.
4. (4) As part of the clerk's regular monthly report, each clerk of court, who is responsible for collecting administrative fees pursuant to this section, shall file a report with the court and with the administrative director of the courts. The report shall indicate the following:
  1. (A) Number of defendants for whom the court appointed counsel;
  2. (B) Number of defendants for whom the court waived the administrative fee;
  3. (C) Number of defendants from whom the clerk collected administrative fees;
  4. (D) Total amount of commissions retained by the clerk from the administrative fees; and
  5. (E) Total amount of administrative fees forwarded by the clerk to the state treasurer.

History (6)

Code 1858, § 5206
Shan., § 7170
Code 1932, § 11734
T.C.A. (orig. ed.), § 40-2003
Acts 1997, ch. 547, § 1
2010, ch. 1003, §§ 1, 2.

§ 40-14-104. Access of spouse and counsel.

The defendant's spouse and counsel, whether the counsel is employed by the defendant or appointed by the court, shall be allowed access to the defendant at all reasonable hours.

History (4)

Code 1858, § 5207
Shan., § 7171
Code 1932, § 11735
T.C.A. (orig. ed.), § 40-2004.

§ 40-14-105. Time before trial — Noncapital offenses.

Every person accused of any crime or misdemeanor whatsoever shall be entitled to fourteen (14) full days, Sundays and legal holidays excluded, after arrest and the return of the indictment or presentment before being tried for the offense.

Backlinks (3)

History (4)

Acts 1949, ch. 189, § 1
mod. C. Supp. 1950, § 11736.1 (Williams, § 11760.2)
Acts 1976, ch. 482, § 1
T.C.A. (orig. ed.), § 40-2005.

§ 40-14-106. Time before trial — Capital offenses.

Every person accused of any offense for which the punishment may be death shall be entitled to twenty-one (21) full days, Sundays and legal holidays excluded, after arrest and the return of the indictment or presentment before being tried for the offense.

Backlinks (3)

History (4)

Acts 1949, ch. 189, § 2
mod. C. Supp. 1950, § 11736.1 (Williams, § 11760.2)
Acts 1976, ch. 482, § 2
T.C.A. (orig. ed.), § 40-2006.

§ 40-14-107. Applicability of time allowance — Waiver.

(a) This section and §§ 40-14-105 and 40-14-106 only apply to criminal cases in a court of record.
(b) Nothing in this section, § 40-14-105 or § 40-14-106 shall prevent any person so indicted or presented from waiving the provisions of this section, § 40-14-105 or § 40-14-106.
(c) This section and §§ 40-14-105 and 40-14-106 do not apply to persons entering a plea of guilty.

History (3)

Acts 1949, ch. 189, § 3
C. Supp. 1950, § 11736.1 (Williams, § 11760.2)
T.C.A. (orig. ed.), § 40-2007.

§ 40-14-108. Continuance because of prejudicial excitement.

A continuance because of too great excitement to the prejudice of the defendant shall be in the sound discretion of the court.

History (4)

Acts 1875, ch. 6, § 1
Shan., § 7172
Code 1932, § 11736
T.C.A. (orig. ed.), § 40-2009.

§ 40-14-109. Domestic violence offenses — Notice to defendant.

(a) As used in this section, “domestic violence offense” means an offense that:
1. (1) Is classified as a misdemeanor in this state;
2. (2) Has as an element of the offense the use or attempted use of physical force or the threatened use of a deadly weapon; and
3. (3) Is committed by a:
  1. (A) Current or former spouse, parent, or guardian of the victim;
  2. (B) Person with whom the victim shares a child in common;
  3. (C) Person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or
  4. (D) Person similarly situated to a spouse, parent, or guardian of the victim.
(b) Before the court accepts the guilty plea of a defendant charged with a domestic violence offense, it shall notify the defendant of the following:
1. (1) Pursuant to § 39-17-1307(f)(1), and 18 U.S.C. § 922(g), it is a state and federal offense for a person convicted of a domestic violence offense, and who is still subject to the disabilities of such a conviction, to possess or purchase a firearm. This means that from the moment of conviction for a domestic violence offense, the defendant will never again be able to lawfully possess or buy a firearm of any kind;
2. (2) A defendant convicted of a domestic violence offense also must lawfully dispose of all firearms in the defendant's possession at the time of the conviction;
3. (3) If the defendant possesses firearms as business inventory or that are registered under the National Firearms Act (26 U.S.C. §§ 5801 et seq.), there are additional statutory provisions that may apply and these additional provisions will be included in the court's order; and
4. (4) A firearm subject to dispossession as the result of a domestic violence conviction will not be forfeited as provided in § 39-17-1317, unless the possession of the firearm prior to committing the domestic violence offense constituted an independent offense for which the defendant has been convicted, or the firearms are abandoned by the defendant.
(c) After informing the defendant of the firearm consequences of a conviction for a domestic violence offense pursuant to subsection (b), the court may accept the plea of guilty if the defendant clearly states on the record that the defendant is aware of the consequences of a conviction for a domestic violence offense and still wishes to enter a plea of guilty.
(d)
1. (1) If a defendant is not represented by an attorney but wishes to proceed to trial on a charge of committing a domestic violence offense, the court shall also inform the defendant of the consequences of a conviction for a domestic violence offense as provided in subsection (b).
2. (2) If a defendant is represented by an attorney and the defendant intends to proceed to trial on a charge of committing a domestic violence offense, prior to commencement of the trial, the judge shall inquire of the defendant's attorney if the attorney has advised the defendant of the consequences of a conviction for a domestic violence offense. If not, the judge shall instruct the attorney to so advise the defendant.
(e) If a defendant is found guilty by a jury or the court of a domestic violence offense, the court, immediately upon conviction, shall notify the defendant of the consequences of such a conviction as set out in subsection (b).

Backlinks (1)

39-13-111(c)(6)

History (2)

Acts 1997, ch. 176, § 1
2017, ch. 127, § 1.

Part 2 Counsel for Indigents

§ 40-14-201. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Indigent person” means any person who does not possess sufficient means to pay reasonable compensation for the services of a competent attorney; and
2. (2) “Public defender” means any attorney appointed or elected under any act of the general assembly or any provision of a metropolitan charter to represent indigent persons accused of crime.

Backlinks (4)

History (2)

Acts 1965, ch. 217, § 1
T.C.A., § 40-2014.

§ 40-14-202. Appointment by court.

(a) In all felony cases, if the accused is not represented by counsel and the court determines by the manner provided in subsection (b) that the accused is an indigent person who has not competently waived the right to counsel, the court shall appoint to represent the accused either the public defender, if there is one for the county, or, in the absence of a public defender, a competent attorney licensed in this state. The court may call upon any legal aid agency operating in conjunction with an accredited college of law to recommend attorneys for appointment under this part. The court may, upon its own motion or upon application of counsel appointed under this section, name additional attorneys to aid and assist in the defense. Each appointment of counsel shall be denoted by an appropriate entry upon the minutes of the court, which shall state the name of counsel and the date of counsel's appointment, but failure of the court to make such a minute entry shall not in any way invalidate the proceeding if an attorney was in fact appointed. Upon the appointment of an attorney under this section, no further proceeding shall be had until the attorney so appointed has had sufficient opportunity to prepare the case. If the court should determine that the accused is not an indigent person, the court shall then advise the accused with respect to the accused's right to counsel and afford the accused an opportunity to acquire counsel.
(b) Whenever an accused informs the court that the accused is financially unable to obtain the assistance of counsel, it is the duty of the court to conduct a full and complete hearing as to the financial ability of the accused to obtain the assistance of counsel and, thereafter, make a finding as to the indigency of the accused. All statements made by the accused seeking the appointment of counsel shall be by sworn testimony in open court or written affidavit sworn to before the judge.
Backlinks (1)
- 55-10-403(b)
(c) When making a finding as to the indigency of an accused, the court shall take into consideration:
1. (1) The nature of the services to be rendered;
2. (2) The usual and customary charges of an attorney in the community for rendering like or similar services;
3. (3) The income of the accused regardless of source;
4. (4) The poverty level income guidelines compiled and published by the United States department of labor;
5. (5) The ownership or equity in any real or personal property;
6. (6) The amount of the appearance or appeal bond, whether the party has been able to obtain release by making bond, and, if the party obtained release by making bond, the amount of money paid and the source of the money; and
7. (7) Any other circumstances presented to the court which are relevant to the issue of indigency.
Backlinks (2)
- 39-17-428(d)(1)
- 39-17-432(h)(2)
(d) If a social service agency services the criminal justice system of the judicial district, and the court has reasonable cause to believe the accused has the financial resources to employ counsel, the court shall order the agency to conduct an investigation into the financial affairs of the accused and report its findings directly to the court. The court shall consider the contents of the agency's report in making its determination and the report shall be made a part of the record in the cause.
(e) If the court appoints counsel to represent an accused in a felony case under this section or in a misdemeanor case as required by law, but finds the accused is financially able to defray a portion or all of the cost of the accused's representation, the court shall enter an order directing the party to pay into the registry of the clerk of the court any sum that the court determines the accused is able to pay. The sum shall be subject to execution as any other judgment and may also be made a condition of a discharge from probation. The court may provide for payments to be made at intervals, which the court shall establish, and upon terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances of the accused.
(f) The clerk of the court shall collect all moneys paid by an accused pursuant to this section. When the accused fails to comply with the orders of the court, the clerk shall notify the court of the accused's failure to comply. At the conclusion of the proceedings in the trial court, the court shall order the clerk to pay to the administrative office of the courts any funds that the clerk collected from the accused. The clerk of the court shall receive a commission of five percent (5%) of the moneys collected for the clerk's services in collecting, handling and making payment pursuant to the order of the court; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the commission shall be ten percent (10%).
(g) If a defendant has been ordered to pay all or a portion of the accused's representation pursuant to subsection (d), and if the administrative office of the courts receives funds paid pursuant to subsection (f) that are greater than the total amount which appointed counsel has claimed and has been reimbursed pursuant to Supreme Court Rule 13, then any such excess funds shall be paid to the appointed attorney.
(h) No court shall appoint a member of the general assembly as counsel for an indigent defendant unless the judge of the court certifies that no other equally competent attorney is available to represent the defendant. If the judge so certifies, it shall not be considered a conflict of interest for the member to represent the defendant or to be compensated for the representation in the same manner and amount as other court appointed attorneys.
(i)
1. (1) Every accused who informs the court that the accused is financially unable to obtain the assistance of counsel shall be required to complete the uniform affidavit of indigency.
2. (2) It is a Class A misdemeanor for any person to intentionally or knowingly misrepresent, falsify or withhold any information required by an affidavit of indigency.
(j) Before and during the trial of a criminal matter, the cover sheets that reflect the total fees and expenses paid to defense counsel and that reflect the total amount paid for expert services from public funds for the use in representing an indigent criminal defendant or prosecuting a criminal defendant are a public record. In addition, a record of the total amount paid to an expert from public funds is a public record if the expert has offered evidence and is known to the public because of testimony on the record. Before and during the trial of a criminal matter, detailed attorney fees and expense claims, motions and orders dealing with the authorization of expert services and detailed time sheets of undisclosed experts shall be sealed and unavailable for public inspection.

Backlinks (3)

History (9)

Acts 1965, ch. 217, § 4
1979, ch. 354, §§ 1, 2
T.C.A., § 40-2017
Acts 1986, ch. 878, §§ 1, 7
1992, ch. 892, § 1
1995, ch. 456, § 8
1996, ch. 865, § 1
1998, ch. 876, § 1
2010, ch. 754, §§ 1, 2.

§ 40-14-203. Scope of representation.

Any attorney appointed to represent any person under this part shall proceed to counsel with and represent the person at all stages of the proceedings before the court which appointed the attorney and also upon any appeal from the judgment of the court which imposes a prison sentence. Appointed counsel is required to represent the defendant only through the initial appellate review and is not required to pursue the matter through a second tier discretionary appeal by applying to the supreme court for writ of certiorari.

History (3)

Acts 1965, ch. 217, § 5
1976, ch. 645, § 1
T.C.A., § 40-2018.

§ 40-14-204. Proceedings for writs.

In all proceedings for the writ of habeas corpus or the writ of error coram nobis, the court having jurisdiction of those matters shall determine the question of indigency and appoint counsel, if necessary, in the manner set out in this part.

History (2)

Acts 1965, ch. 217, § 6
T.C.A., § 40-2019.

§ 40-14-205. Withdrawal of counsel — Replacement by court.

(a) The court may, upon good cause shown, permit an attorney appointed under this part to withdraw as counsel of record for the accused. If any attorney is permitted to withdraw, the court shall, in the manner contained in § 40-14-202, immediately appoint another attorney in the former attorney's place.
(b) The court may, upon its own motion, replace any attorney appointed under this part if the court deems replacement of the attorney necessary to preserve the rights of the accused.

History (2)

Acts 1965, ch. 217, §§ 7, 8
T.C.A., §§ 40-2020, 40-2021.

§ 40-14-206. Rules to be prescribed by supreme court.

The supreme court shall prescribe by rule the nature of the expenses for which reimbursement may be allowed under this part, and the limitations on and conditions for reimbursement as it deems appropriate and in the public interest, subject to this part. The rules shall also specify the form and content of applications for reimbursement or compensation to be filed under this part. The court may adopt other rules with regard to the accomplishment of the purposes of this part as it deems appropriate in the public interest. The rules shall provide for compensation for appointed counsel, not otherwise compensated, in all cases where appointment of counsel is required by law.

History (3)

Acts 1965, ch. 217, § 9
T.C.A., § 40-2022
Acts 1986, ch. 878, § 2.

§ 40-14-207. Compensation — Necessary services for indigent defendants.

(a) Other than public defenders and post-conviction defenders, attorneys appointed under this part shall be entitled to reasonable compensation for their services prior to trial, at trial, and during the appeal of the cause and shall be entitled to reimbursement for their reasonable and necessary expenses in accordance with the rules of the supreme court.
(b) In capital cases where the defendant has been found to be indigent by the court of record having jurisdiction of the case, the court in an ex parte hearing may, in its discretion, determine that investigative or expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected. If that determination is made, the court may grant prior authorization for these necessary services in a reasonable amount to be determined by the court. The authorization shall be evidenced by a signed order of the court. The order shall provide for the reimbursement of reasonable and necessary expenses by the administrative director of the courts as authorized by this part and rules promulgated thereunder by the supreme court.

Backlinks (2)

History (9)

Acts 1965, ch. 217, § 10
1973, ch. 248, § 1
T.C.A., § 40-2023
Acts 1984, ch. 925, § 1
1986, ch. 878, §§ 3, 4
1988, ch. 996, §§ 1-3
1992, ch. 965, § 2
1993, ch. 66, §§ 51, 52
2005, ch. 104, § 1.

§ 40-14-208. Applications for reimbursement or compensation.

(a) Each attorney seeking reimbursement or compensation under this part shall file an application with the trial court stating in detail the nature and amount of the expenses claimed, supporting the claim with receipts showing payment of the expenses and stating the nature and extent of services performed including those in connection with any preliminary hearing.
(b) Any attorney rendering services or incurring expenses incident to any appeal and seeking compensation or reimbursement therefor shall file an application with the appellate court stating in detail the matters required in applications to trial courts and any other information as the rules of the court require.
(c) All applications for compensation or reimbursement shall also state any payments made or to be made to the applicant by or on behalf of the accused, and the court, in fixing compensation, shall take those payments into account.
(d) A certified copy of the court order fixing any compensation or approving any expenses under this part, along with a true copy of the attorney's application, shall be forwarded to the administrative director of the courts, who shall audit and review the order and application, and upon finding payment to be in order, process the payment of compensation and expenses out of money appropriated for that purpose.

Backlinks (1)

8-14-105(g)

History (3)

Acts 1965, ch. 217, §§ 11-14
T.C.A., §§ 40-2024 — 40-2027
Acts 1993, ch. 66, § 53.

§ 40-14-209. Reimbursement for public defenders.

The state shall reimburse counties, metropolitan governments and municipalities having public defenders for the operation of the public defenders offices in accordance with procedures and subject to the limitations provided in § 8-14-110.

History (4)

Acts 1965, ch. 217, § 15
1978, ch. 859, § 1
T.C.A., § 40-2028
Acts 1992, ch. 965, § 3.

§ 40-14-210. Charges for defraying costs of representing indigent defendants.

(a)
1. (1) In every misdemeanor and felony prosecution instituted in counties having a population in excess of four hundred fifty thousand (450,000), according to the 1980 federal census or any subsequent federal census, there shall be collected a twelve-dollar-and-fifty-cent cost for the purpose of defraying the costs of legal representation and support services provided indigent defendants in criminal proceedings.
2. (2) This section shall take effect in counties with a population of not more than seven hundred fifty thousand (750,000) and not less than four hundred fifty thousand (450,000), according to the 1980 federal census, or any subsequent federal census upon approval by two-thirds (⅔) vote of the metropolitan council of Nashville-Davidson County.
3. (3) This section shall take effect in any county with approval by two-thirds (⅔) vote of the county legislative body.
(b) It is the duty of the clerk of every court having jurisdiction of state misdemeanors and felonies to include in every misdemeanor and felony cost bill the twelve-dollar-and-fifty-cent charge which shall be remitted to the county government, except in counties that are part of a multiple county judicial district as defined in § 16-2-506, in which case this charge shall be remitted to the office of the executive director of the district public defenders conference for the purpose of providing supplemental funding for the office of the district public defender within that judicial district. It is the legislative intent of this subsection (b) that these funds shall not revert to the state general fund but shall instead be carried forward for the purpose for which they were originally intended.
(c) All costs collected by county government pursuant to this section shall be used for providing representation and support services to indigent defendants in criminal proceedings.
(d) Any county may supplement the funds of the district public defender system to represent indigent defendants in criminal prosecution. The costs collected by the county under this section shall be supplemental and in addition to any funds received under this chapter or under title 8, chapter 14, relative to public defenders, for services rendered by the public defender and assistants to the indigent.
(e) This section does not apply to nonmoving traffic violations.
(f) In every misdemeanor and felony prosecution in which the privilege tax for the criminal injuries compensation fund established by § 40-24-107 is also levied, the cost imposed by this section shall not be construed as having priority over collection of that privilege tax.

History (6)

Acts 1982, ch. 726, § 1
T.C.A., § 40-2045
Acts 1983, ch. 343, §§ 1-3
1988, ch. 957, §§ 1, 2
1992, ch. 965, §§ 5, 6
2002, ch. 691, § 1.

Part 3 Transcripts and Court Reporters

§ 40-14-301. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Administrative director” means the administrative director of the courts;
2. (2) “Court” means any court of this state exercising jurisdiction over any criminal action which is punishable by confinement in the state penitentiary;
3. (3) “Criminal case” means the trial of any criminal offense which is punishable by confinement in the state penitentiary and any proceeding for the writ of habeas corpus wherein the unlawful confinement is alleged to be in a state, county or municipal institution; and
4. (4) “Judge” means the judge of any court of this state exercising jurisdiction over any criminal action which is punishable by confinement in the state penitentiary.

Backlinks (1)

40-14-317

History (3)

Acts 1965, ch. 221, § 1
T.C.A., § 40-2029
Acts 1993, ch. 66, § 54.

§ 40-14-302. Designation of reporters.

The judge of each court of this state shall designate one (1) or more persons to act as court reporters to serve at the pleasure of the judge. The number of reporters who may be so designated by each judge shall be determined by the administrative director.

Backlinks (2)

History (3)

Acts 1965, ch. 221, § 2
T.C.A., § 40-2030
Acts 1993, ch. 66, § 55.

§ 40-14-303. Qualifications of reporters — Seminars.

(a) The qualifications of court reporters shall be determined in accordance with standards formulated by the administrative director.
(b) The administrative director is authorized to conduct training or educational seminars for persons designated as court reporters pursuant to § 40-14-302 and to require their attendance at training or educational seminars.

History (4)

Acts 1965, ch. 221, § 3
T.C.A., § 40-2031
Acts 1985, ch. 14, § 1
1993, ch. 66, §§ 56, 57.

§ 40-14-304. Auxiliary reporters.

Each judge, with the approval of the administrative director, may designate auxiliary reporters who may serve when there is more reporting work than can be performed promptly by the regularly designated reporters or when the regularly designated reporters are unable to attend court. The auxiliary reporters shall be paid on a per diem basis under scales to be fixed by the administrative director.

History (3)

Acts 1965, ch. 221, § 4
T.C.A., § 40-2032
Acts 1993, ch. 66, § 58.

§ 40-14-305. Combination of duties.

If any judge and the administrative director find that it is in the public interest that the duties of the court reporter be combined with those of any other employee of the court or of the judge of the court, the administrative director may authorize the combination of duties and fix additional compensation for the performance of the added duties of acting as court reporter.

History (3)

Acts 1965, ch. 221, § 5
T.C.A., § 40-2033
Acts 1993, ch. 66, § 59.

§ 40-14-306. Approved reporting methods to be prescribed.

The administrative director shall prescribe or approve methods for the taking of verbatim records of proceedings under this part. Any such method shall be of a nature that an accurate written transcript can be prepared from that method.

History (3)

Acts 1965, ch. 221, § 6
T.C.A., § 40-2034
Acts 1993, ch. 66, § 60.

§ 40-14-307. Duties of designated reporter — Party permitted private reporter.

(a) A designated reporter shall attend every stage of each criminal case before the court and shall record verbatim, by a method prescribed or approved by the administrative director, all proceedings had in open court and other proceedings as the judge may direct. The reporter shall attach the reporter's official certificate to the records so taken and promptly file them with the clerk of the court, who shall preserve them as a part of the records of the trial.
(b) A party at the party's own expense may retain a reporter other than the reporter provided under this part to record and transcribe the proceedings and a transcript so prepared may be used for purpose of appeal, as provided by law.

History (3)

Acts 1965, ch. 221, § 7
T.C.A., § 40-2035
Acts 1993, ch. 66, § 61.

§ 40-14-308. Habeas corpus proceedings.

In the event a proceeding for the writ of habeas corpus is commenced in any court which has not authorized a court reporter under this part, the judge of that court shall immediately notify the administrative director of the commencement of the proceedings and the administrative director shall immediately arrange for a court reporter to record the proceedings. In courts where habeas corpus proceedings are filed on a recurring basis, the administrative director may make arrangements for reporters without the necessity of case-by-case notification by the judge.

History (3)

Acts 1965, ch. 221, § 8
T.C.A., § 40-2036
Acts 1993, ch. 66, § 62.

§ 40-14-309. Partial transcript of record.

Upon the direction of the court in the case of an indigent defendant or at the request of any party who has agreed to pay the fee for a transcript, a court reporter designated by the court shall transcribe from the original records the parts of the proceedings as are requested in the manner prescribed in the Tennessee Rules of Appellate Procedure.

History (3)

Acts 1965, ch. 221, § 9
1981, ch. 449, § 2
T.C.A., § 40-2037.

§ 40-14-310. Supervision of reporters.

The court reporters shall be subject to the supervision of the appointing judge in the performance of their duties, including dealings with the parties requesting transcripts. The administrative director may by rule prescribe reports to be filed by reporters.

History (3)

Acts 1965, ch. 221, § 10
T.C.A., § 40-2038
Acts 1993, ch. 66, § 63.

§ 40-14-311. Minimum compensation payable to court reporters.

The minimum compensation payable to court reporters with at least ten (10) years of experience or court reporters holding the designation licensed court reporter (LCR), as defined in § 20-9-602, issued by the Tennessee board of court reporting is set at the following rates:
1. (1) For a full-day appearance, three hundred fifty dollars ($350); and
2. (2) For a half-day appearance, one hundred seventy-five dollars ($175).

History (4)

Acts 1965, ch. 221, § 11
T.C.A., § 40-2039
Acts 1993, ch. 66, § 64
2019, ch. 467, § 1.

§ 40-14-312. Fees for transcripts — Transcripts for indigent defendants.

The fee rate that may be charged and collected by a court reporter for transcripts is four dollars ($4.00) per page. If the defendant prays and is granted an appeal and is determined by the trial judge to be without sufficient funds to pay for the preparation of the transcript of the proceedings, the trial judge shall direct the court reporter to furnish the defendant a complete transcript of the proceedings, the fee for which shall be paid by this state out of money appropriated for that purpose. The reporter may require any party requesting a transcript to pay the estimated fee in advance except as to transcripts which are to be paid for by this state.

History (4)

Acts 1965, ch. 221, § 12
T.C.A., § 40-2040
Acts 1993, ch. 66, § 65
2019, ch. 467, § 2.

§ 40-14-313. Rules — Application for fees and expenses.

The administrative director shall adopt rules to implement this part, which rules shall, among other things, prescribe the form and content of applications for the payment of all court reporter fees and other expenses charged to the state under this part. All applications shall be submitted to, audited and reviewed by the administrative director and shall be paid upon the administrative director's approval of the fees and expenses.

History (3)

Acts 1965, ch. 221, § 13
T.C.A., § 40-2041
Acts 1993, ch. 66, § 66.

§ 40-14-314. Recording equipment.

The administrative director is authorized, upon a determination of a need therefor and upon certification of a judge that no qualified court reporter is available to record the proceedings in any court in the judge's district, to purchase, out of money appropriated for that purpose, the recording equipment as may be necessary to carry out the purpose of this part and to formulate all necessary rules and regulations for its use, maintenance and replacement. Any certification by a judge and determination of need by the administrative director shall be reviewed not less than annually. If a qualified court reporter should become available to attend the court, it is the duty of the judge so to certify to the administrative director. Any recording equipment purchased under this section shall remain the property of the state of Tennessee and be under the direct control and supervision of the administrative director.

History (3)

Acts 1965, ch. 221, § 14
T.C.A., § 40-2042
Acts 1993, ch. 66, § 67.

§ 40-14-315. Contracts authorized for verbatim transcripts without using court reporters.

Whenever the administrative director and the judge or judges in a particular area determine that accurate verbatim transcripts could be more economically, expeditiously and efficiently provided in the particular area by entering into contracts for that purpose rather than by utilizing the designation of court reporters as provided in this part, then, in those instances, the administrative director is authorized to enter into those contracts for and on behalf of the state of Tennessee on the terms and conditions as the administrative director deems appropriate for the accomplishment of the purposes of this part.

History (3)

Acts 1965, ch. 221, § 15
T.C.A., § 40-2043
Acts 1993, ch. 66, § 68.

§ 40-14-316. Use of videotape equipment during preliminary stages preceding trial.

In addition to the use of videotape equipment to record court proceedings as set forth within Supreme Court Rule 26, the supreme court is authorized and encouraged to permit, in appropriate situations, the use of video equipment and recordings during the preliminary stages preceding trial for any criminal offense including, but not necessarily limited to, bail hearings, arraignments, hearings wherein a defendant's guilty plea is entered and accepted by the court without trial, and other proceedings before the criminal court preliminary to trial.

History (1)

Acts 1997, ch. 314, § 1.

§ 40-14-317. Defendant in criminal case entitled to court reporter.

Notwithstanding the Tennessee Supreme Court Rules, Rule 26 or any other law to the contrary, a defendant in a criminal case, as defined by § 40-14-301, is entitled to have a court reporter pursuant to § 40-14-302, or a licensed court reporter pursuant to title 20, chapter 9, part 6 to record verbatim all proceedings that occur in open court and such other proceedings as the judge may direct.

History (1)

Acts 2011, ch. 188, § 1.

Chapter 15 Pretrial Diversion

§ 40-15-101. Default of defendant.

(a) When a capias has been returned not to be found, and in felony cases when, before or after conviction, the defendant breaks jail or forfeits the bond for appearance, the court may strike the cause from the docket, and give judgment against the state for the costs as the state is bound to pay in case of nolle prosequi or acquittal of the defendant.
(b) The cause shall not be discontinued by such judgment. If the defendant is afterwards taken or comes into the state, a capias or other process shall run against the defendant and the case be proceeded with as if it had not been stricken from the docket.

History (4)

Code 1858, §§ 5193, 5194
Shan., §§ 7157, 7158
Code 1932, §§ 11719, 11720
T.C.A. (orig. ed.), §§ 40-2103, 40-2104.

§ 40-15-102. Pretrial diversion meetings.

The parties to any possible criminal trial may meet to discuss the possibility of pretrial diversion as contained in this part.

Backlinks (11)

History (2)

Acts 1975, ch. 352, § 1
T.C.A., § 40-2105.

§ 40-15-103. Deferring pending proceedings.

Upon stipulation of the parties, the court shall defer for a reasonable time any pending proceedings in the prosecution so that the procedures under §§ 40-15-102 — 40-15-105 may be pursued.

History (2)

Acts 1975, ch. 352, § 2
T.C.A., § 40-2106.

§ 40-15-104. Pretrial investigation.

(a) Upon stipulation of the parties, the trial court by order may direct any county, municipal or authorized private agency, available for this purpose, or the department of correction if no local agency is available, to conduct an investigation of the defendant's background. In counties having a metropolitan form of government and in counties having a population of over six hundred thousand (600,000), according to the 1970 federal census or any subsequent federal census, the county, municipal or authorized private agency shall conduct any investigation of the defendant's background, but, this sentence shall be implemented within the existing level of funding to the department of correction. The order shall specify the purpose and scope of the procedure and the matters to be covered, and shall direct that the results of any investigation be embodied in a written report, copies of which shall be made available to the parties.
(b) In counties where there is a pretrial release program in operation, the agency responsible for the operation of that program shall be the agency to conduct the background investigation ordered by the court, and the order shall so stipulate. In counties which have a local county probation officer paid for by local funds, the county probation officer shall be the agency responsible for conducting the background investigation as ordered by the trial court.

Backlinks (1)

40-15-105(b)(1)

History (5)

Acts 1975, ch. 352, § 3
1979, ch. 396, §§ 1-3
T.C.A., § 40-2107
Acts 1998, ch. 1049, §§ 17, 18
2012, ch. 727, § 11.

§ 40-15-105. Memorandum of understanding — Suspended prosecution.

(a)
1. (1)
  1. (A) A qualified defendant may, by a memorandum of understanding with the prosecution, agree that the prosecution will be suspended for a specified period, not to exceed two (2) years from the filing of the memorandum of understanding. As a condition of this suspension, the qualified defendant shall agree to pay ten dollars ($10.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant. The payments shall be made to the agency, department, program, group or association responsible for the supervision of defendant.
  2. (B) For purposes of this section, “qualified defendant” means a defendant who meets each of the following requirements:
    1. (i) The defendant has not previously been granted pretrial diversion under this chapter or judicial diversion under § 40-35-313;
    2. (ii) The defendant does not have a prior conviction for a Class A or B misdemeanor or for any class of felony; and
      Backlinks (1)
      
      40-32-101(f)(1)(E)(iv)
    3. (iii) The charged offense for which the prosecution is being suspended is not a felony or any of the following offenses:
      1. (a) Driving under the influence of an intoxicant as prohibited by § 55-10-401;
      2. (b) Any misdemeanor sexual offense prohibited by title 39, chapter 13, part 5;
      3. (c) Conspiracy, under § 39-12-103, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
      4. (d) Criminal attempt, under § 39-12-101, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
      5. (e) Solicitation, under § 39-12-102 to commit any Class D or Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
      6. (f) Child abuse or child neglect or endangerment as prohibited by § 39-15-401;
      7. (g) Domestic assault as prohibited by § 39-13-111; or
      8. (h) Any misdemeanor offense committed by any elected or appointed person or employee in the executive, legislative, or judicial branch of the state or any political subdivision of the state, which offense was committed in the person's official capacity or involved the duties of the person's office.
      Backlinks (1)
      
      40-32-101(f)(1)(E)(iv)
  3. (C) Notwithstanding the provisions of subdivision (a)(1)(A) to the contrary, in any county having a population in excess of eight hundred thousand (800,000), according to the 1990 federal census or any subsequent federal census, the defendant shall pay a fee of not less than ten dollars ($10.00) nor more than thirty-five dollars ($35.00) per month, as determined by the court.
2. (2) Prosecution of the defendant shall not be suspended unless the parties in the memorandum of understanding also agree that the defendant observe one (1) or more of the following conditions during the period in which the prosecution is suspended:
  1. (A) That the defendant not commit any offense;
  2. (B) That the defendant not engage in specified activities, conduct and associations bearing a relationship to the conduct upon which the charge against the defendant is based;
  3. (C) That the defendant participate in a supervised rehabilitation program which may include treatment, counseling, training and education;
  4. (D) That in the proper case the defendant make restitution in a specified manner for harm or loss caused by the offense, if restitution is within the defendant's capabilities;
  5. (E) That the defendant pay court costs in a specified manner;
  6. (F) That the defendant pay, in addition to the payment of ten dollars ($10.00) per month required by this section, any or all additional costs of the defendant's supervision, counseling or treatment in a specified manner based upon the defendant's ability to pay;
  7. (G) That the defendant reside in a designated place including, but not limited to, a residential facility for persons participating in a particular program of rehabilitation if residence there is necessary in order to participate fully in the program;
  8. (H) That the defendant behave in any specified manner consistent with good citizenship or other terms and conditions as may be agreed upon by the parties; and
  9. (I)
    1. (i) That for any memorandum entered into on or after July 1, 2014, the defendant use a transdermal monitoring device or other alternative monitoring device if, in the opinion of the district attorney general, the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If a memorandum entered into on or after July 1, 2016, requires the use of a transdermal monitoring device or other alternative monitoring device, before approving the memorandum, the judge shall determine if the defendant is indigent. If the court determines the defendant is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
    2. (ii) As used in this subdivision (a)(2)(I), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
3. (3) The memorandum of understanding may include stipulations concerning the admissibility in evidence of specified testimony, evidence or depositions if the suspension of the prosecution is terminated and there is a trial on the charge. The memorandum of understanding shall also include a statement of the defendant's version of the facts of the alleged offenses. The defendant's statement of the facts relative to the charged offenses shall not be admissible as substantive evidence in any civil or criminal proceeding against the defendant who made the statement. However, evidence of the statement is admissible as impeachment evidence against the defendant who made the statement in any criminal proceeding resulting from the termination of the memorandum of understanding pursuant to subsection (d). No other confession or admission of the defendant obtained during the pendency of and relative to the charges contained in the memorandum of understanding shall be admissible in evidence for any purpose, other than cross-examination of the defendant. The memorandum of understanding shall be in writing signed by the parties and shall state that the defendant waives the right to a speedy trial, and the right to be indicted at any particular term of court and after July 1, 2004, if the individual is charged with a violation of a criminal statute the elements of which constitute abuse, neglect or misappropriation of the property of a vulnerable person as defined in § 68-11-1002, the memorandum of understanding or diversion order contains a provision that the individual agrees without contest or any further notice or hearing that the individual's name shall be permanently placed on the registry governed by § 68-11-1003, a copy of which shall be forwarded to the department of health. This filing shall toll any applicable statute of limitations during the pendency of the diversionary period.
4. (4) The pretrial diversion procedures are authorized and a memorandum of understanding may be permitted in the municipal courts of home rule municipalities where the defendant is charged with a misdemeanor and does not have a previous misdemeanor or felony conviction within the five-year period after completing the sentence or probationary program for the prior conviction. The procedures in those municipal courts shall be subject to the same terms and conditions, including those related to expenses and costs, as set forth in this subsection (a), and any expenses and costs paid by the defendants shall be paid to the clerk of the municipal court in which the proceedings were held.
(b)
1. (1) Promptly after the memorandum of understanding is made, the prosecuting attorney shall file it with the court, together with a notice stating that pursuant to the memorandum of understanding of the parties under this section and §§ 40-15-102 — 40-15-104, the prosecution is suspended for a period specified in the notice. Upon this filing, if the defendant is in custody, the defendant may be released on bond or on the defendant's promise to appear if the suspension of prosecution is terminated and there is a trial on the charge. The memorandum of understanding must be approved by the trial court before it is of any force and effect.
2. (2) The trial court shall approve the memorandum of understanding unless the:
  1. (A) Prosecution has acted arbitrarily and capriciously;
  2. (B) Memorandum of understanding was obtained by fraud;
  3. (C) Diversion of the case is unlawful; or
  4. (D) Certificate from the Tennessee bureau of investigation required by § 40-15-106 is not attached.
3. (3) The defendant shall have a right to petition for a writ of certiorari to the trial court for an abuse of prosecutorial discretion. If the trial court finds that the prosecuting attorney has committed an abuse of discretion in failing to divert, the trial court may order the prosecuting attorney to place the defendant in a diversion status on the terms and conditions as the trial court may order. A defendant's diversion under such terms and circumstances may be terminated as provided by subsection (d) and shall be subject to all other provisions of this section.
(c) The parties by mutual consent may modify the terms of the memorandum of understanding at any time before its termination. Nothing in this section shall prohibit a behavioral contract or agreement setting out behavior or goals expected of and to be achieved by the defendant made between a counselor and defendant, but that agreement need not be filed with the court.
(d) The memorandum of understanding shall be terminated and the prosecution may resume as if there had been no memorandum of understanding if either the defendant or prosecuting attorney files a notice that the memorandum of understanding is terminated. If the memorandum of understanding is terminated by the prosecution, the defendant may petition the court to review the action of the prosecution to determine whether the prosecution acted arbitrarily, capriciously or abused its discretion to terminate. If the court so finds, it may order the defendant reinstated under the defendant's memorandum of understanding or order the pending charges dismissed with or without jeopardy attaching.
(e) The trial court shall dismiss with prejudice any warrant or charge against the defendant upon the expiration of ninety (90) days after the expiration of the period of suspension specified in the memorandum of understanding is filed; provided, that no termination of the memorandum of understanding has been filed under subsection (d). If the prosecution is dismissed with prejudice, jeopardy shall attach and the court shall make a minute entry to that effect. Upon dismissing any warrant or charge against the defendant pursuant to this section, the judge shall send or cause to be sent a copy of the order of dismissal to the Tennessee bureau of investigation for entry into its expunged criminal offender and pretrial diversion database; provided, however, that the court shall not be required to send to the bureau a copy of any dismissal order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order of dismissal shall include the name of the defendant, the defendant's date of birth and social security number, the offense for which diversion was granted, the date diversion was granted and the date the charge or warrant was dismissed.
Backlinks (1)
- 16-3-810

Backlinks (9)

History (25)

Acts 1975, ch. 352, § 4
1976, ch. 643, §§ 1-4
1979, ch. 376, §§ 1-3
1980, ch. 746, §§ 1-4
1981, ch. 439, §§ 1-3
T.C.A. § 40-2108
Acts 1983, ch. 193, §§ 1-3
1984, ch. 576, § 1
1990, ch. 980, § 20
1993, ch. 281, § 1
1995, ch. 508, § 1
1997, ch. 456, § 1
1998, ch. 1099, §§ 1-5
2000, ch. 645, § 1
2000, ch. 813, §§ 2-6
2003, ch. 323, § 1
2004, ch. 780, § 8
2007, ch. 471, §§ 1-3
2011, ch. 484, § 1
2012, ch. 766, § 1
2014, ch. 567, § 1
2016, ch. 586, § 1
2016, ch. 993, § 12
2017, ch. 93, § 1
2018, ch. 1046, § 3.

§ 40-15-106. Certification that defendant not disqualified by prior conviction, pretrial diversion or expunged offense.

(a) No memorandum of understanding may be approved by the court on or after July 1, 1998, unless there is attached to it a certificate from the Tennessee bureau of investigation stating that according to its expunged criminal offender and pretrial diversion database the defendant has not:
1. (1) Had a prior disqualifying felony or misdemeanor conviction;
2. (2) Previously been granted pretrial diversion under this chapter; and
3. (3) Had the public records of a disqualifying criminal offense that was dismissed expunged pursuant to chapter 32 of this title or § 40-35-313.
(b) The certificate provided by the bureau pursuant to this section is only a certification that according to its expunged criminal offender and pretrial diversion database the defendant is not disqualified under the criteria set out in subsection (a). The certificate is not a certification that the defendant is eligible for diversion pursuant to this chapter and it shall continue to be the duty of the district attorney general and judge to make sufficient inquiry into the defendant's background to determine diversion eligibility.

Backlinks (4)

History (1)

Acts 1998, ch. 1099, § 6.

§ 40-15-107. Uniform application for pretrial diversion.

The administrative office of the courts, in consultation with the Tennessee district attorneys general conference and the Tennessee association of criminal defense lawyers, shall create a statewide uniform application for use in pretrial diversion.

Backlinks (3)

History (1)

Acts 2000, ch. 813, § 1.

Chapter 16 Immunity From Prosecution

§ 40-16-101. Trial by court-martial as bar.

All members of the armed forces of the United States who have been tried and convicted or acquitted by a military court-martial for any offense constituting a misdemeanor under the laws of this state shall be immune from any criminal prosecution in any court of this state for the same offense for which they have been so tried. “Members of the armed forces of the United States” includes all officers and enlisted personnel of the army, navy, air force, marine corps and coast guard while on active duty and also includes any and all persons subject to trial by court-martial under the Uniform Code of Military Justice, whether a civilian, reservist, or member of any other federal agency.

History (2)

Acts 1953, ch. 108, §§ 1, 2 (Williams, § 11744.1)
T.C.A. (orig. ed.), § 40-2305.

§ 40-16-102. Conviction not barring prosecution for previous offenses.

A conviction, judgment and execution for any one (1) offense is no bar to a prosecution for any other public offense committed previously, not necessarily included in the offense for which the defendant was convicted.

History (4)

Code 1858, § 5274
Shan., § 7250
Code 1932, § 11856
T.C.A. (orig. ed.), § 40-2306.

Chapter 17 Evidence and Witnesses

Part 1 General Provisions

§ 40-17-101. Voice stress analysis inadmissible in criminal proceedings.

(a) As used in this section, “voice stress analysis” means the use of a device that has the ability to electronically analyze the responses of an individual to a specific set of questions and to record the analysis, both digitally and on a graph.
(b) Voice stress analysis and testimony regarding voice stress analysis shall not be admissible as evidence in any criminal proceeding.

History (1)

Acts 2014, ch. 928, § 2.

§ 40-17-102. Remote testimony by forensic analyst.

(a) As used in this section:
1. (1) “Forensic analyst” means an expert in the scientific detection of crime; and
2. (2) “Remote testimony” means any method by which a forensic analyst testifies from a location other than the location where the hearing or trial is being conducted and outside the physical presence of a party or parties.
(b) The court may permit remote testimony by a forensic analyst in any criminal proceeding only if:
1. (1) The state has provided a copy of any report produced by the forensic analyst that the state is seeking to admit into evidence through remote testimony to the defendant at least fifteen (15) days prior to the proceeding;
2. (2) The defendant agrees to permit remote testimony;
3. (3) The court finds that the defendant's agreement was knowing and voluntary; and
4. (4) The court and the state agree to permit remote testimony.
(c) Any remote testimony conducted under this section must allow all parties to observe the demeanor of the analyst as the analyst testifies in a similar manner as if the analyst were testifying in the location where the hearing or trial is being conducted. The court shall ensure that the defendant has a full and fair opportunity for examination and cross-examination of the analyst.

History (1)

Acts 2021, ch. 501, § 1.

§ 40-17-103. Failure of defendant to testify.

The failure of the party defendant to make a request to testify and to testify in the defendant's own behalf shall not create any presumption against the defendant.

History (4)

Acts 1887, ch. 79, § 2
Shan., § 5601
Code 1932, § 9783
T.C.A. (orig. ed.), § 40-2403.

§ 40-17-104. Petition for protective order prohibiting the defendant and defendant's counsel from publishing victim, informant, or witness's name, contact information, or statements at any time prior to or during trial — Issuance of protective order — Violation.

(a) If a district attorney general is required to disclose to the defendant information including the name, contact information, or statements of a victim of a sexual offense under title 39, chapter 13, part 5; law enforcement informant, or witness who is expected to testify against a defendant charged with a crime involving a weapon or the use of force, then the district attorney general may petition the court for a protective order prohibiting the defendant and the defendant's counsel from publishing the victim, informant, or witness's name, contact information, or statements at any time prior to or during the trial. The petition must:
1. (1) Be certified or supported by an affidavit of the victim, informant, or witness;
2. (2) Identify the specific information that should be subject to prohibition from publication; and
3. (3) Show good cause for issuing the protective order, which may include that allowing the defendant to publish the information is likely to result in coercion, intimidation, or harassment designed to discourage the victim, informant, or witness from testifying at trial or appearing as a witness.
(b) If, after reviewing the petition, the court finds there is good cause for prohibiting the publishing of the information, then the court shall issue the protective order expressly limiting the publication of the victim, informant, or witness's information at any time prior to or during the trial.
(c) This section does not restrict the right of a defendant or defendant's counsel to conduct an investigation or interviews to be used at trial.
(d) A person who knowingly violates a protective order issued pursuant to this section commits a Class E felony.

History (1)

Acts 2021, ch. 586, § 1.

§ 40-17-105. Meeting witnesses face to face — Compulsory process.

As provided by the Constitution of Tennessee, the accused, in all criminal prosecutions, has a right to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in the accused's favor.

History (4)

Code 1858, § 5377
Shan., § 7355
Code 1932, § 11959
T.C.A. (orig. ed.), § 40-2405.

§ 40-17-106. Endorsement of names of witnesses.

It is the duty of the district attorney general to endorse on each indictment or presentment, at the term at which the indictment or presentment is found, the names of the witnesses as the district attorney general intends shall be summoned in the cause, and sign each indictment or presentment name thereto.

History (5)

Code 1858, § 5596
Shan., § 7637
Code 1932, § 12266
modified
T.C.A. (orig. ed.), § 40-2047.

§ 40-17-107. Issuance of subpoenas by clerk.

(a) The clerk of the court in which a criminal cause is pending shall issue subpoenas, at any time, to any part of the state, for witnesses as either the district attorney general or the defendant may require.
(b) The clerk shall also issue a subpoena, without any application, for witnesses whose names are marked as witnesses by the district attorney general upon the indictment.
(c) The clerk shall issue no subpoena for a witness, on behalf of the state, except witnesses as are so marked or subsequently directed by the district attorney general, in writing, to be summoned.
(d) This section shall govern when a clerk is required to issue a subpoena in a criminal case in general sessions court. If any local rule of court conflicts with this section, this section shall prevail and the clerk shall issue subpoenas in accordance with this section.

History (6)

Code 1858, §§ 5381, 5382, 5597 (deriv. Acts 1822, ch. 40, § 1)
Shan., §§ 7359, 7360, 7641
Code 1932, §§ 11964, 11965, 12270
modified
T.C.A. (orig. ed.), §§ 40-2408 — 40-2410
Acts 1997, ch. 377, § 3.

§ 40-17-108. Date of attendance of witnesses.

(a) It is the duty of the clerks of the circuit and criminal courts to designate on the dockets of their several courts the days on which the criminal cases in those courts will be called for trial, subject to the direction and control of the judges of those courts, and subpoenas for witnesses shall require their attendance only upon the day designated for the trial of the particular case in which they are summoned.
(b) It is the duty of the clerks of the circuit or criminal court to subpoena witnesses in causes set for trial, to appear on the day fixed for trial, at the first term that the causes are placed upon the docket. It shall not be necessary to resubpoena the witnesses to subsequent terms, but they shall be required to attend at subsequent terms, upon the day fixed for the trial of the causes, and from day to day of the terms as required by the court, until the causes are disposed of.
(c) It is the duty of the district attorney general and the clerk, in summoning witnesses in state cases, to specify the day on which they are required to attend, and to use all proper precautions to diminish the cost as much as possible.
(d) If for any reason the case or cases so set for trial shall not be tried on the day fixed, it is the duty of the court, by special order, to designate some other day on which the case will be tried; and, in the absence of a special order, it shall not be necessary for witnesses to attend the court, and if they shall attend without a special order, it shall be at their own option. It is the duty of the district attorney general and the clerk to ensure that every reasonable effort has been made to notify witnesses of any change in the date set for trial. Notice shall be given at least ten (10) days in advance of the new date set for trial.

History (7)

Code 1858, § 5600 (deriv. Acts 1843, 1844, ch. 215, § 5)
Acts 1879, ch. 157, §§ 1, 2
Shan., §§ 7638, 7639, 7644
Code 1932, §§ 11966, 12267, 12268, 12273
modified
T.C.A. (orig. ed.), §§ 40-2411 — 40-2414
Acts 1983, ch. 333, § 1.

§ 40-17-109. Service of subpoena.

The subpoena is served by the same officers as the subpoena in civil cases.

History (4)

Code 1858, § 5384
Shan., § 7362
mod. Code 1932, § 11969
T.C.A. (orig. ed.), § 40-2415.

§ 40-17-110. Duration of attendance.

(a) Witnesses subpoenaed are bound to attend from term to term until the case is disposed of; but if a judgment is rendered in the case, which is reversed by the supreme court, or in the case of a mistrial, new subpoenas must be issued for the state witnesses, and also for the defendant's witnesses on the defendant's application.
(b) Witnesses shall so attend until discharged by law, by the court, or by the party by whom they are summoned.

History (2)

Code 1932, §§ 11967, 11968
T.C.A. (orig. ed.), §§ 40-2417, 40-2418.

§ 40-17-111. Forfeiture of recognizance on default.

The undertaking or recognizance of witnesses is forfeited and enforced like the undertaking and recognizance of bail as provided in §§ 29-32-107 — 29-32-109, 40-11-201, and 40-11-202.

History (4)

Code 1858, § 5387
Shan., § 7365
Code 1932, § 11972
T.C.A. (orig. ed.), § 40-2420.

§ 40-17-112. Fees for state witnesses.

All witnesses entitled to compensation under §§ 40-25-106 and 40-25-129 appearing for the state under subpoena, either before a magistrate or the grand jury, or on an indictment found, are to have the same compensation for their attendance as in civil cases, unless otherwise provided.

Backlinks (1)

40-25-129(c)(3)(A)

History (4)

Code 1858, § 5391 (deriv. Acts 1855-1856, ch. 63, § 2)
Shan., § 7366
mod. Code 1932, § 11973
T.C.A. (orig. ed.), § 40-2421.

§ 40-17-113. Fees allowed for days fixed by court — Maximum number of days.

No fees shall be allowed witnesses for attendance on any other day or days than those fixed in the subpoena or in orders of the court. Not more than three (3) days' attendance shall be taxed in any one (1) week in favor of any one (1) witness in one (1) case, except witnesses attending from other counties, unless required to remain more than three (3) days by order of the court.

History (4)

Acts 1879, ch. 157, § 2
Shan., § 7640
Code 1932, § 12269
T.C.A. (orig. ed.), § 40-2422.

§ 40-17-114. Proof of attendance.

The witness shall prove attendance, in open court, by oath before the clerk that the witness has not, directly or indirectly, personally procured summons as a witness, that the witness was legally summoned on behalf of the state and has verily attended the court, as a witness, the number of days claimed.

History (4)

Code 1858, § 5394
Shan., § 7369
Code 1932, § 11975
T.C.A. (orig. ed.), § 40-2424.

§ 40-17-115. Certification of fees to designated witnesses.

The district attorney general and judge shall not certify any witness fees against the state, except for those witnesses as shall be so endorsed or subsequently directed by the district attorney general, in writing, to be summoned, nor without actual inspection of the orders.

History (5)

Code 1858, § 5598
Shan., § 7642
Code 1932, § 12271
modified
T.C.A. (orig. ed.), § 40-2425.

§ 40-17-116. Certificate required for payment of witness fees.

The commissioner of finance and administration shall issue no warrant for the payment of costs of witnesses, unless the certificate of the judge and district attorney general show that the inspection took place.

History (9)

Code 1858, § 5599
Shan., § 7643
Code 1932, § 12272
impl. am. Acts 1937, ch. 33, §§ 24, 29
C. Supp. 1950, § 12272
modified
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
T.C.A. (orig. ed.), § 40-2426.

§ 40-17-117. Proof of incorporation.

(a) In the trial of criminal cases, it shall not be necessary for the state to prove the incorporation of any corporation mentioned in the indictment or presentment, unless the defendant within thirty (30) days after indictment or presentment, if defendant be under bond, or within thirty (30) days after arrest on capias, denies the existence of the corporation by a sworn plea.
(b) On all trials for offenses where the existence of a corporation must be shown, a legally authenticated copy of the charter of the corporation, or a book purporting to be the public statute book of the United States, or of the particular state in which the charter is printed, shall be prima facie evidence of the existence of the corporation.

History (4)

Code 1858, § 5379 (deriv. Acts 1829, ch. 23, § 70)
Shan., § 7357
Code 1932, §§ 11961, 11962
T.C.A. (orig. ed.), §§ 40-2439, 40-2440.

§ 40-17-118. Confiscated stolen property.

(a) Personal property confiscated as stolen property by a lawful officer of the state, a county or a municipality of the state to be held as evidence of a crime shall be promptly appraised, catalogued and photographed by the law enforcement agency retaining custody of the property.
(b) The lawful officer of the state, county or municipality, in order to detain the property from the lawful owner, for whatever reason, more than thirty (30) days, shall show cause to the judge having jurisdiction over the property by petition filed by the district attorney general upon five (5) days' notice to the property owner why the property should be further detained. The court may grant or refuse the requested impounding order upon the terms and conditions as are adjudged to be proper.
(c) The state, county or municipal authority holding the property shall be responsible for the return of the property to the lawful owner and shall be liable in damages to the owner of the property in the event of damage or destruction occasioned by the delay in the return of the property.

History (2)

Acts 1973, ch. 317, §§ 1-3
T.C.A. §§ 40-2442 — 40-2444.

§ 40-17-119. [Reserved.]

§ 40-17-120. Prior statements of witnesses — Requiring production.

(a) After a witness called by either the state or the defendant in a criminal case has testified on direct examination, the court shall, on motion, order the state or the defense to produce any statement of the witness in the state's or the defense's possession which relates to the subject matter as to which the witness has testified. Upon request by the state or the defense made upon calling a witness and in advance of direct testimony, the court shall first inspect the statement in camera to determine if it contains matter relating to the subject matter of the testimony. The court shall excise those portions which do not relate to the subject matter of the testimony; however, in the event of conviction and appeal, on motion by either party, the entire statement shall be made available to the reviewing courts. If the party calling a witness elects not to comply with this subsection (a), the court shall have the witness withdraw and shall not allow any direct testimony.
(b) “Statement,” as used in this section, means:
1. (1) A written statement made by a witness and signed, or otherwise adopted or approved by the witness; or
2. (2) A stenographic, mechanical, electrical or other recording of a statement, or a transcript or summary of the statement, which is an essentially verbatim recital of an oral statement made by the witness.

History (3)

Acts 1976, ch. 628, §§ 1, 2
1978, ch. 711, § 1
T.C.A. § 40-2446.

§ 40-17-121. Sexual penetration or contact — Victim under 13 years of age.

If the alleged victim of a sexual penetration or sexual contact within the meaning of § 39-13-501 is less than thirteen (13) years of age, the victim shall, regardless of consent, not be considered to be an accomplice to sexual penetration or sexual contact, and no corroboration of the alleged victim's testimony shall be required to secure a conviction if corroboration is necessary solely because the alleged victim consented.

History (1)

Acts 1991, ch. 253, § 1.

§ 40-17-122. Subpoenas — Rules of Criminal Procedure.

Rule 17 of the Rules of Criminal Procedure shall govern when a clerk or other authorized officer of the court is required to issue a subpoena in a criminal case in criminal court and the consequences of a person's refusal to appear, testify or produce evidence when subpoenaed shall be governed pursuant to that rule. If any local rule of court conflicts with Rule 17, Rule 17 shall prevail and the clerk or other authorized officer of the court shall issue subpoenas and the judge shall punish the refusal to respond to subpoenas in accordance with the rule.

History (1)

Acts 1997, ch. 377, § 4.

§ 40-17-123. Obtaining subpoena for production of documents or information — Required findings and duties — Self incrimination — Contempt.

(a) The following procedure shall be employed when a law enforcement officer, as defined in § 39-11-106, seeks to obtain a subpoena for the production of books, papers, records, documents, tangible things, or information and data electronically stored for the purpose of establishing, investigating or gathering evidence for the prosecution of a criminal offense.
(b) If the officer has reason to believe that a criminal offense has been committed or is being committed and that requiring the production of documents or information is necessary to establish who committed or is committing the offense or to aid in the investigation and prosecution of the person or persons believed to have committed or believed to be committing the offense, the officer shall prepare an affidavit in accordance with subsection (c).
(c) An affidavit in support of a request to compel the production of books, papers, records, documents, tangible things, or information and data electronically stored shall state with particularity the following:
1. (1) A statement that a specific criminal offense has been committed or is being committed and the nature of the criminal offense;
2. (2) The articulable reasons why the law enforcement officer believes the production of the documents requested will materially assist in the investigation of the specific offense committed or being committed;
3. (3) The custodian of the documents requested and the person, persons or corporation about whom the documents pertain;
4. (4) The specific documents requested to be included in the subpoena; and
5. (5) The nexus between the documents requested and the criminal offense committed or being committed.
(d)
1. (1) Upon preparing the affidavit, the law enforcement officer shall submit it to either a judge of a court of record or a general sessions judge who serves the officer's county of jurisdiction. The judge shall examine the affidavit and may examine the affiants under oath. The judge shall grant the request for a subpoena to produce the documents requested if the judge finds that the affiants have presented a reasonable basis for believing that:
  1. (A) A specific criminal offense has been committed or is being committed;
  2. (B) Production of the requested documents will materially assist law enforcement in the establishment or investigation of the offense;
  3. (C) There exists a clear and logical nexus between the documents requested and the offense committed or being committed; and
  4. (D) The scope of the request is not unreasonably broad or the documents unduly burdensome to produce.
2. (2) If the judge finds that all of the criteria set out in subdivision (d)(1) exist as to some of the documents requested but not all of them, the judge may grant the subpoena as to the documents that do, but deny it as to the ones that do not.
3. (3) If the judge finds that all of the criteria set out in subdivision (d)(1) do not exist as to any of the documents requested, the judge shall deny the request for subpoena.
(e) The affidavit filed in support of any request for the issuance of a subpoena pursuant to this section shall be filed with and maintained by the court. If a subpoena is issued as the result of an affidavit, the affidavit shall be kept under seal by the judge until a copy is requested by the district attorney general, criminal charges are filed in the case, or the affidavit is ordered released by a court of record for good cause.
(f) A subpoena granted pursuant to this section by a judge of a court of record shall issue to any part of the state and shall command the person, or designated agent for service of process, to whom it is directed to produce any books, papers, records, documents, tangible things, or information and data electronically stored that is specified in the subpoena, to the law enforcement officer and at any reasonable time and place that is designated in the subpoena. A subpoena granted pursuant to this section by a judge of a court of general sessions shall in all respects be like a subpoena granted by the judge of a court of record but shall issue only within the county in which the sessions judge has jurisdiction. The court shall prepare or cause to be prepared the subpoena and it shall describe the specific materials requested and set forth the date and manner the materials are to be delivered to the officer.
(g) If the subpoena is issued by a judge of a court of record, it may be served by the officer in any county of the state by personal service, registered mail, or by any other means with the consent of the person named in the subpoena. If the subpoena is issued by a judge of a general sessions court it shall be served by an officer with jurisdiction in the county of the issuing judge, but may be served by personal service, registered mail, or by any other means with the consent of the person named in the subpoena. The officer shall maintain a copy of the subpoena and endorse on the subpoena the date and manner of service as proof of service.
(h) No person shall be excused from complying with a subpoena for the production of documentary evidence issued pursuant to this section on the ground that production of the requested materials may tend to incriminate the person. Any person claiming a privilege against self incrimination must assert the claim before the court issuing the subpoena and before the time designated for compliance therewith. If the district attorney general thereafter certifies to the court that the interests of justice demands the production of the requested materials for which the claim of privilege is asserted, then the court shall order the production of the materials and no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning the requested materials the person was compelled to produce. If the person fails to assert the privilege against self-incrimination, the person may raise this issue later but will not be entitled to immunity from prosecution.
(i) No subpoena for the production of documentary evidence authorized by this section shall be directed to, or served upon, any defendant, or that defendant's counsel, to a criminal action in this state.
(j) If any person without cause refuses to produce the requested materials within the time and manner designated for compliance by the issuing judge, the district attorney may file a motion for civil contempt with the court with the motion and show cause order being served upon the person. The order shall designate a time and place for a hearing on the merits. If at the hearing the court finds that the person has willfully refused to produce the requested materials, the court may find that the person is in civil contempt and may assess sanctions accordingly including incarcerating the person with or without bond being set until compliance with the subpoena is satisfied. If the person fails to appear for the hearing, the court may issue a writ of attachment for the person.
(k) A person to whom a subpoena is directed may file a motion to quash or modify the subpoena upon a showing that compliance would be unreasonable or oppressive. The person shall file any such motion stating an objection to the subpoena with the clerk of the court for the issuing judge within seven (7) days of service of the subpoena. The filing of the motion shall stay all proceedings pending the outcome of a hearing before the issuing judge. The judge shall conduct the hearing within seven (7) days of the filing of the motion.
(l) Notwithstanding subsections (a)-(k), a subpoena shall also comply with the Financial Records Privacy Act, compiled in title 45, chapter 10, as to any records or persons covered by that Act.

History (1)

Acts 2002, ch. 849, § 11.

§ 40-17-124. Sex offenses where victim is less than thirteen (13) years of age.

(a) Notwithstanding any rule or statute to the contrary, in a criminal case:
1. (1) If the defendant is charged with any sex offense specified in §§ 39-13-502 — 39-13-506; 39-13-511, provided that the offense of public indecency or indecent exposure constitutes a Class A misdemeanor or Class E felony violation; 39-13-513 — 39-13-516; 39-13-522; 39-13-527; 39-13-528; or 39-15-302; or is charged with the offense of attempting, soliciting or conspiring to commit any sex offense;
2. (2) If the victim is less than thirteen (13) years of age;
3. (3) If the defendant possesses a prior conviction for any sex offense described in §§ 39-13-502 — 39-13-506 and 39-13-511; provided, that the offense of public indecency or indecent exposure constitutes a Class A misdemeanor or Class E felony violation, 39-13-513 — 39-13-516; 39-13-522; 39-13-527; 39-13-528; or 39-15-302, or a prior conviction for attempting, soliciting or conspiring to commit any sex offense; and
4. (4) If the victim of the prior offense was also less than thirteen (13) years of age;
5. then evidence of the defendant's prior conviction is admissible and may be considered for its bearing on any matter to which it is relevant, subject to Rule 403 of the Tennessee Rules of Evidence.
(b) Notwithstanding any rule or statute to the contrary, in a case in which the state intends to offer evidence under this section, the state shall disclose the evidence to the defendant including a summary of the substance of any testimony that is expected to be offered, at least fifteen (15) days before the scheduled date of trial or at a later time as the court may allow for good cause.
(c) Nothing in this section shall be construed to limit the admissibility or consideration of evidence under any other rule or statute.

History (1)

Acts 2004, ch. 817, § 1.

§ 40-17-125. Subpoena requiring production of documentation and testimony in investigations of offenses of sexual exploitation of a minor.

(a) In any investigation relating to the offenses of sexual exploitation of a minor, as defined in § 39-17-1003, aggravated sexual exploitation of a minor, as defined in § 39-17-1004, or especially aggravated sexual exploitation of a minor, as defined in § 39-17-1005, and upon reasonable cause to believe that an internet service account has been used in the exploitation or attempted exploitation of a minor, the district attorney general or an assistant district attorney general may issue in writing and cause to be served a subpoena requiring the production and testimony described in subsection (b).
(b) Except as provided in subsection (c), a subpoena issued under this section is authorized to require the production of any records or other documentation relevant to the investigation including:
1. (1) Name;
2. (2) Address;
3. (3) Local and long distance telephone connection records, or records of session times and durations;
4. (4) Length of service, including start date, and types of service utilized;
5. (5) Telephone or instrument number or other subscriber number of identity, including any temporarily assigned network address; and
6. (6) Means and source of payment for such service, including any credit card or bank account number.
(c) The provider of electronic communication service or remote computing service shall not disclose the following pursuant to a subpoena but may only do so pursuant to a warrant issued by a court of competent jurisdiction:
1. (1) In-transit electronic communications;
2. (2) Account memberships related to internet groups, newsgroups, mailing lists or specific areas of interest;
3. (3) Account passwords; and
4. (4) Account content to include:
  1. (A) Electronic mail in any form;
  2. (B) Address books, contact lists, or buddy lists;
  3. (C) Financial records;
  4. (D) Internet proxy content or internet history; and
  5. (E) Files or other digital documents stored within the account or pursuant to use of the account.
(d) At any time before the return date specified on the subpoena, the person summoned may, in the general sessions court of the county in which the person resides or does business, petition for an order modifying or quashing the subpoena, or a prohibition of disclosure by a court.
(e) A subpoena under this section shall describe the objects required to be produced and shall prescribe a return date within a reasonable period of time within which the objects can be assembled and made available.
(f) If no case or proceeding arises from the production of records or other documentation pursuant to this section within a reasonable time after those records or documentation are produced, the district attorney general shall either destroy the records and documentation or return them to the person who produced them.
(g) A subpoena issued under this section may be served by any person who is authorized to serve process under the Tennessee Rules of Civil Procedure and such subpoena shall be served in accordance with such rules.
(h) Each district attorney general shall annually report the following information to the judiciary committee of the senate and the criminal justice committee of the house of representatives no later than February 1 for the preceding calendar year:
1. (1) The number of requests for administrative subpoenas made under this section;
2. (2) The number of administrative subpoenas issued under this section;
3. (3) The number of administrative subpoenas issued under this section that were contested;
4. (4) The number of administrative subpoenas issued under this section that were quashed or modified;
5. (5) The number of search warrants that were issued as a consequence of the issuance of an administrative subpoena under this section; and
6. (6) The number of individuals who were prosecuted under §§ 39-17-1003, 39-17-1004, and 39-17-1005 following the issuance of an administrative subpoena under this section.
(i) Except as provided in subsection (h), any information, records or data reported or obtained pursuant to a subpoena issued pursuant to this section shall remain confidential and shall not be further disclosed unless in connection with a criminal case related to the subpoenaed materials.

History (4)

Acts 2010, ch. 613, § 1
2013, ch. 236, § 35
2019, ch. 345, § 56
2021, ch. 64, § 48.

Part 2 Uniform Law to Secure Attendance of Witnesses

§ 40-17-201. Short title.

This part shall be known and may be cited as the “Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.”

Backlinks (1)

24-4-106(a)

History (3)

Acts 1939, ch. 148, § 1
C. Supp. 1950, § 11979.1
T.C.A. (orig. ed.), § 40-2429.

§ 40-17-202. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “State” includes any territory of the United States and the District of Columbia;
2. (2) “Summons” includes a subpoena, order or other notice requiring the appearance of a witness; and
3. (3) “Witness” includes a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.

History (3)

Acts 1939, ch. 148, § 2
C. Supp. 1950, § 11979.2
T.C.A. (orig. ed.), § 40-2430.

§ 40-17-203. Hearing on summons of witness to testify in another state.

If a judge of a court of record in any state, which by its laws has made provision for commanding persons within that state to attend and testify in this state, certifies under the seal of the court that there is a criminal prosecution pending in the court, or that a grand jury investigation has commenced or is about to commence, and that a person being within this state is a material witness in the prosecution or grand jury investigation, and that the witness's presence will be required for a specified number of days, upon presentation of the certificate to any judge of a court of record in the county in which the person is found, the judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

Backlinks (1)

40-17-206

History (3)

Acts 1939, ch. 148, § 3
C. Supp. 1950, § 11979.3
T.C.A. (orig. ed.), § 40-2431.

§ 40-17-204. Issuance of summons.

If, at a hearing, the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending or grand jury investigation has commenced or is about to commence, and of any other state through which the witness may be required to pass by ordinary course of travel, will give to the witness protection from arrest and the service of civil and criminal process, the judge shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending or where a grand jury investigation has commenced or is about to commence, at a time and place specified in the summons. In any such hearing, the certificate shall be prima facie evidence of all the facts stated in the certificate.

History (3)

Acts 1939, ch. 148, § 3
C. Supp. 1950, § 11979.3
T.C.A. (orig. ed.), § 40-2432.

§ 40-17-205. Ordering witness into custody.

If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure the witness's attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be immediately brought before the judge for the hearing. The judge at the hearing, being satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof, may, in lieu of issuing a subpoena or summons, order that the witness be taken into custody immediately and delivered to an officer of the requesting state.

Backlinks (1)

40-17-206

History (3)

Acts 1939, ch. 148, § 3
C. Supp. 1950, § 11979.3
T.C.A. (orig. ed.), § 40-2433.

§ 40-17-206. Penalty for failure to obey summons.

If the witness who is summoned as provided in §§ 40-17-203 — 40-17-205, after being paid or tendered, by some properly authorized person, compensation in accordance with title 24, chapter 4 for expenses incurred for each day the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Backlinks (1)

24-4-106(b)

History (5)

Acts 1939, ch. 148, § 3
C. Supp. 1950, § 11979.3
Acts 1971, ch. 119, § 1
1979, ch. 392, § 3
T.C.A. (orig. ed.), § 40-2434.

§ 40-17-207. Certificate recommending summons of witness from another state.

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure the witness' attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

History (3)

Acts 1939, ch. 148, § 4
C. Supp. 1950, § 11979.4
T.C.A. (orig. ed.), § 40-2435.

§ 40-17-208. Witness fees — Failure to testify after coming into state.

If the witness is summoned to attend and testify in this state, the witness shall be tendered compensation for expenses so incurred in accordance with title 24, chapter 4. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If the witness, after coming into this state, fails without good cause to attend and testify, as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Backlinks (1)

24-4-106(b)

History (5)

Acts 1939, ch. 148, § 4
C. Supp. 1950, § 11979.4
Acts 1971, ch. 119, § 1
1979, ch. 392, § 4
T.C.A. (orig. ed.), § 40-2436.

§ 40-17-209. Immunities of witnesses entering or passing through state on summons.

(a) If a person comes into this state in obedience to a summons directing the witness to attend and testify in this state, the witness shall not, while in this state pursuant to the summons, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before the witness's entrance into this state under the summons.
(b) If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state, or while returning from that other state, the witness shall not, while so passing through this state, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before the witness's entrance into this state under the summons.

History (3)

Acts 1939, ch. 148, § 5
C. Supp. 1950, § 11979.5
T.C.A. (orig. ed.), § 40-2437.

§ 40-17-210. Uniformity of construction.

This part shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.

Backlinks (1)

24-4-106(a)

History (3)

Acts 1939, ch. 148, § 6
C. Supp. 1950, § 11979.6
T.C.A. (orig. ed.), § 40-2438.

§ 40-17-211. Prisoners as witnesses in criminal proceedings in a state other than that in which they are confined.

(a) If a judge of a court of record in any other state, which by its laws has made provision for commanding a prisoner within that state to attend and testify in this state, certifies under the seal of the court that:
1. (1) There is a criminal prosecution pending in that court or that a grand jury investigation has commenced;
2. (2) A person convicted, sentenced and confined in a state or local custodial facility, other than a person awaiting execution of a sentence of death, is a material witness in the prosecution or investigation; and
3. (3) The person's presence is required for a specific number of days;
4. a judge of a court with jurisdiction to try felony cases in the county where the person is confined, after notice to the district attorney general, shall fix a time and place for a hearing and shall order the person having custody of the prisoner to produce the prisoner at the hearing.
(b) If, at that hearing, the judge determines that the prisoner is a material and necessary witness in the requesting state, the judge shall issue an order directing that the prisoner attend the court where the prosecution or investigation is pending, upon the terms and conditions as the judge prescribes, including:
1. (1) Provision for the return of the prisoner at the conclusion of the prisoner's testimony;
2. (2) Proper safeguards on the prisoner's custody; and
3. (3) Proper financial reimbursement or other payment by the demanding jurisdiction for all expenses incurred in the production and return of the prisoner.
(c) The district attorney general is authorized to enter into agreements with authorities of the demanding jurisdiction to ensure proper compliance with the order of the court.
(d) When a criminal action is pending in a court of record of this state by reason of the filing of an indictment or presentment or by reason of the commencement of a grand jury proceeding or investigation, if:
1. (1) There is reasonable cause to believe that a person convicted, sentenced and confined in a state or local custodial facility of another state, other than a person awaiting execution of a sentence of death or one confined as mentally ill, possesses information material to the criminal action;
2. (2) The attendance of the person as a witness in the action is desired by a party; and
3. (3) The state in which the person is confined possesses a statute equivalent to this section;
4. a judge of the court in which the action is pending may issue a certificate certifying all the facts and that the attendance of the person as a witness in the court is required for a specific number of days. The certificate may be issued upon application of either the state or defendant demonstrating all the facts specified in this section.
(e) Upon issuing a certificate, the court shall deliver it, or cause or authorize it to be delivered, to a court of the other state which, pursuant to the laws of that state, is authorized to undertake legal action for the delivery of the prisoner to this state as a witness.

History (1)

Acts 1990, ch. 697, § 1.

§ 40-17-212. Request for attendance of federal prisoner as witness in state criminal proceedings.

(a) When a criminal action is pending in a court of record of this state by reason of the filing of an indictment or presentment or by reason of the commencement of a grand jury proceeding or investigation, if:
1. (1) There is reasonable cause to believe that a person confined in a federal prison or other federal custody, either within or outside this state, possesses information material to criminal action; and
2. (2) The attendance of the person as a witness in the action is desired by a party;
3. the court may issue a certificate, known as a writ of habeas corpus ad testificandum, addressed to the attorney general of the United States certifying all such facts and requesting the attorney general to cause the attendance of the person as a witness in that court for a specified number of days.
(b) The certificate may be issued upon application of either the state or defendant demonstrating all the facts specified in this section.
(c) Upon issuing the certificate, the court shall deliver it, or cause or authorize it to be delivered, to the attorney general or to the attorney general's representative authorized to entertain the request.

History (1)

Acts 1990, ch. 697, § 1.

Chapter 18 Trial and Verdict

§ 40-18-101. Designation of state's day.

It is the duty of the judge of each circuit court to designate a day or days of the term, to be known as the state's day, on which to take up the criminal docket, and to dispose of criminal cases.

History (4)

Code 1858, § 5594 (deriv. Acts 1843-1844, ch. 215, § 5)
Shan., § 7635
mod. Code 1932, § 12264
T.C.A. (orig. ed.), § 40-2501.

§ 40-18-102. Rules of practice.

It is the duty of the judge of each circuit court to adopt such rules of practice in the trial of criminal cases, from time to time, as may tend to diminish the costs of criminal cases.

History (4)

Code 1858, § 5595 (deriv. Acts 1843-1844, ch. 215, § 5)
Shan., § 7636
Code 1932, § 12265
T.C.A. (orig. ed.), § 40-2502.

§ 40-18-103. Time for trial — Continuance. [Obsolete except for persons previously convicted of Class X felonies.]

(a) Except as otherwise provided by this section, any charge of a Class X felony shall be tried within one hundred fifty (150) days following arraignment unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to § 33-7-301, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal.
(b) Where the indictment charges a Class X felony, the trial court, in its discretion, may continue the action only upon the filing of an affidavit by the party seeking the continuance demonstrating that a manifest injustice will result if the action is not continued. Whenever the trial of a Class X felony is continued, it shall within thirty (30) days be set for trial unless the court will not be in session or unless another trial date has been agreed to by the parties and approved by the court. This continuance may be from term to term. The trial court may continue a trial pursuant to this subsection (b) on its own motion if the trial of another Class X felony is in progress at the time set for trial or has been set to conflict with the time needed to try a criminal case where both parties agree.
(c) Upon good cause shown, either before or after the indictment on a charge other than a Class X felony, the trial court may order the action to be continued from term to term and, in the meantime, may discharge the defendant from custody on the defendant's own undertaking, or on the undertaking of bail for appearance to answer the charge at the time to which the action is continued.
(d) Upon the motion of a member of the general assembly qualified to make a motion under this section, or the member's attorney or representative, a continuance shall be granted by the trial court at any stage of any action, if it is shown to the satisfaction of the court that an attorney, party or material witness in a criminal prosecution is a member of the general assembly and that:
1. (1) The general assembly is in annual regular session or special session; or
2. (2) The attorney, party or material witness would be required to be absent from any meeting of a legislative committee while the general assembly is not in session if a continuance is not granted.
(e) Failure to comply with subsections (a)-(d) shall not act to require release of a defendant from custody or a dismissal or withdrawal of charges.
(f) Any hearing on a motion for a new trial or on any subsequent appeal, the hearing or trial shall be set, and shall be subject to continuance, substantially in conformity with this section in order to provide for an expedited hearing.

History (7)

Code 1858, § 5192
Shan., § 7156
Code 1932, § 11718
Acts 1971, ch. 121, § 1
1979, ch. 318, § 19
1981, ch. 62, § 1
T.C.A. (orig. ed.), § 40-2503.

§ 40-18-104. Drawing of jurors' names.

The names of the jurors are written on separate scrolls, placed in a box or other receptacle, and drawn out by a child under ten (10) years of age, by the judge, or some person agreed upon by the district attorney general and the defendant.

History (5)

Code 1858, § 5213
Shan., § 7182
Code 1932, § 11746
modified
T.C.A. (orig. ed.), § 40-2506.

§ 40-18-105. Challenge of juror acting as bail.

A challenge to an individual juror, grand or petit, may be made by the state because the juror is surety on the bail undertaking of any person whose case will come before the jury on which service is required.

History (2)

Code 1932, § 10013
T.C.A. (orig. ed.), § 40-2508.

§ 40-18-106. Jurors sworn together.

In impaneling a jury for the trial of any felony, the court shall not swear any of the jurors until the whole number is selected for a jury.

History (4)

Code 1858, § 5215 (deriv. Acts 1817, ch. 171 (172 in Scott's Revisal), § 6)
Shan., § 7184
Code 1932, § 11748
T.C.A. (orig. ed.), § 40-2511.

§ 40-18-107. Boarding jurors.

(a) When, in the judgment of the court trying criminal cases, wholesome food and proper lodging cannot be provided for the petit jurors for a lesser sum, the court shall have the power to make arrangements to provide the jurors with proper board and lodging while serving on the jury, and to pay for board and lodging daily a sum not to exceed one thousand dollars ($1,000) per jury per day of service.
(b) Notwithstanding subsection (a), if a judicial proceeding is transferred from one jurisdiction to another for trial on a defendant's motion for change of venue, then the limitation of one thousand dollars ($1,000) for the board and lodging of the jury shall not apply; provided, that the comptroller of the treasury, on the advice of the attorney general and reporter, determines that additional funds for boarding and lodging of the jury are necessary.

Backlinks (1)

40-25-129(a)(3)(B)

History (12)

Acts 1919, ch. 27
Shan. Supp., § 5844
Code 1932, § 10044
mod. C. Supp. 1950, § 10044
Acts 1963, ch. 164, § 1
1971, ch. 325, § 1
1982, ch. 926, § 1
T.C.A. (orig. ed.), § 40-2512
Acts 1983, ch. 455, § 1
1984, ch. 981, §§ 1, 2
2006, ch. 898, § 1
2013, ch. 454, § 23.

§ 40-18-108. Discharge of jury.

A final adjournment of the court discharges the jury.

History (5)

Code 1858, §§ 5218, 5219
Shan., §§ 7191, 7192
Code 1932, §§ 11754, 11755
T.C.A. (orig. ed.), §§ 40-2513, 40-2514
Acts 2008, ch. 1159, § 4.

§ 40-18-109. Retrial after discharge of jury.

In all cases where a jury is legally discharged, the case may be again tried at the same or another term of the court.

History (4)

Code 1858, § 5221
Shan., § 7194
Code 1932, § 11757
T.C.A. (orig. ed.), § 40-2515.

§ 40-18-110. Charge as to lesser included offenses — Written request.

(a) When requested by a party in writing prior to the trial judge's instructions to the jury in a criminal case, the trial judge shall instruct the jury as to the law of each offense specifically identified in the request that is a lesser included offense of the offense charged in the indictment or presentment. However, the trial judge shall not instruct the jury as to any lesser included offense unless the judge determines that the record contains any evidence which reasonable minds could accept as to the lesser included offense. In making this determination, the trial judge shall view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgment on the credibility of evidence. The trial judge shall also determine whether the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser included offense.
(b) In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any lesser included offense charge.
(c) Notwithstanding any other provision of law to the contrary, when the defendant fails to request the instruction of a lesser included offense as required by this section, the lesser included offense instruction is waived. Absent a written request, the failure of a trial judge to instruct the jury on any lesser included offense may not be presented as a ground for relief either in a motion for a new trial or on appeal.
(d) Prior to instructing the jury on the law, the trial judge shall give the parties an opportunity to object to the proposed lesser included offense instructions. If the defendant fails to object to a lesser included offense instruction, the inclusion of that lesser included offense instruction may not be presented as a ground for relief either in a motion for a new trial or on appeal. Where the defendant objects to an instruction on a lesser included offense and the judge does not instruct the jury on that offense, the objection shall constitute a waiver of any objection in the motion for a new trial or on appeal concerning the failure to instruct on that lesser included offense. The defendant's objection shall not prevent the district attorney general from requesting lesser included offense instructions or prevent the judge from instructing on lesser included offenses.
(e) When the defendant requests an instruction on a lesser included offense, the judge may condition the instruction on the defendant's consent to an amendment to the indictment or presentment, with the consent of the district attorney general, so that if there is a conviction for the requested lesser offense the request shall constitute a waiver of any objection in the motion for new trial and on appeal. The defendant may be required to execute a written document actually consenting to the amendment so that there may be a lawful conviction for the lesser offense. If the district attorney general does not consent to the amendment, the defendant may raise the issue of failure to give the requested charge on appeal. This subsection (e) shall not be construed as requiring an instruction on a lesser offense.
(f) An offense is a lesser included offense if:
1. (1) All of its statutory elements are included within the statutory elements of the offense charged;
2. (2) The offense is facilitation of the offense charged or of an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1);
3. (3) The offense is an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1); or
4. (4) The offense is solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1).
(g)
1. (1) Second degree murder is a lesser included offense of first degree murder as defined in § 39-13-202.
2. (2) Voluntary manslaughter is a lesser included offense of premeditated first degree murder and second degree murder.
3. (3) Aggravated sexual battery is a lesser included offense of aggravated rape, aggravated rape of a child, and rape of a child.
4. (4) Sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape.

History (8)

Acts 1877, ch. 85, § 1
Shan., § 7188
Code 1932, § 11751
Acts 1979, ch. 318, § 25
T.C.A. (orig. ed.), § 40-2518
Acts 2001, ch. 338, § 1
2009, ch. 439, § 1
2016, ch. 671, § 1.

§ 40-18-111. General verdict of guilty.

A general verdict of guilty will be sustained if there is any one (1) good count in the indictment sustained by proof, although the other counts may be fatally defective.

History (4)

Code 1858, § 5217
Shan., § 7190
Code 1932, § 11753
T.C.A. (orig. ed.), § 40-2519.

§ 40-18-112. Uncertainty as to intent or means of offense.

Where the intent with which, the mode in, or the means by which, an act is done are essential to the commission of the offense, and the offense may be committed with different intents, in different modes, or by different means, if the jury is satisfied that the act was committed with one (1) of the intents, in one (1) of the modes, or by either of the means charged, the jury shall convict, although uncertain as to which of the intents charged existed, or which mode, or by which of the means charged, the act was committed.

History (4)

Code 1858, § 5123
Shan., § 7086
Code 1932, § 11631
T.C.A. (orig. ed), § 40-2522.

§ 40-18-113. Multiple defendants.

(a) Upon an indictment against several defendants, any one (1) or more may be convicted or acquitted.
(b) In an indictment against several defendants, if the jury cannot agree upon a verdict as to all, the jury may render a verdict as to those defendants in regard to whom the jury agrees, on which a judgment shall be entered.

History (4)

Code 1858, §§ 5216, 5220
Shan., §§ 7189, 7193
Code 1932, §§ 11752, 11756
T.C.A. (orig. ed.), §§ 40-2523, 40-2524.

§ 40-18-114. Assessment of fine by jury.

Where an indictable offense is punished by fine, or by fine and imprisonment, the jury shall assess the fine, if, in its opinion, the offense merits a fine over fifty dollars ($50.00).

History (4)

Code 1858, § 5237
Shan., § 7212
Code 1932, § 11799
T.C.A. (orig. ed.), § 40-2525.

§ 40-18-115. Women jurors in felony cases.

(a) In the discretion of the trial judge, in all cases where a woman is sworn as a member of the jury in a felony case, the court may appoint a woman bailiff or deputy sheriff as one (1) of the officers sworn to take charge of the jury, and the woman bailiff or deputy sheriff shall have the same powers and duties as other officers in the cases.
(b) In all cases where a woman or women are sworn as a member or members of the jury in felony cases, it shall not be unlawful or render the verdict void for the women members of the jury to be segregated from the male members of the jury when outside the courtroom where the case is being tried, on the condition that each member of the jury remains in the custody of an officer or officers who have been duly sworn for that purpose.

History (2)

Acts 1951, ch. 71, §§ 5, 6 (Williams, §§ 11748.2, 11748.3)
T.C.A. (orig. ed.), §§ 40-2526, 40-2527.

§ 40-18-116. Sequestration of jurors.

In all criminal prosecutions, except those in which a death sentence may be rendered, jurors shall only be sequestered at the sound discretion of the trial judge, which shall prohibit the jurors from separating at times when they are not engaged upon actual trial or deliberation of the case.

History (5)

Acts 1965, ch. 47, § 1
1975, ch. 49, § 1
T.C.A., § 40-2528
Acts 1995, ch. 43, § 1
2002, ch. 741, § 1.

§ 40-18-117. Instructions concerning insanity.

In all criminal cases in which the trial judge charges the jury on the law relating to the defense of insanity, the judge shall also charge the jury that, if it should find the defendant to be not guilty by reason of insanity, that it shall so state in its verdict.

History (2)

Acts 1977, ch. 228, § 1
T.C.A., § 40-2530.

§ 40-18-118. Peremptory challenges.

Notwithstanding any other provision of law or rule of court to the contrary, in any case in which a defendant is charged with an offense punishable by death, the defendant is entitled to fifteen (15) peremptory challenges and the state is entitled to fifteen (15) peremptory challenges for each such defendant. If the offense charged is punishable by imprisonment for more than one (1) year but not by death, each defendant is entitled to eight (8) peremptory challenges, and the state is entitled to eight (8) peremptory challenges for each defendant. If the offense charged is punishable by imprisonment for less than one (1) year or by fine, or both, each side is entitled to three (3) peremptory challenges for each defendant.

History (1)

Acts 1995, ch. 339, § 1.

§ 40-18-119. Presumption that original trial judge has served as thirteenth juror and approved unanimous verdict.

When any successor judge to the original trial judge or any appellate court is determining if a new trial should be granted to a criminal defendant on the grounds that the verdict of guilty is against the weight of the evidence, immediately upon the original trial judge dismissing a jury following the return of a unanimous verdict, there is created a presumption that the original trial judge has served as the thirteenth juror and approved the jury's verdict with respect to each count on which a unanimous verdict was returned.

History (1)

Acts 2014, ch. 694, § 2.

Chapter 19 Defects in Proceedings

§ 40-19-101. Clerical omissions not constituting reversible error.

When a person indicted or presented for a criminal offense is arraigned before a court having jurisdiction of the matter pleads not guilty, and is tried upon the merits and convicted, the person shall not be entitled to a new trial, or to an arrest of judgment, for any of the following causes:
1. (1) The clerk of the court omitted to file or enter the person's plea of record;
2. (2) The district attorney general, clerk or grand jury omitted to mark a prosecutor upon the indictment;
3. (3) The clerk omitted to show in the record sent to the supreme court that there was a prosecutor;
4. (4) A defect in making out the caption of the record;
5. (5) An omission of any caption to the record sent up to the supreme court;
6. (6) The clerk omitted to embody in the record the venire facias;
7. (7) The clerk omitted to enter upon the minutes of the court that the grand jury returned the indictment into open court, if the indictment shows upon its back that it was found “a true bill”; or
8. (8) The indictment was drawn by a district attorney general pro tempore, and the clerk omitted to enter such district attorney general's appointment upon the minutes of the court.

Backlinks (1)

40-19-102

History (5)

Code 1858, § 5242 (deriv. Acts 1851-1852, ch. 256, §§ 1-5)
Shan., § 7217
Code 1932, § 11803
Acts 1981, ch. 449, § 2
T.C.A. (orig. ed.), § 40-2601.

§ 40-19-102. Forfeiture of fees by clerk.

Any clerk of a circuit or criminal court who is guilty of any neglect or omission as stated in § 40-19-101 shall forfeit all tax fees and costs to which the clerk would otherwise be entitled.

History (4)

Code 1858, § 5243 (deriv. Acts 1851-1852, ch. 256, § 6)
Shan., § 7218
Code 1932, § 11804
T.C.A. (orig. ed.), § 40-2602.

Chapter 20 Judgment and Sentence

Part 1 General Provisions

§ 40-20-101. Judgment after verdict — Modification of verdict.

(a) After a verdict against the defendant, if the judgment is not arrested or a new trial granted, the court shall pronounce judgment.
(b) If, in the pronouncement of a judgment where a defendant has been retried either following an order granting a retrial by a court of this state or in obedience to a decision of a court of the United States, it becomes necessary that the jury's verdict be modified to prevent a sentence on the second trial being greater than the verdict pronounced at the first trial, then the trial court is authorized to modify the jury's verdict and pronounce judgment accordingly.

History (5)

Code 1858, § 5225
Shan., § 7198
Code 1932, § 11761
Acts 1972, ch. 591, § 1
T.C.A. (orig. ed.), § 40-2701.

§ 40-20-102. Discretion as to fine or imprisonment.

In all prosecutions for misdemeanors where the punishment prescribed is a fine or imprisonment, or both, the discretion as to the punishment shall be in the court unless otherwise provided.

History (2)

Code 1932, § 10757
T.C.A. (orig. ed.), § 40-2702.

§ 40-20-103. Place of confinement.

(a) In no case shall any person convicted of a felony be confined in the penitentiary for less than twelve (12) months. Whenever the minimum punishment is imprisonment in the penitentiary for one (1) year, but in the opinion of the jury the offense merits a lesser punishment, the jury may punish by confinement in the county jail or workhouse for any period less than twelve (12) months, except as otherwise provided.
(b) In counties of this state having a population in excess of six hundred thousand (600,000), according to the 1970 federal census or any subsequent federal census, in all cases where a person is convicted of a felony, misdemeanor or otherwise punished by confinement, the punishment by confinement will be served by imprisonment in a state penitentiary or county workhouse; provided, however, that in cases where trusty status is desired of the prisoner and is mutually agreed upon by both the sheriff of that county and the trial judge, sentence to the county jail would be allowed to the exclusion of any other statutory law or common law now in effect.

History (5)

Acts 1859-1860, ch. 63
Shan., § 7206
mod. Code 1932, § 10754
Acts 1980, ch. 694, § 1
T.C.A. (orig. ed.), § 40-2703.

§ 40-20-104. Term fixed by court — By jury.

(a) When the offense is punished by imprisonment in the county jail or workhouse, the term of imprisonment shall be fixed by the court, unless otherwise provided; provided, that when any person is indicted or presented in a court of record for the alleged commission of any misdemeanor, and pleads not guilty and is tried by a jury, upon demand of defendant timely made, the trial jury shall as a part of its verdict assess the punishment for the offense both as to fine and imprisonment within the limits now or later prescribed by law.
(b) When a defendant has timely made a request for a jury trial, the judge shall charge the jury that as a part of its verdict in the case, if it finds the defendant guilty, it shall fix the punishment for the offense within the limits prescribed by law, which limits shall be stated in the charge, and the judge shall not comment on the fact that the defendant has made the request for a jury trial.

Backlinks (1)

40-20-105

History (7)

Code 1858, § 5229 (deriv. Acts 1829, ch. 23, § 76)
Shan., § 7202
mod. Code 1932, § 11765
Acts 1947, ch. 82, § 1
C. Supp. 1950, § 11765 (Williams, §§ 11760.1, 11765)
Acts 1973, ch. 67, § 1
T.C.A. (orig. ed.), § 40-2704.

§ 40-20-105. Plea of guilty — Waiver of jury.

Nothing in § 40-20-104 shall prevent any person indicted or presented in a court of record for the alleged commission of any misdemeanor as set out in that section from pleading guilty and submitting the case to the trial judge for assessment of punishment; nor shall anything in § 40-20-104 prevent a person, upon a plea of not guilty, from waiving the right to a trial by jury and submitting the case to the trial judge for decision both as to guilt and punishment.

History (4)

Acts 1947, ch. 82, § 1
C. Supp. 1950, § 11765 (Williams, § 11760.1)
T.C.A. (orig. ed.), § 40-2705
Acts 1996, ch. 675, § 32.

§ 40-20-106. Assessment of punishment for misdemeanor when felony charged.

Whenever any person is indicted or presented in a court of record for the alleged commission of any felony, the elements of which include the commission of a misdemeanor, and the defendant pleads not guilty and is tried by a jury, in such case, upon demand of the defendant timely made, the trial jury shall as a part of its verdict, should it find the defendant not guilty of the felony but guilty of a misdemeanor included within the felony, assess the punishment for the misdemeanor offense both as to fine and imprisonment within the limits now or later prescribed by law.

History (3)

Acts 1947, ch. 82, § 1a, as added by Acts 1949, ch. 202, § 1
C. Supp. 1950, § 11765.1 (Williams, § 11760.1a)
T.C.A. (orig. ed.), § 40-2706.

§ 40-20-107. Verdict and sentence on felony conviction.

(a) Whenever any person over eighteen (18) years of age is convicted of any felony or other crime punishable by imprisonment in the penitentiary, with the punishment for the offense within minimum and maximum terms provided for by law, the jury, in addition to finding the defendant guilty, shall fix the minimum and maximum term of the convicted defendant; provided, that the minimum sentence so fixed shall not be increased to exceed more than twice the minimum sentence as provided by law or the minimum sentence provided by law plus one half (½) the difference between the minimum and maximum sentence as provided by law, whichever is less. Its form of verdict shall be: “We find the defendant guilty as charged in the indictment” or “We find the defendant guilty of (whatever may be the offense charged), and fix punishment at imprisonment in the penitentiary for not less than years nor more than years,” and the court imposing judgment upon the verdict shall not fix a definite term of imprisonment, but shall sentence the person to the penitentiary for a period of not less than nor more than the term fixed by the jury, making allowance for good time as now provided by law.
(b) This section shall have no application in the case of persons convicted of second degree murder, rape of a female over the age of twelve (12) years, carnal knowledge and abuse of a female under the age of twelve (12) years, assault and battery upon a female under the age of twelve (12) years with the intent to unlawfully carnally know her, robbery by the use of a deadly weapon, kidnapping for ransom, or any Class X felony. Persons convicted of the offenses of this subsection (b) shall be given a determinate, and not an indeterminate sentence.

Backlinks (3)

History (8)

Acts 1913, ch. 8, § 1
Shan., § 7202a1
Acts 1923, ch. 52, § 1
Code 1932, § 11766
Acts 1973, ch. 163, §§ 1, 2
1974, ch. 768, § 1
1979, ch. 318, § 15
T.C.A. (orig. ed.), § 40-2707.

§ 40-20-108. Sentence for definite period construed as indeterminate.

(a) If, through mistake or otherwise, any person is sentenced for a definite period of time for any offense, the sentence shall not be void, but the person shall be deemed to be sentenced nevertheless as provided by the terms of §§ 40-20-107 — 40-20-110, and shall be entitled to all the benefits and subject to the liabilities under §§ 40-20-107 — 40-20-110 in the same manner and to the same extent as if sentence had been pronounced in the terms and manner required thereby.
(b) This section shall have no application in the case of persons convicted of second degree murder, rape of a female over the age of twelve (12) years, carnal knowledge and abuse of a female under the age of twelve (12) years, assault and battery upon a female under the age of twelve (12) years with the intent to unlawfully carnally know her, robbery by the use of a deadly weapon, or kidnapping for ransom. Persons convicted of the offenses of this subsection (b) shall be given a determinate, and not an indeterminate sentence.

History (5)

Acts 1913, ch. 8, § 2
Shan., § 7202a5
Code 1932, § 11770
Acts 1974, ch. 768, § 2
T.C.A. (orig. ed.), § 40-2708.

§ 40-20-109. Jail sentences and fines unaffected.

Sections 40-20-107 — 40-20-110 shall not interfere with the operation of statutes providing for punishment for certain offenses by fine or imprisonment in the county jail or both.

History (4)

Acts 1913, ch. 8, § 1
Shan., § 7202a4
Code 1932, § 11769
T.C.A. (orig. ed.), § 40-2709.

§ 40-20-110. Sentence for separate offenses — Parole considerations.

(a) If a person is sentenced for two (2) or more separate offenses, sentence shall be pronounced for each offense, and imprisonment may equal, but shall not exceed, the total of the maximum terms provided by law for the offenses, which total shall, for the purpose of §§ 40-20-107 — 40-20-110, be construed as one (1) continuous term of imprisonment.
(b)
1. (1) The department of correction shall notify the board of parole when inmates sentenced to consecutive sentences which require custodial parole consideration reach parole eligibility on their initial sentences.
2. (2) The board shall determine when the inmate will begin service of the inmate's consecutive sentence.
3. (3) No parole certificate shall be required, and the inmate shall be heard for parole when eligible on the inmate's consecutive sentence.
4. (4) The board has the authority to begin custodial parole effective on any date on or after the custodial parole eligibility date.
5. (5) A bona fide offer of employment shall not be required for custodial parole.

Backlinks (3)

History (7)

Acts 1913, ch. 8, § 1
Shan., § 7202a3
Code 1932, § 11768
Acts 1982, ch. 739, § 1
T.C.A. (orig. ed.), § 40-2710
Acts 1990, ch. 645, § 1
1998, ch. 1049, § 19.

§ 40-20-111. Concurrent or cumulative sentences.

(a) When any person has been convicted of two (2) or more offenses, judgment shall be rendered on each conviction after the first conviction; provided, that the terms of imprisonment to which the convicted person is sentenced shall run concurrently or cumulatively in the discretion of the trial judge. The exercise of the discretion of the trial judge shall be reviewable by the supreme court on appeal.
(b) In any case in which a defendant commits a felony while the defendant was released on bail in accordance with chapter 11, part 1 of this title, and the defendant is convicted of both offenses, the trial judge shall not have discretion as to whether the sentences shall run concurrently or cumulatively, but shall order that the sentences be served cumulatively.

History (6)

Code 1858, § 5228
Shan., § 7201
Acts 1919, ch. 115, § 1
Code 1932, § 11764
Acts 1979, ch. 227, § 1
T.C.A. (orig. ed.), § 40-2711.

§ 40-20-112. Judgment of infamy — Right of suffrage — Competency as a witness.

Upon conviction for any felony, it shall be the judgment of the court that the defendant be infamous and be immediately disqualified from exercising the right of suffrage. No person so convicted shall be disqualified to testify in any action, civil or criminal, by reason of having been convicted of any felony, and the fact of conviction for any felony may only be used as a reflection upon the person's credibility as a witness.

Backlinks (6)

History (10)

Code 1858, § 5226 (deriv. Acts 1829, ch. 23, § 71)
Shan., § 7199
mod. Code 1932, § 11762
Acts 1941, ch. 64, § 1
C. Supp. 1950, § 11762
Acts 1953, ch. 194, § 1
1972, ch. 740, § 4(70)
1981, ch. 342, § 1
T.C.A. (orig. ed.), § 40-2712
Acts 1996, ch. 675, § 33.

§ 40-20-113. Judgment of infamous crime to be sent to election commission.

The clerks of the criminal and circuit courts shall notify the county election commission of each person convicted of an infamous crime on a form to be furnished by the state coordinator of elections pursuant to § 2-11-202.

History (5)

Acts 1981, ch. 345, § 1
1982, ch. 631, § 1
T.C.A., § 40-2713
Acts 1985, ch. 132, § 1
2014, ch. 724, § 8.

§ 40-20-114. Disqualification from public office.

(a) A person who has been convicted in this state of an infamous crime, as defined by § 40-20-112, other than one specified in subsection (b), or convicted under the laws of the United States or another state of an offense that would constitute an infamous crime if committed in this state, shall be disqualified from qualifying for, seeking election to or holding a public office in this state, unless and until that person's citizenship rights have been restored by a court of competent jurisdiction.
(b) Notwithstanding the provisions of subsection (a) to the contrary, a person convicted in this state of an infamous crime, as defined by § 40-20-112, or convicted under the laws of the United States or another state of an offense that would constitute an infamous crime if committed in this state, and the offense was committed while that person is holding an elected public office at the federal level, or in this or any other state or any political subdivision of this or any other state, shall be forever disqualified from qualifying for, seeking or holding any public office in this state or any political subdivision of this state, if the offense was committed in the person's official capacity or involved the duties of the person's office. This subsection (b) shall apply even if the person's citizenship rights have been restored, but shall not be construed as limiting the restoration of any other citizenship rights, including the right of suffrage provided for in § 2-2-139, § 2-19-143, or § 40-29-105.
(c) If a person is holding an elected public office and was convicted of an infamous crime pursuant to the qualifications in subsection (b) that was committed prior to July 1, 2007, the person shall be allowed to remain in office for the remainder of the term, but shall forever be prohibited from qualifying for, seeking or holding any public office in this state or political subdivision of this state after July 1, 2007, or when the term expires or when the person vacates the office, whichever is first.
(d) If a person is holding an elected public office and is convicted of an infamous crime pursuant to the qualifications in subsection (b) that was committed on or after July 1, 2007, the conviction shall be grounds for removal from office in the manner provided by law and the person shall forever be prohibited from qualifying for, seeking or holding any public office in this state or political subdivision of this state after July 1, 2007.
(e) A court shall not accept any plea agreement that allows an elected public official who is charged with an infamous crime involving an offense committed in the person's official capacity or involving the duties of the person's office, to qualify for, seek, or hold public office in this state or any political subdivision of this state at some point in the future. If an elected public official accepts a plea agreement for an offense committed in the person's official capacity or involving the duties of the person's office, the person is prohibited from qualifying for, seeking, or holding public office in this state or any political subdivision of this state at some point in the future after the plea agreement has been agreed to by all parties.
(f) If any provision of this section or the application of this section to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the section that can be given effect without the invalid provision or application, and to that end this section is declared to be severable.

History (7)

Code 1858, § 5227
Shan., § 7200
Code 1932, § 11763
Acts 1979, ch. 306, § 13
T.C.A. (orig. ed.), § 40-2714
Acts 2007, ch. 325, § 1
2019, ch. 281, § 3.

§ 40-20-115. Disqualification from fiduciary office.

The effect of a sentence of imprisonment in the penitentiary is to put an end to the right of the inmate to execute the office of executor, administrator or guardian, fiduciary or conservator, and operates as a removal from office.

Backlinks (1)

30-1-111

History (5)

Code 1858, § 5230
Shan., § 7203
Code 1932, § 11789
T.C.A. (orig. ed.), § 40-2715
Acts 2013, ch. 435, § 33.

§ 40-20-116. Order of restitution.

(a) Whenever a felon is convicted of stealing or feloniously taking or receiving property, or defrauding another of property, the jury shall ascertain the value of the property, if not previously restored to the owner, and the court shall, thereupon, order the restitution of the property, and, in case this cannot be done, that the party aggrieved recover the value assessed against the prisoner, for which execution may issue as in other cases.
(b) If the property has been feloniously destroyed, the jury shall ascertain the damages sustained, upon which judgment shall be rendered in favor of the party aggrieved against the defendant, and execution shall issue as provided in subsection (a).
(c) This section is cumulative, and does not deprive the party injured of any other right the party may have for the recovery of property or its value.

History (4)

Code 1858, §§ 5233-5235 (deriv. Acts 1829, ch. 23, § 79)
Shan., §§ 7208-7210
Code 1932, §§ 11795-11797
T.C.A. (orig. ed.), §§ 40-2716 — 40-2718.

§ 40-20-117. Jail or workhouse sentences of less than one (1) year.

(a) Whenever any person is sentenced to imprisonment in a county jail or workhouse for a period not to exceed eleven (11) months and twenty-nine (29) days, the judge of the court in which the sentence is imposed may, in the judge's discretion, include in the order of judgment suitable provisions and directions to the officer to whose custody the prisoner is committed for safekeeping as will ensure that the convicted person will be allowed to serve the sentence on nonconsecutive days, which may include, but is not limited to, weekends, between hours to be specified in the judgment, which provisions or directions may be revoked, suspended or amended from time to time by the judge of the committing court until the sentence is served or until the convicted person is lawfully released prior to the expiration of the person's sentence.
(b) The sheriff, warden, superintendent or other official having responsibility for the safekeeping of the convicted person in any jail or workhouse shall adopt procedures for the release of the convicted person at the times specified in the order of judgment and for receiving the person back into custody at the specified times. Willful failure of any official to comply with the directions of the court constitutes contempt of court, punishable as provided by law for contempt generally.
(c) Failure of the convicted person to surrender to the custody of the sheriff, warden, superintendent or other official responsible for the convicted person's safekeeping in the jail or workhouse within the time specified in the order of judgment constitutes grounds for the suspension or revocation of the privilege granted, in the discretion of the court. The order of judgment may specify time limits beyond which a continued absence shall be considered an escape and the offender shall then be liable to punishment for escape as provided by law; provided, that the person sentenced may elect to serve the person's sentence on consecutive days.

Backlinks (1)

8-8-201(b)(1)

History (2)

Acts 1970, ch. 458, § 1
T.C.A., § 40-2719.

§ 40-20-118. Order of restitution for parentage fraud — Civil cause of action for victims.

(a) If a person is convicted of parentage fraud, as described in § 39-14-111, then the judge or jury must ascertain the value of any child support paid by the victim in reliance upon the parentage fraud, and the court must order the defendant to pay restitution of that value of child support to the victim, if not previously restored to the victim.
(b) To the extent permitted by federal law, a victim of parentage fraud may bring a cause of action to recover other financial support made in reliance upon the parentage fraud.

History (1)

Acts 2024, ch. 896, § 1.

Part 2 Special Alternative Incarceration Unit Program

§ 40-20-201. Department of correction — Authority.

Notwithstanding any other provision of the law to the contrary, in the event that an offender is sentenced to confinement in the department of correction for six (6) years or less and is committed to the department, the department shall have the authority to place the offender in a special alternative incarceration unit in lieu of confinement in a regular state penal facility. In such a unit the offender shall, at a minimum, be required to participate for a period of ninety (90) days in an intensive regimen of work, exercise, military-type discipline and available treatment programs in accordance with policies and procedures established by the department.

History (1)

Acts 1989, ch. 217, § 2.

§ 40-20-202. Participation in available treatment programs.

An offender's participation in any available treatment programs shall be in addition to, and shall not have the effect of reducing or otherwise diminishing, the offender's participation in the full regimen of work, exercise and military-type discipline required by the special alternative incarceration program.

History (1)

Acts 1989, ch. 217, § 3.

§ 40-20-203. Eligible offenders — Age.

In placing an offender in a special alternative incarceration unit, the department of correction shall give priority to eligible offenders between the ages of seventeen (17) and twenty-five (25). In no event shall an offender who is over the age of thirty-five (35) be placed in a special alternative incarceration unit.

History (2)

Acts 1989, ch. 217, § 4
1992, ch. 881, § 1.

§ 40-20-204. Classification of offender — Board approval.

No offender shall be placed in a special alternative incarceration unit unless and until the offender has been classified by the department as a suitable candidate for an alternative treatment program in accordance with departmental policies and guidelines.

History (2)

Acts 1989, ch. 217, § 5
1990, ch. 720, § 1.

§ 40-20-205. Excluded offenders.

An offender convicted of any of the following offenses is ineligible to participate in the special alternative incarceration program:
1. (1) Class A felony;
2. (2) Aggravated robbery;
3. (3) An offense involving sexual contact or sexual penetration, as defined in § 39-13-501;
4. (4) An offense involving child abuse, child sexual abuse, or sexual exploitation of a minor;
5. (5) An offense involving the illegal distribution or sale of a controlled substance or controlled substance analogue to a minor;
6. (6) An offense involving serious bodily injury, as defined in § 39-11-106; or
7. (7) An offense involving death to a victim or bystander.

History (3)

Acts 1989, ch. 217, § 6
1992, ch. 838, § 4
2012, ch. 848, § 32.

§ 40-20-206. Release to division of community services upon completion — Revocation of release.

Notwithstanding any other provision of the law to the contrary, upon successful completion of a special alternative incarceration program, an offender shall be released to the supervision of the division of community services for the department of correction under the terms and conditions imposed by the department for the balance of the original sentence imposed by the trial court. Should an offender fail to comply with the terms and conditions of supervision imposed by the department after successful completion of the program, the release on supervision may be revoked by the trial judge pursuant to § 40-35-311.

Backlinks (1)

41-21-219(a)

History (2)

Acts 1989, ch. 217, § 7
1990, ch. 720, § 2.

§ 40-20-207. Eligibility of certain drug offenders.

Notwithstanding the six (6) year or less sentence limitation of this part, an especially mitigated offender, as defined by § 40-35-109, or a standard offender, as defined by § 40-35-105, who is convicted of a violation of § 39-17-417(a) with respect to a controlled substance in an amount less than that set out in § 39-17-417(i), is eligible for placement in the special alternative incarceration unit as defined and authorized by this part.

History (1)

Acts 1989, ch. 591, § 117.

Part 3 Special Technical Violator Unit

§ 40-20-301. Confinement in special technical violator unit.

Notwithstanding any other provision of law to the contrary, in the event that an offender receives a suspension of sentence, has that suspension of sentence revoked for reasons other than the commission of a new felony offense, and is committed to the department of correction, the department shall have the authority to place the offender in a special technical violator unit in lieu of confinement in a regular state penal facility unless the court specifies otherwise in the order of revocation. If the court specifically prohibits the placement of an offender in a special technical violator unit, the court shall make findings of fact and state the reasons for its decision in the order of revocation. In such unit the offender shall, at a minimum, be required to participate for a period of one hundred twenty (120) days in an intensive regimen of work and available treatment programs in accordance with policies and procedures established by the department.

History (1)

Acts 1997, ch. 222, § 2.

§ 40-20-302. Classification of offenders.

No offender shall be placed in a special technical violator unit unless and until the offender has been classified by the department as a suitable candidate for such a program in accordance with departmental policies and guidelines.

History (1)

Acts 1997, ch. 222, § 3.

§ 40-20-303. Completion of program — Failure to comply.

Notwithstanding any other provision of the law to the contrary, upon successful completion of a technical violator program, an offender shall be released to the supervision of the division of community services for the department of correction under the terms and conditions imposed by the trial court. Should an offender fail to comply with the terms and conditions of supervision imposed by the department after successful completion of the program, the release on supervision may be revoked by the trial judge pursuant to § 40-35-311.

History (1)

Acts 1997, ch. 222, § 4.

Chapter 22 Judicial Recommendation of Clemency

§ 40-22-101. Postponement of execution of sentence pending application for clemency.

In case of the conviction and sentence of a defendant to imprisonment, the presiding judge may, in all proper cases, postpone the execution of the sentence for the amount of time as may be necessary to make application to the executive for a pardon or commutation of punishment.

History (4)

Code 1858, § 5255
Shan., § 7230
Code 1932, § 11821
T.C.A. (orig. ed.), § 40-3001.

§ 40-22-102. Suspension of execution to permit application for pardon.

Whenever a plea of guilty is entered by the defendant to an indictment charging a felony, and it appears to the circuit or criminal court judge receiving the plea that the prisoner is only technically guilty, or that there are circumstances or conditions connected with the alleged crime or in the defendant's life and surroundings tending to mitigate the offense, or if it is the prisoner's first offense, and it is not likely that the prisoner will again engage in an offensive and criminal course of conduct if released, and in the opinion of the presiding judge the public good does not require that the defendant suffer the disgrace of imprisonment at hard labor in the penitentiary, the execution of sentence and judgment may, in the discretion of the judge, be suspended until the next term of the court, so as to enable application to be made to the governor for a pardon.

Backlinks (2)

History (4)

Acts 1915, ch. 135, § 1
Shan., § 7230a1
Code 1932, § 11822
T.C.A. (orig. ed.), § 40-3002.

§ 40-22-103. Transmittal of documents and recommendations to commissioner.

It is the duty of the presiding judge, where the execution of sentence and judgment has been suspended, as provided by § 40-22-102, to immediately transmit to the commissioner of correction and the board of parole a copy of the indictment or presentment, together with the judge's reasons for suspending the sentence and judgment, and any other recommendations as the judge may think proper to make.

Backlinks (1)

40-22-108

History (8)

Acts 1915, ch. 135, § 2
Shan., § 7230a2
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11823
impl. am. Acts 1955, ch. 102, § 1
Acts 1979, ch. 359, § 27
T.C.A. (orig. ed.), § 40-3003
Acts 1998, ch. 1049, § 20.

§ 40-22-104. Prisoner placed under commissioner.

The presiding judge shall also cause to be entered on the minutes of the trial court an order reciting the reasons for the suspension of the sentence and judgment, and providing that the prisoner whose sentence has been so suspended shall, from the date of suspension, be subject to be placed under the control of the commissioner of correction, and, when so placed, shall be subject to all laws, rules and regulations pertaining to convicts on parole. The board of parole shall consider a person so committed to the custody of the department of correction using the procedures and criteria established in chapter 28 of this title.

History (8)

Acts 1915, ch. 135, § 2
Shan., § 7230a3
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11824
impl. am. Acts 1955, ch. 102, § 1
Acts 1979, ch. 359, § 28
T.C.A. (orig. ed.), § 40-3004
Acts 1998, ch. 1049, § 20.

§ 40-22-105. Custody or appearance bond.

It is the duty of the court to hold the defendant in custody unless bond is executed for the appearance of the prisoner at the next term of the court.

Backlinks (1)

40-22-107

History (4)

Acts 1915, ch. 135, § 2
Shan., § 7230a4
Code 1932, § 11825
T.C.A. (orig. ed.), § 40-3005.

§ 40-22-106. Execution of sentence in absence of parole or pardon.

In case the governor does not act by pardoning the prisoner, or the board of parole by paroling the prisoner, by the first day of the next term of court, then it is the duty of the judge to put into execution the sentence and judgment of the court, by delivering, or causing to be delivered, the prisoner to the proper authorities for the execution of the sentence.

History (7)

Acts 1915, ch. 135, § 3
Shan., § 7230a14
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11834
Acts 1979, ch. 359, § 29
T.C.A. (orig. ed.), § 40-3006
Acts 1998, ch. 1049, § 20.

§ 40-22-107. Entry of pardon or parole — Discharge of bond.

Should the prisoner be pardoned or paroled, it shall then be the duty of the court to show the facts by proper decree and discharge the bond taken for the appearance of the prisoner as provided for in § 40-22-105.

History (4)

Acts 1915, ch. 135, § 2
Shan., § 7230a6
Code 1932, § 11826
T.C.A. (orig. ed.), § 40-3007.

§ 40-22-108. Supervision pending application.

It is the duty of the department of correction, upon receipt of the pleadings in the case, together with the recommendations of the presiding judge, as provided in § 40-22-103, through the probation and parole officer, to look after the welfare of, and have charge of and keep in communication with, the prisoner, thus on parole, and also to keep in communication with the prisoner's employers.

History (10)

Acts 1915, ch. 135, § 3
Shan., § 7230a7
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11827
impl. am. Acts 1955, ch. 102, § 1
impl. am. Acts 1961, ch. 93, § 5
Acts 1979, ch. 359, § 30
T.C.A. (orig. ed.), § 40-3008
Acts 1998, ch. 1049, §§ 20, 21
2012, ch. 727, § 12.

§ 40-22-109. Parole or recommendation of pardon.

When it satisfactorily appears to the board of parole that a prisoner, whose sentence has been suspended as provided in § 40-22-102, has led an exemplary life and behaved in a manner and for a period of time that leads the board to believe that the prisoner is reliable and trustworthy and that the prisoner will probably remain at liberty without violating the law, and the prisoner's final release is not incompatible with the welfare of society, the board may, in its discretion, parole the prisoner for a period of time as it deems best, or it may recommend to the governor that the governor grant the prisoner a pardon and final discharge.

Backlinks (1)

40-22-111

History (7)

Acts 1915, ch. 135, § 3
Shan., § 7230a8
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11828
Acts 1979, ch. 359, § 31
T.C.A. (orig. ed.), § 40-3009
Acts 1998, ch. 1049, § 20.

§ 40-22-110. Maximum term of parole — Power to pardon unaffected.

Where the prisoner is granted a parole by the board of parole, the parole shall not be in length of time beyond the minimum penalty of the prisoner, and shall not affect the power of the governor to pardon the prisoner.

Backlinks (1)

40-22-111

History (7)

Acts 1915, ch. 135, § 3
Shan., § 7230a13
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11833
Acts 1979, ch. 359, § 32
T.C.A. (orig. ed.), § 40-3010
Acts 1998, ch. 1049, § 20.

§ 40-22-111. Notice of grant of parole.

In case the board of parole grants the prisoner a parole, as provided in §§ 40-22-109 and 40-22-110, it shall at once communicate with and transmit to the judge of the court where the case against the prisoner is pending its action and the reasons for granting the prisoner a parole.

History (7)

Acts 1915, ch. 135, § 3
Shan., § 7230a11
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11831
Acts 1979, ch. 359, § 33
T.C.A. (orig. ed.), § 40-3011
Acts 1998, ch. 1049, § 20.

§ 40-22-112. Duties of probation and parole officer.

It is the duty of the parole officer to perform all of the duties imposed upon the officer by law and by the rules and regulations of the board of parole.

History (9)

Acts 1915, ch. 135, § 4
Shan., § 7230a17
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11837
impl. am. Acts 1955, ch. 102, § 1
impl. am. Acts 1961, ch. 93, § 5
Acts 1979, ch. 359, § 34
T.C.A. (orig. ed.), § 40-3012
Acts 1998, ch. 1049, §§ 20, 21.

§ 40-22-113. Supervision by state parole officer.

It is the duty of the probation and parole officer to keep in communication as far as possible with all of the prisoners who are paroled under this chapter, and with their employers.

History (7)

Acts 1915, ch. 135, § 4
Shan., § 7230a15
Code 1932, § 11835
impl. am. Acts 1961, ch. 93, § 5
Acts 1979, ch. 359, § 35
T.C.A. (orig. ed.), § 40-3013
Acts 1998, ch. 1049, § 21.

§ 40-22-114. Transmittal of papers and recommendations to governor.

In case the board of parole recommends to the governor that the prisoner be pardoned and finally discharged, it shall file the papers received from the trial judge, together with its recommendation attached thereto, with the governor, a sufficient time before the next term of court at which the prisoner is required to appear, to enable the governor to take action on the recommendation.

History (7)

Acts 1915, ch. 135, § 3
Shan., § 7230a9
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11829
Acts 1979, ch. 359, § 37
T.C.A. (orig. ed.), § 40-3015
Acts 1998, ch. 1049, § 20.

§ 40-22-115. Notice of governor's action.

When the governor acts on the application, the governor shall communicate the governor's action to the board of parole, which shall at once transmit to the judge of the court where the case against the prisoner is pending the action of the governor.

History (7)

Acts 1915, ch. 135, § 3
Shan., § 7230a10
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11830
Acts 1979, ch. 359, § 38
T.C.A. (orig. ed.), § 40-3016
Acts 1998, ch. 1049, § 20.

§ 40-22-116. Entry of parole or pardon.

The judge of the court, in either case, shall cause to be made a minute entry in the judge's court, reciting the facts and discharging the prisoner, if pardoned, and if paroled, reciting the conditions of the parole and the length of the parole.

History (4)

Acts 1915, ch. 135, § 3
Shan., § 7230a12
Code 1932, § 11832
T.C.A. (orig. ed.), § 40-3017.

§ 40-22-117. Construction of chapter.

This chapter shall be liberally construed, and nothing in it shall be construed as seeking to impair the pardoning power of the governor, or the duties of the board of parole in regard to the paroling of prisoners not inconsistent with the spirit of the chapter.

History (7)

Acts 1915, ch. 135, § 5
Shan., § 7230a18
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11838
Acts 1979, ch. 359, § 39
T.C.A. (orig. ed.), § 40-3018
Acts 1998, ch. 1049, § 20.

Chapter 23 Execution of Judgment

§ 40-23-101. Commencement of sentence — Credit for pretrial detention and jail time pending appeal.

(a) When a person is sentenced to imprisonment, the judgment of the court shall be rendered so that the sentence shall commence on the day on which the defendant legally comes into the custody of the sheriff for execution of the judgment of imprisonment.
(b)
1. (1) This section shall not apply in a case where, after the rendition of the judgment of imprisonment, an execution of the judgment is stayed by appeal or otherwise.
2. (2) This section shall not interfere with the operation of the statute requiring sheriffs in whose custody defendants come for execution of judgments of imprisonment to commit those defendants as soon as possible to jail or to the warden of the penitentiary.
(c) The trial court shall, at the time the sentence is imposed and the defendant is committed to jail, the workhouse or the state penitentiary for imprisonment, render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial. The defendant shall also receive credit on the sentence for the time served in the jail, workhouse or penitentiary subsequent to any conviction arising out of the original offense for which the defendant was tried.
(d) In the event the person sentenced appeals the cause to the supreme court and is required to spend time in jail pending the appeal, the supreme court may modify the original sentence allowing a reduction for the time spent in jail pending an appeal upon a petition being filed in the defendant's behalf setting out the time spent in jail within five (5) days after the announcement of the supreme court decision; provided, that the facts alleged in the petition are verified by the clerk of the court where the sentence was imposed. This section applies in both felony and misdemeanor cases.
(e) A certified copy of the order modifying the original sentence in each case shall be forwarded by the clerk of the supreme court to the warden of the state penitentiary.

Backlinks (3)

History (9)

Acts 1919, ch. 67, § 1
Shan. Supp., § 7242a1
Code 1932, § 11849
Acts 1955, ch. 303, § 1
1959, ch. 13, § 1
1963, ch. 32, § 1, 1965, ch. 145, § 1
1974, ch. 639, § 1
1976, ch. 664, § 1
T.C.A. (orig. ed.), § 40-3102.

§ 40-23-102. Defendant in custody at time of judgment.

Where the judgment of the court is that the defendant be imprisoned, the time for confinement, if the defendant is in jail, shall begin to run from the day of final judgment.

History (2)

C. Supp. 1950, § 11761.1
T.C.A. (orig. ed.), § 40-3101.

§ 40-23-103. Sheriff to commit defendant.

It is the duty of the sheriff in whose custody the defendant is at the rendition of the judgment, or afterwards legally comes, to execute the judgment of imprisonment by committing the defendant, as soon as possible, to jail, or to the warden of the penitentiary, according to the exigency of the writ.

Backlinks (1)

8-8-201(b)(1)

History (4)

Code 1858, § 5275
Shan., § 7251
Code 1932, § 11857
T.C.A. (orig. ed.), § 40-3103.

§ 40-23-104. Sentence to workhouse for felony term — Removal by trial judge.

(a) In all cases where any person is convicted of a felony, and sentenced to six (6) years or less, the court, in its discretion, may order the person confined in the county workhouse for the term of the sentence. The trial judge shall have the power to order the removal of the prisoner from the county workhouse to the department of correction whenever, in the judge's opinion, the prisoner is being treated in a brutal or inhuman manner, or when it appears to the judge that the physical condition of the prisoner is such that working on the roads is deleterious to the prisoner's health.
(b) Whenever any prisoner is confined to a county workhouse under provisions of this section, the state shall pay the costs of incarceration of the prisoner in accordance with title 41, chapter 8.

Backlinks (3)

History (8)

Acts 1915, ch. 107, § 1
Shan., § 7207a1
Code 1932, § 11793
C. Supp. 1950, § 11793
Acts 1973, ch. 354, § 1
1977, ch. 404, § 3
T.C.A. (orig. ed.), § 40-3105
Acts 1986, ch. 744, §§ 1, 2.

§ 40-23-105. Felons sentenced to jail compelled to hard labor.

All persons convicted of a felony, whose imprisonment has been by the jury commuted to imprisonment in the county jail, shall be compelled to work out the term of imprisonment at hard labor in the county workhouse in the county where convicted.

History (4)

Acts 1881, ch. 105, § 1
Shan., § 7207
Code 1932, § 11792
T.C.A. (orig. ed.), § 40-3106.

§ 40-23-106. Notice to commissioner of convicts for penitentiary.

At the adjournment of any court, or upon final disposition of a case prior to the adjournment of the court, it is the duty of the clerk of the court to notify the commissioner of correction of the number of convicts for the penitentiary, and that notification shall be made within five (5) days.

History (11)

Acts 1883, ch. 171, § 28
impl. am. Acts 1895 (Ex. Sess.), ch. 7, §§ 5, 20
impl. am. Acts 1915, ch. 20, §§ 2, 9
Shan., § 7239
impl. am. Acts 1919, ch. 39, § 2
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11845
Acts 1941, ch. 14, § 1
C. Supp. 1950, § 11845
impl. am. Acts 1955, ch. 102, § 1
T.C.A. (orig. ed.), § 40-3107.

§ 40-23-107. Safekeeping of inmates — Transfers to penitentiary.

(a) In counties where, because of the insufficiency of the county jail, or for any other cause, the court may be of opinion that the safekeeping of the inmates may require it, the court may order the immediate removal of inmates to the penitentiary or to the nearest branch prison, at the cost of the state, before the expiration of the time allowed to remove the inmates.
(b) The inmates shall, as soon as possible after conviction, be safely removed and conveyed by the person appointed by the commissioner of correction for that purpose, to the penitentiary, or to one (1) of the branch prisons.

History (9)

Acts 1883, ch. 171, § 28
impl. am. Acts 1895 (Ex. Sess.), ch. 7, § 10
impl. am. Acts 1915, ch. 20, §§ 2, 9
Shan., §§ 7240, 7241
impl. am. Acts 1919, ch. 39, § 2
impl. am. Acts 1923, ch. 7, § 42
Code 1932, §§ 11846, 11847
impl. am. Acts 1955, ch. 102, § 1
T.C.A. (orig. ed.), §§ 40-3108, 40-3109.

§ 40-23-108. Order specifying number of guards for removal of prisoners.

It is the duty of the criminal and circuit judges of this state, at the adjournment of their courts or earlier, if the number of persons convicted justify it, to make an order specifying the number of guards the sheriff shall have in conveying to the supreme court, or to the penitentiary, the person or persons convicted, in case the person so appointed for that purpose by the commissioner of correction fails to remove them as provided by law.

History (10)

Acts 1875, ch. 29
impl. am. Acts 1883, ch. 171, § 28
impl. am. Acts 1895 (Ex. Sess.), ch. 7, § 10
impl. am. Acts 1915, ch. 20, §§ 2, 9
Shan., § 7243
impl. am. Acts 1919, ch. 39, § 2
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11850
impl. am. Acts 1955, ch. 102, § 1
T.C.A. (orig. ed.), § 40-3111.

§ 40-23-109. Warrant to summon aid in removal of prisoners.

The judge or clerk of the court may, by warrant in writing, empower the sheriff charged with the conveyance of the convict, in all counties and places through which the sheriff may pass with the prisoner, to summon or impress such and so many persons, not exceeding two (2) for each convict, except as otherwise provided in this chapter, and the conveyances or modes of conveyance as shall be necessary for the safe conveyance of the prisoner, which warrant the sheriff is required to execute, and to the sheriff's commands in virtue thereof all persons are to pay due obedience.

History (4)

Code 1858, § 5265 (deriv. Acts 1829, ch. 38, § 3)
Shan., § 7244
mod. Code 1932, § 11851
T.C.A. (orig. ed.), § 40-3112.

§ 40-23-110. Summons of additional guards.

If, by any attempt to rescue a convict on the way or by any other unforeseen danger, it becomes essentially necessary for the safe conveyance of the convict to summon a stronger guard than the sheriff conducting the prisoner may have been authorized to summon, it is lawful for the sheriff to summon an additional guard or guards as shall be necessary for that purpose. The additional guard or guards shall be paid as other guards, on the oath of the sheriff that the additional guard or guards were essentially necessary, and the officer making the payment being satisfied with the truth of the oath.

History (4)

Code 1858, § 5267 (deriv. Acts 1829, ch. 38, § 4)
Shan., § 7245
Code 1932, § 11852
T.C.A. (orig. ed.), § 40-3113.

§ 40-23-111. Qualifications of guard.

The additional guard or guards that the sheriff and other officers are authorized to summon to assist in conveying convicts to the penitentiary, or to and from the penitentiary, and to prevent a rescue, shall consist of able bodied persons, who shall not be under eighteen (18) years of age.

History (4)

Code 1858, § 5593 (deriv. Acts 1835-1836, ch. 63, § 1)
Shan., § 7634
Code 1932, § 12263
T.C.A. (orig. ed.), § 40-3114.

§ 40-23-112. Juror disqualified to act as guard.

The sheriff shall not summon any person as a guard to assist in taking the prisoner to the penitentiary, whom the person, as a juror, convicted.

History (4)

Code 1858, § 5268
Shan., § 7246
Code 1932, § 11853
T.C.A. (orig. ed.), § 40-3115.

§ 40-23-113. Report by sheriff to department of correction.

Whenever any person sentenced to the custody of the department of correction has been detained in one (1) or more local jails or workhouses pending arraignment, trial, sentencing or appeal, the sheriff shall prepare and transmit with the defendant at the time of commitment to the department a short report, furnishing the information pertaining to the defendant's behavior while in local custody as may be requested by the department. Notwithstanding any other provision of the law to the contrary, no such person sentenced to the custody of the department shall be committed or conveyed to the department unaccompanied by the completed report required by this section.

Backlinks (1)

8-8-201(b)(1)

History (5)

Code 1858, § 5263 (deriv. Acts 1829, ch. 38, § 1)
Shan., § 7238
Code 1932, § 11844
T.C.A. (orig. ed.), § 40-3116
Acts 1985 (1st Ex. Sess.), ch. 5, § 28.

§ 40-23-114. Death by lethal injection — Election of electrocution — Electrocution as alternative method.

(a) For any person who commits an offense for which the person is sentenced to the punishment of death, the method for carrying out this sentence shall be by lethal injection.
(b) Any person who commits an offense prior to January 1, 1999, for which the person is sentenced to the punishment of death may elect to be executed by electrocution by signing a written waiver waiving the right to be executed by lethal injection.
(c) The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this section.
(d) If lethal injection or electrocution is held to be unconstitutional by the Tennessee supreme court under the Constitution of Tennessee, or held to be unconstitutional by the United States supreme court under the United States Constitution, or if the United States supreme court declines to review any judgment holding lethal injection or electrocution to be unconstitutional under the United States Constitution made by the Tennessee supreme court or the United States court of appeals that has jurisdiction over Tennessee, or if the Tennessee supreme court declines to review any judgment by the Tennessee court of criminal appeals holding lethal injection or electrocution to be unconstitutional under the United States or Tennessee constitutions, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution. No sentence of death shall be reduced as a result of a determination that a method of execution is declared unconstitutional under the Constitution of Tennessee or the Constitution of the United States. In any case in which an execution method is declared unconstitutional, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method of execution.
(e) For any person who commits an offense or has committed an offense for which the person is sentenced to the punishment of death, the method of carrying out the sentence shall be by lethal injection unless subdivision (e)(1) or (e)(2) is applicable. If subdivision (e)(1) or (e)(2) is applicable, the method of carrying out the sentence shall be by electrocution. The alternative method of execution shall be used if:
1. (1) Lethal injection is held to be unconstitutional by a court of competent jurisdiction in the manner described in subsection (d); or
2. (2) The commissioner of correction certifies to the governor that the department is unable to carry out a sentence of death by lethal injection despite making reasonable efforts to do so.
(f) If the person has been sentenced to the punishment of death and the jury has determined that the sentence must be expediated, then the sentence must be carried out within thirty (30) business days of the conclusion of any appeal and the exhaustion of all available methods of post-conviction relief.

Backlinks (1)

40-23-115

History (8)

Acts 1913 (1st Ex. Sess.), ch. 36, § 1
Shan., §§ 7204, 7204a1
mod. Code 1932, § 11790
T.C.A. (orig. ed.), § 40-3117
Acts 1998, ch. 982, §§ 1-5
2000, ch. 614, §§ 1-5
2014, ch. 1014, § 1
2023, ch. 375, §§ 2, 3.

§ 40-23-115. Maintenance of death chamber.

The commissioner of correction shall ensure that a permanent and suitable death chamber is kept and maintained within a penitentiary of this state, as defined in § 41-1-101(b), and that an electrical apparatus, together with all necessary appliances sufficient for the infliction of punishment of death as provided in § 40-23-114, is kept and maintained in the death chamber.

History (5)

Acts 1913 (1st Ex. Sess.), ch. 36, § 2
Shan., § 7204a2
mod. Code 1932, § 11791
T.C.A. (orig. ed.), § 40-3118
Acts 1985 (1st Ex. Sess.), ch. 5, § 15.

§ 40-23-116. Manner of executing sentence of death — Witnesses.

(a) In all cases in which the sentence of death has been passed upon any person by the courts of this state, it is the duty of the sheriff of the county in which the sentence of death has been passed to remove the person so sentenced to death from that county to the state penitentiary in which the death chamber is located, within a reasonable time before the date fixed for the execution of the death sentence in the judgment and mandate of the court pronouncing the death sentence. On the date fixed for the execution in the judgment and mandate of the court, the warden of the state penitentiary in which the death chamber is located shall cause the death sentence to be carried out within an enclosure to be prepared for that purpose in strict seclusion and privacy. The only witnesses entitled to be present at the carrying out of the death sentence are:
1. (1) The warden of the state penitentiary or the warden's duly authorized deputy;
2. (2) The sheriff of the county in which the crime was committed;
3. (3) A member of the clergy who has been preparing the condemned person for death;
4. (4) The prison physician;
5. (5) Attendants chosen and selected by the warden of the state penitentiary as may be necessary to properly carry out the execution of the death sentence;
6. (6) A total of seven (7) members of the print, radio and television news media selected in accordance with the rules and regulations promulgated by the department of correction. Those news media members allowed to attend any execution of a sentence of death shall make available coverage of the execution to other news media members not selected to attend;
7. (7)
  1. (A) Immediate family members of the victim who are eighteen (18) years of age or older. Immediate family members shall include the spouse, child by birth or adoption, stepchild, stepparent, parent, grandparent or sibling of the victim; provided, that members of the family of the condemned prisoner may be present and witness the execution;
  2. (B) Where there are no surviving immediate family members of the victim who are eighteen (18) years of age or older, the warden shall permit up to three (3) previously identified relatives or personal friends of the victim to be present and witness the execution;
8. (8) One (1) defense counsel chosen by the condemned person; and
9. (9) The attorney general and reporter, or the attorney general and reporter's designee.
(b) No other person or persons than those mentioned in subsection (a) are allowed or permitted to be present at the carrying out of the death sentence. It is a Class C misdemeanor for the warden of the state penitentiary to permit any other person or persons than those provided for in subsection (a) to be present at the legal execution.
(c)
1. (1) Photographic or recording equipment shall not be permitted at the execution site until the execution is completed, the body is removed, and the site has been restored to an orderly condition. However, the physical arrangement of the execution site shall not be disturbed.
2. (2) A violation of subdivision (c)(1) is a Class A misdemeanor.
3. (3) The department shall promulgate rules that establish criteria for the selection of news media representatives to attend an execution of a death sentence in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. In promulgating the rules, the department shall solicit recommendations from the Tennessee Press Association, the Tennessee Associated Press Managing Editors, and the Tennessee Association of Broadcasters. For each execution of a death sentence, applications for attendance shall be accepted by the department. When the number of applications require, lots to select news media representatives will then be drawn by the warden of the state penitentiary at which the death sentence is to be carried out. All drawings shall be conducted in open meetings and notice shall be properly given in accordance with § 4-5-203.
(d) If the immediate family members of the victim choose to be present at the execution, they shall be allowed to witness the execution from an area that is separate from the area to which other witnesses are admitted. If facilities are not available to provide immediate family members with a direct view of the execution, the warden of the state penitentiary may broadcast the execution by means of a closed circuit television system to the area in which the immediate family members are located.

Backlinks (1)

8-8-201(b)(1)

History (11)

Acts 1909, ch. 500, § 1
Shan., § 7253a1
Code 1932, § 11859
T.C.A. (orig. ed.), § 40-3119
Acts 1985 (1st Ex. Sess.), ch. 5, § 16
1989, ch. 591, § 113
1994, ch. 675, §§ 1-3
1997, ch. 133, §§ 1, 2
2000, ch. 744, § 1
2012, ch. 549, § 1
2022, ch. 735, § 1.

§ 40-23-117. Death sentence stands if not carried out at scheduled time.

When, from any cause, an inmate sentenced to death has not been executed pursuant to the sentence, the sentence stands in full force, and shall be carried into execution by the court in which the inmate was tried.

History (4)

Code 1858, § 5279
Shan., § 7259
Code 1932, § 11861
T.C.A. (orig. ed.), § 40-3121.

§ 40-23-118. Warrant for apprehension of condemned inmate.

If such convict is at large, the court or any magistrate may issue a warrant for the convict's apprehension, and, if no good reason is shown for the convict's discharge, shall commit the convict to abide the order and sentence of the court.

History (4)

Code 1858, § 5280
Shan., § 7260
Code 1932, § 11862
T.C.A. (orig. ed.), § 40-3122.

§ 40-23-119. Order of execution after arrest of condemned prisoner.

Upon the convict being brought before the court, it shall inquire into the circumstances, and, if no legal reason exists against the execution of the sentence, shall order the warden of the state penitentiary in which the death chamber is located to execute the defendant on a day to be fixed by the court.

History (6)

Code 1858, § 5281
impl. am. Acts 1909, ch. 500, § 1
Shan., § 7261
Code 1932, § 11863
T.C.A. (orig. ed.), § 40-3123
Acts 1985 (1st Ex. Sess.), ch. 5, § 17.

Chapter 24 Fines

§ 40-24-101. Payment of fines — Manner.

(a) When any court of this state, including municipal courts for violation of municipal ordinances, imposes a fine upon an individual, the court may direct as follows:
1. (1) That the defendant pay the entire amount at the time sentence is pronounced;
2. (2) That the defendant pay the entire amount at some later date;
3. (3) That the defendant pay the fine in specified portions or installments at designated periodic intervals and that the portions be remitted to a designated official, who shall report to the court in the event of any failure to comply with the order; or
4. (4) Where the defendant is sentenced to a period of probation as well as a fine, that payment of the fine be a condition of the sentence.
(b) Upon request by an individual on a payment or installment plan with the court clerk, the court clerk shall not require an individual to pay any outstanding court-assessed fines, fees, taxes, or costs arising from a criminal proceeding during the one-hundred-eighty-day period following the individual's release from a term of imprisonment sentence of one (1) year or more for a felony offense. If otherwise unavailable to the court, the individual shall provide documentation of the individual's release date when making this request. This subsection (b) does not apply to restitution owed to a victim. This subsection (b) does not apply to fines, fees, taxes, or costs that have been sent to a collection agency pursuant to § 40-24-105(d).
(c) For the clerk's services in administering any court-approved plan authorizing payment of a fine by installments, the clerk of court shall be entitled to a fee of five percent (5%) of the total amount to be collected, not to exceed fifteen dollars ($15.00); provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, the fee shall not exceed ten percent (10%) of the total amount to be collected, not to exceed fifteen dollars ($15.00). The clerk's fees shall be added to the defendant's bill of costs.

Backlinks (2)

History (5)

Acts 1972, ch. 729, § 1
T.C.A. §§ 40-3201, 40-3207
Acts 1987, ch. 135, § 1
1995, ch. 456, § 10
2023, ch. 329, § 1.

§ 40-24-102. Release of fines and forfeitures.

The several courts in which a cause is finally adjudged are authorized, either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them, from the whole or any part of fines or forfeitures accruing to the county or state.

History (4)

Code 1858, § 5251
Shan., § 7226
Code 1932, § 11813
T.C.A. (orig. ed.), §§ 40-3201, 40-3202.

§ 40-24-103. Confession of judgment.

In cases where a fine is assessed, the court shall allow the defendant to confess judgment for the fine and costs, with good sureties.

History (4)

Code 1858, § 5239
Shan., § 7214
Code 1932, § 11800
T.C.A. (orig. ed.), §§ 40-3202, 40-3203.

§ 40-24-104. Nonpayment of fines.

(a) If the defendant fails to pay the fine as directed, or is unable to pay the fine and so represents upon application to the court, the court, after inquiring into and making further investigation, if any, which it may deem necessary with regard to the defendant's financial and family situation and the reasons for nonpayment of the fine, including whether the nonpayment was contumacious or was due to indigency, may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay, or may direct that the defendant be imprisoned until the fine, or any portion of it, remaining unpaid or remaining undischarged after a pro rata credit for any time that may already have been served in lieu of payments, is paid. The court shall determine and specify, in the light of defendant's situation and means and of defendant's conduct with regard to the nonpayment of the fine, the period of any imprisonment in default of payment of the fine within the limits of the penalties for a Class C misdemeanor.
(b) Whenever a court orders a defendant to pay a fine, imposed as a result of a traffic violation, in installment payments, the court shall revoke the defendant's privilege to operate a motor vehicle in this state upon the failure of the defendant to comply with the order of the court. If the defendant's privilege to operate a motor vehicle has been revoked for the failure to comply with the court order, the privilege shall remain so revoked until the total amount of the fine imposed is paid.

Backlinks (7)

History (3)

Acts 1972, ch. 729, § 2
T.C.A., §§ 40-3208, 40-3204
Acts 1989, ch. 591, § 113.

§ 40-24-105. Collection of fines, costs and litigation taxes — Installment payment plan — Suspended license — Restricted license — Conversion to civil judgment — Settlement.

(a) Unless discharged by payment or service of imprisonment in default of a fine, a fine may be collected in the same manner as a judgment in a civil action. The trial court may also enforce all orders assessing any fine remaining in default by contempt upon a finding by the court that the defendant has the present ability to pay the fine and willfully refuses to pay. Costs and litigation taxes due may be collected in the same manner as a judgment in a civil action, but shall not be deemed part of the penalty, and no person shall be imprisoned under this section in default of payment of costs or litigation taxes. The following shall be the allocation formula for moneys paid into court in matters adjudicated on or after January 1, 2022: the first moneys paid in a case shall first be credited toward the payment of restitution owed to the victim, if any, and once restitution has been paid in full, the next moneys shall be credited toward payment of litigation taxes, and once litigation taxes have been paid, the next moneys shall be credited toward payment of costs; then additional moneys shall be credited toward payment of the fine.
(b)
1. (1) Any person who is issued a license under title 55 and who has not paid all litigation taxes, court costs, and fines assessed as a result of disposition of any offense under the criminal laws of this state within one (1) year of the date of the completion of the sentence shall enter into an installment payment plan with the clerk of the court ordering disposition of the offense to make payments on the taxes, costs, and fines owed.
2. (2) The clerk of the court ordering disposition of an offense shall offer a payment plan, which must be reasonable and based on a person's income and ability to pay, to any person convicted of an offense under the criminal laws of this state who requests to make payments pursuant to an installment payment plan or who is required to enter into an installment payment plan in accordance with subdivision (b)(1). A person may request, and the court clerk shall grant, modifications to the payment plan upon a change in the person's financial circumstances or upon good cause shown. If the request for modification is denied by a deputy clerk, then the person may appeal the denial to the chief clerk. If a request for modification is denied by the chief clerk, then the person may petition the court for modifications to the payment plan based upon a change in the person's financial circumstances or upon good cause shown.
3. (3)
  1. (A) The court clerk shall inform a person who enters into a payment plan pursuant to this subsection (b) that:
    1. (i) Failure to timely make the payments as ordered by the court results in the suspension of the person's license and the issuance of a restricted license; and
    2. (ii) Any default on the payment plan while the person is issued a restricted license results in the revocation of the restricted license and the person's driving privileges as described in subdivision (b)(5).
  2. (B) The court clerk shall notify the department of a person's failure to comply with a payment plan established pursuant to this subsection (b).
  3. (C)
    1. (i) Upon notice of the person's failure to comply with the payment plan established pursuant to this subsection (b), the department shall notify the person in writing of the pending suspension of the person's license and instruct the person to contact the appropriate court clerk within the time period described in this subdivision (b)(3)(C).
    2. (ii) A person has thirty (30) days from the date the department sends the notice described in subdivision (b)(3)(C)(i) to reestablish compliance with the payment plan or petition the court clerk or court and demonstrate that the person has, in fact, complied with the court clerk's payment plan.
    3. (iii) If the person reestablishes compliance with the payment plan or demonstrates to the court clerk or court that the person complied with the court clerk's payment plan, then the court clerk shall issue a receipt or other documentation to the person. If the person presents the receipt or other documentation to the department prior to the expiration of the thirty-day period described in subdivision (b)(3)(C)(ii), then the department shall not suspend the person's license.
    4. (iv) A person who fails to reestablish compliance with the payment plan or demonstrate to the court clerk or court's satisfaction that the person complied with the court clerk's payment plan and whose license is suspended in accordance with this subdivision (b)(3) may apply to the court for the issuance of a restricted license. The court shall order the issuance of a restricted license if the person is otherwise eligible for a driver license.
  4. (D) If the person does not present the receipt or other documentation to the department prior to the expiration of the thirty-day period, then the department shall suspend the person's license. Upon the person presenting a certified copy of the court order in accordance with subdivision (b)(4)(B), the department shall issue a restricted license in place of the suspended license.
4. (4)
  1. (A) A restricted license issued pursuant to this subsection (b) is valid only for travel necessary for:
    1. (i) Employment;
    2. (ii) School;
    3. (iii) Religious worship;
    4. (iv) Participation in a recovery court, which includes drug courts under the Drug Court Treatment Act of 2003, compiled in title 16, chapter 22; DUI courts; mental health courts; and veterans treatment courts; or
    5. (v) Serious illness of the person or an immediate family member.
  2. (B) The order for the issuance of a restricted license must state with all practicable specificity the necessary times and places of permissible operation of a motor vehicle. The person may obtain a certified copy of the order and, within ten (10) days after the order is issued, present it to the department, which shall issue a restricted license embodying the limitations imposed in the order. After proper application and until the restricted license is issued, a certified copy of the order may serve in lieu of a driver license.
5. (5)
  1. (A) If a person who is issued a restricted license fails to comply with a payment plan established pursuant to this subsection (b), the court clerk shall notify the department of the person's failure to comply with the payment plan.
  2. (B)
    1. (i) Upon notice of the person's failure to comply with the payment plan, the department shall notify the person in writing of the pending revocation of the person's restricted license and instruct the person to contact the appropriate court clerk within the time period described in this subdivision (b)(5)(B).
    2. (ii) A person has thirty (30) days from the date the department sends the notice described in subdivision (b)(5)(B)(i) to reestablish compliance with the payment plan or petition the court clerk or court and demonstrate that the person has, in fact, complied with the court clerk's payment plan.
    3. (iii) If the person reestablishes compliance with the payment plan or demonstrates to the court clerk or court that the person complied with the court clerk's payment plan, then the court clerk shall issue a receipt or other documentation to the person. If the person presents the receipt or other documentation to the department prior to the expiration of the thirty-day period described in subdivision (b)(5)(B)(ii), then the department shall not revoke the person's restricted license.
  3. (C) If the person does not present the receipt or other documentation to the department prior to the expiration of the thirty-day period, then the department shall revoke the person's restricted license.
  4. (D) No sooner than six (6) months from the date of revocation, a person whose restricted license is revoked pursuant to this subdivision (b)(5) may apply with the court clerk for a certification that the person is eligible to be reissued a restricted license; provided, that the person must be actively participating in an installment payment plan in accordance with subdivision (b)(2).
  5. (E) Upon the person's application for a certification that the person is eligible to receive a reissued restricted license pursuant to subdivision (b)(5)(D), the court clerk shall certify whether the person is actively participating in a payment plan and request the reissuance of a restricted driver license for the person if the person is otherwise eligible for a driver license. The certification must state with all practicable specificity the necessary times and places of permissible operation of a motor vehicle for purposes described in subdivision (b)(4)(A). The person may obtain a copy of the certification and, within ten (10) days after the certification is issued, present it to the department, which shall issue a restricted license embodying the limitations imposed in the certification. After proper application and until the restricted license is issued, a copy of the certification may serve in lieu of a driver license.
6. (6)
  1. (A) Notwithstanding this subsection (b), if a licensee claims an inability to pay taxes, fines, or costs imposed for a disposition of any offense under the criminal laws of this state due to indigency, the court shall offer the person the opportunity to submit proof of the person's financial inability to pay, which may include a signed affidavit of indigency. For purposes of this subdivision (b)(6), the standard for a claim of indigency is the same as for an indigent person, as defined in § 40-14-201.
  2. (B) Upon proof of a person's financial inability to pay, the court shall suspend the person's taxes, fines, and costs. No additional fines or costs accrue against the original taxes, fines, and costs as a result of or during the suspension of the person's taxes, fines, and costs. The court may order the person to reappear before the court for a reevaluation of the person's financial ability or inability to pay the taxes, fines, or costs. If, after the reevaluation, the person:
    1. (i) Is no longer financially unable to pay or secure any portion of the taxes, fines, or costs in accordance with subdivision (b)(6)(A), the court shall reinstate the taxes, fines, and costs and apply subdivisions (b)(2)-(5); or
    2. (ii) Remains financially unable to pay any portion of the taxes, fines, or costs, the court shall extend the suspension of the person's taxes, fines, and costs and may order the person to reappear before the court for a reevaluation of the person's financial ability or inability to pay the fine or cost in accordance with this subdivision (b)(6)(B). The process described by this subdivision (b)(6)(B) applies until the person fully pays the moneys owed the court or any outstanding taxes, fines, or costs are waived by the court.
7. (7) Notwithstanding this subsection (b), a person will be issued a restricted license or have the person's license reinstated only if the person is otherwise eligible for a driver license.
8. (8) The process described by this subsection (b) applies until the person fully pays the moneys owed the court or any outstanding taxes, fines, or costs are waived by the court.
9. (9) If otherwise eligible for a driver license, any person whose driver license was revoked under this section, prior to July 1, 2019, for nonpayment of litigation taxes, court costs, and fines assessed may apply to the court having original jurisdiction over the offense for an order reinstating the person's license upon entering into an installment payment plan under this subsection (b) or the submittal of proof described in subdivision (b)(6). The person may present a certified copy of the court's order to the department of safety, which shall reissue a driver license at no cost to the person if the person is otherwise eligible for a driver license.
Backlinks (2)
- 40-25-123(c)(2)(B)
- 55-50-321(a)(2)
(c) The district attorney general or the county or municipal attorney, as applicable, may, in that person's discretion, and shall, upon order of the court, institute proceedings to collect the fine, costs and litigation taxes as a civil judgment.
(d)
1. (1) Any fine, costs, or litigation taxes remaining in default after the entry of the order assessing the fine, costs, or litigation taxes may be collected by the district attorney general or the criminal or general sessions court clerk in the manner authorized by this section and otherwise by the trial court by contempt upon a finding by the court that the defendant has the present ability to pay the fine and willfully refuses to pay. After a fine, costs, or litigation taxes have been in default for at least six (6) months, the district attorney general or criminal or general sessions court clerk may retain an agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes. If an agent is used, the district attorney general or the criminal or general sessions court clerk shall request the county purchasing agent to utilize normal competitive bidding procedures applicable to the county to select and retain the agent. If the district attorney general and the criminal or general sessions court clerk cannot agree upon who collects the fines, costs and litigation taxes, the presiding judge of the judicial district or a general sessions judge shall make the decision. The district attorney general or criminal or general sessions court clerk may retain up to fifty percent (50%) of the fines, costs and litigation taxes collected pursuant to this subsection (d) in accordance with any in-house collection procedure or, if an agent is used, for the collection agent. The proceeds from any in-house collection shall be treated as other fees of the office. When moneys are paid into court, the allocation formula outlined in subsection (a) shall be followed, except up to fifty percent (50%) may be withheld for in-house collection or, if an agent is used, for the collection agent, with the remainder being allocated according to the formula.
2. (2) On or after January 1, 2015, if an agent is used, the agent's collection fee shall be added to the total amount owed. The agent's collection fee shall not exceed forty percent (40%) of any amounts actually collected. When moneys are paid into court, the allocation formula outlined in subsection (a) shall be followed, except up to forty percent (40%) may be withheld for the collection agent, with the remainder being allocated according to the formula.
Backlinks (2)
- 40-24-101(b)
- 40-25-123(c)(2)(B)
(e)
1. (1) The governing body of any municipality may by ordinance authorize the employment of a collection agency to collect fines and costs assessed by the municipal court where the fines and costs have not been collected within sixty (60) days after they were due. The authorizing ordinance shall include the requirement that the contract between the municipality and the collection agency be in writing.
2. (2) The collection agency may be paid an amount not exceeding forty percent (40%) of the sums collected as consideration for collecting the fines and costs.
3. (3) The written contract between the collection agency and the municipality shall include a provision specifying whether the agency may institute an action to collect fines and costs in a judicial proceeding.
4. (4) Nothing in this subsection (e) shall be interpreted to permit a municipality to employ a collection agency for the collection of unpaid parking tickets in violation of § 6-54-513.
(f) If any fine, costs or litigation taxes assessed against the defendant in a criminal case remain in default when the defendant is released from the sentence imposed, the sentence expires or the criminal court otherwise loses jurisdiction over the defendant, the sentencing judge, clerk or district attorney general may have the amount remaining in default converted to a civil judgment pursuant to the Tennessee Rules of Civil Procedure. The judgment may be enforced as is provided in this section or in any other manner authorized by law for a civil judgment.
(g) After a fine, costs, or litigation taxes have been in default for at least five (5) years, the criminal or general sessions court clerk may, subject to approval by a court of competent jurisdiction, accept a lump-sum partial payment in full settlement of the outstanding balance due on a case. The court shall not approve a settlement unless the amount accepted is equal to or greater than fifty percent (50%) of the combined outstanding balance of all fines, costs, and litigation taxes due on the case. When moneys are paid into court pursuant to this subsection (g), the allocation formula outlined in subsection (a) shall be followed, except the percentage that may be retained by the clerk pursuant to subsection (d) may be withheld, with the remainder being allocated according to the formula.
(h) [Deleted by 2019 amendment.]
(i) As used in this section, “costs” shall include any jail fees or other incarceration costs imposed.

Backlinks (9)

History (20)

Acts 1972, ch. 729, § 3
T.C.A., §§ 40-3209, 40-3205
Acts 1991, ch. 467, § 1
1992, ch. 956, § 1
1996, ch. 826, § 1
1996, ch. 920, § 1
1997, ch. 325, §§ 1, 2
2007, ch. 167, §§ 1, 2
2009, ch. 570, § 1
2009, ch. 577, § 2
2011, ch. 504, §§ 1-3
2014, ch. 737, §§ 1, 2
2015, ch. 257, § 1
2017, ch. 149, § 1
2017, ch. 412, §§ 1-4
2018, ch. 538, § 1
2018, ch. 579, § 1
2019, ch. 438, §§ 5, 6
2021, ch. 410, §§ 6-8
2021, ch. 413, § 1.

§ 40-24-106. Fines accruing to state.

(a) Except as otherwise provided by law, fines, amercements, forfeitures and recoveries in criminal cases constitute a part of the revenue of the state, and shall be paid into the state treasury in the following cases:
1. (1) All fines and forfeitures that may be recovered in any case in which the defendant is indicted for a felony, whether convicted of a felony or of an offense less than felony; and
2. (2) All fines and forfeitures, imposed for a violation of any law regulating the business of banking.
(b) Except as otherwise provided by law, fines and forfeitures in all other state cases go to the county in which the indictment was found.

History (5)

Code 1858, §§ 552, 5236 (deriv. Acts 1835-1836, ch. 55, § 2)
Shan., §§ 707, 7211
Code 1932, §§ 1258, 11798
modified
T.C.A. (orig. ed.), § 40-3206.

§ 40-24-107. Criminal injuries compensation fund — County criminal injuries compensation reserve.

(a)
1. (1)
  1. (A) When any person is convicted by a circuit court or a comparable court of record with jurisdiction over criminal matters of a crime of any nature after July 1, 1984, except those crimes for which the law imposes as a maximum possible punishment a fine of less than five hundred dollars ($500) and no imprisonment, there is levied a privilege tax of twenty-six dollars and fifty cents ($26.50) in addition to any other costs or fees imposed in the action. If the person is convicted of a crime against the person, the privilege tax shall be fifty dollars ($50.00) in addition to any other costs or fees.
  2. (B) In addition to all other taxes imposed and in addition to other costs or fees, if any person is convicted of a crime against the person of a child under the age of eighteen (18) that constitutes a criminal offense under § 39-12-101, § 39-13-101, §§ 39-13-501 — 39-13-505, § 39-15-302, or § 39-17-1005, there is levied a privilege tax of five hundred dollars ($500).
2. (2) If any person is convicted by a court of general sessions or a comparable court with jurisdiction over criminal matters of a crime of any nature after July 1, 1984, except those crimes for which the law imposes as a maximum possible punishment a fine of less than five hundred dollars ($500) and no imprisonment, there is levied a privilege tax of twenty-six dollars and fifty cents ($26.50) in addition to any other costs or fees imposed in the action. If the person is convicted of a crime against the person, the privilege tax shall be fifty dollars ($50.00) in addition to any other costs or fees.
3. (3) Nothing in this subsection (a) shall be construed as applying to violations of the motor vehicle laws unless the violation is covered by the provisions of title 55, chapter 10, part 4, relating to driving while intoxicated, § 55-10-205, relating to reckless driving, if the reckless driving was proximately caused by the use of an intoxicant or § 55-10-101, relating to the duty to stop at the scene of an accident resulting in injury or death.
4. (4) Whether a person convicted of a crime is exempted from payment of the tax imposed by this subsection (a) shall be determined by the maximum possible sentence imposed by law for the offense rather than the sentence the person actually receives.
5. (5) The tax imposed by this subsection (a) shall be collected by the clerks of the various courts from each person convicted and all funds so collected, with the exception of one dollar ($1.00), which shall be retained by the clerk to defray the expenses of collecting and processing the funds, shall be paid over to the department of revenue for apportionment pursuant to § 67-4-606.
6. (6) In addition to all other revenues set forth in this section, all revenue to which the general fund of the state is otherwise entitled from the sale of illegal contraband seized by any law enforcement agency of the state shall be deposited to the criminal injuries compensation fund.
(b) When an offender liable to pay the tax has been convicted and sentenced to a county correctional institution or program, or to an institution or program maintained by the department, the clerk of court shall certify to the appropriate official as provided in this subsection (b) whether payment of the tax has been made. If the offender liable to pay the tax has been convicted and sentenced to an institution or program maintained by the department, the clerk of court shall certify to the commissioner of correction, in the form as the commissioner may direct, whether payment of the tax has been made. The commissioner shall then cause any amount owing to be collected from the prisoner during the offender's period of confinement by the department. If the offender liable to pay the tax has been convicted and sentenced to a correctional institution or program maintained by a county, the clerk of court shall certify to the county officer with supervisory authority over the institution or program whether payment of the tax has been made. The county officer shall then cause any amount owing to be collected from the offender during the offender's period of confinement. The commissioner, or appropriate county official, shall submit reasonable reports as may be requested by the board of claims with respect to the status of an offender's obligation under this section. The total sums collected under this subsection (b) shall be apportioned pursuant to § 67-4-606.
(c) There is created in the state treasury a fund to be known as the “criminal injuries compensation fund.” Moneys shall be deposited to the fund as provided by law and shall be invested for the benefit of the fund pursuant to § 9-4-603. Moneys in the fund shall not revert to the general fund of the state, but shall remain available and be appropriated exclusively for providing compensation under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13 and this section. The state treasurer shall annually determine the amount of awards paid to victims of drunk drivers pursuant to title 29, chapter 13, for the preceding fiscal year and shall set aside in a separate reserve within the fund an amount equal to three (3) times the awards paid during that fiscal year. The separate reserve may only be used to pay awards to victims of drunk drivers in the event current revenues to the fund are insufficient to pay awards to the victims.
(d) In addition to all other funds that are set forth in this section to be deposited into the criminal injuries compensation fund, all forfeitures of appearance bonds in felony cases shall be paid over to the state treasurer for deposit into the criminal injuries compensation fund.

Backlinks (18)

History (23)

Acts 1976, ch. 736, § 16(a)-(d)
1977, ch. 427, § 3
1978, ch. 839, § 4
1979, ch. 331, § 1
impl. am. Acts 1979, ch. 359, §§ 5, 26
1980, ch. 893, § 1
1981, ch. 163, §§ 1-3
T.C.A., § 40-3207
Acts 1984, ch. 752, §§ 4, 5
1984, ch. 997, § 1
1985, ch. 278, § 10
1985, ch. 335, § 1
1985, ch. 403, § 2
1985, ch. 478, § 25
1986, ch. 880, § 3
1990, ch. 755, §§ 11-13
1992, ch. 761, §§ 5, 6, 9
1995, ch. 490, § 2
1996, ch. 675, § 34
2002, ch. 835, § 1
2003, ch. 235, §§ 2, 3
2005, ch. 429, §§ 22, 23
2008, ch. 1043, § 2.

§ 40-24-108. Sexual assault program services.

(a) When any person is convicted of a sexual offense as defined in subdivision (b)(2) on or after July 1, 2003, in addition to any other punishment that may be imposed for the sexual offense, the court shall impose a fine of two hundred dollars ($200). The additional fine shall be paid to the clerk of the court imposing sentence, who shall transfer it to the state treasurer, who shall credit the fine to the general fund. All fines so credited to the general fund shall be subject to appropriation by the general assembly for the exclusive purpose of funding sexual assault program services pursuant to title 71, chapter 6, part 3.
(b)
1. (1) For purposes of this section, “convicted” means an adjudication of guilt for a sexual offense as defined in subdivision (b)(2) in any of the manners described:
  1. (A) Plea of guilty, including a plea of guilty entered pursuant to § 40-35-313;
  2. (B) Verdict of guilty by a judge or jury;
  3. (C) Plea of no contest; or
  4. (D) Best interest plea.
2. (2) “Sexual offense” means the commission of any act that constitutes the criminal offense of:
  1. (A) Aggravated rape, under § 39-13-502;
  2. (B) Rape, under § 39-13-503;
  3. (C) Aggravated sexual battery, under § 39-13-504;
  4. (D) Sexual battery, under § 39-13-505;
  5. (E) Statutory rape, under § 39-13-506;
  6. (F) Sexual exploitation of a minor, under § 39-17-1003;
  7. (G) Aggravated sexual exploitation of a minor, under § 39-17-1004;
  8. (H) Especially aggravated sexual exploitation of a minor, under § 39-17-1005;
  9. (I) Incest, under § 39-15-302;
  10. (J) Rape of a child, under § 39-13-522;
  11. (K) Sexual battery by an authority figure, under § 39-13-527;
  12. (L) Solicitation of a minor, under § 39-13-528;
  13. (M) Criminal attempt, under § 39-12-101, solicitation, under § 39-12-102, or conspiracy, under § 39-12-103, to commit any of the offenses enumerated within this subdivision (b)(2); or
  14. (N) Criminal responsibility under § 39-11-402(2) for facilitating the commission under § 39-11-403 of, or being an accessory after the fact under, § 39-11-411 to any of the offenses enumerated in this subdivision (b)(2).
  Backlinks (1)
  
  71-6-302(2)
Backlinks (1)
- 40-35-503(i)(2)(E)

Backlinks (1)

71-6-306

History (1)

Acts 2003, ch. 304, § 1.

§ 40-24-109. Services to victims of certain types of crimes.

(a) The county legislative body of any county may elect to establish a program to assist victims of crime, their families and survivors or to provide funding or additional funding for an existing program established to assist victims. The type of programs for which this section may be utilized includes rape crisis centers, domestic violence shelters, victim of crime hotlines and information programs, individual, group and family counseling services, crisis intervention programs, support groups and other similar programs designed to assist victims of crime, their families or survivors.
(b)
1. (1) If a county legislative body elects to establish or fund a program as authorized by this section, it shall, at the time of election, designate the program for which the assessment provided in subsection (c) will be used.
2. (2) No assessment authorized by subsection (c) shall be collected or transmitted until the county legislative body has elected to utilize this section and has designated the victim of crime program for which it will be dedicated.
(c) The clerks of all courts of general sessions, circuit and criminal courts, municipal courts exercising general sessions court jurisdiction and any other court exercising similar criminal jurisdiction shall collect a victims assistance assessment in the sum of forty-five dollars ($45.00) from any person who:
1. (1) Enters a plea of guilty;
2. (2) Is found guilty by a judge or jury;
3. (3) Enters a plea of nolo contendere;
4. (4) Enters a plea, pursuant to any of the diversionary sentencing statutes, to any criminal offense described in subsection (d);
5. (5) Is found guilty, or enters a plea of guilty or nolo contendere, to the offense of attempting or conspiring to commit any offense described in subsection (d); or
6. (6) Is found to be criminally responsible as principal for the commission of any offense described in subsection (d).
(d) Except as provided in subsection (e), subsection (c) shall apply to any conduct made criminal by the laws of this state.
(e) This section shall not apply to:
1. (1) Crimes for which the law imposes, as a maximum possible punishment, a fine of less than five hundred dollars ($500) and no imprisonment; and
2. (2) Violations of the motor vehicle laws, except driving under the influence of an intoxicant as prohibited by § 55-10-401, or reckless driving as prohibited by § 55-10-205, where the reckless driving was proximately caused by the use of an intoxicant.
(f) Whether a person convicted of a crime is exempted from payment of the assessment imposed by this section shall be determined by the offense for which the person was convicted and the maximum possible sentence authorized by law for the offense, rather than the sentence the person actually receives.
(g)
1. (1) The victims assistance assessment shall be subject to § 8-21-401 or § 8-21-409 and shall be in addition to all other taxes, costs, and fines. The first three dollars ($3.00) of each assessment shall be paid to the clerk of the court imposing the assessment for processing and handling. The remaining forty-two dollars ($42.00) shall be transmitted to the county in which the offense occurred, for the exclusive use of the victims assistance program previously designated by the county legislative body.
2. (2) Upon transmittal to the victims program in the county, all funds collected pursuant to this section shall be used to defray the costs of providing the services to victims of crime designated by the program's mission statement and guidelines.
(h) Nothing in this section shall be construed to prevent a county from funding more than one (1) program to assist victims of crime; provided, that no such program may be funded unless the provider organization offers services to victims of crime free of charge.

History (3)

Acts 2006, ch. 627, § 1
2008, ch. 880, § 1
2011, ch. 305, § 1.

Chapter 25 Fees of Officers

§ 40-25-101. Application of general provisions as to fees.

Title 8, chapters 21-24 and 26 applies to this chapter, unless otherwise specifically provided.

History (4)

Code 1858, § 5560
Shan., § 7582
Code 1932, § 12210
T.C.A. (orig. ed.), § 40-3301.

§ 40-25-102. Express authorization required.

Officers are entitled to no other fees in criminal cases, except those expressly provided for by law, and in no case are they entitled to payment from the state or county, unless expressly allowed.

History (4)

Code 1858, § 5561
Shan., § 7583
Code 1932, § 12211
T.C.A. (orig. ed.), § 40-3302.

§ 40-25-103. Fees to officers acting in lieu of named officers.

(a) If any of the duties in this chapter and title 8, chapters 21-24 and 26 are performed by other officers than those therein named, whose duty it is to perform the same, those officers are entitled to the same fees, and in the same manner, as there named.
(b) This section does not apply to any of the judges or chancellors of the state.

History (4)

Code 1858, §§ 5562, 5563
Shan., §§ 7584, 7585
Code 1932, §§ 12212, 12213
T.C.A. (orig. ed.), § 40-3303.

§ 40-25-104. Costs adjudged.

The costs that may be adjudged in criminal cases include all costs incident to the arrest and safekeeping of the defendant, before and after conviction, due and incident to the prosecution and conviction, and incident to the carrying of the judgment or sentence of the court into effect.

Backlinks (1)

55-5-114(g)

History (5)

Code 1858, § 5577 (deriv. Acts 1805, ch. 49
1813, ch. 137 (136 in Scott's Revisal), § 2)
Shan., § 7606
Code 1932, § 12233
T.C.A. (orig. ed.), § 40-3304.

§ 40-25-105. Prosecutor not entitled to fees.

No prosecutor in a misdemeanor is entitled to any compensation for services as prosecutor, or for attendance as a witness on behalf of the state.

History (4)

Code 1858, § 5573 (deriv. Acts 1829, ch. 100, § 3)
Shan., § 7600
Code 1932, § 12227
T.C.A. (orig. ed.), § 40-3305.

§ 40-25-106. Witnesses living near court.

Neither the state nor any county of the state shall pay or be liable in any criminal case or prosecution for the fees, costs or mileage that may accrue in favor of any witness who, at the time of attendance as a witness before any court, grand jury or magistrate, resides within five (5) miles of the place where the person attends as a witness.

Backlinks (2)

History (4)

Acts 1897, ch. 20, § 2
Shan., § 7622a2
Code 1932, § 12251
T.C.A. (orig. ed.), § 40-3306.

§ 40-25-107. State and county expense fees for misdemeanors.

Every person indicted or presented in any court or tried on state warrants charging driving while intoxicated, or carrying a deadly weapon with the intent to be armed, tried in a court of general sessions, for a misdemeanor, except when acquitted, before the person is discharged, shall be required by the judgment of the court to pay or secure or work out in the workhouse, in addition to all other costs, a county expense fee of five dollars ($5.00) for each defendant. The county expense fee shall be included and recovered as part of the costs of the case, and collected and paid over as costs. The county expense fee shall be paid to the county.

History (7)

Acts 1919, ch. 57, § 1
Shan. Supp., § 7616a1
Code 1932, § 12243
Acts 1961, ch. 307, § 1
1978, ch. 839, § 5
1981, ch. 488, § 3
T.C.A. (orig. ed.), § 40-3307.

§ 40-25-108. Loss of fees by clerk's neglect.

No clerk is entitled to any fees in any state case, when the fees have become chargeable to the state or county, in consequence of any omission of the clerk's duty or clerical defect in the record.

History (4)

Code 1858, § 5565 (deriv. Acts 1845-1846, ch. 95, § 1)
Shan., § 7589
Code 1932, § 12217
T.C.A. (orig. ed.), § 40-3308.

§ 40-25-109. Fees on unserved process.

No fee is allowed the sheriff or other executive officer, upon the return of any kind of criminal process or subpoena “not found,” unless the officer makes oath before the clerk that the officer has been to the residence of the person mentioned in the process, or at the place where the person last resided in that county, or that the person has not resided in the county for twelve (12) months.

History (4)

Code 1858, § 5567 (deriv. Acts 1843-1844, ch. 215, §§ 10, 12)
Shan., § 7591
Code 1932, § 12218
T.C.A. (orig. ed.), § 40-3309.

§ 40-25-110. Fees lost by escape of prisoner — Exception.

(a) No sheriff, jailer or other officer charged with the custody of the prisoner is entitled to any allowance for keeping or removing the prisoner, if the prisoner escapes from the custody of the sheriff or jailer, or from the officer during removal.
(b)
1. (1) Where prisoners make their escape from jail by means of force, stratagem or other fraudulent device, and reasonable care and diligence were used by the jailer to prevent the escape, or to secure the prisoner or prisoners in jail, the jailer shall be entitled to fees as jailer; provided, that it shall be clearly made to appear to the satisfaction of the judge of the circuit or criminal court in the county where the escape was made or the cause pending, that the escape was effected in the manner and under the circumstances aforementioned, and that the jailer had used the proper efforts on the jailer's part to recover the prisoner or prisoners.
2. (2) In all cases falling within this subsection (b), it is the duty of the judge to certify the claim for payment as in other bills of cost, and the sheriff or other officers having custody of the prisoner or prisoners shall have all the benefits of this subsection (b).

History (5)

Code 1858, § 5564
Acts 1859-1860, ch. 83, §§ 1-3
Shan., §§ 7586-7588
Code 1932, §§ 12214-12216
T.C.A. (orig. ed.), §§ 40-3310, 40-3311.

§ 40-25-111. Payment for transporting prisoners — Limitation on charges.

(a) The sheriff or other officer, conveying an inmate to the penitentiary, shall make out an account in writing, stating the number of miles on the usual route from the place of conviction to the penitentiary, the number of guards necessarily employed to ensure the safe conveyance of the inmate, and the distance each of the guards may have traveled, and make oath to the truth of the account before the warden of the penitentiary, or any judge, who shall certify the fact.
(b) Upon presentation of the account thus sworn to and certified, the director of accounts shall issue a warrant for the amount, as in other cases, if satisfied of the correctness of the account.
(c) It is the duty of the sheriff to carry to the penitentiary, at the same time, all inmates in the sheriff's custody, at that time sentenced to the penitentiary, and the sheriff shall not be entitled to charge for more than one (1) trip.

Backlinks (1)

8-8-201(b)(1)

History (8)

Code 1858, §§ 5589-5591 (deriv. Acts 1831, ch. 86, §§ 1, 4, 5
1833, ch. 29)
Shan., §§ 7630-7632
Code 1932, §§ 12259-12261
impl. am. Acts 1937, ch. 33, §§ 24, 29
C. Supp. 1950, § 12260
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), §§ 40-3312, 40-3314.

§ 40-25-112. Limitation on sheriff's fees.

The sheriff and guard shall be entitled to no other compensation than that which is allowed by this code.

History (4)

Code 1858, § 5592
Shan., § 7633
Code 1932, § 12262
T.C.A. (orig. ed.), § 40-3313.

§ 40-25-113. Certification of items in bill of costs.

(a) It is the duty of the clerk of the court in which a criminal action has been tried, or costs accrued, to examine bills of costs. The court may also hear testimony in regard to the items, if necessary, and, if the charges are legal and duly proved, to certify the fact thereon.
(b) In making such certificate, the clerk of the court shall certify the aggregate amount of each bill of cost, writing the aggregate amount in both words and figures, and no bill of cost shall be paid unless so certified.

History (8)

Code 1858, § 5571 (deriv. Acts 1827, ch. 48, § 1
1832, ch. 7)
Acts 1897, ch. 29, § 1
Shan., § 7598
Code 1932, § 12225
modified
T.C.A. (orig. ed.), § 40-3315
Acts 1983, ch. 396, § 1.

§ 40-25-114. Discretion of court.

The court has also discretion in controlling the taxation of costs, and in no case shall the state or county be charged therewith, unless the court so order, specifying in the order the officers and witnesses whose costs are to be taxed, together with the amount due each.

History (4)

Code 1858, § 5572 (deriv. Acts 1827, ch. 48, § 1)
Shan., § 7599
Code 1932, § 12226
T.C.A. (orig. ed.), § 40-3316.

§ 40-25-115. Certification of jury expenses in misdemeanor cases.

(a) The expenses of keeping a jury in any misdemeanor case in which the county may eventually become liable, may, in the discretion of the court, be certified, upon the adjournment of the court, to the judge of the general sessions court, who shall issue a warrant for the jury expenses to any person authorized to receive it; provided, that all persons having bills against the county shall first make oath before the clerk of the circuit or criminal court that the bills are true and correct, and the clerk shall affix the clerk's certificate thereto.
(b) All the bills shall then be read and presented in open court to the judge and the district attorney general, for their inspection and allowance, if correct.
(c) The clerk of the court shall be required to enter the amounts of the bills as may be so approved and allowed, upon the minutes of the court, and shall certify the amounts of the bills in writing on the face of each original bill, attach the seal of the clerk's office, and forward the bill to the proper authorities for payment, for which the clerk shall receive a fee of fifty cents (50¢), to be paid by the party to whom the bill belongs.

Backlinks (3)

History (5)

Acts 1859-1860, ch. 6, § 2
1885 (Ex. Sess.), ch. 11, § 1
Shan., § 7607
mod. Code 1932, § 12234
T.C.A. (orig. ed.), § 40-3317.

§ 40-25-116. Certificate required for payment.

The judge of the general sessions court shall not issue warrants for any accounts for boarding juries until the bill shows on its face that all of the requirements of § 40-25-115 have been satisfied.

History (4)

Acts 1885 (Ex. Sess.), ch. 11, § 2
Shan., § 7608
Code 1932, § 12235
T.C.A. (orig. ed.), § 40-3318.

§ 40-25-117. Refund of expenses collected from defendant.

If the costs are afterwards collected from the defendant or the defendant's sureties, they shall be turned over to the trustee of the county, by the clerk of the court, as fines are remitted.

History (4)

Acts 1885 (Ex. Sess.), ch. 11, § 3
Shan., § 7609
mod. Code 1932, § 12236
T.C.A. (orig. ed.), § 40-3319.

§ 40-25-118. Certification of fees for boarding juries and prisoners under indictment.

In all felony cases, after indictment is found, in which the state may eventually become liable, the clerk of the court shall certify at the adjournment of each term of the court, all fees of the sheriff for board of the prisoners; and also the fees for boarding the juries in cases in which there has been no final disposition.

Backlinks (1)

40-25-129(a)(2)

History (5)

Acts 1893, ch. 138, § 1
Shan., § 7623
Code 1932, § 12252
T.C.A. (orig. ed.), § 40-3320
Acts 1983, ch. 418, § 6.

§ 40-25-119. Contents of bill of fees.

All of the fees may be made out in one (1) bill, but each case shall show the date of indictment, the date of commitment, the date or dates of boarding the jury, the rate charged for boarding the jury, up to what date judgment has been given for the costs, and of all previous dispositions of any previous court in the case or cases.

History (4)

Acts 1893, ch. 138, § 2
Shan., § 7624
Code 1932, § 12253
T.C.A. (orig. ed.), § 40-3321.

§ 40-25-120. Taxation of final costs to state.

If, on the final disposition of the case, the state is held liable for the costs, the clerk shall tax only the difference between the amount previously collected and the amount due to date of final disposition.

History (4)

Acts 1893, ch. 138, § 3
Shan., § 7625
mod. Code 1932, § 12254
T.C.A. (orig. ed.), § 40-3322.

§ 40-25-121. Collection and refund of costs for which state not liable.

In the event the court does not hold the state liable for the costs in any cases when finally disposed of, it is the duty of the clerk to include all of the costs previously paid by the state on this account in the clerk's executions and the clerk's bill of costs, and to collect and refund the same to the state, in the same manner as the clerk is required by law to pay over state revenue.

Backlinks (2)

History (4)

Acts 1893, ch. 138, § 4
Shan., § 7626
Code 1932, § 12255
T.C.A. (orig. ed.), § 40-3323.

§ 40-25-122. Seal not required on certificates.

It is not necessary for a clerk to affix the seal of the clerk's court to the certificate to the bill of costs in criminal prosecutions.

History (4)

Acts 1866-1867, ch. 36, § 7
Shan., § 7595
Code 1932, § 12222
T.C.A. (orig. ed.), § 40-3324.

§ 40-25-123. Payment of costs by defendant — Suspension of costs and litigation tax for indigent defendants.

(a) A defendant convicted of a criminal offense shall pay all the costs that have accrued in the cause.
(b) Notwithstanding any law to the contrary, the presiding judge of a court of general sessions may suspend the court costs and the litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the presiding judge's opinion the equities of the case require.
(c)
1. (1) Notwithstanding any law to the contrary, a general sessions or criminal court judge may either:
  1. (A) Suspend the court costs and litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the judge's opinion the equities of the case require; or
  2. (B) Upon the application of an indigent defendant, refer the defendant to the program described in subdivision (c)(2) if the county legislative body has voted to approve such program. Upon certification of the court clerk that the defendant has successfully completed the requirements of subdivision (c)(2), the judge may suspend the court costs and litigation tax as required by §§ 67-4-602 — 67-4-606, for any indigent criminal defendant, as in the judge's opinion the equities of the case require.
2. (2)
  1. (A) The court clerk for a general sessions or criminal court may, in the clerk's discretion, submit a request in writing to the county legislative body to implement a program of community service for indigent criminal defendants in lieu of full payment of court costs and litigation taxes. A county legislative body receiving such request shall vote, within thirty (30) days, whether to approve the request. If a county legislative body votes to approve the request pursuant to this subdivision (c)(2)(A), then the clerk may implement the program.
  2. (B) Upon referral pursuant to subdivision (c)(1)(B), the clerk may determine whether the defendant qualifies for the program based upon the guidelines adopted by the clerk. The guidelines may include evaluation of the defendant's ability to pay the court costs and litigation taxes. The clerk may remove the defendant from the program at any time due to failure to comply with the program guidelines. The number of applicants accepted and the duration and continuation of the program shall be at the discretion of the clerk. Participation in the community service program established by this subdivision (c)(2) shall not operate to stay a revocation of a license pursuant to § 40-24-105(b); nor shall participation in the program operate to stay collection activity pursuant to § 40-24-105(d) for any of the defendant's cases not approved for inclusion by the clerk.

History (8)

Code 1858, § 5583 (deriv. Acts 1813, ch. 136, § 2)
Shan., § 7617
Code 1932, § 12244
T.C.A. (orig. ed.), § 40-3325
Acts 1998, ch. 806, § 1
2016, ch. 675, § 1
2018, ch. 542, § 1
2018, ch. 884, § 1.

§ 40-25-124. Costs where several defendants.

It is the duty of the district attorney general to include in one (1) bill of indictment or presentment all persons engaged in the same offense, and the costs shall be taxed as one (1) suit, unless the defendants sever in their trial, and, in that event, the costs are taxed as two (2) or more suits, according to the nature of the case.

History (5)

Code 1858, § 5568 (deriv. Acts 1843-1844, ch. 215, § 11)
Shan., § 7592
Code 1932, § 12219
modified
T.C.A. (orig. ed.), § 40-3326.

§ 40-25-125. Costs on peace warrant.

Upon the trial of a person who has been arrested on a warrant to keep the peace, and bound over for appearance at court to answer the charge, the court may, at its discretion, order the person, or the person at whose instance the warrant was taken out, to pay the costs.

History (4)

Code 1858, § 5584 (deriv. Acts 1835-1836, ch. 59, § 1)
Shan., § 7618
Code 1932, § 12245
T.C.A. (orig. ed.), § 40-3327.

§ 40-25-126. Taxing of costs of malicious or frivolous prosecution.

(a) When the defendant is discharged upon the examination, or acquitted in any criminal prosecution for a public offense, and the court is of opinion that the prosecution was malicious or frivolous, the prosecutor may be taxed with all the costs.
(b) This section extend to trials before judges of general sessions courts, by whom the prosecutor may, in like manner and under like circumstances, be taxed with all the costs.

History (7)

Code 1858, §§ 5579, 5580 (deriv. Acts 1794, ch. 1, § 76
1807, ch. 24, § 1
1851-1852, ch. 70, §§ 1, 2)
Shan., §§ 7611, 7612
Code 1932, §§ 12239, 12240
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-3328.

§ 40-25-127. Taxing of costs on abandonment of prosecution.

If any person commences a criminal prosecution against any individual, either by warrant from a judge of the general sessions court, or otherwise, and shall afterwards willfully abandon the criminal prosecution, the court having jurisdiction of the cause shall have power to tax the prosecutor with the costs.

History (5)

Acts 1871, ch. 19, § 1
Shan., § 7613
Code 1932, § 12241
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-3329.

§ 40-25-128. Taxing prosecutor where defendant has made settlement.

In all cases of embezzlement and fraudulent breach of trust, where it appears to the court that the defendant has made settlement before the time of trial, and the prosecutor fails to attend and prosecute, the court shall tax the prosecutor with all costs of the case.

History (4)

Acts 1903, ch. 300, § 1
Shan., § 7613a1
Code 1932, § 12242
T.C.A. (orig. ed.), § 40-3330.

§ 40-25-129. Liability of state or county for costs or fees — Advancement or reimbursement of witness expenses.

(a) Neither the state nor any county of the state shall pay or be liable in any criminal prosecution for any costs or fees hereafter accruing, except in the following classes of cases:
1. (1) All felony cases, where prosecution has proceeded to a verdict in the circuit or criminal court;
2. (2) All cases where the defendant has been convicted in a court of record and the court has made a finding at any evidentiary hearing that the defendant is indigent and remains indigent at the time of conviction or where the execution issued upon the judgment against the defendant has been returned nulla bona. Neither the state of Tennessee nor any county of the state shall be liable for or pay any costs in any criminal case, where security has been accepted by the officer taking the security, and an execution, afterwards returned nulla bona, as to the defendant and the defendant's securities. Compensation for boarding prisoners (§§ 8-26-105, 40-25-118 — 40-25-121, and 41-4-131 — 41-4-137), expenses of keeping and boarding juries (§§ 40-25-115 — 40-25-121), compensation of jurors (§§ 22-4-101 — 22-4-107 and 40-18-107), costs of transcripts in cases taken to the supreme court by appeal or writ of error as provided by law, mileage and legal fees for removing or conveying criminals and prisoners from one (1) county to another, or from one (1) jail to another (§ 8-21-901(a)(3)(D)), and compensation and mileage of witnesses for the state duly subpoenaed and required to attend before any court, grand jury or magistrate in a county other than that of their residence and more than five (5) miles from their residence (§§ 24-4-102 and 40-17-112), and where any witness for the state shall be confined in jail to await the trial in which the witness is to testify, shall be paid in all cases as heretofore; and
3. (3)
  1. (A) When a criminal prosecution is instituted against a state prison inmate because of conduct within a department of correction penal institution or because of conduct relative to an escape attempt from a penal institution, the expense of the prosecution imposed on the county wherein the institution is located shall be reimbursed to the county by the state. When a criminal prosecution is instituted against a juvenile committed to the department of children's services and placed in a youth center because of conduct within the youth center or because of conduct relative to an escape attempt from the youth center, the expense of the prosecution imposed on the county wherein the youth center is located shall be reimbursed to the county by the state;
  2. (B) For the purpose of this section only, “expense imposed on the county” means the expense of keeping and boarding jurors pursuant to §§ 40-25-115 — 40-25-121 and the compensation and mileage allowance of jurors pursuant to title 22, chapter 4, and § 40-18-107.
(b) Any bill of costs or other fees owed a county by the department of correction as the result of a criminal conviction in that county shall be paid by the department within one hundred twenty (120) days of the date the bill is submitted.
(c)
1. (1) Notwithstanding subsections (a) and (b), the department of correction, through the judicial accountant, shall advance or reimburse witness expenses necessary to the prosecution of a criminal case as requested by the district attorney general and approved by the court. In such cases, a determination of indigency is not required; however, the county shall seek to recover the costs of the advance or reimbursement of witness expenses from a convicted defendant as provided in subdivision (a)(2) or another appropriate provision.
2. (2) If advance witness fees are requested, then the itemized request must be submitted to the judicial cost accountant at least ten (10) business days prior to trial and otherwise conform to the requirements as set forth by the judicial cost accountant.
3. (3) If reimbursement of witness fees is requested, then the request must meet the following requirements:
  1. (A) The witness was material and necessary to the case and the witness lives more than five (5) miles away from the place the witness was subpoenaed to attend or otherwise meets the requirements in subdivision (a)(2) and §§ 24-4-102 and 40-17-112;
  2. (B) An itemized list of expenses must be provided consistent with state travel regulations; and
  3. (C) The request for fees must be certified by the district attorney general and approved by the court.
4. (4) When payment occurs in accordance with subdivision (c)(2) or (c)(3), the department of correction shall maintain the payment as a receivable against the final cost bill attributed to the case in which witness fees were advanced or reimbursed. Dollars advanced or reimbursed under this section must be deducted from the final cost bill submitted in the case.
5. (5) This section does not absolve a convicted defendant of liability of cost.
6. (6) This section does not absolve the county of the responsibility to seek execution upon judgment against the defendant in accordance with subdivision (a)(2).
7. (7) This section does not prohibit the department of correction from collecting from an inmate trust fund in accordance with § 40-25-143.
(d) This section must be applied liberally to effectuate witnesses for the state being advanced or reimbursed for the cost of all witness expenses allowable under the law in the shortest timeframe possible. This section applies to all cases that fall within the intent of this subsection (d) prior to, or on or after April 13, 2023.

Backlinks (2)

History (15)

Acts 1897, ch. 20, § 1
1899, ch. 307, § 1
Shan., § 7622a1
Code 1932, § 12246
Acts 1965, ch. 355, § 4
1969, ch. 264, § 1
impl. am. Acts 1974, ch. 556, § 1
Acts 1980, ch. 625, § 1
1982, ch. 785, § 1
T.C.A. (orig. ed.), § 40-3331
Acts 1989, ch. 278, § 52
1996, ch. 1079, § 126
2016, ch. 782, § 1
2022, ch. 980, § 1
2023, ch. 147, §§ 1, 2.

§ 40-25-130. Circumstances when state or county liable.

The state, or the county in which the offense was committed or is triable, according to the nature of the offense, pays the costs accrued on behalf of the state, and for which the state or county is liable under § 40-25-129, in the following cases, when:
1. (1) The defendant is acquitted by a verdict of the jury upon the merits;
  Backlinks (1)
  
  40-25-131(a)
2. (2) The prosecution is dismissed, or a nolle prosequi entered by the state;
  Backlinks (1)
  
  40-25-132(a)
3. (3) The action has abated by the death of the defendant;
4. (4) The defendant is discharged by the court or magistrate before indictment preferred or found, or after indictment and before verdict; or
5. (5) The defendant has been convicted, but the execution issued upon the judgment has been returned “nulla bona” or where the court hearing the case has made a finding at any evidentiary hearing that the defendant is indigent and remains indigent at the time of conviction.
  Backlinks (1)
  
  40-25-143(b)

History (11)

Code 1858, § 5585 (deriv. Acts 1813, ch. 137 (136 in Scott's Revisal), §§ 2, 3, 5
1832, ch. 8, § 2
1837-1838, ch. 141, § 1
1853-1854, ch. 38, § 1
1853-1854, ch. 72, § 2)
Acts 1885 (Ex. Sess.), ch. 14
1897, ch. 20, § 1
Shan., § 7619
Code 1932, § 12247
Acts 1980, ch. 625, § 2
T.C.A. (orig. ed.), § 40-3332.

§ 40-25-131. State liability.

(a) The costs that have accrued in any criminal prosecution for offenses punishable with death or by confinement in the penitentiary, in cases accruing under § 40-25-130(1), (3) and (5), shall be paid by the state.
(b) The state shall also pay the accrued costs in all criminal prosecutions for offenses punishable with death or by confinement in the penitentiary where the accused shall have been convicted by trial or by guilty plea. In those cases where the accused receives concurrent sentences, the state shall not be liable to pay the costs in more than three (3) of the prosecutions where concurrent sentences are given.

Backlinks (1)

40-25-133

History (6)

Code 1858, § 5586
Acts 1891 (Ex. Sess.), ch. 22, § 1
Shan., § 7620
Code 1932, § 12248
Acts 1970, ch. 461, § 1
T.C.A. (orig. ed.), § 40-3333.

§ 40-25-132. County liability.

(a) Similar costs in criminal prosecutions for offenses punishable in any other way than by death or confinement in the penitentiary, also similar costs in criminal prosecutions for offenses punishable with death or confinement in the penitentiary, in cases accruing under § 40-25-130(2) and (4), shall be paid by the county.
(b)
1. (1) Notwithstanding this section or any other law to the contrary, a county shall not be liable for payment of costs that have accrued in any criminal prosecution for a misdemeanor offense or prosecution for a felony offense if the conviction offense is a misdemeanor where the conviction resulting from the prosecution is reversed on appeal. In all these cases, the state shall be liable for the accrued costs.
2. (2) As used in this subsection (b), “misdemeanor” and “felony” have the same meanings as set out in § 39-11-110.

Backlinks (1)

40-25-133

History (6)

Code 1858, § 5587
Acts 1891 (Ex. Sess.), ch. 22, § 2
Shan., § 7621
Code 1932, § 12249
T.C.A. (orig. ed.), § 40-3334
Acts 1995, ch. 385, § 1.

§ 40-25-133. Costs included.

What is meant by costs in §§ 40-25-131 and 40-25-132 is all costs accruing under existing laws on behalf of the state or county, as the case may be, for the faithful prosecution and safekeeping of the defendant, including the cost of boarding juries and that of the jailer; but nothing in this or those sections shall be so construed as to require the state to pay any cost for guarding the jail to prevent mob violence, or to prevent rescue or the prisoner's escape, or for transporting to any other county for safekeeping on any account whatever, but the same shall be paid by the county in which the crime was committed or claimed to have been committed.

History (4)

Acts 1891 (Ex. Sess.), ch. 22, § 3
Shan., § 7622
Code 1932, § 12250
T.C.A. (orig. ed.), § 40-3335.

§ 40-25-134. Judgment for costs.

The judgment for costs may be rendered at the time of conviction, or, upon motion, at any time subsequent to conviction, and execution awarded accordingly.

History (4)

Code 1858, § 5578
Shan., § 7610
Code 1932, § 12237
T.C.A. (orig. ed.), § 40-3336.

§ 40-25-135. Remission and distribution of costs collected.

(a) In all cases where the jailer, sheriff, workhouse keeper or any person or officer, other than the clerk of the circuit or criminal court of any county, collects from a defendant or surety all or any part of the costs, fees, taxes and expense fees, shown upon the mittimus issued by any circuit, criminal or other court, the officer shall on or before the fifteenth day of the month immediately following the month during which the collections are made, report and remit the collections to the clerk of the criminal court in counties having a criminal court, and to the clerk of the circuit court in all other counties, and it is the duty of the clerk to distribute the costs, taxes and expense fees among the state, county and officers entitled to them.
(b) All state taxes, district attorney general fees, expense fees, fines in felony cases and all costs which have been previously paid by the state to officers entitled thereto shall be reported by the clerk to the commissioner of revenue and paid to the state.
(c) All county taxes, expense fees, fines in misdemeanor cases and costs that have been previously paid by the county shall be reported to the county mayor and paid to the county trustee.
(d) All costs belonging to officers that have not been paid either by the state or county shall be paid to the officers entitled to the costs.
(e) Where only a part of the whole of the fine, costs, taxes and expense fees is collected, that proportion that is collected shall be distributed to the state, county and officers in proportion to their respective interests in the whole amount originally due.

Backlinks (1)

8-8-201(b)(1)

History (8)

Acts 1921, ch. 116, § 1
Shan. Supp., § 7610a1
Code 1932, § 12238
impl. am. Acts 1959, ch. 9, § 14
impl. am. Acts 1978, ch. 934, §§ 16, 36
modified
T.C.A. (orig. ed.), § 40-3342
Acts 2003, ch. 90, § 2.

§ 40-25-136. Certification of bills of costs against state or county.

(a) The costs chargeable to the state or county in criminal cases tried in criminal courts, circuit courts or general sessions courts shall be made out so as to show the specific terms, and be examined, entered of record, and certified to be correct by the clerk of the court or judge before whom the case was tried or by whom it was disposed.
(b) The clerks of the courts are granted full power, and it is made their duty to examine into, inspect and audit all bills of costs, as above provided, accruing against the state or county, and disallow any part or all of the bills of costs that may be illegally or wrongfully taxed against the state or county.

Backlinks (1)

40-25-137(a)

History (7)

Code 1858, § 5569 (deriv. Acts 1832, ch. 7, § 1)
Acts 1891 (Ex. Sess.), ch. 22, § 4
Shan., § 7593
Code 1932, § 12220
Acts 1963, ch. 157, § 2
T.C.A. (orig. ed.), § 40-3343
Acts 1983, ch. 396, § 2.

§ 40-25-137. Audit and payment of bills of costs.

(a) A copy of the judgment and bill of costs, certified by the clerk of the court, as provided in § 40-25-136, shall be presented to the director of accounts, or county mayor, as the case may be, who, after the bills have been examined and approved by the clerk of the court, is granted full power, and it is the director's or county mayor's duty, to examine into, inspect and audit all bills of costs accruing against the state or county; and disallow any part of the bills of costs that may be illegally or wrongfully taxed against the state or county. The commissioner of finance and administration or county mayor may disallow any and all costs taxed against the state or county on account of malicious, frivolous or unnecessary prosecution, in the event the clerk of the court should, by mistake or otherwise, approve any of the bills.
(b) After correcting and auditing the bills of costs, the commissioner, or county mayor as the case may be, shall issue a warrant for the amount, which shall be paid to the clerk or any other person authorized by the clerk, in writing, to receive the funds.

History (13)

Code 1858, § 5570 (deriv. Acts 1827, ch. 36, § 6)
Acts 1891 (Ex. Sess.), ch. 22, § 5
integrated in Shan., § 7594
Code 1932, § 12221
impl. am. Acts 1937, ch. 33, §§ 24, 29
C. Supp. 1950, § 12221
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
impl. am. Acts 1978, ch. 934, §§ 16, 36
modified
T.C.A. (orig. ed.), § 33-3344
Acts 1983, ch. 396, § 3
2003, ch. 90, § 2.

§ 40-25-138. Warrants payable to person entitled to fees.

The commissioner of finance and administration, in auditing bills of costs of state prosecutions, when, in the commissioner's judgment, it is expedient and proper to do so, may draw a warrant on the treasurer in favor of any of the parties interested in the bills of costs for the sum due the party, which warrant the commissioner shall send to the clerk of the court from which the bills were sent, and at the same time notify the clerk that the amount sent is all that was due the party in the bills. The clerk shall deliver the warrant to the party in whose favor it is drawn, as soon as called for, taking receipt for the same.

History (8)

Acts 1867-1868, ch. 59, §§ 2, 3
Shan., §§ 7596, 7597
Code 1932, §§ 12223, 12224
impl. am. Acts 1937, ch. 33, §§ 24, 29
C. Supp. 1950, § 12223
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
T.C.A. (orig. ed.), § 40-3345.

§ 40-25-139. Payments to correct errors on bills of costs.

The state shall pay and refund to any county of the state any moneys that have been irregularly or otherwise paid, or that shall be irregularly or otherwise paid in connection with criminal prosecutions, by any county of the state, which should have been paid by the state, if the same had been adjudged, authenticated and presented for payment as provided by law, or any moneys that have been, or shall be paid, by any county to the state, to which the state is not entitled, or shall not be entitled in connection with criminal prosecution. If bills or claims for the moneys have been filed in the office of the commissioner of finance and administration, or shall be filed in the office of the commissioner of finance and administration, sworn to by the county mayor of the county, the comptroller of the treasury shall immediately have the claim or claims audited, and when the audit has been completed, the commissioner will draw a warrant or warrants on the state treasurer, in favor of the county, for so much and the parts of the claim or claims as shall be found correct by the auditors auditing the same, which warrants shall be payable out of the miscellaneous funds of the state treasury. No claim for moneys paid by the county on behalf of the state may be allowed where the claim is filed with the comptroller of the treasury more than six (6) years after the date of the payment by the county.

History (9)

Acts 1935, ch. 74, § 1
impl. am. Acts 1937, ch. 33, §§ 24, 29
Acts 1941, ch. 112, § 1
C. Supp. 1950, § 12249.1
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
impl. am. Acts 1978, ch. 934, §§ 16, 36
T.C.A. (orig. ed.), § 40-3346
Acts 2003, ch. 90, § 2.

§ 40-25-140. Felony cases transferred to federal court.

(a) In cases of the grade of felony, commencing in any of the courts of this state, and afterwards removed to the United States district courts, and there disposed of adversely to the state, the costs of the prosecution shall be paid by the state, as in cases determined in the state courts.
(b) Sheriffs or other officers delivering prisoners from state to federal courts shall be allowed the same fees, and have the same guards and pay therefor, as is allowed for like services in state courts.

Backlinks (1)

40-25-142

History (5)

Acts 1882 (2nd Ex. Sess.), ch. 2, § 1
Shan., § 7627
Code 1932, § 12256
T.C.A. (orig. ed.), § 40-3347
T.C.A., § 40-25-141(b).

§ 40-25-141. Misdemeanor cases transferred.

When a misdemeanor case is transferred out of the county of origin to another county where the misdemeanor is disposed of, the county where the case originated shall pay the costs.

Backlinks (1)

40-25-142

History (4)

Acts 1882 (2nd Ex. Sess.), ch. 2, § 1
Shan., § 7628
Code 1932, § 12257
T.C.A. (orig. ed.), § 40-3348.

§ 40-25-142. Payment to federal authorities.

The costs in §§ 40-25-140 and 40-25-141 shall be paid upon warrant of the commissioner of finance and administration, or county mayor, as the case may be, which warrant shall be issued upon properly authenticated and itemized bills of costs certified by the United States district attorney and judge holding the federal court, in the same manner as other similar costs are paid by the state or counties.

History (10)

Acts 1882 (2nd Ex. Sess.), ch. 2, § 2
Shan., § 7629
Code 1932, § 12258
impl. am. Acts 1937, ch. 33, §§ 24, 29
C. Supp. 1950, § 12258
impl. am. Acts 1959, ch. 9, § 3
impl. am. Acts 1961, ch. 97, § 3
impl. am. Acts 1978, ch. 934, §§ 16, 36
T.C.A. (orig. ed.), § 40-3349
Acts 2003, ch. 90, § 2.

§ 40-25-143. Collecting from inmate trust fund account.

(a) The department of correction shall have the authority to collect from the inmate trust fund account of any defendant in its custody those moneys necessary to satisfy any unpaid costs that have been imposed upon the defendant.
(b) When the state has paid the costs in a case accruing under § 40-25-130(5), and the defendant is in the custody of the department of correction, the department shall have the authority to collect from the inmate trust fund account of the defendant those moneys necessary to reimburse the state for the payment of the costs. Any amount so collected shall be deposited in the state general fund.

Backlinks (1)

40-25-129(c)(7)

History (1)

Acts 2001, ch. 108, § 1.

§ 40-25-144. Filing deadline for claims against the state for payment of costs. [See Compiler's Notes for information regarding repeal of 2017 amendment.]

(a) No claim against the state for payment of costs under this chapter shall be paid unless the claim is submitted to the department of correction within six (6) months from the date of entry of the judgment of conviction.
(b) [Repealed effective June 30, 2019.] However, for good cause shown, the commissioner of correction, or the commissioner's representative, may extend this limitation period for an additional six (6) months.

History (3)

Acts 2014, ch. 582, § 1
2017, ch. 85, § 1
2018, ch. 561, § 1.

Chapter 26 Appeal

§ 40-26-101. Commencement of term pending appeal.

In all criminal cases appealed to the supreme court from the circuit and criminal courts, where the judgment of the court is for less penalty than death or imprisonment for life, and the defendant is in actual confinement in jail, when no transcript or other statement of the evidence is filed in the time prescribed by law, in the circuit or criminal court the appeal shall not act as a supersedeas, and the defendant shall enter upon the term of service in the penitentiary or workhouse at once after the expiration of the time for filing the transcript or other statement of evidence.

History (5)

Acts 1901, ch. 102, § 1
Shan., § 7222a1
Code 1932, § 11809
Acts 1981, ch. 449, § 2
T.C.A. (orig. ed.), § 40-3405.

§ 40-26-102. Bail in felony cases.

(a) In all felony cases where an appeal has been taken from the trial court to the appropriate appellate court, it is discretionary with the trial judge as to whether or not the trial judge will allow bail pending appeal where the sentence imposed provides for confinement in the state penitentiary.
(b) The trial judge shall, in exercising the trial judge's discretion, consider whether or not the defendant is likely to flee or pose a danger to any other person or to the community.
(c) Every trial judge denying bail under this section shall, as a part of the order denying bail, set forth the matters and facts impelling the trial judge to exercise the trial judge's discretion against the allowance of bail pending appeal.
(d) The trial judge's action in the premises shall be reviewable by the proper appellate court or any appellate court judge or justice in the manner provided in the Tennessee Rules of Appellate Procedure.
(e) The setting of bail or release upon recognizance is a matter of right for one convicted of a felony and sentenced to confinement for less than one (1) year. If another felony charge is pending when the sentencing hearing for a felony involving a sentence of less than one (1) year is completed, the decision to set bail shall be in the discretion of the court.
(f) If a defendant is convicted of first degree murder, any Class A felony, aggravated robbery, aggravated sexual battery, aggravated kidnapping, or a violation of § 39-17-417(b) or (i), the trial court shall revoke bail immediately notwithstanding sentencing hearings, motions for a new trial, and related post-guilt determination hearings.

History (7)

Acts 1951, ch. 7, § 1 (Williams, § 11651.1)
1974, ch. 734, § 1
1976, ch. 774, § 2
1978, ch. 578, § 1
1981, ch. 449, § 2
T.C.A. (orig. ed.), § 40-3406
Acts 1992, ch. 851, § 1.

§ 40-26-103. Admission to bail by appellate court.

In case the appropriate appellate court or any appellate court judge shall be of the opinion that under the circumstances stated by the trial judge the trial judge abused discretion in so denying bail, the appellate court or any appellate court judge may admit the person so convicted to bail pending the disposition of the appeal by the appellate court.

History (4)

Acts 1951, ch. 7, § 1 (Williams, § 11651.1)
1976, ch. 774, § 3
impl. am. Acts 1979, ch. 68, § 3
T.C.A. (orig. ed.), § 40-3407.

§ 40-26-104. Bail in misdemeanor cases.

In all misdemeanor cases, the judge or court shall direct the clerk of the circuit or criminal court to admit the defendant to bail in a sum prescribed by the judge or court, with sufficient sureties for defendant's appearance at the circuit or criminal court in which judgment was rendered against the defendant, at the next term after the decision of the cause by the supreme court, to answer the judgment of the court.

History (5)

Code 1858, § 5249 (deriv. Acts 1851-1852, ch. 159, § 3)
Shan., § 7224
Code 1932, § 11811
Acts 1981, ch. 449, § 2
T.C.A. (orig. ed.), § 40-3408.

§ 40-26-105. Writ of error coram nobis.

(a) There is made available to convicted defendants in criminal cases a proceeding in the nature of a writ of error coram nobis, to be governed by the same rules and procedures applicable to the writ of error coram nobis in civil cases, except insofar as inconsistent herewith. Notice of the suing out of the writ shall be served on the district attorney general except in cases where a defendant has been sentenced to death, where notice shall be served on the attorney general and reporter. A judge does not have authority to order the writ to operate as a supersedeas. The court has authority to order the person having custody of the petitioner to produce the petitioner in court for the hearing of the proceeding.
(b) The relief obtainable by this proceeding shall be confined to errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.
(c) The issue shall be tried by the court without the intervention of a jury, and if the decision be in favor of the petitioner, the judgment complained of shall be set aside and the defendant shall be granted a new trial in that cause. In the event a new trial is granted, the court may, in its discretion, admit the petitioner to bail; provided, that the offense is bailable. If not admitted to bail, the petitioner shall be confined in the county jail to await trial.
(d) The petitioner or the state may pray an appeal in the nature of a writ of error to the court of criminal appeals from the final judgment in this proceeding.

Backlinks (1)

40-30-114(c)(4)(A)

History (6)

Acts 1955, ch. 166, § 1
1978, ch. 738, § 1
modified
T.C.A., § 40-3411
Acts 2010, ch. 652, § 1
2023, ch. 182, § 5.

Chapter 27 Executive Clemency

§ 40-27-101. Power of governor.

The governor has power to grant reprieves, commutations and pardons in all criminal cases after conviction, except impeachment, subject to the regulations provided in this chapter.

Backlinks (1)

40-28-101(b)

History (4)

Code 1858, § 5252
Shan., § 7227
Code 1932, § 11814
T.C.A. (orig. ed.), § 40-3501.

§ 40-27-102. Conditions and restrictions — Warrants.

The governor may grant pardons upon such conditions and with such restrictions and limitations as the governor may deem proper, and may issue warrants to all proper officers to carry into effect a conditional pardon.

History (6)

Code 1858, § 5261
Shan., § 7236
Code 1932, § 11842
Acts 1963, ch. 23, § 1
1982, ch. 604, § 1
T.C.A. (orig. ed.), § 40-3502.

§ 40-27-103. Return of governor's warrant.

The governor's warrant should be returned by the officer after its execution, with the officer's endorsement of the action, to the secretary of state, to be filed by the secretary of state with the other papers.

History (4)

Code 1858, § 5262
Shan., § 7237
Code 1932, § 11843
T.C.A. (orig. ed.), § 40-3503.

§ 40-27-104. Remission of imprisonment.

The governor has the discretion to remit a portion of the imprisonment of a convict in the penitentiary upon the written recommendation of the board of parole.

History (14)

Code 1858, § 5254
impl. am. Acts 1899, ch. 10, § 1
impl. am. Acts 1915, ch. 20, § 7
Shan., § 7229
impl. am. Acts 1919, ch. 39, § 2
impl. am. Acts 1923, ch. 7, § 42
Code 1932, § 11820
impl. am. Acts 1937, ch. 276, § 2
C. Supp. 1950, § 11820
impl. am. Acts 1961, ch. 93, § 1
impl. am. Acts 1972, ch. 576, § 17
impl. am. Acts 1972, ch. 636, § 1
T.C.A. (orig. ed.), § 40-3504
Acts 1998, ch. 1049, § 22.

§ 40-27-105. Commutation of death penalty on application for pardon.

Upon application for a pardon by a person sentenced to capital punishment, if the governor is of opinion that the facts and circumstances adduced are not sufficient to warrant a total pardon, the governor may commute the punishment of death to imprisonment for life in the penitentiary.

History (4)

Code 1858, §§ 180, 5258 (deriv. Acts 1841-1842, ch. 55)
Shan., §§ 232, 7233
Code 1932, §§ 174, 11839
T.C.A. (orig. ed.), § 40-3505.

§ 40-27-106. Commutation on certificate of supreme court.

The governor may, likewise, commute the punishment from death to imprisonment for life, upon the certificate of the supreme court, entered on the minutes of the court, that in its opinion, there were extenuating circumstances attending the case, and that the punishment ought to be commuted.

History (4)

Code 1858, § 5259
Shan., § 7234
Code 1932, § 11840
T.C.A. (orig. ed.), § 40-3506.

§ 40-27-107. Record of reasons for clemency.

The governor shall cause to be entered, in a book kept for that purpose, any reasons for granting pardons or commuting punishment, and preserve on file all documents on which the governor acted, and submit the same to the general assembly when requested.

History (4)

Code 1858, § 5253
Shan., § 7228
Code 1932, § 11819
T.C.A. (orig. ed.), § 40-3507.

§ 40-27-108. Restoration of citizenship on pardon of manslaughter.

Any person convicted of the offense of manslaughter and pardoned by the governor is thereby restored to all the rights of citizenship to which the person was entitled previous to conviction.

Backlinks (1)

40-28-101(b)

History (4)

Code 1858, § 5260 (deriv. Acts 1843-1844, ch. 13)
Shan., § 7235
Code 1932, § 11841
T.C.A. (orig. ed.), § 40-3508.

§ 40-27-109. Exoneration.

(a) After consideration of the facts, circumstances and any newly discovered evidence in a particular case, the governor may grant exoneration to any person whom the governor finds did not commit the crime for which the person was convicted. No person may apply for nor may the governor grant exoneration until the person has exhausted all possible state judicial remedies.
(b) Exoneration granted pursuant to subsection (a) shall as a matter of law be unconditional, shall without application having to be made therefor expunge all records of the person's arrest, indictment and conviction, and shall automatically restore all rights of citizenship to the person.
(c)
1. (1) The governor has the authority to review and reconsider any pardon the governor has previously granted for the purpose of determining whether the recipient of the pardon qualifies for and merits the granting of exoneration in lieu of a pardon. If the governor so determines, the governor shall have the authority to convert any pardon previously granted into exoneration as defined by this section.
2. (2) Nothing in this section shall be construed as preventing the governor from granting exoneration to a person who applied for a pardon if the person qualifies under subsection (a) and if the governor determines the person merits exoneration.

Backlinks (2)

History (2)

Acts 1982, ch. 604, § 2
T.C.A., § 40-3509.

§ 40-27-110. Victims of Crime Executive Clemency Notification Act.

(a) This section shall be known and may be cited as the “Victims of Crime Executive Clemency Notification Act.”
(b) Prior to any reprieve, commutation, pardon, exoneration, or any other form of executive clemency being made public, the governor shall notify or cause to be notified the attorney general and reporter and the district attorney general of the judicial district in which the conviction occurred of the impending clemency action.
(c)
1. (1) Prior to notice of the clemency action being made public, the district attorney general, through the victim-witness coordinator, shall notify the victim or victims of the offense for which the person is receiving clemency, or the victim's representative, of the impending grant of clemency.
2. (2) If notice is required by this section, the district attorney general, through the victim-witness coordinator, shall contact the victim or victim's representative by telephone, electronic mail, facsimile or by other means intended to ensure that the victim receives immediate notification; provided, that the victim or victim's representative has provided the district attorney general's office with contact information necessary to accomplish such immediate notification.

History (1)

Acts 2011, ch. 439, § 1.

Chapter 28 Probation, Paroles and Pardons

Part 1 General Provisions

§ 40-28-101. Purpose — Application to clemency powers.

(a) The purpose of this chapter is to provide a system of probation and paroles to be liberally construed to the end that the treatment of persons convicted of crime shall take into consideration their individual characteristics, circumstances, needs and potentialities as revealed by a case study and that such persons shall be dealt with in the community by a uniformly organized system of constructive rehabilitation under probation supervision instead of in correctional institutions or under parole supervision when a period of institutional treatment has been deemed essential whenever it appears desirable in the light of the needs of public safety and their own welfare.
(b) Nothing in §§ 40-28-101 — 40-28-104 shall be construed in any way as intended to modify or abridge the clemency powers of the governor, as defined in §§ 40-27-101 — 40-27-108.

Backlinks (2)

History (13)

Acts 1937, ch. 276, §§ 1, 2
1949, ch. 18, §§ 1-3
mod. C. Supp. 1950, §§ 11818.1, 11818.2 (Williams, §§ 11843.1, 11843.2)
Acts 1961, ch. 93, § 1
1963, ch. 288, § 1
1970, ch. 488, § 1
1972, ch. 636, §§ 1-8
1976, ch. 806, § 1(82)
1978, ch. 929, § 6
1979, ch. 359, §§ 2-5, 7
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 584, § 1
T.C.A. (orig. ed.), §§ 40-3601(1), (5).

§ 40-28-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:
1. (1) “Board” means the board of parole;
2. (2) “Commissioner” means the commissioner of correction;
3. (3) “Department” means the department of correction;
4. (4) “Executive director” means the officer employed by the board as the chief administrative officer of the agency;
5. (5) “Notification,” as used in this part, may include telephone, facsimile and internet communications;
6. (6) “Parole” means the release of a prisoner to the community by the board prior to the expiration of the prisoner's term subject to conditions imposed by the board and to supervision by the department, or when a court or other authority has issued a warrant against the prisoner and the board, in its discretion, has released the prisoner to answer the warrant of the court or authority; and
7. (7) “Probation and parole officer” means a probation and parole officer employed by the department.

Backlinks (2)

History (17)

Acts 1937, ch. 276, §§ 1, 2
1949, ch. 18, §§ 1-3
mod. C. Supp. 1950, §§ 11818.1, 11818.2 (Williams, §§ 11843.1, 11843.2)
Acts 1961, ch. 93, § 1
1963, ch. 288, § 1
1970, ch. 488, § 1
1972, ch. 636, §§ 1-8
1976, ch. 806, § 1(82)
1978, ch. 929, § 6
1979, ch. 359, §§ 2-5, 7
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 584, § 1
T.C.A. (orig. ed.), § 40-3601(2)
Acts 1989, ch. 227, §§ 1, 2
1998, ch. 1049, §§ 23-25, 66
1999, ch. 516, § 1
2012, ch. 727, § 13.

§ 40-28-103. Board of parole.

(a) There is created a full-time, autonomous board of parole that is composed of seven (7) members who shall be appointed by the governor, and that shall be autonomous in structure and shall have the authority to perform all administrative functions necessary to carry out its duties, including the submission of a budget request to the commissioner of finance and administration and the submission of personnel actions to the commissioner of human resources. In all respects the board shall be separate functionally and administratively from any other agency. In performing the administrative and financial functions necessary to its operations, the board and its employees shall be subject to the budgetary, accounting, personnel, purchasing and audit requirements, as well as other administrative requirements, applicable to all state departments and agencies pursuant to title 4, chapters 3 and 4.
Backlinks (2)
- 40-28-105(c)
- 41-21-1004(c)
(b) In the initial appointments made under this section, the speaker of the senate and the speaker of the house of representatives shall jointly appoint one (1) member to a term expiring on January 1, 1986. The governor shall appoint two (2) members to terms expiring on January 1, 1984, and two (2) members to terms expiring on January 1, 1982. On June 2, 1989, the governor shall appoint two (2) additional members to terms expiring on January 1, 1992. Thereafter, all members shall serve six-year terms and shall be eligible for reappointment. Beginning on April 7, 2017, all appointments and reappointments shall be made by the governor.
(c) In considering persons for appointment, the appointing authority shall give preference to candidates with training, education or experience in the criminal justice system, law, corrections, medicine, education, social work or the behavioral sciences. Beginning with the gubernatorial appointments that are made to the board of parole for terms beginning in January 2018 or when a vacancy on the board occurs, every six (6) years the governor shall strive to appoint at least one (1) individual to the board who possesses expertise in corrections, probation, or parole by virtue of training or employment. No member of the board shall hold any other salaried public office, whether elective or appointive, nor shall any member engage for pay in any other business or profession.
(d) Vacancies occurring in an office of a member of the board before the expiration of a term by reason of death, resignation, removal or any other reason shall be filled by the governor in the same manner as a regular appointment for the remainder of the unexpired term.
(e) The governor shall appoint one (1) member of the board to serve as its chair for a term of two (2) years, beginning July 1 of the appropriate year. The chair shall direct the operation of the board and shall fulfill the functions established by statute, unless duties and responsibilities are otherwise assigned under this chapter. The board may designate one (1) of its members to act as chair during the absence or incapacity of the chair, and when so acting, the member so designated shall have and perform all the powers and duties of the chair of the board.

Backlinks (1)

4-29-248(a)(9)

History (17)

Acts 1937, ch. 276, §§ 1, 2
1949, ch. 18, §§ 1-3
mod. C. Supp. 1950, §§ 11818.1, 11818.2 (Williams, §§ 11843.1, 11843.2)
Acts 1961, ch. 93, § 1
1963, ch. 288, § 1
1970, ch. 488, § 1
1972, ch. 636, §§ 1-8
1976, ch. 806, § 1(82)
1978, ch. 929, § 6
1979, ch. 359, §§ 2-5, 7
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 584, § 1
T.C.A. (orig. ed.), § 40-3601(3)
Acts 1984, ch. 736, § 1
1989, ch. 506, §§ 1, 2
1998, ch. 1049, § 66
2017, ch. 108, §§ 1-3.

§ 40-28-104. Powers and duties of board — Executive director.

(a) The board is hereby vested and charged with those powers and duties necessary and proper to enable it to fully and effectively carry out this chapter, including, but not limited to:
1. (1) The authority to select and recommend to the appropriate state officials the employment or transfer of all personnel required for the operation of the board, except, however, the initial transfer of any preferred service employee pursuant to the merger of probation and parole field services and community corrections pursuant to this chapter shall not result in any impairment, interruption or diminution of employee rights, salary, benefits, leave accumulation or employment. The commissioner of human resources is authorized to determine if there has been any impairment of rights, salary, benefits, leave accumulation or employment as a result of the initial transfer. Any preferred service employee may seek redress of any such determination through a request for declaratory order by the commissioner of human resources pursuant to § 4-5-223;
2. (2) The authority to promulgate reasonable substantive and procedural rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
3. (3) The authority to develop and implement guidelines for granting or denying parole, which guidelines shall be reviewed and reevaluated by the board at least annually and copies of the guidelines shall be provided to the governor, the commissioner of correction and the appropriate standing committees of the general assembly;
4. (4) The authority to prescribe all forms to be used by the board in the transaction of its business;
5. (5) The authority to adopt an official seal by which its acts and proceedings shall be authenticated, and of which a court or other officials concerned with actions of the board shall take judicial notice. The certificate of the chair of the board, under seal and attested to by the executive director, shall be accepted in any judicial or administrative proceeding as adequate and sufficient proof of the acts and proceedings of the board so described therein;
6. (6) The authority to employ other employees and to incur such other expenses, within the limits of appropriations, as may be necessary for the proper discharge of its duties;
7. (7) The authority to issue subpoenas subject to this chapter;
8. (8) The duty to cooperate with other state agencies in developing and promoting effective parole programs;
9. (9) The duty to keep appropriate records of all its official actions and to make them accessible in accordance with law and the regulations of the board;
10. (10) The duty, upon the request of the governor, to consider and to make nonbinding recommendations concerning all requests for exonerations, pardons, reprieves or commutations. The board shall have discretion to make either favorable or unfavorable recommendations based upon its application of guidelines and criteria adopted by the governor;
11. (11) The duty to adopt written long-range goals and objectives. The goals and objectives shall be reaffirmed or changed, as appropriate, by the board at least once each year;
12. (12) The duty to adopt written policies and procedures to govern its internal operations, taking into consideration the policies and procedures as are reflected in the management standards of the Manual of Standards for Adult Parole Authorities, published by the Commission on Accreditation for Corrections and the American Correctional Association or other authorities that it may wish to consult, it being the legislative intent that the board have authority to freely adopt policies and procedures to meet its own particular needs. Prior to final board adoption of the policies and procedures and prior to change, a draft shall be submitted to the attorney general and reporter for review and comment; and
13. (13) The authority to employ staff attorneys who are licensed to practice law in the state and to employ others as the board may deem necessary.
(b) As soon as convenient after their appointment, the members of the board shall meet and organize. They shall appoint an executive director who shall be chief administrative officer of the board whose duties shall include:
1. (1) Supervising the scheduling of appropriate hearings at each correctional institution or facility as may be required;
2. (2) Arranging for the maintenance of parole eligibility lists for the board;
3. (3) Assisting the board in the formulation, development and implementation of procedures and policies;
4. (4) Assisting in the preparation of the necessary forms and maintaining the records required for decisions of the board;
5. (5) Conducting conferences and managing correspondence with interested persons who wish to be heard concerning the parole or revocation of parole of any committed person eligible for consideration;
6. (6) Supervising all employees of the board; and
7. (7) Developing and maintaining communication and cooperation between the board and other state agencies.

Backlinks (1)

40-28-101(b)

History (18)

Acts 1937, ch. 276, §§ 1, 2
1949, ch. 18, §§ 1-3
mod. C. Supp. 1950, §§ 11818.1, 11818.2 (Williams, §§ 11843.1, 11843.2)
Acts 1961, ch. 93, § 1
1963, ch. 288, § 1
1970, ch. 488, § 1
1972, ch. 636, §§ 1-8
1976, ch. 806, § 1(82)
1978, ch. 929, § 6
1979, ch. 359, §§ 2-5, 7
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 584, § 1
T.C.A. (orig. ed.), § 40-3601(4)
Acts 1989, ch. 227, §§ 3-6
1996, ch. 972, § 2
1998, ch. 1049, §§ 26-28, 67
2012, ch. 727, § 14
2012, ch. 800, § 49.

§ 40-28-105. Permanent office of board — Meetings — Compensation — Removal of members.

(a) The permanent office of the board shall be at Nashville.
(b) The board shall prescribe the times and places of its meetings and shall schedule hearings at each correctional institution or facility at times as may be necessary to discharge its duties. All votes taken by the board shall be by public ballot or public roll call. No secret ballots or secret roll calls shall be permitted.
(c) The salaries of the members of the board shall be established by the governor at not more than eighty-five percent (85%) and not less than sixty percent (60%) of those established for Class 2 state officials under § 8-23-101; provided, that a member's salary shall not be diminished during the term to which appointed. The salaries of the members of the board shall be equal except that of the chair, whose salary shall be set by the governor at a level commensurate with the increased duties and responsibilities. The salaries of employees of the board shall be set by the board. The requirements of § 40-28-103(a) regarding personnel procedures shall apply to all actions under this subsection (c).
(d)
1. (1) A majority of members of the board shall constitute a quorum for official administrative business.
2. (2) The chair of the board may designate individual members of the board of parole and appoint hearing officers who shall be authorized to conduct hearings, take testimony and make proposed findings of fact and recommendations to the board regarding a grant, denial, revocation or rescission of parole. The findings and recommendations shall be reduced to writing and reviewed by board members who shall adopt, modify or reject the recommendations.
3. (3) The grant of parole shall require the concurrence of three (3) board members except as set out in subdivision (d)(4).
4. (4) The grant of parole involving the following offenses shall require the concurrence of four (4) board members:
  1. (A) First degree murder;
  2. (B) Aggravated arson;
  3. (C) Aggravated child abuse and neglect (child six (6) years of age or less);
  4. (D) Aggravated rape;
  5. (E) Aggravated vehicular homicide;
  6. (F) Attempted first degree murder;
  7. (G) Conspiracy to commit first degree murder;
  8. (H) Especially aggravated kidnapping;
  9. (I) Especially aggravated robbery;
  10. (J) Rape of a child;
  11. (K) Second degree murder;
  12. (L) Adulteration of foods, liquids, or pharmaceuticals (serious bodily injury or death);
  13. (M) Aggravated child abuse or neglect (child six (6) years of age or above);
  14. (N) Aggravated kidnapping;
  15. (O) Aggravated sexual battery;
  16. (P) Aggravated sexual exploitation of a minor (obscene);
  17. (Q) Especially aggravated burglary;
  18. (R) Especially aggravated sexual exploitation of a minor;
  19. (S) Rape;
  20. (T) Solicitation to commit first degree murder;
  21. (U) Vehicular homicide by intoxication;
  22. (V) Aggravated assault;
  23. (W) Spousal rape;
  24. (X) Vehicular homicide;
  25. (Y) Voluntary manslaughter;
  26. (Z) Vehicular assault; and
  27. (AA) Any other offense for which punishment is life imprisonment.
5. (5) Subdivision (d)(4) shall also apply to persons convicted of offenses repealed November 1, 1989, which would have constituted a conviction for one (1) of the enumerated offenses in subdivision (d)(4) had it been committed after November 1, 1989.
6. (6) The denial of parole shall require the concurrence of three (3) board members, except the denial of parole involving the offenses as set out in subdivision (d)(4), shall require the concurrence of four (4) board members.
7. (7) The recision of a parole grant shall require the concurrence of two (2) board members.
8. (8) The revocation of a parole grant shall require the concurrence of two (2) board members.
9. (9) No board action shall be invalid because it is based upon the recommendation of a hearing officer.
10. (10) The administrative continuance of a case will not require board approval.
11. (11) Inmates whose parole has been revoked or rescinded, or who have been denied parole, or whose grant of parole has been rescinded, may request an appellate review by the board. The board shall establish a reasonable time limit for filing of the request. If the time limit is not met, the request for an appellate review will be denied. An appellate request will be screened by a board member or designee and a review will be conducted if there is new evidence or information that was not available at the time of the hearing, or if there are allegations of misconduct by the hearing official that are substantiated by the record or if there were significant procedural errors by a hearing official. The appellate review will be conducted from the record of the first hearing and the appearance of the inmate will not be necessary. If a board member decides that an appearance hearing is necessary, it will be scheduled before a board member or hearing officer who did not conduct the hearing that is the subject of the appeal. A summary of the appellate hearing will be prepared and the board will vote after a review of the summary and the record of the first hearing. The decision after an appellate review will require the concurrence of three (3) board members. The decision rendered after an appellate review will be final.
(e) When appropriate, the members of the board and the board's employees shall be reimbursed for their reasonable and necessary travel expenses in accordance with the state comprehensive travel regulations.
(f) The governor or the attorney general and reporter may seek the removal of a member of the board for knowing or willful misconduct in office or for knowing or willful neglect or failure to perform any duty enjoined upon a member of the board by any of the laws of this state or for the conviction of any crime which constitutes a felony under the laws of the state. This removal shall be accomplished through the removal procedure provided in title 8, chapter 47.

Backlinks (1)

40-29-202(a)(3)

History (13)

Acts 1937, ch. 276, § 2
C. Supp. 1950, § 11818.2 (Williams, § 11843.2)
Acts 1978, ch. 929, § 2
1979, ch. 56, § 1
1979, ch. 359, § 6
1981, ch. 80, § 3
T.C.A. (orig. ed.), § 40-3602
Acts 1983, ch. 325, § 7
1988, ch. 880, § 3
1989, ch. 227, §§ 7, 8
1989, ch. 506, § 3
1997, ch. 488, § 1
1999, ch. 456, §§ 1, 2.

§ 40-28-106. Hearings and investigations — Appointment of counsel for indigents — Reports on prisoners under consideration for pardon or commutation of sentence — Assessment of inmates and parolees — Records and files.

(a)
1. (1) The board, or any member of the board, or any hearing officer may administer oaths and take the testimony of persons under oath.
2. (2) For the purpose of any investigation made by the board or any member of the board in the performance of board duties, the board has the power to issue subpoenas to compel the attendance of witnesses and the production of books, papers and other documents pertaining to the subject of its inquiry.
3. (3) The board is authorized to pay a witness a fee for expenses in attending a hearing pursuant to a subpoena as set forth in title 24, chapter 4; provided, that no fee shall be paid to any incarcerated prisoner where transportation is provided by the sheriff. Section 40-25-106 shall apply to the terms of this subsection (a). The chair or presiding member shall certify the amount of the fees to the fiscal officer of the board and the fiscal officer shall authorize the payments.
4. (4) If a person refuses to obey a subpoena, the board may petition any circuit or criminal court to request the person to attend, testify and produce evidence. The court may issue an order requiring the person to appear before the board when the court finds that the testimony or other evidence that the person may be able to produce is directly related to a matter with respect to which the board is empowered to make a determination. Failure to obey the order is punishable by the court as contempt or by a penalty of two hundred fifty dollars ($250).
(b)
1. (1) In any revocation hearing conducted by the board, or in cases of preliminary hearings, the board is authorized to appoint legal counsel for an indigent individual where necessary in obedience to the requirements of the United States supreme court. For this purpose, the Tennessee supreme court shall prescribe by rule the nature of costs for which reimbursement may be allowed, and the limitations on and conditions for the reimbursement of costs as it deems appropriate in the public interest, subject to this subsection (b). The rules shall also specify the form and content of applications for reimbursement of costs to be filed in accordance with this subsection (b).
2. (2) The administrative director of the courts shall administer this subsection (b) and rules promulgated under subdivision (b)(1), and shall audit and review all applications for reimbursement of costs. Upon finding payment to be in order, the administrative director of the courts shall process the payment thereof out of money appropriated for that purpose.
3. (3) Costs incurred by the state in providing legal counsel shall be minimized insofar as is possible and practicable by the appointment by the board of counsel from any legal services group functioning in the county in which the proceedings are held if the group is supported in whole or in part from federal, state, county or municipal moneys.
(c) The board shall also have the powers and perform the duties when requested by the governor of collecting the records, making investigations, and reporting to the governor the facts, circumstances, criminal records, and the social, physical, mental and psychiatric conditions and histories of prisoners under consideration by the governor for pardon or commutation of sentence.
(d)
1. (1) The board shall identify the types of information necessary to enable the board to properly assess inmates being considered for action by the board and the performance of former inmates under parole supervision, and all other appropriate state and local officials and agencies, including the courts, shall provide assistance as requested.
2. (2) The board shall, with assistance of the divisions cited in subdivision (d)(1), oversee the development of written procedures and controls to assure the early identification of offenders who become eligible for parole consideration, including those serving sentences in local detention facilities, through such means as the offender-based state correctional information system.
(e)
1. (1) In order to assure access to complete and adequate records on all inmates under consideration by the board, the board shall assist the department of correction and any other cooperating officials or agencies of the criminal justice system in identifying records needs of each agency in the criminal justice system and in the development of procedures to assure that the records are secured and maintained by the appropriate agencies, including official documentary statements of the circumstances surrounding the commission of a crime, prior criminal history, social history, community background assessments, psychological and health assessments, and other information useful in the evaluation and classification of inmates.
2. (2) The board shall develop a comprehensive parole summary report form for completion by institutional staff or others mutually agreed by the board and the commissioner who shall assure that the reports required are completed prior to parole hearings.
(f) Notwithstanding other law to the contrary and unless prohibited by federal law in a specific instance, the board shall be granted access to any record or information, public or otherwise, that it deems necessary to carry out its duties, and all officials and agencies, including the commissioners of correction, safety, mental health and substance abuse services, and disability and aging, the director of the Tennessee bureau of investigation, wardens of institutions, courts and other state and local government officials and employees, shall accordingly respond to requests from the board under authority of this section and § 40-28-127. Access shall include, but not be limited to, information, records or reports developed under §§ 4-3-604, 4-6-140, and 4-6-141; §§ 39-12-101, 39-12-103, 39-13-304, 39-16-402, 39-16-403, 39-16-602, 39-16-603, 39-16-606, 39-16-607, 39-17-302, 39-17-303, [former] 40-28-111 [repealed], 40-28-114, 40-28-119, [former] 40-28-120 [repealed] and 40-28-121; §§ 41-1-111, 41-21-107, 41-21-222, 41-21-223 and 41-21-226; and title 41, chapter 21, parts 4 and 7.

History (17)

Acts 1937, ch. 276, § 3
mod. C. Supp. 1950, § 11818.3 (Williams, § 11843.3)
Acts 1961, ch. 93, § 2
impl. am. Acts 1972, ch. 636, §§ 1-8
Acts 1978, ch. 929, § 3
1979, ch. 359, § 8
1979, ch. 399, § 7
T.C.A. (orig. ed.), § 40-3603
Acts 1989, ch. 227, §§ 9-14
1993, ch. 66, § 69
1996, ch. 675, § 35
1998, ch. 1049, §§ 24, 29, 66
2001, ch. 355, § 2
2010, ch. 1100, § 67
2012, ch. 575, § 2
2012, ch. 727, § 15
2024, ch. 688, § 129.

§ 40-28-107. Reports of the board — Notification of release on parole to kidnapping hostages and victims.

(a) The board shall make reports concerning the records, organization and work of the board as may from time to time be requested by the governor.
(b) The board shall forward to the appropriate standing committees of the general assembly, designated by the speaker of the senate and the speaker of the house of representatives, the names of all persons released on parole, as well as all persons receiving both favorable and unfavorable recommendations for executive clemency of any sort, together with the reasons for the recommendations. This information shall be furnished to the designated standing committees as soon as practicable after the board's action. This information shall also be furnished to the appropriate district attorney general in whose district any such person was convicted.
(c) Before a prisoner is released on parole, the board shall notify the following officials in the county in whose district the prisoner was convicted as well as the following officials in whose district the prisoner is to be released, if different:
1. (1) The judge who sentenced the prisoner;
2. (2) The district attorney general;
3. (3) The sheriff; and
4. (4) The chief of police.
Backlinks (1)
- 40-35-503(e)
(d) At least three (3) days prior to the release on parole of a defendant convicted of any kidnapping offense involving a hostage or victim, the board shall notify the sheriff of the county in which the crime was committed and the sheriff shall make all reasonable and diligent efforts to notify the hostage or victim of the offense that the defendant will be released on parole. If the hostage or victim is less than eighteen (18) years of age or is otherwise unavailable, the sheriff shall make all reasonable and diligent efforts to so notify the family, if any, of the hostage or victim.
(e) The board shall provide notification to those officials listed in subsection (c) in the event of an inmate's release due to exoneration, commutation of sentence, or the granting of a pardon by the governor.

Backlinks (1)

8-8-201(b)(1)

History (14)

Acts 1937, ch. 276, § 2
C. Supp. 1950, § 11818.2 (Williams, § 11843.2)
Acts 1961, ch. 93, § 3
1979, ch. 359, § 10
1981, ch. 60, § 1
T.C.A. (orig. ed.), § 40-3604
Acts 1986, ch. 543, § 1
1987, ch. 169, § 1
1988, ch. 648, § 4
1989, ch. 227, §§ 15-20
1993, ch. 336, § 6
1999, ch. 392, § 4
1999, ch. 516, § 2
2012, ch. 727, § 16.

§ 40-28-108 — 40-28-112. [Reserved.]

§ 40-28-113. Prisoners to whom applicable.

This part shall apply to every person sentenced to a state or county correctional facility and to those who may now be serving a sentence in a state or county correctional facility.

History (5)

Acts 1937, ch. 276, § 17
mod. C. Supp. 1950, § 11818.17 (Williams, § 11843.17)
Acts 1979, ch. 318, § 24
T.C.A. (orig. ed.), § 40-3610
Acts 1989, ch. 227, § 27.

§ 40-28-114. Records of prisoners.

As each prisoner sentenced is received at a classification center within the department of correction, it will further be the duty of the probation and parole officer of the district from which the prisoner was sent to cause to be obtained and forwarded to the board a summary from the trial judge and the district attorney general containing:
1. (1) The facts as they developed at the trial;
2. (2) The nature of the prisoner's conviction;
3. (3) The court in which the prisoner was sentenced;
4. (4) The name of the trial judge; and
5. (5) Copies of other probation reports as may have been made in order for the board to have the benefit of the reports when the prisoner becomes eligible for parole consideration or applies for executive clemency.

Backlinks (1)

40-28-106(f)

History (9)

Acts 1937, ch. 276, § 7
mod. C. Supp. 1950, § 11818.7 (Williams, § 11843.7)
Acts 1961, ch. 93, § 9
modified
1979, ch. 359, § 16
T.C.A. (orig. ed.), § 40-3611
Acts 1989, ch. 227, § 28
1998, ch. 1049, §§ 24, 35
2012, ch. 727, § 22.

§ 40-28-115. Eligibility for parole.

(a) Every person sentenced to an indeterminate sentence and confined in a state prison, after having served a period of time equal to the minimum sentence imposed by the court for the crime of which the person was convicted, shall be subject to the jurisdiction of the board. The time of release shall be discretionary with the board, but no such person shall be released before serving the minimum sentence nor before serving one (1) year.
(b)
1. (1) Every person sentenced to a determinate sentence and confined in a state prison, after having served a period of time equal to one half (½) of the sentence imposed by the court for the crime for which the person was convicted, but in no event less than one (1) year, shall likewise be subject to parole in the same manner provided for those sentenced to an indeterminate sentence.
2. (2) The parole eligibility for each person who commits a crime on or after July 1, 1982, shall be determined by the criteria listed in the Criminal Sentencing Reform Act of 1982 [repealed].
(c) The action of the board in releasing prisoners shall be deemed a judicial function and shall not be reviewable if done according to law.
(d) If a prisoner has been accorded a bona fide offer of employment, the board may release the prisoner on probationary parole under either of the following conditions:
1. (1) At any time not more than six (6) months before the prisoner's date of eligibility for parole as provided in this chapter if, after all credit for good conduct, that eligibility shall occur more than eighteen (18) months and less than five (5) years from the date of sentence; or
2. (2) At any time not more than one (1) year before the prisoner's date of eligibility for parole as provided in this chapter if, after all credit for good conduct, that eligibility shall occur more than five (5) years from the date of sentence.
(e) The prisoner shall at all times during probationary parole be under the jurisdiction of the board and the supervision of the department. The board may revoke the probationary parole for any reason satisfactory to it.
(f) Notwithstanding any other provision of this chapter relating to parole eligibility, and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, compiled in chapter 34 of this title, the board of parole is authorized to release a prisoner on parole on the date specified in a sentencing agreement entered into by the prisoner, the board and the department of correction. In granting parole, the board may impose any conditions and limitations that the board deems necessary.
(g)
1. (1) The general assembly declares it to be public policy that no person shall be granted parole, notwithstanding any law, rule or regulation to the contrary, until the person has successfully completed a test requiring that individual to master certain basic and other skills. The test shall include as a minimum requirement scoring at an eighth-grade reading level. This requirement shall not apply to any person certified by the commissioner of correction or the commissioner's designee as being so intellectually disabled or mentally ill as to be incapable of learning at the required levels. Furthermore, this subsection (g) shall not apply to the following:
  1. (A) Persons who are incarcerated in county jails or workhouses;
  2. (B) Persons who are in the custody of the department of correction for less than one (1) year; or
  3. (C) Persons who have high school diplomas or the equivalent.
2. (2) The commissioner or the commissioner's designee, the board of parole and the state board of education shall jointly formulate policies and procedures to implement this subsection (g).
3. (3) This subsection (g) shall be inapplicable to any inmate or group of inmates if the commissioner determines that its effectuation will increase the system's inmate population and if the commissioner so certifies the determination to the governor.
(h)
1. (1) The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as close custody. This decertification shall continue for the duration of the classification, and for a period of one (1) year thereafter.
2. (2) The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as maximum custody. This decertification shall continue for the duration of the classification, and for a period of two (2) years thereafter.
(i) When declining, revoking, or rescinding parole, the board is authorized to set the period of time before the prisoner receives another hearing on the same offense or offenses. However, the period set by the board shall not exceed six (6) years, unless the prisoner is serving a sentence for multiple convictions for first degree murder, pursuant to § 39-13-202, or facilitation of first degree murder, in which case the period set by the board shall not exceed ten (10) years.

Backlinks (2)

History (19)

Acts 1937, ch. 276, § 8
mod. C. Supp. 1950, § 11818.8 (Williams, § 11843.8)
Acts 1957, ch. 162, § 1
1974, ch. 624, § 3
1979, ch. 359, § 17
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1979, ch. 386, § 2
T.C.A. (orig. ed.), § 40-3612
Acts 1985, ch. 254, § 1
1985 (1st Ex. Sess.), ch. 5, § 25
1989, ch. 227, § 29
1990, ch. 1011, § 1
1998, ch. 743, §§ 1, 2
1998, ch. 1049, §§ 24, 66
1999, ch. 516, § 4
2011, ch. 158, § 20
2012, ch. 727, § 23
2016, ch. 870, § 1
2021, ch. 410, § 9.

§ 40-28-116. Power to parole.

(a)
1. (1) The board has the power to cause to be released on parole any person the department has declared eligible for parole consideration.
2. (2) No person convicted of a sex crime shall be released on parole unless a psychiatrist or licensed psychologist designated as a health service provider has evaluated the inmate and determined to a reasonable medical or psychological certainty that the inmate does not pose the likelihood of committing sexual assaults upon release from confinement. The evaluations shall be provided by psychiatrists or licensed psychologists designated as health service providers whose services are contracted for and funded by the board.
  Backlinks (1)
  
  40-35-503(i)(3)
Backlinks (1)
- 40-28-117(b)(6)
(b) Notwithstanding any other provision of this chapter relating to parole eligibility, and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, compiled in chapter 34 of this title, the board is authorized to release a prisoner on parole on the date specified in a sentencing agreement entered into by the prisoner and the board. In granting parole, the board may impose any conditions and limitations that the board deems necessary, except that the board shall not require a condition or limitation to be completed prior to release on parole unless the department of correction recommends completion of the condition or limitation prior to release on parole.
(c)
1. (1) The board shall consider granting parole to a prisoner who has reached the release eligibility date for the prisoner's combined state sentences and has an active detainer commitment to serve a term of imprisonment in a foreign jurisdiction if:
  1. (A) The term of imprisonment in the foreign jurisdiction is greater than the period of imprisonment left to serve on the prisoner's combined state sentences;
  2. (B) The prisoner would otherwise be eligible for parole consideration; and
  3. (C) The prisoner is a good candidate for parole release upon application of any release decision-making guidelines in use by the board.
2. (2) When a prisoner has a parole hearing, the department of correction must provide information to the board regarding filed active detainer commitments in which the prisoner is to serve a term of imprisonment.
3. (3) If parole release is granted to a detainer in a foreign jurisdiction, then the entity having custodial authority over the prisoner must file a notification request with the foreign jurisdiction for the remainder of any Tennessee sentence, prior to parole release.

Backlinks (1)

41-21-236(i)

History (27)

Acts 1913, ch. 8, § 3
impl. am. Acts 1915, ch. 20, § 7
Shan., § 7202a6
impl. am. Acts 1919, ch. 39, § 2
impl. am. Acts 1923, ch. 7, § 42
mod. Code 1932, § 11771
impl. am. Acts 1937, ch. 276, §§ 1, 3
C. Supp. 1950, § 11771
Acts 1957, ch. 353, § 1
1961, ch. 93, § 10
1965, ch. 273, §§ 1, 2
impl. am. Acts 1972, ch. 636, § 1
Acts 1973, ch. 370, §§ 1, 2
1974, ch. 624, § 4
modified
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1979, ch. 359, § 18
1979, ch. 386, § 3
T.C.A. (orig. ed.), § 40-3613
Acts 1985 (1st Ex. Sess.), ch. 5, § 26
1989, ch. 227, § 30
1989, ch. 591, § 8
1992, ch. 991, § 17
1998, ch. 1049, § 24
2012, ch. 727, § 24
2021, ch. 353, § 1
2021, ch. 410, § 10.

§ 40-28-117. Grounds for parole — Terms.

(a)
1. (1) Parole being a privilege and not a right, no prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board is of the opinion that there is reasonable probability that the prisoner, if released, will live and remain at liberty without violating the law, and that the prisoner's release is not incompatible with the welfare of society. If the board so determines, the prisoner may be paroled and if paroled shall be allowed to go upon parole outside of prison walls and enclosure upon the terms and conditions as the board shall prescribe, but to remain while thus on parole in the legal custody of the warden of the prison or the supervisor of the county jail or workhouse from which the prisoner is paroled, until the expiration of parole. The terms and conditions of parole set by the board may specifically include the requirement that a prisoner pay restitution to the victims of the crimes for which the prisoner had been sentenced to prison, to compensate them for their personal injuries or property losses or both proximately caused through the commission of those crimes.
2. (2)
  1. (A) For any prisoner paroled on or after July 1, 2014, the terms and conditions may specifically include that the prisoner, upon release, use a transdermal monitoring device or other alternative monitoring device if, in the opinion of the board, the prisoner's use of alcohol or drugs was a contributing factor in one (1) or more of the offenses for which the prisoner is being paroled.
  2. (B) As used in this subdivision (a)(2), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device. If the board includes use of a transdermal monitoring device or alternative monitoring device as a term and condition on or after July 1, 2016, but determines that the person is indigent, the board shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419.
3. (3) The terms and conditions of parole for a prisoner convicted of vehicular homicide, under § 39-13-213(a)(2), or aggravated vehicular homicide, under § 39-13-218, must specifically include that the prisoner, upon release:
  1. (A) Attend substance abuse treatment for the duration of any period of parole. Attendance at substance abuse treatment shall be a condition of parole, and failure to attend shall be punished as a violation of the conditions of the prisoner's parole; and
  2. (B) Is prohibited from possessing or consuming alcohol or a controlled substance, as defined in § 39-17-402, for which the prisoner does not have a valid prescription for the duration of any period of parole. Possession or consumption of alcohol or a controlled substance for which the prisoner does not have a valid prescription during parole shall be punished as a violation of the conditions of the prisoner's parole.
(b) Every prisoner who has never been granted a parole of any type by the board on a particular sentence of imprisonment shall be granted a mandatory parole by the board subject to the following restrictions:
1. (1) Prisoners serving an indeterminate or determinate sentence with a maximum term of two (2) years up to ten (10) years inclusive, as fixed by the court, shall be paroled by the board ninety (90) days prior to the completion of the maximum term of sentence less credit for good and honor time and incentive time;
2. (2) Prisoners serving a determinate or indeterminate sentence with a maximum term of more than ten (10) years as fixed by the court, shall be paroled by the board six (6) months prior to the completion of the maximum term of sentence less credit for good and honor time and incentive time;
3. (3) All prisoners mandatorily paroled shall be paroled under the provisions and conditions as the board may deem necessary. A violation of the provisions and conditions shall subject the prisoner to all the penalties and provisions of law now provided for violation of the terms of parole. Upon a violation, the prisoner shall not receive another mandatory parole, but may be paroled in the discretion of the board;
4. (4) Mandatory parole shall not be construed to grant parole earlier than set forth in §§ 40-28-115 — 40-28-119;
5. (5) Every prisoner released on mandatory parole shall receive a money and clothing allowance, as set out in § 41-21-219, for prisoners released on parole; and
6. (6) Prisoners who have been convicted of a sex offense shall not be released on mandatory parole unless they have been evaluated and met the requirement described in § 40-28-116(a).
(c)
1. (1) Except as provided in subdivision (c)(2), if a prisoner released on parole is required as a condition of parole to submit to transdermal monitoring or other alternative monitoring, it is a Class B misdemeanor:
  1. (A) For the prisoner to knowingly tamper with, remove, or vandalize the monitoring device; or
  2. (B) For any person to knowingly aid, abet, or assist the prisoner in tampering with, removing, or vandalizing a monitoring device.
2. (2) If a person violates subdivision (c)(1) and the monitoring device is damaged as a result of the violation, then the offense may be punished as theft under § 39-14-105, after determining value under § 39-11-106.
3. (3) If an entity monitoring the device becomes aware that there has been an attempt to tamper with, disable, remove, or otherwise make the device ineffective, then the entity monitoring the device must promptly give notice of the violation to the department of correction.

History (13)

Acts 1937, ch. 276, § 9
C. Supp. 1950, § 11818.9 (Williams, § 11843.9)
Acts 1961, ch. 93, § 11
1974, ch. 624, § 5
1975, ch. 99, § 1
1979, ch. 313, § 1
T.C.A. (orig. ed.), § 40-3614
Acts 1989, ch. 227, §§ 31-33
2014, ch. 567, § 2
2016, ch. 993, § 13
2018, ch. 1046, § 3
2024, ch. 671, § 3
2024, ch. 874, § 2.

§ 40-28-118. Determination as to paroles — Supervision of parolees.

(a) Subject to other provisions of law, the board is charged with the duty of determining what prisoners serving a felony sentence of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years in state prisons, jails and county workhouses may be released on parole and when and under what conditions.
(b) When the director of probation and parole issues a warrant for the retaking of a parolee pursuant to § 40-28-607, the board is charged with determining whether violation of parole conditions exists in specific cases and of deciding the action to be taken in reference to the violation.
(c) It is also the duty of the members of the board to study the prisoners confined in the prisons, workhouses and jails when they are eligible for parole consideration so as to determine their ultimate fitness to be paroled.

Backlinks (1)

40-35-504(a)

History (11)

Acts 1937, ch. 276, § 6
C. Supp. 1950, § 11818.6 (Williams, § 11843.6)
Acts 1961, ch. 93, § 12
1974, ch. 624, § 6
1977, ch. 22, § 1
1979, ch. 359, § 19
T.C.A. (orig. ed.), § 40-3615
Acts 1989, ch. 227, §§ 34-36
1990, ch. 729, § 3
1998, ch. 1049, §§ 23, 25
2012, ch. 727, § 25.

§ 40-28-119. Records of parolees.

(a) The board shall cause to be kept records which may include social, physical, mental, psychiatric and criminal information for every inmate considered for or released.
(b) The board may make rules, as it deems proper, as to the privacy of the record and of the records of its employment bureau, and their use by others than the board and its staff.

Backlinks (3)

History (8)

Acts 1937, ch. 276, §§ 5, 15
C. Supp. 1950, §§ 11818.5, 11818.15 (Williams, §§ 11843.5, 11843.15)
modified
Acts 1979, ch. 359, § 20
T.C.A. (orig. ed.), § 40-3616
Acts 1989, ch. 227, §§ 37, 38
1998, ch. 1049, §§ 36, 37
2012, ch. 727, § 26.

§ 40-28-120. [Reserved.]

Backlinks (1)

40-28-106(f)

§ 40-28-121. Arrest of parole violator — Preliminary hearing — Notice.

(a) Upon the issuance of a warrant under § 40-28-607, any officer authorized to serve criminal process, or any peace officer to whom a warrant is delivered, shall execute the warrant by taking the prisoner and returning the prisoner to a prison, workhouse or jail to be held to await the action of the board.
(b) Upon the arrest of a parolee pursuant to subsection (a), unless waived in writing, a preliminary hearing shall be conducted to determine whether probable cause exists to believe that the parolee has violated the conditions of parole in an important respect. Indictment by a grand jury or a finding of probable cause or a waiver of a probable cause hearing or a conviction in any federal or state court of competent jurisdiction for any felony or misdemeanor committed after parole shall constitute “probable cause” and no further proof shall be necessary at the preliminary hearing. If a parole revocation hearing is held within fourteen (14) days of the service of the warrant, a preliminary hearing will not be necessary.
(c) Written notice of the violations alleged and the time, place and purpose of the hearing shall be given the parolee a reasonable time before the hearing.
(d) The preliminary hearing shall be conducted by a hearing officer, appointed by the chair of the board.

Backlinks (3)

History (10)

Acts 1937, ch. 276, § 11
1949, ch. 18, § 1
C. Supp. 1950, § 11818.11 (Williams, § 11843.11)
Acts 1974, ch. 624, § 8
1978, ch. 659, § 1
1978, ch. 929, § 4
1979, ch. 359, § 22
T.C.A. (orig. ed.), § 40-3618
Acts 1989, ch. 227, § 40
2012, ch. 727, § 28.

§ 40-28-122. Hearings on parole violations — Appointment of counsel for indigents.

(a) When the director of probation and parole issues a warrant for the retaking of a parolee pursuant to § 40-28-607, the board is charged with determining whether violation of parole conditions exists in specific cases and of deciding the action to be taken in reference to the violation. After being notified that a warrant has been executed and a probable cause hearing has been held or waived, the board shall, as soon as practicable, hold a parole revocation hearing and consider the case of the parole violator, who shall be given an opportunity to appear personally before a board member or hearing officer and explain the charges made. A probable cause hearing shall not be necessary if a parole revocation hearing is held within fourteen (14) days of the service of the warrant.
(b) A laboratory report regarding a parolee's drug test may be admissible in any parole revocation proceeding, even though the laboratory technician who performed the test is not present to testify, when accompanied by an affidavit containing at least the following information:
1. (1) The identity of the certifying technician;
2. (2) A statement of qualifications from the certifying technician;
3. (3) A specific description of the testing methodology;
4. (4) A statement that the method of testing was the most accurate test for this particular drug;
5. (5) A certification that the results were reliable and accurate;
6. (6) A declaration that all established procedures and protocols were followed; and
7. (7) A statement of acknowledgment that submission of false information in the affidavit may subject the affiant to prosecution for the criminal offense of perjury pursuant to § 39-16-702.
(c)
1. (1) The board shall, within a reasonable time, act upon the charges, and may, if it sees fit:
  1. (A) For a revocation of parole that does not involve a new felony, new Class A misdemeanor, zero tolerance violation as defined by the department of correction community supervision sanction matrix, absconding, or contacting the defendant's victim in violation of a condition of parole, require the prisoner to serve a term of incarceration not to exceed:
    1. (i) Fifteen (15) days for the first revocation;
    2. (ii) Thirty (30) days for the second revocation;
    3. (iii) Ninety (90) days for the third revocation; or
    4. (iv) The remainder of the sentence, for a fourth or subsequent revocation; or
  2. (B) For a revocation of parole that involves a new felony, new Class A misdemeanor, zero tolerance violation as defined by the department of correction community supervision sanction matrix, absconding, or contacting the defendant's victim in violation of a condition of parole, require the prisoner to serve out in prison the balance of the maximum term for which the prisoner was originally sentenced, calculated from the date of delinquency, or such part thereof, as the board may determine, or impose a punishment as the board deems proper, subject to § 40-28-123.
2. (2) At a revocation hearing for a prisoner paroled from a department of correction facility, the board may also, in conjunction with revocation of the prisoner's parole for reasons other than the commission of a new felony offense, reparole the prisoner effective upon the department's certification that the prisoner has successfully completed a diversion program established by the department of correction pursuant to § 41-1-123. If the offender fails to successfully complete the program, the offender shall be scheduled for a preparole rescission hearing.
Backlinks (1)
- 40-35-501(cc)(1)(B)
(d)
1. (1) In any revocation hearing conducted by the board, or in cases of initial preliminary hearings, the board is authorized to appoint legal counsel for an indigent individual where necessary in obedience to the requirements of the supreme court of the United States. For this purpose, the supreme court of Tennessee shall prescribe by rule the nature of costs for which reimbursement may be allowed, and the limitations on and conditions for the reimbursement of costs as it deems appropriate in the public interest, subject to this part. The rules shall also specify the form and content of applications for reimbursement of costs to be filed under this section.
2. (2) The administrative director of the courts shall administer this subsection (d) and rules promulgated pursuant to subdivision (d)(1), and shall audit and review all applications for reimbursement of cost. Upon finding payment to be in order, the administrative director of the courts shall process the payment thereof out of money appropriated for that purpose.
(e) Costs incurred by the state in providing legal counsel shall be minimized insofar as is possible and practicable by the appointment by the board of counsel from any legal services group functioning in the county in which the proceedings are held if the group is supported in whole or in part from federal, state, county or municipal moneys.
(f)
1. (1) This subsection (f) shall apply to a paroled prisoner who is reincarcerated while awaiting a parole revocation preliminary hearing, a parole revocation hearing, or a parole rescission hearing, or following revocation or rescission of parole, and the sole reason the paroled prisoner was arrested and reincarcerated was because the paroled prisoner was charged with a new offense. Upon receipt of notification that the prisoner's revocation or rescission case, which was previously decided by the board, merits further review based upon the circumstances under which the new offense was dismissed, the board shall waive the time limitation for appeal, as set in rule by the board, and any limitation based on previously filed appeals, in order that the prisoner may submit evidence of any of the following events:
  1. (A) The charge or charges against the paroled prisoner that resulted in the arrest of the prisoner for a parole violation were dismissed or retired based on the merits of the case;
  2. (B) A no true bill was returned by a grand jury on the charge or charges;
  3. (C) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
  4. (D) The paroled prisoner was arrested and released, without being charged.
2. (2) The notification required by subdivision (f)(1) may be in written or electronic form and shall be submitted by:
  1. (A) The district attorney general from the judicial district in which the charges were brought or the district attorney general's designee;
  2. (B) The judge in the court where charges were brought;
  3. (C) The department of correction;
  4. (D) The prisoner's attorney, provided that the notification is also signed by one (1) of the officials in subdivisions (f)(2)(A)-(C); or
  5. (E) The prisoner, provided that the notification is also signed by one (1) of the officials in subdivisions (f)(2)(A)-(C).
3. (3) Upon verification of the authenticity of the submitted notification, which shall occur within ten (10) business days from receipt of the notification, and submission of evidence of the occurrence of one (1) or more of the events in subdivision (f)(1)(A)-(D), the board, or the board's designee, shall conduct a hearing on the record to determine if:
  1. (A) One (1) of the events in subdivision (f)(1)(A)-(D) has occurred involving a charge against a parolee that was committed while on parole; and
  2. (B) The parolee was reincarcerated solely because of this charge and the parolee remains incarcerated while awaiting a parole revocation or rescission hearing or because the parolee's parole was revoked or rescinded.
4. (4) If, after the board or the board's designee conducts a hearing on the record, the board determines that the events described in subdivisions (f)(3)(A) and (B) have occurred, the board may vote to order the release and reinstatement on parole of the prisoner in accordance with applicable law. If released and reinstated, any sentence credits that may have been lost while the paroled prisoner was incarcerated shall also be reinstated. The number of votes required to release and reinstate the prisoner's parole shall be determined in accordance with the rules of the board.
5. (5) The hearing conducted pursuant to this subsection (f) shall be scheduled on the next available docket upon the occurrence of the events defined in subdivisions (f)(1)-(3), and shall be conducted no later than thirty-five (35) days from verification of the notification required by subdivision (f)(1).
Backlinks (1)
- 40-28-607(c)

Backlinks (1)

40-28-505(b)

History (14)

Acts 1937, ch. 276, § 12
C. Supp. 1950, § 11818.12 (Williams, § 11843.12)
Acts 1978, ch. 929, § 5
T.C.A. (orig. ed.), § 40-3619
Acts 1989, ch. 227, §§ 41, 42
1993, ch. 66, § 70
1998, ch. 1049, § 25
2001, ch. 323, § 1
2001, ch. 355, § 1
2006, ch. 666, § 2
2012, ch. 727, §§ 29, 30
2017, ch. 162, § 2
2021, ch. 410, § 11
2022, ch. 1060, § 9.

§ 40-28-123. Felony committed by parolee or prisoner assigned to release program — Signed acknowledgement prerequisite to participation in release programs.

(a) Any prisoner who is convicted in this state of a felony, committed while on parole from a state prison, jail or workhouse, shall serve the remainder of the sentence under which the prisoner was paroled, or part of that sentence, as the board may determine before the prisoner commences serving the sentence received for the felony committed while on parole. If any prisoner while on parole from a state prison, jail or workhouse commits a crime under the laws of another state government or country which, if committed within this state, would be a felony, and is convicted of the crime, the director of probation and parole shall arrange for the return of the prisoner through the terms of the interstate compact. The board shall require that the prisoner serve the portion remaining of the maximum term of sentence or part of that sentence as the board may determine. The board, at its discretion, may recommend to the commissioner of correction the removal of all or any part of the good and honor time and incentive time accrued on the sentence under which the prisoner was paroled.
(b)
1. (1) Any prisoner who is convicted in this state of any felony except escape, and when the felony is committed while the prisoner is assigned to any work release, educational release, restitution release or other program whereby the prisoner enjoys the privilege of supervised release into the community, including, but not limited to, participation in any programs authorized by § 41-21-208 or § 41-21-227, the prisoner shall serve the remainder of the term without benefit of parole eligibility or further participation in any of these programs. The department shall have the authority to penalize or punish prisoners who escape from any of the above programs in accordance with department policy.
2. (2) As a prerequisite to any inmate's placement in a program described in subdivision (b)(1), the department shall read and provide the inmate with a copy of subdivision (b)(1). The inmate shall then give written acknowledgement of receipt of the copy and shall signify comprehension of the provisions contained in it. A permanent file, hardcopy or electronic, of these acknowledgements shall be maintained by the department.

Backlinks (2)

History (11)

Acts 1937, ch. 276, § 13
C. Supp. 1950, § 11818.13 (Williams, § 11843.13)
Acts 1961, ch. 289, § 1
1974, ch. 624, § 9
1978, ch. 794, § 1
1979, ch. 359, § 23
T.C.A. (orig. ed.), § 40-3620
Acts 1985, ch. 220, § 1
1989, ch. 227, §§ 43, 44
1998, ch. 1049, §§ 24, 25
2012, ch. 727, § 31.

§ 40-28-124, 40-28-125. [Reserved.]

§ 40-28-126. Advice as to pardons, exonerations and commutations.

(a) It is the duty of the board to advise with and make recommendations to the governor with respect to pardons, exonerations and commutations. Any report received from the trial judge or district attorney general will be made a part of the file of the applicant.
(b) The board shall have the district attorney general and trial judge, in whose court the case was tried, notified of the hearing of applications for executive clemency.

History (9)

Acts 1937, ch. 276, § 18
C. Supp. 1950, § 11818.18 (Williams, § 11843.18)
Acts 1961, ch. 93, § 14
1979, ch. 359, § 24
1982, ch. 604, § 3
T.C.A. (orig. ed.), § 40-3623
Acts 1989, ch. 227, § 46
1998, ch. 1049, § 25
2012, ch. 727, § 34.

§ 40-28-127. Cooperation of prison officials.

The warden of each prison and all officers and employees of each prison and of the board of parole and all other public officials shall at all times cooperate with the board and shall furnish to the board, its officers and employees, information as may be necessary to enable it to perform its functions, and the wardens and other employees shall at all times give the members of the board, its officers and employees, free access to all prisoners confined in the prisons, workhouses and jails of the state.

Backlinks (2)

History (5)

Acts 1937, ch. 276, § 16
C. Supp. 1950, § 11818.16 (Williams, § 11843.16)
T.C.A. (orig. ed.), § 40-3624
Acts 1989, ch. 227, § 47
1998, ch. 1049, § 24.

§ 40-28-128. Executive pardoning power unabridged.

Nothing in §§ 40-28-101 — 40-28-127 shall be construed in any way as intended to modify or abridge the pardoning power of the governor.

History (3)

Acts 1937, ch. 276, § 23
C. Supp. 1950, § 11818.20 (Williams, § 11843.23)
T.C.A. (orig. ed.), § 40-3625.

§ 40-28-129. Calculation of sentence expiration date and earliest release date.

Notwithstanding any other law to the contrary, the department of correction shall be responsible for calculating the sentence expiration date and the earliest release date of any felony offender sentenced to the department of correction and any felony offender sentenced to confinement in a county jail or workhouse for one (1) or more years.

History (3)

Acts 1985 (1st Ex. Sess.), ch. 5, § 38
1998, ch. 1049, § 24
1999, ch. 516, § 5.

Part 2 Contributions by Parolees, Probationers and Employed Releasees

§ 40-28-201. Parolees, probationers and employed releasees — Contributions required — Arrearages — Records.

(a)
1. (1) Except in those cases waived by the director as hardship cases, any person who is placed on parole or any person who is granted suspension of sentence and probation by a court of competent jurisdiction, and who is under the supervision of the department, and based on the person's ability to pay, shall be required to contribute fifteen dollars ($15.00) per month toward the cost of the person's supervision and rehabilitation. The contribution shall be deposited in the department of correction supervision and rehabilitation fund established pursuant to § 40-28-203. This subdivision (a)(1) shall also apply to any probationer or parolee transferred to the state of Tennessee from another state under the supervision of the Interstate Compact for the Supervision of Adult Offenders, compiled in part 4 of this chapter. In addition, any offender who is under the supervision of the department who requests to transfer residence to another state under the Interstate Compact for the Supervision of Adult Offenders shall pay to the department an application fee for the transfer.
  Backlinks (2)
  
  40-28-203(b)
  40-28-203(c)
2. (2) In addition to the other charges and fees imposed by this section, any person who is under the supervision of the department and is enrolled in an electronic monitoring and tracking supervision program shall be required to contribute funds as the department deems necessary and reasonable to cover the applicable costs of the program. This subdivision (a)(2) shall also apply to any probationer or parolee for violation of a serious offense or sexually violent offense, as defined in § 40-39-202, transferred to the state of Tennessee from another state under the Interstate Compact for the Supervision of Adult Offenders.
  Backlinks (1)
  
  40-39-302(b)(2)(B)
3. (3)
  1. (A) The department shall make an investigation of the financial and other circumstances of the following persons:
    1. (i) Any person who is placed on parole;
    2. (ii) Any person who is granted suspension of sentence and probation by a court of competent jurisdiction; or
    3. (iii) Any person who is participating in any program in which the person is permitted in an environment away from the direct, constant, and immediate supervision of the department, whether community-based or otherwise, and who is under the supervision of the department.
  2. (B) Based on the person's ability to pay, the department shall require the person to pay thirty dollars ($30.00) for each month or portion of a month the person remains under the supervision of the department, to the criminal injuries compensation fund established in § 40-24-107, beginning thirty (30) days from the date of suspension of sentence, date of parole, or in the case of an employed releasee, the date of employment. The payment required under this subdivision (a)(3) shall not exceed ten percent (10%) of the offender's net income. In cases of hardship as set forth in § 40-28-202, the department may modify the payment required by this item to an appropriate amount given the nature and magnitude of the hardship.
4. (4) Except in those cases waived by the department of correction as hardship cases, any inmate who is participating in any department of correction program whereby the person is permitted in an environment away from the direct, constant, and immediate supervision of the department of correction, whether community-based or otherwise (the inmate shall be referred to as “employed releasee” in this part), and who is under the supervision of the department, and based on the inmate's ability to pay, shall be required to contribute five dollars ($5.00) per month toward the cost of the inmate's supervision and rehabilitation. The department of correction shall deposit the contribution as departmental revenue of the institution.
5. (5) In addition to the other charges and fees imposed by this section, beginning July 1, 2018, any person who is under the supervision of the department and is enrolled in an electronic monitoring and tracking supervision program shall be required to pay a one-time electronic monitoring initial use fee of twelve dollars ($12.00) if the person has not previously been ordered by a court of this state to use an electronic monitoring or ignition interlock device. All proceeds collected pursuant to this subdivision (a)(5) shall be transmitted to the treasurer for deposit in the electronic monitoring indigency fund, established in § 55-10-419.
(b)
1. (1) The sums shall be deducted by the parolee or probationer from the person's monthly net earned income and shall be delivered to the department on or before the fifth day of each month, or as provided in §§ 40-28-203 and 40-28-204 before the tenth day of each month. In the case of an employed releasee, the contributions shall be made through existing revenue deduction procedures.
2. (2) By prior agreement between an employer and employee, an employer may deduct the amount necessary to satisfy the contributions required pursuant to this section, from the monthly earned income of the parolee, probationer or other employed releasee, and remit the amount to the department by the fifth day of each month.
3. (3) The responsibility of assuring the contributions shall remain that of the parolee, probationer or employed releasee.
(c) In the event of more than two (2) months' arrearage or delinquency in making either or both of the contributions, the arrearage or delinquency shall constitute sufficient ground for revocation of the parole, probation or other release program of the person in arrears.
(d) Separate records shall be maintained of those funds contributed toward the cost of a person's supervision and rehabilitation by the department and those funds contributed to the criminal injuries compensation fund.

Backlinks (5)

History (18)

Acts 1979, ch. 319, § 1
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 836, §§ 1-9
1982, ch. 605, §§ 1-3
T.C.A., § 40-3630(a)
Acts 1984, ch. 752, § 6
1985, ch. 211, § 1
1988, ch. 528, §§ 1-4
1989, ch. 227, § 48
1995, ch. 497, § 1
1998, ch. 1049, §§ 24, 66
2004, ch. 899, § 4
2005, ch. 149, §§ 1, 2
2009, ch. 313, § 1
2009, ch. 531, §§ 16, 17
2011, ch. 483, § 3
2012, ch. 727, § 36
2018, ch. 1046, § 9.

§ 40-28-202. “Hardship” defined.

(a) As used in § 40-28-201, “hardship” includes, but is not limited to, the following:
1. (1) If a probationer, parolee or employed releasee's sole income is from social security or welfare benefits;
2. (2) If the probationer, parolee or employed releasee has doctor, hospital or medical expenses exceeding twenty-five percent (25%) of total gross monthly income and is not covered by insurance, workers' compensation or any other source of reimbursement;
3. (3) If a probationer, parolee or employed releasee has a certificate from a doctor, whose residence is in Tennessee and is licensed to practice in this state, stating that the person is physically or mentally incapable of working;
4. (4) Any parolee transferred to another state under the supervision of the Interstate Compact for the Supervision of Adult Offenders, compiled as part 4 of this chapter;
5. (5) If a probationer, parolee or employed releasee has an excessive amount of gross monthly income obligated for court ordered expenses such as alimony, child support, etc.;
6. (6) Any person already paying restitution to a victim under a department program shall be exempted from the contributions to the criminal injuries compensation fund but shall not be exempt from contributions to the rehabilitation and supervision fund required by § 40-28-201; and
7. (7) Any person whose income falls below the poverty level according to the latest determination by the United States bureau of the census.
(b) Notwithstanding the provisions of this section, every person placed on probation or granted parole shall pay a minimum of five dollars ($5.00) to the supervision fund, except those individuals claiming a hardship exemption under subdivisions (a)(1), (3) and (4).

Backlinks (3)

History (10)

Acts 1979, ch. 319, § 1
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 836, §§ 1-9
1982, ch. 605, §§ 1-3
T.C.A., § 40-3630(d)
Acts 1988, ch. 528, § 5
1989, ch. 227, § 49
1995, ch. 497, § 3
1998, ch. 1049, § 24
2012, ch. 727, § 37.

§ 40-28-203. Department of correction supervision and rehabilitation fund — Collection of funds — Authorized expenditures — Disposition of revenues.

(a) There is established a department of correction supervision and rehabilitation fund.
(b) All funds collected for defraying of the costs of supervision and rehabilitation pursuant to § 40-28-201(a)(1) and (2) shall be paid over to the department before the tenth day of each month for deposit in the fund established by this section.
(c) The purpose of the fund is to promote the safety of the public by ensuring better supervision of individuals released into the community. All the funds shall be withdrawn or expended only for the purpose of employing additional probation and parole personnel, mandatory random drug screening for all persons covered by § 40-28-201(a)(1) and (2), continuing education and training of existing personnel, establishing additional programs whereby an offender may become gainfully employed for the purpose of learning a trade, supporting the person's family and making restitution to the victim, and establishing and providing office and operational supplies for programs to facilitate the inmate's safe and productive return to the general public upon the expiration of the person's parole or probation.
(d)
1. (1) Moneys retained in the supervision and rehabilitation fund shall be invested by the state treasurer under appropriate rules and regulations, to the end that adequate funds will be available for the purposes of this section.
2. (2) Revenues that are produced for the supervision and rehabilitation fund shall not revert to the state general fund and shall not be subject to impoundment or allotment reserve, but shall be managed on a revolving no-quarter basis.

Backlinks (2)

History (12)

Acts 1979, ch. 319, § 1
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 836, §§ 1-9
1982, ch. 605, §§ 1-3
T.C.A., § 40-3630(b)
Acts 1985, ch. 211, § 2
1989, ch. 227, § 50
1995, ch. 497, § 2
1998, ch. 1049, §§ 38, 39
2005, ch. 149, § 3
2009, ch. 531, § 18
2012, ch. 727, § 38.

§ 40-28-204. Payments to criminal injuries compensation fund.

All funds received pursuant to § 40-28-201 for the criminal injuries compensation fund shall be paid over to the department before the tenth day of each month for deposit in the criminal injuries compensation fund established by § 40-24-107.

Backlinks (1)

40-28-201(b)(1)

History (8)

Acts 1979, ch. 319, § 1
impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1980, ch. 836, §§ 1-9
1982, ch. 605, §§ 1-3
T.C.A., § 40-3630(c)
Acts 1985, ch. 211, § 3
1998, ch. 1049, § 40
2012, ch. 727, § 39.

§ 40-28-205. Civil recovery of unpaid supervision fees.

(a)
1. (1) Notwithstanding any law to the contrary, upon expiration of the term of probation or parole supervision, if any portion of a fee prescribed by § 39-13-705, § 40-28-201, § 40-35-303 or § 40-39-305 remains unpaid and has not been waived by the department or sentencing judge, then the department or its agent may convert the unpaid balance into a civil judgment in accordance with the procedure set forth in this section.
2. (2) Within the twelve-month period following the expiration of the term of probation or parole supervision, the department or its agent may file a certified copy of the parole certificate, probation certificate or other court document that imposes a statutory duty to pay a supervision fee, along with an affidavit certifying the amount of fees that remain unpaid with an appropriate civil court having jurisdiction over the total amount of the unpaid balance.
3. (3) When the department or its agent files a certified copy of the parole certificate, probation certificate or other court document imposing a statutory supervision fee, and the affidavit certifying the unpaid balance with the civil court, the department or its agent shall have the defendant personally served in accordance with the Tennessee Rules of Civil Procedure. The service shall give notice to the defendant of the department's intent to convert the unpaid balance of supervision fees to a civil judgment, include a copy of the documents filed with the court evidencing the duty to pay the supervision fees, and include a statement as to the amount of unpaid fees the department alleges the defendant still owes.
4. (4) Upon being served, the defendant shall be permitted to file an answer in accordance with the Tennessee Rules of Civil Procedure.
(b)
1. (1) The department may retain an agent to collect, institute proceedings to collect or establish an in-house collection procedure to collect unpaid supervision fees as provided for in this section. If an agent is used, the department shall utilize state competitive bidding procedures to select and retain the agent.
2. (2) The agent may be paid an amount not exceeding forty percent (40%) of the sums collected as consideration for collecting the unpaid fees.
3. (3) The written contract between the agent and the department shall include a provision specifying whether the agent may institute an action to collect the unpaid supervision fees in a judicial proceeding.

History (2)

Acts 2008, ch. 1078, § 1
2012, ch. 727, § 40.

Part 3 Community Supervision

§ 40-28-301. Definitions.

As used in this part:
1. (1) “Chief supervision officer” means the correctional administrator for each region of the state or any other person designated by the commissioner;
2. (2)
  1. (A) “Community supervision” means:
    1. (i) The placement of a defendant on probation by a court for a specified period during which the sentence is suspended in whole or in part; or
    2. (ii) The placement by the board of parole of an individual on parole after release from prison or jail, with conditions imposed by the board for a specified period; and
  2. (B) “Community supervision” does not mean community supervision for life imposed pursuant to § 39-13-524;
3. (3) “Court” means a court of record having original criminal jurisdiction;
4. (4) “Graduated sanction” means any of a wide range of non-prison offender accountability measures and programs, including, but not limited to, electronic supervision tools; drug and alcohol testing or monitoring; day or evening reporting centers; rehabilitative interventions such as substance abuse or mental health treatment; reporting requirements to probation and parole officers; community service or work crews; and residential treatment facilities;
5. (5) “Positive reinforcement” means any of a wide range of rewards and incentives, including, but not limited to, awarding certificates of achievement, reducing reporting requirements, removing supervision conditions such as home detention or curfew, or asking the offender to be a mentor to others;
6. (6) “Probation and parole officer” means a person appointed or employed by the department to supervise individuals placed on community supervision; and
7. (7) “Supervised individual” means an individual placed on probation by a court or serving a period of parole or post-release supervision from prison or jail for a felony offense.

History (1)

Acts 2016, ch. 906, § 14.

§ 40-28-302. Policy on community supervision.

Supervised individuals shall be subject to:
1. (1) Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large and cannot be appropriately managed in the community; or
2. (2) Sanctions other than revocation as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.

History (1)

Acts 2016, ch. 906, § 14.

§ 40-28-303. System of graduated sanctions.

(a) The department shall adopt a single system of graduated sanctions for violations of the conditions of community supervision. The system shall set forth a menu of presumptive sanctions for the most common types of supervision violations, including, but not limited to: failure to report; failure to pay fines and fees; failure to participate in a required program or service; failure to complete community service; and failure to refrain from the use of alcohol or controlled substances. The system of sanctions shall take into account factors such as the severity of the current violation, the supervised individual's previous criminal record, the number and severity of any previous supervision violations, the supervised individual's assessed risk level, and the extent to which graduated sanctions were imposed for previous violations. The system shall also define positive reinforcements that supervised individuals will receive for compliance with conditions of supervision. The system shall clearly specify as to each type of sanction whether the supervised individual has the option to object and seek administrative review of the sanction.
(b) The department shall establish by policy an administrative process to review and approve or reject, prior to imposition, graduated sanctions that deviate from those prescribed.
(c) The department shall establish by policy an administrative process to review graduated sanctions contested by supervised individuals under § 40-28-305. The review shall be conducted by the chief supervision officer, who shall be impartial and trained to hear cases regarding graduated sanctions for violations of supervision conditions.
(d) The department shall establish and maintain a program of initial and ongoing training regarding the system of graduated sanctions for probation and parole officers.

Backlinks (1)

40-28-305(c)

History (1)

Acts 2016, ch. 906, § 14.

§ 40-28-304. Conditions of community supervision.

For individuals placed on supervised probation, the judge of the court having jurisdiction over the case shall determine the conditions of community supervision, which shall include as a condition that the department supervising the individual may, in accordance with § 40-28-305, impose graduated sanctions adopted by the department for violations of the conditions of community supervision.

History (1)

Acts 2016, ch. 906, § 14.

§ 40-28-305. Authority to impose graduated sanctions.

(a) Notwithstanding any rule or law to the contrary, the department may impose graduated sanctions.
(b) A probation and parole officer intending to impose a graduated sanction shall issue to the supervised individual a notice of the intended sanction. The notice shall inform the supervised individual of the violation or violations alleged, the date or dates of the violation or violations, and the graduated sanction to be imposed.
(c) The imposition of a graduated sanction or sanctions by a probation and parole officer must comport with the system of graduated sanctions adopted by the department under § 40-28-303. Upon receipt of the notice, the supervised individual shall immediately accept the sanction or, if permitted under the system of graduated sanctions, object to the sanction or sanctions proposed by the probation and parole officer. The failure of the supervised individual to comply with a sanction shall constitute a violation of probation, parole, or post-release supervision. If the supervised individual objects to the imposition of the sanction or sanctions, when permitted by the system of graduated sanctions, the individual is entitled to an administrative review to be conducted by the department within five (5) days of the issuance of the notice. If the department affirms the recommendation contained in the notice, the sanction or sanctions shall become effective immediately.
(d)
1. (1) A notice of a graduated sanction may not be issued for any violation of probation or parole that could warrant an additional, separate felony charge or Class A misdemeanor charge.
2. (2) Notwithstanding subdivision (d)(1), a notice of a graduated sanction may be issued for a positive drug test.
(e) Upon successful completion of a graduated sanction or sanctions, a court shall not revoke the term of community supervision or impose additional sanctions for the same violation. Notwithstanding this subsection (e), a court may consider an individual's supervision and sanctions history when adjudicating subsequent violations.
(f) The department shall regularly provide notice of sanctions imposed upon probationers to the sentencing court and the prosecutor's office for each jurisdiction.
(g) If a probation and parole officer imposes a graduated sanction, the officer shall:
1. (1) Deliver a copy of the sanction to the supervised individual; and
2. (2) Note the date of delivery of the copy in the supervised individual's file.

Backlinks (2)

History (1)

Acts 2016, ch. 906, § 14.

§ 40-28-306. Monitoring graduated sanctions.

The chief supervision officer shall review confinement sanctions recommended by probation and parole officers on a quarterly basis to assess any disparities that may exist among officers, evaluate the effectiveness of the sanction as measured by the supervised individuals' subsequent conduct, and monitor the impact on the department's number and type of revocations for violations of the conditions of supervision.

History (1)

Acts 2016, ch. 906, § 14.

Part 4 Supervision of Adult Offenders

§ 40-28-401. Interstate Compact for Supervision of Adult Offenders.

The governor of this state is authorized and directed to execute a compact on behalf of the state of Tennessee with any of the United States legally joining therein in the form substantially as follows:
1. 1. ARTICLE I: PURPOSE
    1. The compacting states to this Interstate Compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the by-laws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to: track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary return offenders to the originating jurisdictions.
    2. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. § 112, has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.
    3. It is the purpose of this compact and the Interstate Commission created hereunder, through means of joint and cooperative action among the compacting states: to provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits and obligations of the compact among the compacting states.
    4. In addition, this compact will: create an Interstate Commission which will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections or other criminal justice agencies which will promulgate rules to achieve the purpose of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial, and legislative branches and criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct non-compliance; and coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity.
    5. The compacting states recognize that there is no “right” of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this compact and by-laws and rules promulgated hereunder.
    6. It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and are therefore public business.
  2. ARTICLE II: DEFINITIONS
    1. As used in this compact, unless the context clearly requires a different construction:
      1. A. “Adult” means both individuals legally classified as adults and juveniles treated as adults by court order, statute, or operation of law.
      2. B. “By-laws” mean those by-laws established by the Interstate Commission for its governance, or for directing or controlling the Interstate Commission's actions or conduct.
      3. C. “Compact administrator” means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.
      4. D. “Compacting state” means any state which has enacted the enabling legislation for this compact.
      5. E. “Commissioner” means the voting representative of each compacting state appointed pursuant to article III of this compact.
      6. F. “Interstate Commission” means the Interstate Commission for Adult Offender Supervision established by this compact.
      7. G. “Member” means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner.
      8. H. “Non-compacting state” means any state which has not enacted the enabling legislation for this compact.
      9. I. “Offender” means an adult placed under, or subject, to supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies.
      10. J. “Person” means any individual, corporation, business enterprise, or other legal entity, either public or private.
      11. K. “Rules” means acts of the Interstate Commission, duly promulgated pursuant to article VII of this compact, substantially affecting interested parties in addition to the Interstate Commission, which shall have the force and effect of law in the compacting states.
      12. L. “State” means a state of the United States, the District of Columbia and any other territorial possessions of the United States.
      13. M. “State Council” means the resident members of the State Council for Interstate Adult Offender Supervision created by each state under article III of this compact.
  3. ARTICLE III: THE COMPACT COMMISSION
    1. A. The compacting states hereby create the “Interstate Commission for Adult Offender Supervision.” The Interstate Commission shall be a body corporate and joint agency of the compacting states. The Interstate Commission shall have all the responsibilities, powers and duties set forth herein, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
    2. B. The Interstate Commission shall consist of commissioners selected and appointed by resident members of a State Council for Interstate Adult Offender Supervision for each state. While each member state may determine the membership of its own State Council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups and compact administrators. Each State Council shall appoint as its commissioner the compact administrator from that state to serve on the Interstate Commission in such capacity under or pursuant to applicable law of the member state. Each compacting state retains the right to determine the qualifications of the compact administrator who shall be appointed by the State Council or by the governor in consultation with the legislature and the judiciary.
      1. In addition to appointment of its commissioner to the Interstate Commission, each State Council shall exercise oversight and advocacy concerning its participation in Interstate Commission activities and other duties as may be determined by each member state, including but not limited to, development of policy concerning operations and procedures of the compact within that state.
    3. C. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners but who are members of interested organizations; such non-commissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general and crime victims. All non-commissioner members of the Interstate Commission shall be ex-officio (nonvoting) members. The Interstate Commission may provide in its by-laws for such additional, ex-officio, nonvoting members as it deems necessary.
    4. D. Each compacting state represented at any meeting of the Interstate Commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the by-laws of the Interstate Commission.
    5. E. The Interstate Commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of twenty-seven (27) or more compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
    6. F. The Interstate Commission shall establish an executive committee which shall include commission officers, members and others as shall be determined by the by-laws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee oversees the day-to-day activities managed by the executive director and Interstate Commission staff; administers enforcement and compliance with the provisions of the compact, its by-laws and as directed by the Interstate Commission and performs other duties as directed by the Interstate Commission or set forth in the by-laws.
  4. ARTICLE IV: POWERS AND DUTIES OF THE INTERSTATE COMMISSION
    1. The Interstate Commission shall have the following powers:
      1. 1. To adopt a seal and suitable By-laws governing the management and operation of the Interstate Commission.
      2. 2. To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.
      3. 3. To oversee, supervise and coordinate the interstate movement of offenders subject to the terms of this compact and any By-laws adopted and rules promulgated by the Compact Commission.
      4. 4. To enforce compliance with compact provisions, Interstate Commission rules, and by-laws, using all necessary and proper means, including but not limited to, the use of judicial process.
      5. 5. To establish and maintain offices.
      6. 6. To purchase and maintain insurance and bonds.
      7. 7. To borrow, accept, or contract for services of personnel, including, but not limited to, members and their staffs.
      8. 8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by article III which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.
      9. 9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel.
      10. 10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of same.
      11. 11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed.
      12. 12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed.
      13. 13. To establish a budget and make expenditures and levy dues as provided in article IX of this compact.
      14. 14. To sue and be sued.
      15. 15. To provide for dispute resolution among compacting states.
      16. 16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
      17. 17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.
      18. 18. To coordinate education, training and public awareness regarding the interstate movement of offenders for officials involved in such activity.
      19. 19. To establish uniform standards for the reporting, collecting, and exchanging of data.
  5. ARTICLE V: ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
    1. Section A. By-laws
      1. 1. The Interstate Commission shall, by a majority of the members, within 12 months of the first Interstate Commission meeting, adopt by-laws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
        
        a. Establishing the fiscal year of the Interstate Commission;
        
        b. Establishing an executive committee and such other committees as may be necessary;
        
        c. Providing reasonable standards and procedures: (i) for the establishment of committees, and (ii) governing any general or specific delegation of any authority or function of the Interstate Commission;
        
        d. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;
        
        e. Establishing the titles and responsibilities of the officers of the Interstate Commission;
        
        f. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the Interstate Commission. Notwithstanding any civil service or other similar laws of any compacting state, the by-laws shall exclusively govern the personnel policies and programs of the Interstate Commission;
        
        g. Providing a mechanism for winding up the operations of the Interstate Commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations;
        
        h. Providing transition rules for “start up” administration of the compact; and
        
        i. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
    2. Section B. Officers and Staff
      1. 1. The Interstate Commission shall, by a majority of the members, elect from among its members a chairperson and a vice-chairperson, each of whom shall have such authorities and duties as may be specified in the by-laws. The chairperson or, in his or her absence or disability, the vice-chairperson, shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; PROVIDED THAT, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
      2. 2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, and hire and supervise such other staff as may be authorized by the Interstate Commission, but shall not be a member.
    3. Section C. Corporate Records of the Interstate Commission
      1. The Interstate Commission shall maintain its corporate books and records in accordance with the by-laws.
    4. Section D. Qualified Immunity, Defense and Indemnification
      1. 1. The members, officers, executive director and employees of the Interstate Commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities; PROVIDED, that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person.
      2. 2. The Interstate Commission shall defend the commissioner of a compacting state, or his or her representatives or employees, or the Interstate Commission's representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties or responsibilities; PROVIDED, that the actual or alleged act, error or omission did not result from intentional wrongdoing on the part of such person.
      3. 3. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties or responsibilities, provided, that the actual or alleged act, error or omission did not result from gross negligence or intentional wrongdoing on the part of such person.
  6. ARTICLE VI: ACTIVITIES OF THE INTERSTATE COMMISSION
    1. 1. The Interstate Commission shall meet and take such actions as are consistent with the provisions of this compact.
    2. 2. Except as otherwise provided in this compact and unless a greater percentage is required by the by-laws, in order to constitute an act of the Interstate Commission, such act shall have been taken at a meeting of the Interstate Commission and shall have received an affirmative vote of a majority of the members present.
    3. 3. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state. However, a State Council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The by-laws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone, or other means of telecommunication or electronic communication shall be subject to the same quorum requirements of meetings where members are present in person.
    4. 4. The Interstate Commission shall meet at least once during each calendar year. The chairperson of the Interstate Commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.
    5. 5. The Interstate Commission's by-laws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the Interstate Commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to non-disclosure and confidentiality provisions.
    6. 6. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission shall promulgate rules consistent with the principles contained in the “Government in Sunshine Act,” 5 U.S.C. Section 552(b), as may be amended. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds (⅔) vote that an open meeting would be likely to: a. relate solely to the Interstate Commission's internal personnel practices and procedures; b. disclose matters specifically exempted from disclosure by statute; c. disclose trade secrets or commercial or financial information which is privileged or confidential; d. involve accusing any person of a crime, or formally censuring any person; e. disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; f. disclose investigatory records compiled for law enforcement purposes; g. disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated entity for the purpose of regulation or supervision of such entity; h. disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; i. specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or proceeding.
    7. 7. For every meeting closed pursuant to this provision, the Interstate Commission's chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
    8. 8. The Interstate Commission shall collect standardized data concerning the interstate movement of offenders as directed through its by-laws and rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements.
  7. ARTICLE VII: RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION
    1. 1. The Interstate Commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states.
    2. 2. Rulemaking shall occur pursuant to the criteria set forth in this article and the by-laws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the Federal Administrative Procedure Act, 5 U.S.C. Section 551 et seq., and the Federal Advisory Committee Act, 5 U.S.C. Appx., Section 1 et seq., as may be amended (hereinafter “APA”).
    3. 3. All rules and amendments shall become binding as of the date specified in each rule or amendment.
    4. 4. If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.
    5. 5. When promulgating a rule, the Interstate Commission shall: a. publish the proposed Rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule; b. allow persons to submit written data, facts, opinions and arguments, which information shall be publicly available; c. provide an opportunity for an informal hearing; and d. promulgate a final rule and its effective date, if appropriate, based on the rulemaking record.
    6. 6. Not later than sixty (60) days after a rule is promulgated, any interested person may file a petition in the United States District Court for the District of Columbia or in the federal district court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence, (as defined in the APA), in the rulemaking record, the court shall hold the rule unlawful and set it aside.
    7. 7. Subjects to be addressed within twelve (12) months after the first meeting must at a minimum include:
      1. a. Notice to victims and opportunity to be heard;
      2. b. Offender registration and compliance;
      3. c. Violations/returns;
      4. d. Transfer procedures and forms;
      5. e. Eligibility for transfer;
      6. f. Collection of restitution and fees from offenders;
      7. g. Data collection and reporting;
      8. h. The level of supervision to be provided by the receiving state;
      9. i. Transition rules governing the operation of the compact and the Interstate Commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact; and
      10. j. Mediation, arbitration and dispute resolution.
      11. The existing rules governing the operation of the previous compact superseded by this part shall be null and void twelve (12) months after the first meeting of the Interstate Commission created hereunder.
    8. 8. Upon determination by the Interstate Commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to such rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the Rule.
  8. ARTICLE VIII: OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION BY THE INTERSTATE COMMISSION
    1. Section A. Oversight
      1. 1. The Interstate Commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in non-compacting states which may significantly affect compacting states.
      2. 2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the Interstate Commission, the Interstate Commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.
    2. Section B. Dispute Resolution
      1. 1. The compacting states shall report to the Interstate Commission on issues or activities of concern to them, and cooperate with and support the Interstate Commission in the discharge of its duties and responsibilities.
      2. 2. The Interstate Commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and non-compacting states.
      3. 3. The Interstate Commission shall enact a by-law or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
    3. Section C. Enforcement
      1. The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in article XI, section B, of this compact.
  9. ARTICLE IX: FINANCE
    1. 1. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.
    2. 2. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state and shall promulgate a rule binding upon all compacting states which governs such assessment.
    3. 3. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
    4. 4. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its by-laws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.
  10. ARTICLE X: COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT
    1. 1. Any state, as defined in article II of this compact, is eligible to become a compacting state.
    2. 2. The compact shall become effective and binding upon legislative enactment of the Compact into law by no less than thirty-five (35) of the states. The initial effective date shall be the later of July 1, 2001, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of non-member states or their designees will be invited to participate in Interstate Commission activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
    3. 3. Amendments to the compact may be proposed by the Interstate Commission for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting sates unless and until it is enacted into law by unanimous consent of the compacting states.
  11. ARTICLE XI: WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL ENFORCEMENT
    1. Section A. Withdrawal
      1. 1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; PROVIDED, that a compacting state may withdraw from the compact (withdrawing state) by enacting a statute specifically repealing the statute which enacted the compact into law.
      2. 2. The effective date of withdrawal is the effective date of the repeal.
      3. 3. The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state.
      4. 4. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt thereof.
      5. 5. The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
      6. 6. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
    2. Section B. Default
      1. 1. If the Interstate Commission determines that any compacting state has at any time defaulted (defaulting state) in the performance of any of its obligations or responsibilities under this compact, the by-laws or any duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
        
        a. Fines, fees and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission;
        
        b. Remedial training and technical assistance as directed by the Interstate Commission;
        
        c. Suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the by-laws and rules have been exhausted. Immediate notice of suspension shall be given by the Interstate Commission to the governor, the chief justice or chief judicial officer of the state; the majority and minority leaders of the defaulting state's legislature, and the State Council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, Interstate Commission by-laws, or duly promulgated rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission on the defaulting state pending a cure of the default. The Interstate Commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the Interstate Commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of suspension.
      2. 2. Within sixty (60) days of the effective date of termination of a defaulting state, the Interstate Commission shall notify the governor, the chief justice or chief judicial officer and the majority and minority leaders of the defaulting state's legislature and the State Council of such termination.
      3. 3. The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.
      4. 4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the Interstate Commission and the defaulting state.
      5. 5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.
    3. Section C. Judicial Enforcement
      1. The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district court where the Interstate Commission has its offices to enforce compliance with the provisions of the compact, its duly promulgated rules and by-laws, against any compacting state in default. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorneys fees.
    4. Section D. Dissolution of Compact
      1. 1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one compacting state.
      2. 2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be wound up and any surplus funds shall be distributed in accordance with the by-laws.
  12. ARTICLE XII: SEVERABILITY AND CONSTRUCTION
    1. 1. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
    2. 2. The provisions of this compact shall be liberally construed to effectuate its purposes.
  13. 1. Section A. Other Laws
      1. 1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
      2. 2. All compacting states' laws conflicting with this compact are superseded to the extent of the conflict.
    2. 1. 1. All lawful actions of the Interstate Commission, including all rules and by-laws promulgated by the Interstate Commission, are binding upon the compacting states.
      2. 2. All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.
      3. 3. Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.
      4. 4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective.

Backlinks (2)

History (1)

Acts 2002, ch. 805, § 2.

§ 40-28-402. Council for interstate adult offender supervision.

(a) The governor shall establish by an executive order the following:
1. (1) The initial composition and terms of the Tennessee council for interstate adult offender supervision required by article III, paragraph B, of the Interstate Compact for Supervision of Adult Offenders. Members will be appointed by the governor to those positions, except that any positions representing the legislative branch shall be made jointly by the speaker of the house of representatives and the speaker of the senate and any positions representing the judicial branch shall be made by the chief justice of the Tennessee supreme court;
2. (2) The qualifications and terms of the compact administrator required by article II, paragraph C, of that compact shall be determined by the state council; and
3. (3) Any other matters necessary for the implementation of the compact at the time it becomes effective.
(b) Except as provided by subdivisions (a)(1) and (2), the department of correction may promulgate any rules and regulations necessary to implement and administer the compact after it goes into effect.

History (2)

Acts 2002, ch. 805, § 3
2012, ch. 727, § 41.

§ 40-28-403. Interstate compact for adult supervision registry.

The department of correction shall maintain a database consisting of a registry and associated information of those persons who have been placed on probation or parole in another state but are residing in Tennessee pursuant to the compact for out-of-state supervision, compiled in this part. The registry shall include, at a minimum, the name of the offender and, for each probationer or parolee approved for residence in this state under the interstate compact after May 30, 1997, the offender's photograph. The database shall be placed and maintained on the state of Tennessee’s internet website.

History (1)

Acts 2012, ch. 727, § 42.

Part 5 Open Parole Hearings Act

§ 40-28-501. Short title.

This part shall be known and may be cited as the “Open Parole Hearings Act.”

History (1)

Acts 1993, ch. 336, § 1.

§ 40-28-502. Applicable requirements.

(a) The following requirements apply to parole board hearings:
1. (1) In accordance with title 8, chapter 44, part 1, parole hearings and parole revocation hearings shall be open to the public, except as provided in subsection (b); and
2. (2) The vote of each board member on each formal action shall be recorded. Formal actions include, but are not limited to, the granting or denial of parole, the revocation of parole or any action taken under subsection (b).
(b) The following exceptions and limitations apply:
1. (1) The board of parole may restrict the number of individuals allowed to attend parole or parole revocation hearings in accordance with physical limitations or security requirements of the hearing facilities; and
2. (2) The board may deny admission or continued attendance at parole or parole revocation hearings to individuals who:
  1. (A) Threaten or present a danger to the security of the institution in which the hearing is being held;
  2. (B) Threaten or present a danger to other attendees or participants; or
  3. (C) Disrupt the hearing.

Backlinks (1)

40-28-503(a)(3)

History (2)

Acts 1993, ch. 336, § 2
1998, ch. 1049, §§ 24, 66.

§ 40-28-503. Policies governing attendance and use of impact statements — Standard victim notification form — Digital function to submit impact statement video.

(a) The board shall establish a policy governing attendance at board hearings and submission and use of victim impact statements and other impact statements. Copies of the policy shall be available upon request. The policy must govern:
1. (1) The requirement that those requesting notification of parole and parole revocation hearings keep the board advised of their current addresses and telephone numbers;
2. (2) Instructions for attending and participating in parole and parole revocation hearings, including instructions for submitting an impact statement video;
3. (3) The limitations on attendance as set forth in § 40-28-502;
4. (4) Reasonable limitations on oral presentations and videos; and
5. (5) Information about board discretion to investigate victim impact statements and other impact statements.
(b) The board shall establish a standard victim notification form. The board shall distribute copies of the form to the victim witness coordinator in each judicial district for the state who shall make copies of the form available to the appropriate persons.
(c)
1. (1) The board shall establish a digital function that a victim or other impacted person may use to electronically submit an impact statement video to be considered at an inmate's parole or parole revocation hearing. The digital function must allow the victim or other impacted person to submit a video of the victim or other impacted person presenting an impact statement as otherwise permitted by this part. The board may impose reasonable restrictions regarding the length of impact statement videos.
2. (2) The digital function must allow a victim or other impacted person to indicate whether the victim or other impacted person would like the impact statement video to be resubmitted to any future parole or parole revocation hearings involving the same inmate and offense. If the victim or other impacted person indicates that the victim or other impacted person would like the video resubmitted to any future parole or parole revocation hearings involving the same inmate and offense, then the board shall consider the video at future hearings without further request from the victim or other impacted person. Prior to consideration at a subsequent hearing, the board shall notify the victim or other impacted person, in the same manner that notice is provided pursuant to § 40-28-505(b)(4), that the video will be considered at the hearing unless the victim or other impacted person informs the board, in writing or using the digital function, that the victim or other impacted person no longer wishes to have the video considered. A victim or other impacted person may inform the board at any time, in writing or using the digital function, that the victim or other impacted person no longer wishes to have a previously submitted video considered by the board. If a victim or other impacted person informs the board that the victim or other impacted person no longer wishes to have a previously submitted video considered by the board using the digital function, the digital function must provide the victim or other impacted person the opportunity to indicate whether the victim or other impacted person will be submitting a new impact statement video, and whether the victim or other impacted person is opposed to, in favor of, or indifferent to the granting or revoking of parole to the inmate.
3. (3) Any impact statement video is subject to the board's policies and rules governing the privacy of board records pursuant to §§ 40-28-119 and 40-28-503.
(d) As used in this section, “victim” includes both victims and victim representatives, as those terms are defined in § 40-38-203.

Backlinks (1)

40-28-503(c)(3)

History (2)

Acts 1993, ch. 336, § 3
2021, ch. 410, §§ 2, 3.

§ 40-28-504. Written victim impact statements and victim impact statement videos.

(a) The board shall accept and consider victim impact statements, including victim impact statement videos.
(b) Written victim impact statements and victim impact statement videos are confidential and must not be made available to the public.
(c) Assertions made in a victim impact statement may be investigated and verified by the board.
(d) As used in this section, “victim” includes both victims and victim representatives, as those terms are defined in § 40-38-203.

History (2)

Acts 1993, ch. 336, § 4
2021, ch. 410, § 4.

§ 40-28-505. Parole.

(a) Within ninety (90) days of receipt by the department of correction of a valid judgment of conviction, the department shall notify the victim witness coordinator of the county of conviction of the currently scheduled parole hearing date when the inmate will be eligible for parole consideration.
(b) At least thirty (30) days prior to a scheduled parole hearing and three (3) days prior to a parole revocation hearing conducted pursuant to § 40-28-122, the board of parole shall send a notice of the date and place of the hearing to the following individuals:
1. (1) The trial judge for the court in which the conviction occurred, or the trial judge's successor;
2. (2) The district attorney general in the county in which the crime was prosecuted;
3. (3) The sheriff of the county in which the crime was committed; and
4. (4) The victim or the victim's representative who has requested notification of the date and place of the scheduled hearing or notice of the board's final decision. However, at any time, the victim or victim's representative may withdraw the request for notice by sending the board a written notarized statement that the request for notice is withdrawn or, if the victim or victim's representative is registered with the state's electronic victim notification system, by cancelling that registration in the system.
  Backlinks (1)
  
  40-28-503(c)(2)
(c) No later than thirty (30) days after a parole or parole revocation decision has been finalized, the board shall send notice of its decision to those required to receive notice under subsection (b), together with notice that any victim whom the board failed to notify as required in subsection (b) has the opportunity to have a written victim impact statement considered by the board, pursuant to subsection (d).
Backlinks (1)
- 40-35-501(x)(2)
(d) The following remedies apply if there is a failure to provide the required advance notice:
1. (1) Prior to a parole or parole revocation hearing, a party to whom the board failed to provide the notice required in subsection (b) may request the board to postpone the scheduled hearing. Upon that request, the board may, for just cause, postpone the scheduled parole or parole revocation hearing in order to provide a reasonable opportunity for the party to attend the hearing and, if that party is a victim, to submit a victim statement; and
2. (2) If within fifteen (15) days after a parole or a parole revocation decision has been finalized, the board receives a written victim impact statement from a party to whom the board failed to provide the notice required in subsection (b), the board shall consider the statement. If the board finds that the victim impact statement warrants a new hearing, it shall schedule the hearing, subject to all notification requirements under subsection (b).
(e) Any notice required to be provided to the victim or victim's representative by this section shall be mailed to the last known address of the victim or the victim's representative unless the victim or victim's representative is registered with the state's electronic victim notification system, in which case the notice shall be communicated to the victim or victim's representative by the method or methods indicated by the registration in the system. It is the responsibility of the victim or victim's representative to provide the board a current mailing address.
(f) This section shall apply only to an inmate who has received a sentence of two (2) or more years.
(g) Any notice of an inmate's release on parole required to be provided to the victim or the victim's representative shall include the proposed county of residence of the inmate.
(h)
1. (1) Any identifying information concerning a crime victim or a crime victim's representative who has been notified or requested that notification be provided to the victim or the victim's representative pursuant to this section shall be confidential.
2. (2) For purposes of subdivision (h)(1), “identifying information” means the name, home and work addresses, telephone numbers and social security number of the person being notified or requesting that notification be provided.

Backlinks (1)

10-7-504(j)(1)

History (9)

Acts 1993, ch. 336, § 5
1997, ch. 489, § 1
1998, ch. 1049, § 24
1999, ch. 127, § 1
1999, ch. 516, § 3
2001, ch. 53, §§ 1, 2
2006, ch. 666, § 3
2009, ch. 176, § 2
2018, ch. 598, §§ 1, 2.

Part 6 Probation and Parole

§ 40-28-601. Supervision of parolees.

(a) The department is charged with the duty of supervising all prisoners released on parole from the prisons of the state, workhouses, jails or those accepted through the interstate compact, and of making investigation as may be necessary in connection therewith.
(b) A probation and parole officer may, with the consent of the director, suspend direct supervision of a parolee after a successful two-year period of supervision. The parolee shall continue on parole and be subject to all rules and conditions of parole. A parolee who violates the rules and conditions may be subject to reinstatement of direct supervision or revocation of parole.

History (1)

Acts 2012, ch. 727, § 43.

§ 40-28-602. Director of probation and parole — Qualifications — Duties.

(a) The commissioner shall appoint a director of probation and parole who shall devote full time and capacities to the duties of the office. The director shall have at least five (5) years of related administrative experience or a bachelor's or advanced degree in any of the following fields: penology, corrections work, law enforcement, law, vocational education, public administration, rehabilitation or social work, medicine or the behavioral sciences. Under the supervision of the commissioner or designee, the director of probation and parole shall:
1. (1) Formulate methods of investigation, evaluation and supervision of persons under the supervision of the department;
2. (2) Develop and implement various techniques relating to the casework of probation and parole officers, including, but not limited to, interviewing, organization of records, analysis of information, development of plans for supervision and the coordination of efforts by individuals and other governmental agencies involving the treatment and rehabilitation of persons released on parole;
3. (3) Assist the commissioner in promulgating rules and regulations for the guidance of the probation and parole officers in the conduct of their work;
4. (4) Supervise the work of the probation and parole officers;
5. (5) Cooperate fully with state courts of criminal jurisdiction in all matters relating to persons who have been released on parole; and
6. (6) Establish conditions of supervision for and supervise sex offenders sentenced to community supervision for life pursuant to § 39-13-524.
(b) Nothing in this part shall be construed to diminish the authority of the courts to impose conditions of supervision on probationers under their jurisdiction pursuant to § 40-35-303(d).
(c) The director of probation and parole shall have the authority, upon request of the governor, to issue warrants authorizing the arrest and return to their former places of incarceration of persons who are reasonably believed to have violated the conditions of their grants of executive clemency.

History (1)

Acts 2012, ch. 727, § 43.

§ 40-28-603. Parole and probation officers — Appointment.

The commissioner shall appoint probation and parole officers who shall be supervised by the director of probation and parole. The probation and parole officers shall be placed within districts or other locations as may be designated by the commissioner, and shall devote their full time and capacities to the duties of their office.

History (1)

Acts 2012, ch. 727, § 43.

§ 40-28-604. Probation and parole officers — Qualifications.

No person shall be eligible for the position of probation and parole officer who has not received a bachelor's degree from an accredited college or university or had at least four (4) years of qualifying full-time professional experience. As used in this section, “qualifying full-time professional experience” includes law enforcement experience.

History (2)

Acts 2012, ch. 727, § 43
2023, ch. 358, § 1.

§ 40-28-605. Parole and probation officers — Powers and duties.

The duties of probation and parole officers shall be to supervise, investigate and check on the conduct, behavior and progress of parolees and persons placed on probation by the courts or pursuant to § 40-35-501(a)(3), and assigned to them for supervision and shall make to the director or court, as appropriate, a report of the investigations, and shall perform other duties and functions as the director of probation and parole may direct.

History (1)

Acts 2012, ch. 727, § 43.

§ 40-28-606. Officers and employees — Compensation and salaries.

The director of probation and parole and the probation and parole officers shall have their compensation fixed and shall be paid as other state officials and state employees are paid.

History (1)

Acts 2012, ch. 727, § 43.

§ 40-28-607. Report of violation of parole — Declaration of delinquency.

(a) If the probation and parole officer having charge of a paroled prisoner has reasonable cause to believe that the prisoner has violated the conditions of parole in an important respect, the officer shall report the facts to the director of probation and parole. The director or the director's designee shall review the reports and may issue a warrant for the retaking of the prisoner if the director or the director's designee agrees that parole may have been violated in an important respect. The governor shall have the power to issue requisition for the person if the person has departed from the state.
(b) Whenever there is reasonable cause to believe that a parolee has violated parole and a parole violation warrant has been issued, the director of probation and parole may declare the parolee to be delinquent and the parolee will stop earning credit for service of the parolee's sentence from the date the warrant was issued until the removal of delinquency by the board.
(c) Section 40-28-122(f) shall apply if:
1. (1) A paroled prisoner's probation and parole officer believes that the prisoner has violated the conditions of parole in an important respect based solely on the paroled prisoner being arrested on new criminal charges while on parole;
2. (2) The director or the director's designee agrees that the paroled prisoner violated parole solely by being arrested for a new criminal charge and a warrant for the retaking of the paroled prisoner is issued; and
3. (3) The paroled prisoner is arrested and incarcerated pending or following a parole revocation or rescission hearing.

Backlinks (3)

History (2)

Acts 2012, ch. 727, § 43
2017, ch. 162, § 1.

§ 40-28-608. Relief from further reports — Permission to leave state or county.

The director may relieve a prisoner on parole from making further reports and may permit the prisoner to leave the state or county, if satisfied that this is for the best interests of society.

History (1)

Acts 2012, ch. 727, § 43.

§ 40-28-609. Final discharge of parolee.

(a) Whenever the director is satisfied that a parolee has kept the conditions of parole in a satisfactory manner, the director shall issue to the parolee a certificate of final discharge. This final discharge from parole will be granted only after a parolee has completed the maximum sentence imposed, less diminution allowed for good and honor time and incentive time and sentence credits earned and retained. If a parolee is not eligible for a certificate of discharge because of a pending violation, parole will expire at the end of the maximum sentence less diminution for good and honor time, incentive time and sentence credits earned and retained, plus delinquent time.
(b) This is in no way to be construed as permitting a discharge from parole for parolees with a life sentence.

History (1)

Acts 2012, ch. 727, § 43.

§ 40-28-610. Special alternative incarceration.

(a) In addition to any other terms or conditions of probation, the trial judge may provide that probationers sentenced to a period of time of not less than one (1) year nor more than six (6) years on probation as a condition of probation must satisfactorily complete a program of incarceration in a special alternative incarceration unit of the department for a period of ninety (90) days from the time of initial incarceration in the unit. Notwithstanding any other provision of the law to the contrary, these probationers shall not be entitled to have their time in the special alternative incarceration unit reduced by sentence credits of any sort.
(b) Before a court can place this condition upon the sentence, the director of probation and parole must certify to the sentencing court that the probationer is qualified for the treatment in that the individual is not physically or mentally handicapped in a way that would prevent the individual from strenuous physical activity, that the individual has no obvious contagious diseases, that the individual is not less than seventeen (17) years of age nor more than twenty-five (25) years of age at the time of sentencing, and that the department has approved the placement of the individual in the special alternative incarceration unit.
(c) In every case where an individual is sentenced under the terms of this section, the clerk of the sentencing court shall, within five (5) working days, mail to the department a certified copy of the sentence and indictment, a personal history statement, and an affidavit of the custodian provided by the sheriff of the county.
(d) The department will arrange with the sheriff's office in the county of incarceration to have the individual delivered to the designated facility within a specific date not less than fifteen (15) days after receipt by the department of the documents provided by the clerk of the court under this section.
(e) At any time during the individual's incarceration in the unit, but at least five (5) days prior to the individual's expected date of release, the department will certify to the trial court whether the individual has satisfactorily completed this condition of probation.
(f) Upon the receipt of a satisfactory report of performance in the program from the department, the trial court shall release the individual from confinement in the special alternative incarceration unit. However, the receipt of an unsatisfactory report will be grounds for revocation of the probated sentence as would any other violation of a condition or term of probation.
(g) This section shall be subject to funding availability and availability of a suitable facility within the department.
(h) Nothing in this section shall be construed to limit the current authority of a trial judge to sentence a defendant to an initial period of incarceration at a jail or workhouse as a condition of probation in accordance with the Criminal Sentencing Reform Act of 1982 [repealed] or the Criminal Sentencing Reform Act of 1989, when applicable, compiled in chapter 35 of this title, or in conjunction with a community-based program in accordance with the Tennessee Community Corrections Act of 1985, compiled in chapter 36 of this title.

History (1)

Acts 2012, ch. 727, § 43.

Chapter 29 Restoration of Citizenship

Part 1 General Provisions

§ 40-29-101. Jurisdiction — Time of application.

(a) Persons rendered infamous or deprived of the rights of citizenship by the judgment of any state or federal court may have their full rights of citizenship restored by the circuit court.
(b) Those pardoned, if the pardon does restore full rights of citizenship, may petition for restoration immediately after the pardon; provided, that a court shall not have jurisdiction to alter, delete or render void special conditions of a pardon pertaining to the right of suffrage.
(c) Those convicted of an infamous crime may petition for restoration upon the expiration of the maximum sentence imposed for the infamous crime.

Backlinks (1)

40-29-105(a)

History (6)

Code 1858, § 1994 (deriv. Acts 1851-1852, ch. 30, § 1)
Shan., § 3635
Code 1932, § 7183
Acts 1981, ch. 345, § 7
T.C.A. (orig. ed.), § 40-3701
Acts 1983, ch. 207, § 2.

§ 40-29-102. Petition and proof.

The proceeding for this purpose shall be by petition to the circuit court of the county in which the petitioner resides, or to the circuit court of the county in which the petitioner was convicted of an act depriving the petitioner of citizenship sustained by satisfactory proof that ever since the judgment of disqualification, the petitioner has sustained the character of a person of honesty, respectability and veracity, and is generally esteemed as such by the petitioner's neighbors.

History (5)

Code 1858, § 1995 (deriv. Acts 1851-1852, ch. 30, § 1)
Shan., § 3656
Code 1932, § 7184
Acts 1969, ch. 316, § 1
T.C.A. (orig. ed.), § 40-3702.

§ 40-29-103. Notice to district attorney general and to United States attorney.

Before the petition of a person rendered infamous or deprived of the rights of citizenship by the judgment of a state court is heard, the district attorney general in whose county the petitioner currently resides and the district attorney general of the county in which the petitioner was convicted shall have twenty (20) days' notice of the petition in order that, if deemed advisable, each may resist. The United States attorney and the district attorney general in whose district the petitioner currently resides shall be given notice, with the same opportunity to resist, when the petitioner was rendered infamous or deprived of the rights of citizenship by the judgment of a federal court.

History (6)

Code 1858, § 1966 (deriv. Acts 1851-1852, ch. 30, § 1)
Shan., § 3657
mod. Code 1932, § 7185
modified
T.C.A. (orig. ed.), § 40-3703
Acts 1983, ch. 207, § 3.

§ 40-29-104. Costs.

The petitioner shall pay the costs of this application.

Backlinks (1)

40-29-105(a)

History (4)

Code 1858, § 1997 (deriv. Acts 1851-1852, ch. 30, § 2)
Shan., § 3658
Code 1932, § 7186
T.C.A. (orig. ed.), § 40-3704.

§ 40-29-105. Felons convicted of infamous crimes — Dates.

(a) The provisions and procedures provided for in §§ 40-29-101 — 40-29-104 shall apply to all persons convicted of an infamous crime prior to July 2, 1986.
(b) For all persons convicted of infamous crimes after July 1, 1986, but before July 1, 1996, the following procedures shall apply:
1. (1) A person rendered infamous or deprived of the rights of citizenship by the judgment of any state or federal court may have full rights of citizenship restored upon:
  1. (A) Receiving a pardon, except where the pardon contains special conditions pertaining to the right to suffrage;
  2. (B) Service or expiration of the maximum sentence imposed for the infamous crime; or
  3. (C) Being granted final release from incarceration or supervision by the board of parole, or county correction authority;
2. (2) A person rendered infamous after July 1, 1986, by virtue of being convicted of one (1) of the following crimes shall never be eligible to register and vote in this state:
  1. (A) First degree murder;
  2. (B) Aggravated rape;
  3. (C) Treason; or
  4. (D) Voter fraud.
3. (3) Any person eligible for restoration of citizenship pursuant to subdivision (b)(1) may request, and then shall be issued, a certificate of restoration upon a form prescribed by the coordinator of elections, by:
  1. (A) The pardoning authority; or
  2. (B) An agent or officer of the supervising or incarcerating authority;
4. (4) Any authority issuing a certificate of restoration shall forward a copy of the certificate to the coordinator of elections;
5. (5) Any person issued a certificate of restoration shall submit, to the administrator of elections of the county in which the person is eligible to vote, the certificate and upon verification of the certificate with the coordinator of elections be issued a voter registration card entitling the person to vote; and
6. (6) A certificate of restoration issued pursuant to subdivision (b)(3) shall be sufficient proof to the administrator of elections that the person fulfills the requirements provided in subdivision (b)(1); however, before allowing a person convicted of an infamous crime to become a registered voter, it is the duty of the administrator of elections in each county to verify with the coordinator of elections that the person is eligible to register under this section.
(c) The following procedure shall apply to a person rendered infamous by virtue of being convicted of a felony on or after July 1, 1996:
1. (1) Except as provided in subdivision (c)(2)(B), a person rendered infamous or whose rights of citizenship have been deprived by the judgment of a state or federal court may seek restoration of full rights of citizenship by petitioning the circuit court of the county where the petitioner resides or where the conviction for the infamous crime occurred;
2. (2)
  1. (A) A person receiving a pardon that restores full rights of citizenship may petition for restoration immediately upon receiving the pardon. However, the court shall not have the authority or jurisdiction to alter, delete or render void special conditions pertaining to the right of suffrage that may be contained in the pardon;
  2. (B) A person convicted of an infamous crime may petition for restoration upon the expiration of the maximum sentence imposed by the court for the infamous crime; provided, that a person convicted of murder, rape, treason or voter fraud shall never be eligible to register and vote in this state;
3. (3) The petition shall set forth the basis for the petitioner's eligibility for restoration and shall state the reasons the petitioner believes that petitioner's full citizenship rights should be restored. The petition shall be accompanied by the certified records, statements and other documents or information necessary to demonstrate to the court that the petitioner is both eligible for and merits having full rights of citizenship restored. The court may require any additional proof as it deems necessary to reach a just decision on the petition. There is a presumption that a petition filed pursuant to this subsection (c) shall be granted and that the full citizenship rights of the petitioner shall be restored. This presumption may only be overcome upon proof by a preponderance of the evidence that either the petitioner is not eligible for restoration or there is otherwise good cause to deny the petition;
4. (4)
  1. (A) Prior to acting on any petition filed pursuant to this subsection (c), the court shall notify the district attorney general in whose county the petitioner resides and the district attorney general of the county in which the conviction occurred that a petition for restoration of citizenship has been filed by the petitioner. The notice shall be sent at least thirty (30) days prior to any hearing on or disposition of the petition. Each district attorney general so notified may object to the restoration of the petitioner's citizenship rights either in person or in writing;
  2. (B) If the petitioner was rendered infamous or deprived of citizenship rights by judgment of a federal court, the circuit court shall give the notice required in subdivision (c)(2)(A) to the United States attorney and the district attorney general in whose district the petitioner is currently residing. Each such official shall have the same right to object to the petition as is provided in subdivision (c)(2)(A);
5. (5) If, upon the face of the petition or after conducting a hearing, the court finds that the petitioner's full citizenship rights should be restored, it shall so order and send a copy of the order to the state coordinator of elections;
6. (6) All costs for a proceeding under this subsection (c) to restore a person's citizenship rights shall be paid by the petitioner unless the court specifically orders otherwise; and
7. (7) Any person whose citizenship rights have been restored by order of the court pursuant to this subsection (c) shall submit a certified copy of the order to the administrator of elections of the county in which the person is eligible to vote. The administrator of elections shall verify with the coordinator of elections that the order was issued and, upon receiving the verification, shall issue the person a voter registration card entitling the person to vote.

Backlinks (1)

40-20-114(b)

History (4)

Acts 1986, ch. 906, § 1
1989, ch. 227, § 51
1996, ch. 898, §§ 1, 2
1998, ch. 1049, § 41.

§ 40-29-106. Explanation of procedure for restoration of citizenship rights.

(a) When any nonviolent offender who was convicted of an infamous crime is granted final release from incarceration or discharged from parole, probation, pretrial or judicial diversion or community correction supervision, the sentencing court, department of correction and board of parole are urged to have the official charged with processing and effectuating the person's release or discharge provide the person with information explaining the restoration of citizenship rights procedure.
(b) For purposes of this section, “nonviolent offender” means a person convicted of a felony that is not defined as a “violent offense” by § 40-35-120(b).

History (1)

Acts 2004, ch. 758, § 1.

§ 40-29-107. Certificate of employability.

(a) A person may petition the court for a certificate of employability either in conjunction with or independently of petitioning the court for restoration of the person's rights of citizenship.
(b) A petition for a certificate of employability filed under subsection (a) shall be filed in the circuit court of the county where the petitioner resides or where the conviction for the infamous crime occurred.
(c) The petitioner shall pay the costs of this application.
(d) The administrative office of the courts shall create a standard certificate of employability to be issued by the court and a standard petition for employability form to be used to petition the court for a certificate of employability. The form for the petition shall be placed on the website of the administrative office of the courts. The form for the petition shall include places for all the information specified in subsection (e).
(e) A petition for employability filed by a person under this section shall include all of the following:
1. (1) The person's name, date of birth, and social security number;
2. (2) All aliases of the person and all social security numbers associated with those aliases;
3. (3) The person's address of residence, including the city, county, state, and zip code;
4. (4) The length of time that the person has been a resident of this state, expressed in years and months of residence;
5. (5) A summary of the person's criminal history with respect to each offense that is a disqualification from employment or licensing in an occupation or profession, including the years of each conviction or plea of guilty for each of those offenses;
6. (6) A summary of the person's employment history, specifying the name of, and dates of employment with, each employer and the positions held;
7. (7) Verifiable references and endorsements;
8. (8) The name of one (1) or more immediate family members of the person, or other persons with whom the person has a close relationship, who support the person's reentry plan; and
9. (9) A summary of the reason the person believes the certificate of employability should be granted.
(f) Before the petition for employability of a person rendered infamous or deprived of the rights of citizenship by the judgment of a state court is heard, the district attorney general in whose county the petitioner currently resides and the district attorney general of the county in which the petitioner was convicted shall have twenty (20) days' notice of the petition in order that, if deemed advisable, each may resist. The United States attorney and the district attorney general in whose district the petitioner currently resides shall be given notice of the petition and shall be given the same opportunity to resist, as afforded the United States attorney and the district attorney general when the petitioner was rendered infamous or deprived of the rights of citizenship by the judgment of a federal court.
(g) The district attorney general of the county in which the petitioner was convicted that receives notification of the filing of a petition for a certificate of employability under this section shall notify any known victims of crimes perpetrated by the petitioner by sending notice of the filing of the petition to the last known address of such victims, if known.
(h) A court that receives a person's petition for employability pursuant to this section shall review the person's petition, the person's criminal history, filings submitted by any district attorney general, United States attorney, or victim of crimes perpetrated by the petitioner, and all other relevant evidence. The court may order any report, investigation, or disclosure by the person that the court believes is necessary for the court to reach a decision on whether to approve the person's petition for a certificate of employability.
(i) The court may issue a certificate of employability, at the court's discretion, if the court finds that the person has established all of the following by a preponderance of evidence:
1. (1) The petitioner has sustained the character of a person of honesty, respectability, and veracity and is generally esteemed as such by the petitioner's neighbors;
2. (2) Granting the petition will materially assist the person in obtaining employment or occupational licensing;
3. (3) The person has a substantial need for the relief requested in order to live a law-abiding life; and
4. (4) Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.
(j) If the court grants the petition for employability, a certificate of employability shall be given to the petitioner for use in obtaining employment.
(k)
1. (1) If the court denies the petition, the court shall provide notice to the petitioner of the court's denial. The court may place conditions on the petitioner regarding the petitioner's filing of any subsequent petition for a certificate of employability. The court shall notify the petitioner of any conditions placed on the petitioner's filing of a subsequent petition for a certificate of employability.
2. (2) If the court denies the petition, the petitioner may appeal the decision to the court of appeals only if the petitioner alleges that the denial was an abuse of discretion on the part of the court.
(l) A certificate of employability issued under this section shall be presumptively revoked if the person to whom the certificate of employability was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate of employability.
(m)
1. (1) If a person presents a valid certificate of employability, no board, agency, commission, or other licensing entity that issues, restores or renews licenses or certificates and regulates occupations and trades for which a license or certificate is required to do business in this state shall deny the issuance, restoration or renewal of an occupational license or certificate based solely on the person's past record of criminal activity but instead shall consider on a case-by-case basis whether to grant or deny the issuance, restoration or renewal of an occupational license or an employment opportunity.
2. (2) Any rule of a board, agency, commission, or other licensing entity in effect on April 28, 2014, with respect to the denial or refusal to issue, restore or renew the license or certificate of a person who has a past record of criminal activity shall control if the applicant does not possess a certificate of employability.
3. (3) However, if a person seeking the issuance, restoration or renewal of a license or certificate, does possess a certificate of employability, it shall preempt any present rule that authorizes or requires the denial or refusal to issue, restore or renew a license or certificate if the denial is based upon the person's past record of criminal activity.
4. (4) Notwithstanding subdivision (m)(1) or (m)(3), a board, agency, commission, or other licensing entity may adopt a rule on or after April 28, 2014, denying the issuance, restoration or renewal of a license or certificate to a person, notwithstanding the person's possession of a certificate of employability, based on:
  1. (A) The time that has elapsed since the criminal offense; or
  2. (B) The nature of the offense having a direct bearing on the fitness or ability of the person to perform one (1) or more of the duties or responsibilities necessarily related to the license or certificate sought.
(n)
1. (1) In a judicial or administrative proceeding alleging negligence or other fault, a certificate of employability issued to a person pursuant to this section may be introduced as evidence of a person's due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the person to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault.
2. (2) In any proceeding on a claim against an employer for negligent hiring, a certificate of employability issued to a person pursuant to this section shall provide immunity for the employer with respect to the claim if the employer knew of the certificate at the time of the alleged negligence.
3. (3) An employer who hires a person who has been issued a certificate of employability under this section may be held liable in a civil action based on or relating to the retention of the person as an employee only if:
  1. (A) The person, after being hired, subsequently demonstrates danger or is convicted of a felony;
  2. (B) The person is retained by the employer as an employee after the demonstration of danger or the conviction;
  3. (C) The plaintiff proves by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of the felony; and
  4. (D) The employer, after having actual knowledge of the employee's demonstration of danger or conviction of a felony, was willful in retaining the person as an employee.
4. (4) The provisions of § 1-3-119 relative to implied rights of action shall apply to this section.
(o) Nothing in this section shall be construed to apply to a person or entity subject to licensing, certification or regulation by any board, commission, or agency pursuant to title 33, chapter 2, part 4; title 38, chapter 8; titles 41, 49, 56, 63 and 71; or persons subject to regulation by the department of financial institutions pursuant to title 45 and title 56, chapter 37.

History (2)

Acts 2014, ch. 815, § 1
2017, ch. 83, § 1.

§ 40-29-108. Liability of landlord for negligence in renting, leasing, or otherwise extending housing opportunities to person who has been previously convicted of criminal offense — Evidence of prior criminal conviction not admissible.

(a) In any proceeding on a claim against a landlord for negligence in renting, leasing, or otherwise extending housing opportunities to a person who has been previously convicted of a criminal offense, a landlord is not liable based solely upon the fact that the person has been previously convicted of a criminal offense.
(b) In a cause of action against a landlord for negligence in renting, leasing, or otherwise extending housing opportunities to a person who has been previously convicted of a criminal offense, evidence that the person has been previously convicted of a criminal offense is not admissible.
(c) Subsections (a) and (b) do not apply when:
1. (1) The landlord had actual knowledge of the person's prior conviction for a violent offense, as defined in § 40-35-120(b) or a violent sexual offense, as defined in § 40-39-202; or
2. (2) The landlord, having actual knowledge of the person's commission of a violent offense, as defined in § 40-35-120(b), or a violent sexual offense, as defined in § 40-39-202, after beginning of the person's tenancy, was willful in allowing the person to continue to rent, lease, or otherwise use housing opportunities.
(d) This section does not create a cause of action or expand an existing cause of action.
(e) The provisions of § 1-3-119 relative to implied rights of action apply to this section.
(f) As used in this section, “landlord” means the owner, lessor, or sublessor of the dwelling unit or the building of which the unit is a part, the manager of the premises, and employees and agents of the owner, lessor, or sublessor.

History (1)

Acts 2021, ch. 298, § 1.

§ 40-29-109. Effect of previous conviction of criminal offense on cause of action for negligent hiring, training, retention, or supervision of an employee or independent contractor.

(a) A cause of action may not be brought against an employer or contracting party for negligent hiring, training, retention, or supervision of an employee or independent contractor based solely upon the fact that the employee or independent contractor has been previously convicted of a criminal offense.
(b) In a cause of action against an employer or contracting party for negligent hiring, training, retention, or supervision of an employee or independent contractor, evidence that the employee or independent contractor has been previously convicted of a criminal offense is not admissible.
(c) Subsections (a) and (b) do not apply when:
1. (1)
  1. (A) The employer or contracting party knew or reasonably should have known of the employee's or independent contractor's prior conviction; and
  2. (B) The employee or independent contractor was previously convicted of:
    1. (i) An offense that was committed while performing duties substantially similar to those reasonably expected to be performed in the employment or under the contract, or under conditions substantially similar to those reasonably expected to be encountered in the employment or under the contract; or
    2. (ii) A violent offense, as defined in § 40-35-120(b), or a violent sexual offense, as defined in § 40-39-202; or
2. (2)
  1. (A) The cause of action concerns the misuse by an employee or independent contractor of the funds or property of a person other than the employer or contracting party;
  2. (B) On the date the employee or independent contractor was hired, the employee or independent contractor had been previously convicted of an offense an element of which includes fraud or the misuse of funds or property; and
  3. (C) The employer or contracting party should have reasonably foreseen that the position for which the employee or independent contractor was being hired would involve managing the funds or property of a person other than the employer or contracting party.
(d) This section does not create a cause of action or expand an existing cause of action.

History (1)

Acts 2021, ch. 410, § 17.

Part 2 Voting Rights

§ 40-29-201. Application.

(a) The provisions and procedures of this part shall apply to and govern restoration of the right of suffrage in this state to any person who has been disqualified from exercising that right by reason of a conviction in any state or federal court of an infamous crime.
(b) This part shall apply to any person convicted of an infamous crime after May 18, 1981.
(c) This part shall apply only to restoration of the right of suffrage. For restoration of all other rights of citizenship forfeited as the result of a conviction for an infamous crime, part 1 of this chapter shall apply.

History (1)

Acts 2006, ch. 860, § 1.

§ 40-29-202. Application for voter registration card.

(a) A person rendered infamous and deprived of the right of suffrage by the judgment of any state or federal court is eligible to apply for a voter registration card and have the right of suffrage restored upon:
1. (1) Receiving a pardon, except where the pardon contains special conditions pertaining to the right of suffrage;
2. (2) The discharge from custody by reason of service or expiration of the maximum sentence imposed by the court for the infamous crime; or
3. (3) Being granted a certificate of final discharge from supervision by the board of parole pursuant to § 40-28-105, or any equivalent discharge by another state, the federal government, or county correction authority.
(b) Notwithstanding subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person:
1. (1) Has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence; and
2. (2) Beginning September 1, 2010, notwithstanding subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all court costs assessed against the person at the conclusion of the person's trial, except where the court has made a finding at an evidentiary hearing that the applicant is indigent at the time of application.
(c) Notwithstanding subsection (a), a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person is current in all child support obligations.

Backlinks (1)

40-29-203(a)

History (2)

Acts 2006, ch. 860, § 1
2010, ch. 1115, § 1.

§ 40-29-203. Certificate of voting rights restoration.

(a) A person eligible to apply for a voter registration card and have the right of suffrage restored, pursuant to § 40-29-202, may request, and then shall be issued, a certificate of voting rights restoration upon a form prescribed by the coordinator of elections, by:
1. (1) The pardoning authority;
2. (2) The warden or an agent or officer of the incarcerating authority; or
3. (3) A parole officer or another agent or officer of the supervising authority.
(b) The issuing authority shall supply the person being released with a written statement explaining the purpose and effect of the certificate of voting rights restoration and explaining the procedure by which the person may use the certificate to apply for and receive a voter registration card and become eligible to vote.
(c) A certificate of voting rights restoration issued pursuant to subsection (a) shall be sufficient proof that the person named on the certificate is no longer disqualified from voting by reason of having been convicted of an infamous crime.
(d) Any person issued a certificate of voting rights restoration pursuant to this section shall submit the certificate to the administrator of elections of the county in which the person is eligible to vote. The administrator of elections shall send the certificate to the coordinator of elections who shall verify that the certificate was issued in compliance with this section. Upon determining that the certificate complies with this section, the coordinator shall notify the appropriate administrator of elections and, after determining that the person is qualified to vote in that county by using the same verification procedure used for any applicant, the administrator shall grant the application for a voter registration card. The administrator shall issue a voter registration card and the card shall be mailed to the applicant in the same manner as provided for any newly issued card.

History (2)

Acts 2006, ch. 860, § 1
2013, ch. 231, §§ 12, 13.

§ 40-29-204. Persons never eligible to register and vote.

Notwithstanding this part, the following persons shall never be eligible to register and vote in this state:
1. (1) Those convicted after July 1, 1986, of the offenses of voter fraud, treason, murder in the first degree, or aggravated rape;
2. (2) Those convicted after July 1, 1996, but before July 1, 2006, of any of the offenses set out in subdivision (1) or any other degree of murder or rape; and
3. (3) Those convicted on or after July 1, 2006, of:
  1. (A) Any of the offenses set out in subdivision (1) or (2);
  2. (B) Any other violation of title 39, chapter 16, parts 1, 4 or 5 designated as a felony or any violation containing the same elements and designated as a felony in any other state or federal court; or
  3. (C) Any sexual offense set out in § 40-39-202 or violent sexual offense set out in § 40-39-202 that is designated as a felony or any violation containing the same elements and designated as a felony in any other state or federal court and where the victim of the offense was a minor.

History (2)

Acts 2006, ch. 860, § 1
2011, ch. 184, §§ 1, 2.

§ 40-29-205. Certificate of voting rights restoration form.

The coordinator of elections shall prepare a certificate of voting rights restoration form and the written statement explaining the form and the procedure by which a person can apply for a voter registration card and become eligible to vote as required by this part. The coordinator shall be responsible for printing and distributing a sufficient number of the forms to the department of correction, the board of parole and any other authority that may discharge a person to whom this part applies.

History (1)

Acts 2006, ch. 860, § 1.

Chapter 30 Post-Conviction Procedure

Part 1 General Provisions

§ 40-30-101. Short title.

This part shall be known and may be referred to as the “Post-Conviction Procedure Act.”

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-201.

§ 40-30-102. When prisoners may petition for post-conviction relief.

(a) Except as provided in subsections (b) and (c), a person in custody under a sentence of a court of this state must petition for post-conviction relief under this part within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of the petition shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file the action and is a condition upon its exercise. Except as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period.
(b) No court shall have jurisdiction to consider a petition filed after the expiration of the limitations period unless:
1. (1) The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial;
2. (2) The claim in the petition is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or
3. (3) The claim asserted in the petition seeks relief from a sentence that was enhanced because of a previous conviction and the conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the petition must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid.
(c) This part contemplates the filing of only one (1) petition for post-conviction relief. In no event may more than one (1) petition for post-conviction relief be filed attacking a single judgment. If a prior petition has been filed which was resolved on the merits by a court of competent jurisdiction, any second or subsequent petition shall be summarily dismissed. A petitioner may move to reopen a post-conviction proceeding that has been concluded, under the limited circumstances set out in § 40-30-117.

Backlinks (1)

40-30-109(c)

History (3)

Acts 1995, ch. 207, § 1
1996, ch. 995, §§ 1-3
T.C.A. § 40-30-202.

§ 40-30-103. Grounds for relief.

Relief under this part shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-203.

§ 40-30-104. Petition.

(a) A post-conviction proceeding is commenced by filing, with the clerk of the court in which the conviction occurred, a written petition naming the state as the respondent. No filing fee shall be charged. Petitions challenging misdemeanor convictions not in a court of record shall be filed in a court of record having criminal jurisdiction in the county in which the conviction was obtained, and the case shall be assigned as set forth in § 40-30-105(b).
(b) The petitioner shall provide all information required by this section. Petitions which are incomplete shall be filed by the clerk, but shall be completed as set forth in an order entered in accordance with § 40-30-106(d).
(c) The petition for post-conviction relief shall be limited to the assertion of claims for relief from the judgment or judgments entered in a single trial or proceeding. If the petitioner desires to obtain relief from judgments entered in separate trials or proceedings, the petitioner must file separate petitions.
(d) The petitioner shall include all claims known to the petitioner for granting post-conviction relief and shall verify under oath that all the claims are included.
(e) The petitioner shall include allegations of fact supporting each claim for relief set forth in the petition and allegations of fact explaining why each ground for relief was not previously presented in any earlier proceeding. The petition and any amended petition shall be verified under oath. Affidavits, records or other evidence available to the petitioner supporting the allegations of the petition may be attached to it.
(f) The petitioner shall provide the name of any attorney licensed to practice law who drafts or has given assistance or advice regarding drafting the petition for post-conviction relief.
(g) Amendments to the petition shall conform substantially to the form for original petitions, except that matters alleged in the original petition need not be repeated.

Backlinks (1)

40-30-114(c)(4)(B)

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-204.

§ 40-30-105. Processing of petitions — Designation of judge.

(a) When in receipt of a petition applying for post-conviction relief, the clerk of the trial court shall forthwith:
1. (1) Make three (3) copies of the petition;
2. (2) Docket and file the original petition and its attachments;
3. (3) Mail one (1) copy of the petition to the attorney general and reporter in Nashville;
4. (4) Mail or forward one (1) copy of the petition to the district attorney general;
5. (5) Mail or forward one (1) copy to petitioner's original attorney;
6. (6) Advise the presiding judge that the petition has been filed; and
7. (7) Deliver the petition, its attachments, and all available files, records, and correspondence relating to the judgment under attack to the assigned judge for preliminary consideration.
(b) At either the trial proceeding or an appellate proceeding reviewing the proceeding, the presiding judge of the appropriate court shall assign a judge to hear the petition. The issue of competency of counsel may be heard by a judge other than the original hearing judge. If a presiding judge is unable to assign a judge, the chief justice of the supreme court shall designate an appropriate judge to hear the matter.
Backlinks (1)
- 40-30-104(a)
(c) A petition for habeas corpus may be treated as a petition under this part when the relief and procedure authorized by this part appear adequate and appropriate, notwithstanding anything to the contrary in title 29, chapter 21, or any other statute.

History (3)

Acts 1995, ch. 207, § 1
1996, ch. 995, § 4
T.C.A. § 40-30-205.

§ 40-30-106. Preliminary consideration.

(a) The trial judge to whom the case is assigned shall, within thirty (30) days of the filing of the original petition, or a petition amended in accordance with subsection (d), examine it together with all the files, records, transcripts, and correspondence relating to the judgment under attack, and enter an order in accordance with this section or § 40-30-107.
(b) If it plainly appears from the face of the petition, any annexed exhibits or the prior proceedings in the case that the petition was not filed in the court of conviction or within the time set forth in the statute of limitations, or that a prior petition was filed attacking the conviction and was resolved on the merits, the judge shall enter an order dismissing the petition. The order shall state the reason for the dismissal and the facts requiring dismissal. If the petition is dismissed as untimely, the order shall state or the record shall reflect the date of conviction, whether an appeal was taken, the name of each court to which an appeal was taken, the date of the final action by each appellate court, and the date upon which the petition was filed.
(c) If it appears that a post-conviction petition challenging the same conviction is already pending in either the trial court, court of criminal appeals, or supreme court, the judge shall enter an order dismissing the subsequent petition. The order shall state the style of the pending petition and in which court it is pending.
(d) The petition must contain a clear and specific statement of all grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings. Failure to state a factual basis for the grounds alleged shall result in immediate dismissal of the petition. If, however, the petition was filed pro se, the judge may enter an order stating that the petitioner must file an amended petition that complies with this section within fifteen (15) days or the petition will be dismissed.
Backlinks (1)
- 40-30-104(b)
(e) If a petition amended in accordance with subsection (d) is incomplete, the court shall determine whether the petitioner is indigent and in need of counsel. The court may appoint counsel and enter a preliminary order if necessary to secure the filing of a complete petition. Counsel may file an amended petition within thirty (30) days of appointment.
(f) Upon receipt of a petition in proper form, or upon receipt of an amended petition, the court shall examine the allegations of fact in the petition. If the facts alleged, taken as true, fail to show that the petitioner is entitled to relief or fail to show that the claims for relief have not been waived or previously determined, the petition shall be dismissed. The order of dismissal shall set forth the court's conclusions of law.
(g) A ground for relief is waived if the petitioner personally or through an attorney failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented unless:
1. (1) The claim for relief is based upon a constitutional right not recognized as existing at the time of trial if either the federal or state constitution requires retroactive application of that right; or
2. (2) The failure to present the ground was the result of state action in violation of the federal or state constitution.
(h) A ground for relief is previously determined if a court of competent jurisdiction has ruled on the merits after a full and fair hearing. A full and fair hearing has occurred where the petitioner is afforded the opportunity to call witnesses and otherwise present evidence, regardless of whether the petitioner actually introduced any evidence.
(i) If the petition is not dismissed pursuant to this rule, the court shall enter a preliminary order as provided in § 40-30-107.

History (3)

Acts 1995, ch. 207, § 1
1996, ch. 995, §§ 5-7
T.C.A. § 40-30-206.

§ 40-30-107. Preliminary order.

(a) If the petition is not dismissed upon preliminary consideration, the court shall enter a preliminary order.
(b) In all cases, the preliminary order shall direct the following:
1. (1) If a petitioner not represented by counsel requests counsel and the court is satisfied that the petitioner is indigent as defined in § 40-14-201, the court shall appoint counsel to represent the petitioner.
2. (2) If counsel is appointed or retained, or the petitioner is proceeding pro se, counsel or the petitioner if proceeding pro se must file an amended petition or a written notice that no amendment will be filed. The amended petition or notice shall be filed within thirty (30) days of the entry of the preliminary order, unless extended for good cause. The written notice, if filed by counsel, shall state that counsel has consulted the petitioner and that the petitioner agrees there is no need to amend the petition. Good cause will not be met by a routine statement that the press of other business prevents the filing of the appropriate pleadings within the designated time.

Backlinks (2)

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-207.

§ 40-30-108. Answer or response.

(a) The district attorney general shall represent the state except as provided in § 40-30-114(c). The state shall file an answer or other responsive pleading within thirty (30) days, unless extended for good cause. Good cause will not be met by a routine statement that the press of other business prevents a response within the thirty-day period. Failure by the state to timely respond does not entitle the petitioner to relief under this part.
(b) If the petition does not include the records or transcripts, or parts of records or transcripts that are material to the questions raised therein, the district attorney general is empowered to obtain them at the expense of the state and may file them with the responsive pleading or within a reasonable time thereafter.
(c) The district attorney general has the option to assert by motion to dismiss that:
1. (1) The petition is barred by the statute of limitations;
2. (2) The petition was not filed in the court of conviction;
3. (3) The petition asserts a claim for relief from judgments entered in separate trials or proceedings;
4. (4) A direct appeal or post-conviction petition attacking the same conviction is currently pending in the trial or appellate courts;
5. (5) The facts alleged fail to show that the petitioner is entitled to relief; or
6. (6) The facts alleged fail to establish that the claims for relief have not been waived or previously determined.
(d) The answer shall respond to each of the allegations of the petition and shall assert the affirmative defenses the district attorney general deems appropriate.

History (3)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-208
2023, ch. 182, § 3.

§ 40-30-109. Prehearing procedure.

(a) The court shall review the case after the district attorney general's response is filed. If, on reviewing the petition, the response, files, and records, the court determines conclusively that the petitioner is entitled to no relief, the court shall dismiss the petition. The order of dismissal shall set forth the court's conclusions of law. If the court does not dismiss the petition, the court shall enter an order setting an evidentiary hearing. The order of dismissal or the order setting an evidentiary hearing shall be entered no later than thirty (30) days after the filing of the state's response. The evidentiary hearing shall be within four (4) calendar months of the entry of the court's order. The deadline shall not be extended by agreement, and the deadline may be extended only by order of the court based upon a finding that unforeseeable circumstances render a continuance a manifest necessity. An extension shall not exceed sixty (60) days.
(b) Discovery is not available in a proceeding under this section except as provided under Rule 16 of the Tennessee Rules of Criminal Procedure.
(c) The petitioner may withdraw a petition at any time prior to the hearing without prejudice to any rights to refile, but the withdrawn petition shall not toll the statute of limitations set forth in § 40-30-102.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-209.

§ 40-30-110. Hearing.

(a) The petitioner shall appear and give testimony at the evidentiary hearing if the petition raises substantial questions of fact as to events in which the petitioner participated, unless the petitioner is incarcerated out of state, in which case the trial judge may permit the introduction of an affidavit or deposition of the petitioner and shall permit the state adequate time to file any affidavits or depositions in response the state may wish.
(b)
1. (1) If the petitioner is imprisoned, the warden shall arrange for transportation of the petitioner to and from the court upon proper orders issued by the trial judge.
2. (2) The sheriff of the county where the proceeding is pending shall have the authority to receive and transport the petitioner to and from the penitentiary and the court, if the court so orders or if for any reason the warden is unable to transport the petitioner. The sheriff shall be entitled to the same costs allowed for the transportation of prisoners as is provided in criminal cases upon the presentation of the account certified by the judge and district attorney general.
(c) Proof upon the petitioner's claim or claims for relief shall be limited to evidence of the allegations of fact in the petition.
(d) All evidentiary hearings shall be recorded.
(e) The Tennessee Rules of Evidence shall apply except as otherwise required in this part.
(f) The petitioner shall have the burden of proving the allegations of fact by clear and convincing evidence. There is a rebuttable presumption that a ground for relief not raised before a court of competent jurisdiction in which the ground could have been presented is waived.

Backlinks (1)

8-8-201(b)(1)

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-210.

§ 40-30-111. Final disposition of petitions — Compliance reports.

(a) If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable, including a finding that trial counsel was ineffective on direct appeal, the court shall vacate and set aside the judgment or order a delayed appeal as provided in this part and shall enter an appropriate order and any supplementary orders that may be necessary and proper. Costs shall be taxed as in criminal cases.
(b) Upon the final disposition of every petition, the court shall enter a final order, and except where proceedings for delayed appeal are allowed, shall set forth in the order or a written memorandum of the case all grounds presented, and shall state the findings of fact and conclusions of law with regard to each ground.
(c) Where the petitioner has court-appointed counsel, the court may require petitioner's counsel to file a verified statement of dates and times counsel has consulted with petitioner, and this statement shall become a part of the record.
(d) The court shall rule within sixty (60) days of conclusion of the proof. The deadline shall not be extended by agreement, and the deadline may be extended only by order of the court based upon a finding that unforeseeable circumstances render a continuance a manifest necessity. An extension shall not exceed thirty (30) days. Final disposition of a capital case must be made within one (1) year of the filing of the petition. Copies of all orders extending deadlines in capital cases shall be sent to the administrative office of the courts. The administrative office of the courts shall report annually to the general assembly on the compliance by the courts within the time limits established for capital cases and the reason for noncompliance, if any.
(e)
1. (1) By December 1, 2009, and every December 1 thereafter, the administrative office of the courts shall complete the compliance report required by subsection (d) and submit the report to the chief clerks of the house of representatives and the senate and the chairs of the criminal justice committee of the house of representatives and the judiciary committee of the senate.
2. (2) The administrative office of the courts, in consultation with the district attorneys general conference, the office of the post-conviction defender and the district public defenders conference, shall review the annual compliance report to determine if the time period for the final disposition of post-conviction petitions in capital cases set out in subsection (d) is a realistic time period for providing a thorough and meaningful review of the claims and making a final disposition of them. If it is determined that the statutory period for final disposition of the petitions is not realistic, the administrative office of the courts shall determine a realistic and attainable time period and submit it to the legislature as provided in subdivision (e)(1).
3. (3) The review and determination of a realistic time period for the conclusion of post-convictions petitions required by subdivision (e)(2) shall be made by December 1, 2009, and every December 1 thereafter.

History (6)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-211
Acts 2009, ch. 594, § 1
2013, ch. 236, § 38
2019, ch. 345, § 57
2021, ch. 64, § 49.

§ 40-30-112. Notice of final judgments by clerk of court.

The clerk of the court shall send a copy of the final judgment to the petitioner, the petitioner's counsel of record, any authority imposing restraint on the petitioner and the attorney general and reporter at Nashville.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-212.

§ 40-30-113. Petitioner unconstitutionally denied appeal — Procedure.

(a) When the trial judge conducting a hearing pursuant to this part finds that the petitioner was denied the right to an appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee and that there is an adequate record of the original trial proceeding available for a review, the judge can:
1. (1) If a transcript was filed, grant a delayed appeal;
2. (2) If, in the original proceedings, a motion for a new trial was filed and overruled but no transcript was filed, authorize the filing of the transcript in the convicting court; or
3. (3) If no motion for a new trial was filed in the original proceeding, authorize a motion to be made before the original trial court within thirty (30) days. The motion shall be disposed of by the original trial court as if the motion had been filed under authority of Rule 59 of the Rules of Civil Procedure.
(b) An order granting proceedings for a delayed appeal shall be deemed the final judgment for purposes of review. If either party does appeal, the time limits provided in this section shall be computed from the date the clerk of the trial court receives the order of the appellate court determining the appeal.
(c) The judge of the court which sentenced a prisoner who has sought and obtained relief from that sentence by any procedure in a federal court is likewise empowered to grant the relief provided in this section.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-213.

§ 40-30-114. Reimbursement of expenses of district attorney general — Duty of attorney general and reporter.

(a) The district attorney general or the attorney general and reporter must be reimbursed for any expenses, including travel, incurred in connection with the preparation and trial of any proceeding under this part. This expense must be paid by the state and is not included in the expense allowance now received by the various district attorneys general or the attorney general and reporter.
(b)
1. (1) It is the duty and function of the attorney general and reporter, and the attorney general and reporter's staff, to lend whatever assistance may be necessary to the district attorney general in the trial and disposition of the cases.
2. (2) In the event an appeal is taken or a delayed appeal in the nature of a writ of error is granted, the attorney general and reporter, and the attorney general and reporter's staff, shall represent the state and prepare and file all necessary briefs in the same manner as now performed in connection with criminal appeals.
(c)
1. (1) In cases where a defendant has been sentenced to death and is seeking collateral review of a conviction or sentence, the attorney general and reporter has exclusive control over the state's defense of the request for collateral review and has all of the authority and discretion that the district attorney general would have in non-capital cases as well as any additional authority provided by law. The attorney general and reporter is not bound by any stipulations, concessions, or other agreements made by the district attorney general related to a request for collateral review.
2. (2) The trial court lacks jurisdiction to enter a final order granting relief on a request for collateral review outlined in subdivision (c)(1) until the attorney general and reporter files a response to the request.
3. (3) It is the duty and function of the district attorney general, and the district attorney general's staff, to lend whatever assistance may be necessary to the attorney general and reporter in the trial and disposition of requests for collateral review outlined in subdivision (c)(1), including, but not limited to, providing the attorney general and reporter with the district attorney general's case file and any other case-related material.
4. (4) As used in this subsection (c), “collateral review”:
  1. (A) Means any proceeding under this chapter, including a petition requesting analysis of evidence, a proceeding under § 39-13-203(g), a proceeding under § 40-26-105, a proceeding involving a challenge to a capital inmate's competency to be executed, and any other judicial reexamination of a judgment or claim in a proceeding outside of the direct review process; and
  2. (B) When a defendant has been sentenced to death after March 1, 2023, does not mean the trial of an original petition for post-conviction relief as authorized by § 40-30-104. All other proceedings involving a defendant who has been sentenced to death after March 1, 2023, including reopened post-conviction proceedings granted under § 40-30-117 must be conducted in conformity with subdivision (c)(1).
Backlinks (1)
- 40-30-108(a)

History (3)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-214
Acts 2023, ch. 182, §§ 1, 2.

§ 40-30-115. Determination of indigency — Appointment of counsel and court reporters.

Indigency shall be determined and counsel and court reporters appointed and reimbursed as now provided for criminal and habeas corpus cases by chapter 14, parts 2 and 3 of this title.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-215.

§ 40-30-116. Appeal after final judgment.

The order granting or denying relief under this part shall be deemed a final judgment, and an appeal may be taken to the court of criminal appeals in the manner prescribed by the Tennessee Rules of Appellate Procedure. In capital cases, the appellate court in which the case is pending shall render a decision within nine (9) months of the date of oral argument in the case, if oral argument is conducted. If no oral argument occurs, the court shall render an opinion within nine (9) months after submission of the case to the court for decision. The appellate court shall have thirty (30) days in which to dispose of any petition to rehear which may be filed. If an appellate court finds that it is unable to comply with the deadlines, it shall enter an order setting out the circumstances which render an extension beyond these time limits a necessity. Copies of all the orders shall be sent to the administrative office of the courts. The administrative office of the courts shall report annually to the general assembly on the compliance of the appellate courts with the time limits established in this section.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-216.

§ 40-30-117. Motions to reopen.

(a) A petitioner may file a motion in the trial court to reopen the first post-conviction petition only if the following applies:
1. (1) The claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The motion must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial; or
2. (2) The claim in the motion is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or
3. (3) The claim asserted in the motion seeks relief from a sentence that was enhanced because of a previous conviction and the conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the motion must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid; and
4. (4) It appears that the facts underlying the claim, if true, would establish by clear and convincing evidence that the petitioner is entitled to have the conviction set aside or the sentence reduced.
(b) The motion must set out the factual basis underlying its claims and must be supported by affidavit. The factual information set out in the affidavit shall be limited to information which, if offered at an evidentiary hearing, would be admissible through the testimony of the affiant under the rules of evidence. The motion shall be denied unless the factual allegations, if true, meet the requirements of subsection (a). If the court grants the motion, the procedure, relief and appellate provisions of this part shall apply.
(c) If the motion is denied, the petitioner shall have thirty (30) days to file an application in the court of criminal appeals seeking permission to appeal. The application shall be accompanied by copies of all the documents filed by both parties in the trial court and the order denying the motion. The state shall have thirty (30) days to respond. The court of criminal appeals shall not grant the application unless it appears that the trial court abused its discretion in denying the motion. If it determines that the trial court did so abuse its discretion, the court of criminal appeals shall remand the matter to the trial court for further proceedings.

Backlinks (3)

History (4)

Acts 1995, ch. 207, § 1
1996, ch. 995, §§ 8, 9
T.C.A. § 40-30-217
Acts 2011, ch. 290, § 1.

§ 40-30-118. Promulgation of rules.

The supreme court may promulgate rules of practice and procedure consistent with this part, including rules prescribing the form and contents of the petition, the preparation and filing of the record and assignments of error for simple appeal and for delayed appeal in the nature of a writ of error, and may make petition forms available for use by petitioners. The supreme court shall develop a form which shall be available without cost to a prisoner in the prison and other places of detention, and shall also be available without cost to any potential petitioner in the office of the clerk of any court of record having criminal jurisdiction.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-218.

§ 40-30-119. Bail during new trial or delayed appeal — Exception.

When a new trial or delayed appeal is granted, release on bail shall be determined by the trial judge as provided by law pending further proceedings. In all other cases, the petitioner shall not be entitled to bail.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-219.

§ 40-30-120. Stays of execution when petitioner is under sentence of death.

(a) When affirming a conviction and sentence of death on direct appeal, the Tennessee supreme court shall contemporaneously set a date for an execution. The date shall be no less than four (4) months from the date of the judgment of the Tennessee supreme court. Upon the filing of a petition for post-conviction relief, the court in which the conviction occurred shall issue a stay of the execution date that shall continue in effect for the duration of any appeals or until the post-conviction action is otherwise final. The execution date shall not be stayed prior to the filing of a petition for post-conviction relief except upon a showing by the petitioner of the petitioner's inability to file a petition prior to the execution date and that the inability is justified by extraordinary circumstances beyond the petitioner's control.
(b) Where the petitioner is under a sentence of death and the petition is not the first petition under this part attacking that judgment, or a motion to reopen has been filed, no court may stay the execution unless a court of competent jurisdiction first finds that a motion to reopen that meets the requirements set out in § 40-30-117 has been granted.
(c) The mere satisfaction of the requirements of subsection (b) shall not automatically result in a stay. In order to obtain a stay, an applicant must show that upon the court's consideration of the petition there is a significant possibility that the death sentence will be invalidated and that there is a significant possibility that the death sentence will be carried out before consideration of the petition is concluded.
(d) Any motion for stay pending consideration of the post-conviction petition must be presented first to the court where the petition is filed. The decision of the court shall be reviewable by the court of criminal appeals upon the filing of a motion for review. Either party may seek review. The lower court's determination shall not be set aside unless the movant demonstrates an abuse of discretion. The action of the court of criminal appeals shall likewise be reviewable upon the filing of a motion for review in the Tennessee supreme court. Either party may seek review. The determination of the court of criminal appeals shall not be set aside unless the movant demonstrates an abuse of discretion.
(e) Each motion for stay, or motion for review, shall be filed in writing with the clerk of the court to whom the motion is directed. The clerk shall immediately refer the matter to the court. Each motion shall be served upon opposing counsel in the most expeditious manner practicable. The motion shall recite that opposing counsel has been served and in what manner. Oral requests directed to a judge are prohibited unless, owing to emergency circumstances, the filing of a written motion is impractical. In that event, counsel initiating the contact shall orally notify opposing counsel prior to the contact.
(f) Motions for review may be acted upon by a single judge of the appellate court. The judge may, in lieu thereof, refer the motion to the court. In the court of criminal appeals, the reference will be to a three (3) judge panel of the court in the grand division where the motion is filed. Review shall be made promptly within five (5) days or within a shorter period as necessary to preclude the issue from becoming moot, whether by a single judge or by the court. Oral argument shall not be permitted unless the court otherwise directs. Opposing counsel shall have a right to file a written response to the motion within three (3) days of the service of the motion. If time does not permit the filing of a written response, the court shall ascertain the position of opposing counsel by other means which may include a telephone conference. The court may consider the last-minute nature of an application to stay execution by resolving against the petitioner any doubts and uncertainties as to the sufficiency of the petitioner's submission.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-220.

§ 40-30-121. Priority.

Post-conviction cases where the petitioner is under the death sentence shall be given priority over all other matters in docketing by the courts having trial and appellate jurisdiction of the cases.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-221.

§ 40-30-122. Interpretation.

For purposes of this part, a new rule of constitutional criminal law is announced if the result is not dictated by precedent existing at the time the petitioner's conviction became final and application of the rule was susceptible to debate among reasonable minds. A new rule of constitutional criminal law shall not be applied retroactively in a post-conviction proceeding unless the new rule places primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.

History (2)

Acts 1995, ch. 207, § 1
T.C.A. § 40-30-222.

§ 40-30-123. Report of discovery of potentially exculpatory evidence.

Whenever a law enforcement agency discovers new evidence deemed potentially exculpatory by the chief law enforcement officer of the agency, the agency shall report the evidence to the district attorney currently serving in the jurisdiction in which the case was prosecuted, the trial court in which the conviction was obtained, the individual convicted in the case in which the evidence was secured, and that individual's attorney, if such individual is represented by counsel, within thirty (30) days of the discovery of the evidence.

History (1)

Acts 2021, ch. 355, § 1.

Part 2 Post-Conviction Defender Oversight Commission Act of 2011

§ 40-30-201. Short title.

This part shall be known and may be cited as the “Post-Conviction Defender Oversight Commission Act of 2011.”

History (3)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-301
Acts 2011, ch. 414, § 4.

§ 40-30-202. Commission created — Role.

(a) On July 1, 2011, the post-conviction defender oversight commission is created. This part also creates the office of post-conviction defender to provide for the representation of any person convicted and sentenced to death in this state who is unable to secure counsel due to indigence, and that legal proceedings to challenge that conviction and sentence may be commenced in a timely manner and so as to assure the people of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interests of justice. The operation of the post-conviction defender oversight commission and office of post-conviction defender shall be consistent with professional standards and shall not compromise independent professional judgment or create a professional or institutional conflict of interest, appearance of impropriety, breach of attorney-client confidence or secret or other violation of the Tennessee Rules of Professional Conduct or the Tennessee Code of Judicial Conduct.
(b) The post-conviction defender oversight commission shall be strictly administrative in nature and shall oversee budget, staffing and caseload concerns. In order to avoid possible conflicts, relating to cases assigned to the post-conviction defender's office, no member of the commission shall advise, consult or otherwise directly assist the post-conviction defender or the post-conviction defender's staff in providing legal representation in such cases.

History (4)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-302
Acts 2003, ch. 112, § 2
2011, ch. 414, § 5.

§ 40-30-203. Establishment — Composition.

(a) On July 1, 2011, there is created a post-conviction defender oversight commission. The members of the commission appointed under this section shall have a commitment to the constitutional rights of all individuals. In making these appointments, the appointing authorities shall strive to ensure that the membership of the commission appropriately reflects the racial and geographic diversity of the state. Members of the commission are not required to be attorneys, but any member who is an attorney may not be a current district attorney general or assistant district attorney general, a current public defender or assistant public defender, or a sitting judge. The commission is composed of the following nine (9) members:
1. (1) Three (3) members appointed by the governor;
2. (2) Three (3) members appointed by the speaker of the senate; and
3. (3) Three (3) members appointed by the speaker of the house of representatives.
(b) The term of office of each member of the commission is four (4) years. A vacancy occurring among the members of the commission before the expiration of a term shall be filled in the same manner as the original appointments. An appointment to fill a vacancy occurring before the expiration of a term is for the remainder of the unexpired term.
(c) To stagger the terms of the commission members, the initial term shall be as follows:
1. (1) The initial term of the members appointed by the governor shall be two (2) years;
2. (2) The initial term of the members appointed by the speaker of the senate shall be three (3) years; and
3. (3) The initial term of the members appointed by the speaker of the house of representatives shall be four (4) years.

Backlinks (1)

4-29-247(a)(39)

History (3)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-303
Acts 2011, ch. 414, § 6.

§ 40-30-204. Chair — Meetings — Duties.

(a) The members of the commission shall designate one (1) member of the commission as chair.
(b) Meetings of the commission may be held upon reasonable notice to the commission members by the chair of the commission and shall be in compliance with title 8, chapter 44.
(c) The commission shall appoint a qualified attorney to the office of post-conviction defender.
(d) The commission shall prepare an annual budget for the office of the post-conviction defender, administer the funds made available to the office, and oversee the expenditure of the funds.

Backlinks (1)

40-30-205(b)

History (3)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-304
Acts 2011, ch. 414, § 7.

§ 40-30-205. Post-conviction defender.

(a) There is created the office of the post-conviction defender.
(b) The post-conviction defender shall be appointed by the post-conviction defender oversight commission, as provided for in § 40-30-204.
(c) The post-conviction defender shall be an attorney in good standing with the Tennessee supreme court and shall possess a demonstrated experience in the litigation of capital crimes.
(d) The post-conviction defender shall serve a term of four (4) years.
(e) Vacancies in the office of post-conviction defender shall be filled in the same manner as appointment.
(f) The principal office of the post-conviction defender shall be located in Nashville. The post-conviction defender may establish branch offices as may, in the discretion of the post-conviction defender, be warranted to fulfill statutory duties as provided in this part.
(g) The exclusive function of the post-conviction defender's office shall be to provide legal representation to persons convicted of capital offenses. The post-conviction defender's office including the members of the post-conviction defender's oversight commission shall not lobby any entity, organization, or legislative body to urge either the abolition or retention of the death penalty. However, the office may respond to inquiries of the general assembly, the judiciary and the executive branch.
(h) In the event the post-conviction defender provides direct representation to persons on direct appeal of a conviction, the post-conviction defender's office shall be prohibited from providing representation to those persons in any collateral proceeding.

History (3)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-305
Acts 2011, ch. 414, §§ 8, 9.

§ 40-30-206. Duties.

(a) It is the primary responsibility of the post-conviction defender to represent, without additional compensation, any person convicted and sentenced to death in this state who is without counsel and who is unable to secure counsel due to indigency or determined by a state court with competent jurisdiction to be indigent, for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against that person in state court, and who the court determines requires the appointment of counsel.
(b) Under limited circumstance where the post-conviction defender determines that it is in the interest of justice, the post-conviction defender may represent, without additional compensation, any person on a direct appellate review of the conviction of a capital crime if that person is without counsel and is unable to secure counsel due to indigency, or is determined by a state court with competent jurisdiction to be indigent and where that state court has determined competent counsel is unavailable.
(c) The post-conviction defender shall represent, without additional compensation, any person convicted and sentenced to death in this state who is without counsel and who is unable to secure counsel due to that person's indigency or is determined by a state court of competent jurisdiction to be indigent for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against the person in the federal courts in this state, the United States court of appeals for the sixth circuit, and the United States supreme court, only to the extent that compensation for representation and reimbursement for expenses is provided by 18 U.S.C. § 3006A or any other non-state funded source.
(d) The post-conviction defender shall also:
1. (1) Maintain a clearinghouse of materials and a repository of briefs prepared by the post-conviction defender to be made available to public defenders and private counsel who represent indigents charged with or convicted of capital crimes;
2. (2) Provide continuing legal education training to public defenders, assistant post-conviction defenders and to private counsel representing indigents in capital cases, as resources are available;
3. (3) Provide consulting services to all attorneys representing defendants in capital cases on a non-case-specific basis; and
4. (4) Recruit qualified members of the private bar who are willing to provide representation in state death penalty proceedings.
(e) Where the post-conviction defender determines that it is in the interest of justice, the post-conviction defender may represent, without additional compensation, a death sentenced inmate, who, at the completion of both state post-conviction proceedings and federal collateral review, remains under a sentence of death, if the individual is presently represented by the post-conviction defender or if the individual is not currently represented by the post-conviction defender but is unable to secure counsel due to indigency, during clemency proceedings before the Tennessee board of parole and the governor and in proceedings to determine whether the death sentenced inmate is competent to be executed.

History (3)

Acts 1995, ch. 510, § 1
2002, ch. 713, § 1
T.C.A. § 40-30-306.

§ 40-30-207. Conflict of interest and substitute counsel.

If at any time during the representation of two (2) or more indigent persons, the post-conviction defender determines that the interests of those persons are so adverse or hostile that they cannot all be counseled by the post-conviction defender or the post-conviction defender's staff without conflict of interest, the court in which the proceeding is pending shall, upon application therefor by the post-conviction defender, appoint one (1) or more qualified attorneys to represent the persons.

History (2)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-307.

§ 40-30-208. Appointment of assistants and other staff — Method of payments.

The post-conviction defender is authorized to appoint, employ, and establish, in the numbers as the post-conviction defender determines, full-time assistant post-conviction defenders, investigators, and other clerical and support personnel who shall be paid from funds appropriated for that purpose.

History (2)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-308.

§ 40-30-209. Salary.

(a) The post-conviction defender shall be paid a salary equal to the amount established by law for district public defenders.
(b) Full-time assistant post-conviction defenders shall be compensated in an amount set by the post-conviction defender in compliance with the assistant public defender's pay schedule and shall be paid from funds appropriated for that purpose.
(c) All payments of the salary of the post-conviction defender and employees of the office and payments for other necessary expenses of the office from state funds appropriated therefor shall be considered as being for a valid public purpose.
(d) Notwithstanding any law to the contrary, any limitations on compensation and step increases that apply to district public defenders and assistant public defenders for the period of time beginning from June 16, 2003, to June 30, 2004, and June 25, 2009, to June 30, 2010, shall also apply to post-conviction defenders and assistant post-conviction defenders. In the fiscal years beginning July 1, 2004, and July 1, 2010, and in subsequent fiscal years, salary increases pursuant to the pay schedule prescribed in this section shall not include time of service between July 1, 2003, and June 30, 2004, and between July 1, 2009, and June 30, 2010.
(e) The salary increase provided by this section and suspended by subsection (d) for the period July 1, 2003, through June 30, 2004, shall be reinstated effective July 1, 2017. For purposes of determining the appropriate salary classification pursuant to this section, credible service for the time period of July 1, 2003, through June 30, 2004, shall be included.

History (4)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-309
Acts 2009, ch. 531, § 28
2017, ch. 461, § 9.

§ 40-30-210. Records and reports.

The post-conviction defender shall keep appropriate records and make annual reports concerning caseload, funding, staffing, and salaries to the post-conviction defender oversight commission; provided, however, that the post-conviction defender and the defender's staff shall not discuss specific details about any case with the members of the commission.

History (3)

Acts 1995, ch. 510, § 1
T.C.A. § 40-30-310
Acts 2011, ch. 414, § 10.

Part 3 Post-Conviction DNA Analysis Act of 2001

§ 40-30-301. Short title.

This part shall be known and may be cited as the “Post-Conviction DNA Analysis Act of 2001.”

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-401.

§ 40-30-302. “DNA analysis” defined.

As used in this part, unless the context otherwise requires, “DNA analysis” means the process through which deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-402.

§ 40-30-303. Petition requesting analysis.

Notwithstanding part 1 of this chapter, or any other provision of law governing post-conviction relief to the contrary, a person convicted of and sentenced for the commission of first degree murder, second degree murder, aggravated rape, rape, aggravated sexual battery or rape of a child, the attempted commission of any of these offenses, any lesser included offense of these offenses, or, at the direction of the trial judge, any other offense, may at any time, file a petition requesting the forensic DNA analysis of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court, and that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-403.

§ 40-30-304. Court order if probable that exculpatory results would not have resulted in prosecution or conviction.

After notice to the prosecution and an opportunity to respond, the court shall order DNA analysis if it finds that:
1. (1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis;
2. (2) The evidence is still in existence and in such a condition that DNA analysis may be conducted;
3. (3) The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
4. (4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Backlinks (1)

40-30-306

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-404.

§ 40-30-305. Court order if probable that results would have resulted in a more favorable verdict or sentence.

After notice to the prosecution and an opportunity to respond, the court may order DNA analysis if it finds that:
1. (1) A reasonable probability exists that analysis of the evidence will produce DNA results that would have rendered the petitioner's verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction;
2. (2) The evidence is still in existence and in such a condition that DNA analysis may be conducted;
3. (3) The evidence was never previously subjected to DNA analysis, or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis; and
4. (4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Backlinks (1)

40-30-306

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-405.

§ 40-30-306. Payment for analysis.

In the case of an order issued pursuant to § 40-30-304, the court shall order the analysis and payment, if necessary. In the case of an order under § 40-30-305, the court may require the petitioner to pay for the analysis.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-406.

§ 40-30-307. Appointment of counsel for indigents.

The court may, at any time during proceedings instituted under this part, appoint counsel for an indigent petitioner.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-407.

§ 40-30-308. Court order for production of laboratory reports, underlying data and notes.

If evidence has previously been subjected to DNA analysis by either the prosecution or defense, the court may order the prosecution or defense to provide all parties and the court with access to the laboratory reports prepared in connection with the DNA analysis, as well as the underlying data and laboratory notes. If any DNA or other biological evidence analysis was previously conducted by either the prosecution or defense without knowledge of the other party, the analysis shall be revealed in the motion for analysis or response, if any. If the court orders DNA analysis in connection with a proceeding brought under this part, the court shall order the production of any laboratory reports prepared in connection with the DNA analysis and may, in its discretion, order production of the underlying data and laboratory notes.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-408.

§ 40-30-309. Preservation of evidence during pendency of proceeding — Sanctions.

When the petition is not summarily dismissed, the court shall order that all evidence in the possession of the prosecution, law enforcement, laboratory, or the court that could be subjected to DNA analysis must be preserved during the pendency of the proceeding. The intentional destruction of evidence after such an order may result in appropriate sanctions, including criminal contempt for a knowing violation.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-409.

§ 40-30-310. Laboratory standards.

If the court orders analysis, it shall select a laboratory that meets the standards adopted pursuant to the DNA Identification Act of 1994 (42 U.S.C. § 14131 et seq.).

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-410.

§ 40-30-311. Orders in discretion of court.

The court may, in its discretion, make such other orders as may be appropriate.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-411.

§ 40-30-312. Analysis results — Dismissal of petition — Order for hearing.

If the results of the post-conviction DNA analysis are not favorable to the petitioner, the court shall dismiss the petition, and make further orders as may be appropriate. If the results of the post-conviction DNA analysis are favorable, the court shall order a hearing, notwithstanding any provisions of law or rule of court that would bar the hearing as untimely, and thereafter make orders as are required or permitted by the rules of criminal procedure or part 1 of this chapter.

History (2)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-412.

§ 40-30-313. Payment for analysis.

If an order is issued requiring a DNA analysis be paid on behalf of a petitioner pursuant to this part, then the payment shall be made from funding provided for indigent defendants' counsel as set forth within the annual appropriations act. The payment shall be made only after receipt by the administrative director of the courts of a certified copy of the order and only upon receipt of a bill from the laboratory that conducted the analysis. The bill shall set forth the name of the petitioner, the date the analysis was performed, the amount of the bill, and the name and address of the laboratory to which payment is to be made.

History (3)

Acts 2001, ch. 444, § 1
T.C.A. § 40-30-413
Acts 2004, ch. 693, § 3.

Part 4 Post-Conviction Fingerprint Analysis Act of 2021

§ 40-30-401. Short title.

This part is known and may be cited as the “Post-Conviction Fingerprint Analysis Act of 2021.”

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-402. Part definitions.

As used in this part, unless the context otherwise requires, “fingerprint analysis” means the processes through which fingerprints are analyzed and compared for identification purposes, including, but not limited to, latent print comparisons and searches in fingerprint databases.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-403. Petition requesting analysis.

(a) Notwithstanding part 1 of this chapter, or any other law governing post-conviction relief to the contrary, any appropriate party may, at any time, file a petition requesting the performance of fingerprint analysis of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court, and that is related to the investigation or prosecution that resulted in a judgment of conviction and that may contain fingerprint evidence.
(b) As used in this section, “any appropriate party” means:
1. (1) A court on its own motion;
2. (2) A district attorney general; or
3. (3) A person convicted of and sentenced for the commission or attempted commission of:
  1. (A) First degree murder;
  2. (B) A Class A felony;
  3. (C) A Class B felony;
  4. (D) Any lesser included offense of an offense in subdivisions (b)(3)(A)-(C); or
  5. (E) Any other offense, at the direction of the court.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-404. Court order if probable that exculpatory results would not have resulted in prosecution or conviction.

After notice to the prosecution and an opportunity to respond, the court shall order fingerprint analysis if the court finds that:
1. (1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through fingerprint analysis;
2. (2) The evidence is still in existence and in such a condition that fingerprint analysis may be conducted;
3. (3) The evidence was never previously subjected to fingerprint analysis, was not subjected to the analysis that is being requested which could resolve an issue not resolved by previous analysis, or was previously subjected to analysis and the person making the motion under this part requests analysis that uses a new method or technology that is substantially more probative than the prior analysis; and
4. (4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Backlinks (1)

40-30-406

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-405. Court order if probable that results would have resulted in a more favorable verdict or sentence.

After notice to the prosecution and an opportunity to respond, the court may order fingerprint analysis if the court finds that:
1. (1) A reasonable probability exists that analysis of the evidence will produce fingerprint results that would have rendered the petitioner's verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction;
2. (2) The evidence is still in existence and in such a condition that fingerprint analysis may be conducted;
3. (3) The evidence was not previously subjected to fingerprint analysis, was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis, or was previously subjected to analysis and the person making the motion under this part requests analysis that uses a new method or technology that is substantially more probative than the prior analysis; and
4. (4) The application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.

Backlinks (1)

40-30-406

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-406. Payment for analysis.

If an order is issued pursuant to § 40-30-404, then the court shall order the analysis and payment pursuant to § 40-30-413, if necessary. If an order is issued pursuant to § 40-30-405, the court may require the petitioner to pay for the analysis, unless the petitioner is determined indigent by the court.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-407. Appointment of counsel for indigents.

The court may, at any time during proceedings instituted under this part, appoint counsel for an indigent petitioner.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-408. Court order for production of laboratory reports, underlying data, and notes.

If evidence has previously been subjected to fingerprint analysis by either the prosecution or defense, the court may order the prosecution or defense to provide all parties and the court with access to the laboratory reports prepared in connection with the fingerprint analysis, as well as the underlying data and laboratory notes. If any fingerprint or other evidence analysis was previously conducted by either the prosecution or defense without knowledge of the other party, the analysis shall be revealed in the motion for analysis or response, if any. If the court orders fingerprint analysis in connection with a proceeding brought under this part, the court shall order the production of any laboratory reports prepared in connection with the fingerprint analysis and may, in the court's discretion, order production of the underlying data and laboratory notes.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-409. Preservation of evidence during pendency of proceeding — Sanctions.

When the petition is not summarily dismissed, the court shall order that all evidence in the possession of the prosecution, law enforcement, laboratory, or the court that could be subjected to fingerprint analysis must be preserved during the pendency of the proceeding. The intentional destruction of evidence after such an order may result in appropriate sanctions, including criminal contempt for a knowing violation of the court's order.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-410. Laboratory selection.

If the court orders analysis, the court must select the laboratory used by the original investigating agency if the laboratory is capable of performing the required analysis. If the laboratory used by the original investigating agency is not capable of performing the required analysis, the court shall select a laboratory that the court deems appropriate.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-411. Orders in discretion of court.

The court may, in its discretion, make such other orders as may be appropriate.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-412. Analysis results — Dismissal of petition — Order for hearing.

If the results of the post-conviction fingerprint analysis are not favorable to the petitioner, the court shall dismiss the petition, and make further orders as may be appropriate. If the results of the post-conviction fingerprint analysis are favorable, the court shall order a hearing, notwithstanding any law or rule of court that would bar the hearing as untimely, and thereafter make orders as are required or permitted by the Rules of Criminal Procedure or part 1 of this chapter.

History (1)

Acts 2021, ch. 355, § 2.

§ 40-30-413. Payment for analysis.

If an order is issued requiring fingerprint analysis be paid on behalf of a petitioner pursuant to this part, then the payment shall be made from funding provided for indigent defendants' counsel as set forth within the annual appropriations act. The payment shall be made only after receipt by the administrative director of the courts of a certified copy of the order and only upon receipt of a bill from the laboratory that conducted the analysis. The bill shall set forth the name of the petitioner, the date the analysis was performed, the amount of the bill, and the name and address of the laboratory to which payment is to be made.

Backlinks (1)

40-30-406

History (1)

Acts 2021, ch. 355, § 2.

Chapter 31 Interstate Compact on Detainers

§ 40-31-101. Enactment of agreement — Text.

The agreement on detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:
The contracting states solemnly agree that:
1. ARTICLE I
  1. The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.
2. ARTICLE II
  1. As used in this agreement:
    1. (a) “Receiving state” means a state in which trial is to be had on an indictment, information or complaint pursuant to article III or article IV hereof;
    2. (b) “Sending state” means a state in which a prisoner is incarcerated at the time that the prisoner initiates a request for final disposition pursuant to article III hereof or at the time that a request for custody or availability is initiated pursuant to article IV hereof; and
    3. (c) “State” means a state of the United States, the United States, a territory or possession of the United States, the District of Columbia, and the commonwealth of Puerto Rico.
3. ARTICLE III
  1. (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the person shall be brought to trial within one hundred eighty (180) days after having caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of the person's imprisonment and request for a final disposition to be made of the indictment, information or complaint; provided, that for good cause shown in open court, the prisoner or the prisoner's counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good and honor time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
  2. (b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of the prisoner, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
  3. (c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform the prisoner of the source and contents of any detainer lodged against the prisoner and shall also inform the prisoner of the right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
  4. (d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner's written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
  5. (e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon the prisoner, after completion of the term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of the prisoner's body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
  6. (f) Escape from custody by the prisoner subsequent to the prisoner's execution of the request for final disposition referred to in paragraph (a) hereof shall void the request.
4. ARTICLE IV
  1. (a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom the appropriate officer has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided, that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request. Provided, further, that there shall be a period of thirty (30) days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon the motion of the governor of the sending state or upon motion of the prisoner.
  2. (b) Upon receipt of the officer's written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good and honor time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. These authorities in the sending state simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
  3. (c) In respect of any proceedings made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or the prisoner's counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
  4. (d) Nothing contained in this article shall be construed to deprive any prisoner of any right which the prisoner may have to contest the legality of the prisoner's delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
  5. (e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
5. ARTICLE V
  1. (a) In response to a request made under article III or article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
  2. (b) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
    1. (1) Proper identification and evidence of such person's authority to act for the state into whose temporary custody the prisoner is being given; and
    2. (2) A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
  3. (c) If the appropriate authority shall refuse or fail to accept temporary custody of such person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
  4. (d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one (1) or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for attendance at court and while being transported to or from any place at which the prisoner's presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
  5. (e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
  6. (f) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good and honor time shall be earned by the prisoner only if and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.
  7. (g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
  8. (h) From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one (1) or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner as in the case of other criminal prosecution costs. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves.
6. ARTICLE VI
  1. (a) In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of such time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
  2. (b) No provision of this agreement and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.
7. ARTICLE VII
  1. Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.
8. ARTICLE VIII
  1. This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.
9. ARTICLE IX
  1. This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Backlinks (2)

History (3)

Acts 1970, ch. 560, § 1
1972, ch. 865, § 1
T.C.A., § 40-3901.

§ 40-31-102. “Appropriate court” defined.

“Appropriate court,” as used in the agreement on detainers, with reference to the courts of this state, means a court of record with criminal jurisdiction.

History (2)

Acts 1970, ch. 560, § 2
T.C.A., § 40-3902.

§ 40-31-103. Enforcement of agreement — Cooperation with party states.

All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.

History (2)

Acts 1970, ch. 560, § 3
T.C.A., § 40-3903.

§ 40-31-104. Escape from temporary custody.

Any prisoner released to temporary custody under the provisions of the agreement on detainers from a place of imprisonment in Tennessee who shall escape or attempt to escape from the temporary custody, whether within or without the borders of this state, shall be dealt with in the same manner as if the escape or attempt to escape were from the original place of imprisonment.

History (2)

Acts 1970, ch. 560, § 4
T.C.A., § 40-3904.

§ 40-31-105. Surrender of prisoner mandatory.

It is lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to give over the person of any inmate of the penal or correctional institution whenever so required by the operation of the agreement on detainer.

History (2)

Acts 1970, ch. 560, § 5
T.C.A., § 40-3905.

§ 40-31-106. [Reserved.]

§ 40-31-107. Central administrator and information agent — Designation — Report.

(a) The governor is empowered to designate the officer who will serve as central administrator of, and information agent for, the agreement on detainers, pursuant to article VII of § 40-31-101.
(b) The officer designated shall make a written report to the speakers of the senate and the house of representatives, and the chairs of the judiciary committee of the senate and the criminal justice committee of the house of representatives, at least once each year. This report shall be made no later than February 1. The report shall advise the speakers and committee chairs on the number of participants in the compact.

History (6)

Acts 1970, ch. 560, § 7
T.C.A., § 40-3907
Acts 1988, ch. 497, § 3
2013, ch. 236, § 35
2019, ch. 345, § 58
2021, ch. 64, § 50.

§ 40-31-108. Distribution of copies of enactment.

Copies of this chapter shall, upon its approval, be transmitted to the governor of each state, the attorney general and the administrator of general services of the United States, and the council of state governments.

History (2)

Acts 1970, ch. 560, § 8
T.C.A., § 40-3908.

Chapter 32 Destruction of Records Upon Dismissal or Acquittal

§ 40-32-101. Destruction or release of records.

(a)
1. (1)
  1. (A)
    1. (i) All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
      1. (a) The charge has been dismissed;
      2. (b) A no true bill was returned by a grand jury; or
      3. (c) The person was arrested and released without being charged.
    2. (ii)
      1. (a) Except as provided in subdivision (a)(1)(A)(ii)(b), all public records of a person who has been charged with an implied consent violation under § 55-10-406 must, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person if the violation was dismissed without cost.
      2. (b) A person is not eligible for expunction under subdivision (a)(1)(A)(ii)(a) if, at the time of the offense of the implied consent violation, the person held:
        
        (1) A commercial driver license or a commercial learner permit, as defined in § 55-50-102, and the offense was committed within a motor vehicle, as defined in § 55-50-102; or
        
        (2) Any driver license and the offense was committed within a commercial motor vehicle, as defined in § 55-50-102.
    3. (iii) The charge has been abated by death, in which case, notwithstanding this subdivision (a)(1)(A) to the contrary, a personal representative of the decedent may file the petition.
  2. (B) A person applying for the expunction of records because the charge or warrant was dismissed in any court as a result of the successful completion of a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, shall be charged the appropriate clerk's fee pursuant to § 8-21-401, if applicable, for destroying such records.
  3. (C)
    1. (i) If a person seeking expunction pursuant to subdivision (a)(1)(A) was arrested or charged due to a case of mistaken identity, the person may provide evidence of the relevant circumstances in the petition and request that the court order the expunction to be expedited. If the court finds that the person was arrested or charged due to mistaken identity, the court shall order the Tennessee bureau of investigation and any other entity that performs expunction to expunge the records of the person in an expedited manner.
    2. (ii) As used in this subdivision (a)(1)(C), “mistaken identity” means during the investigation of a criminal offense, a person has been arrested, charged, or indicted for a criminal act and subsequent investigation has revealed that the person arrested was not the individual the arresting officer believed the person to be.
  4. (D) Notwithstanding subdivision (a)(1)(B) or (a)(6), the records of a person who successfully completes a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, or a judicial diversion program pursuant to § 40-35-313, shall not be expunged pursuant to this section, if the offense for which the person was diverted was a sexual offense as defined by § 40-39-202, or a violent sexual offense as defined by § 40-39-202.
  5. (E)
    1. (i) Except as provided in subdivision (a)(1)(E)(ii) and in subsection (j), a person is not entitled to the expunction of such person's records if:
      1. (a) The person is charged with an offense, is not convicted of the charged offense, but is convicted of an offense relating to the same criminal conduct or episode as the charged offense, including a lesser included offense; provided, however, any moving or nonmoving traffic offense shall not be considered an offense as used in this subdivision (a)(1)(E)(i); or
      2. (b) The person is charged with multiple offenses or multiple counts in a single indictment and is convicted of:
        
        (1) One (1) or more of the charged offenses or counts in the indictment; or
        
        (2) An offense relating to the same criminal conduct or episode as one (1) of the offenses charged in the indictment, including a lesser included offense.
    2. (ii) Subdivision (a)(1)(E)(i) does not apply if the person is a victim of a human trafficking offense, the conviction is a result of victimization, and the person is applying for expunction relief under § 40-32-105.
  6. (F) Upon a verdict of not guilty being returned, whether by a judge following a bench trial or by a jury, on all charges for which the defendant was accused, the judge shall inquire of the person acquitted whether such person requests that all public records associated with the charges for which such person was acquitted be removed and destroyed without cost to the person and without the requirement that the person petition for destruction of such records. If the person requests that the public records related to such charges be removed and destroyed, the court shall so order. If the person acquitted does not request that such records be destroyed at the time the judge inquires pursuant to this subdivision (a)(1)(F), but subsequently requests that such records be destroyed, the person shall be required to follow the petition procedure set out in this section.
2. (2) All public records of a person required to post bond under § 38-3-109 or § 38-4-106 [repealed] shall be removed and destroyed as required by this chapter upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.
3. (3) Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.
  Backlinks (5)
  
  40-35-313(b)
  40-35-313(c)
  55-10-411(c)
  55-50-504(e)
  55-50-504(f)
4. (4) For purposes of this section, “court” includes any juvenile court exercising juvenile court jurisdiction over an adult who is charged with an offense that was committed when the person was eighteen (18) years of age or older.
5. (5) All public records concerning an order of protection authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.
6. (6) Except as provided in subsection (f), it is the intent of this section that a person is entitled to the expunction of public records in a criminal case only if the person successfully completes a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107 or a judicial diversion program pursuant to § 40-35-313, the charges against such person are dismissed, or the person is entitled to have all public records removed and destroyed by reason of one (1) of the results specified in this section.
(b)
1. (1) “Public records,” for the purpose of expunction only, does not include arrest histories, investigative reports, intelligence information of law enforcement agencies, or files of district attorneys general that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public and shall also not include records of the department of children's services or department of human services that are confidential under state or federal law and that are required to be maintained by state or federal law for audit or other purposes. Whenever an order of expunction issues under this section directed to the department of children's services or department of human services, the department shall notify the defendant if there are records required to be maintained as directed above and the basis therefor. The department shall delete identifying information in these records whenever permitted by state or federal law. These records are to be expunged whenever their maintenance is no longer required by state or federal law.
2. (2) “Public records”, for the purpose of expunction only, does not include appellate court records or appellate court opinions.
3. (3) “Public records”, for the purpose of expunction only, does not include signed orders of expunction that are maintained as confidential records and are not open for inspection by members of the public.
Backlinks (2)
- 16-18-302(a)(3)(C)
- 40-35-313(b)
(c)
1. (1) Release of confidential records or information contained therein other than to law enforcement agencies for law enforcement purposes shall be a Class A misdemeanor.
2. (2) This section shall not be construed to deny access to any record to the comptroller of the treasury or the comptroller of the treasury's agent for purposes of audit investigation; the comptroller of the treasury or the comptroller of the treasury's agent having this access shall protect the confidential nature of the records that are not otherwise public under other statutes.
3. (3) Release of arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding shall be made to the attorney upon request.
4. (4) Notwithstanding this section to the contrary, a court entering an order of expunction may release a copy of the order of expunction to the petitioner.
(d) A court ordering the expunction of a person's public records of a criminal offense, including orders issued as a result of the successful completion of a diversion program, pursuant to §§ 40-15-105 and 40-15-106 or judicial diversion program, shall send or cause to be sent a copy of the expunction order to the Tennessee bureau of investigation within thirty (30) days from the date of the expunction order for entry into its expunged offender and pretrial diversion database. The order must contain the name of the person seeking expunction, the person's date of birth and social security number, the offense that was dismissed, the appropriate state control number as referenced in § 8-4-115, the date and cause of the dismissal, and the date the order of expunction is entered.
Backlinks (1)
- 16-3-810
(e) It is the intent of the general assembly that no fee ever be charged a person who is petitioning a court for expunction of records because:
1. (1) The charge against the person was dismissed for a reason other than the successful completion of a diversion program pursuant to §§ 40-15-102 — 40-15-106 or § 40-35-313;
2. (2) A no true bill was returned by a grand jury;
3. (3) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
4. (4) The person was arrested and released without being charged.
(f)
1. (1) All public records of a person who has been charged and convicted with a misdemeanor or felony while protesting or challenging a state law or municipal ordinance whose purpose was to maintain or enforce racial segregation or racial discrimination shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
  1. (A) The charge has been dismissed;
  2. (B) A no true bill was returned by a grand jury;
  3. (C) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury;
  4. (D) The person was arrested and released, without being charged; or
  5. (E)
    1. (i) Thirty-seven (37) years or more have elapsed since the date of conviction for the offense being expunged and the petitioner has not been convicted of any other offense, excluding minor traffic violations, during that period of time;
    2. (ii) Any period of supervision due to conviction has been completed;
    3. (iii) The offense was a misdemeanor, Class C, D or E felony not otherwise excluded pursuant to subdivision (f)(1)(E)(iv), or, if committed prior to November 1, 1989, would be an included Class C, D, or E felony if committed after November 1, 1989;
    4. (iv) The offense was not a Class A or Class B felony or a Class C felony described in § 40-15-105(a)(1)(B)(iii), a sexual offense described in § 40-15-105(a)(1)(B)(ii), or an offense prohibited by title 55, chapter 10, part 4, vehicular assault as prohibited by § 39-13-106, or if committed prior to November 1, 1989, would not be an excluded offense if committed after November 1, 1989; and
    5. (v) The district attorney general is served a copy of the petition for expunction by certified mail, return receipt requested, and the district attorney general does not file an objection with the court within twenty (20) calendar days of receipt of the petition.
2. (2) All public records of a person required to post bond under § 38-3-109 shall be removed and destroyed as required by this section upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.
3. (3) Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.
4. (4) If the person charged or convicted is deceased, the petition may be filed by a person who is able to establish legal authority to act on the behalf of the deceased person.
5. (5) Notwithstanding any law to the contrary, upon request of the petitioner, records or documents subject to the destruction requirement of this subsection (f) that are utilized exclusively for education purposes and are displayed in public museums, libraries, and buildings are exempt from the destruction requirement.
(g)
1. (1) Except as provided in subdivision (g)(15), as used in this subsection (g), “eligible petitioner” means:
  1. (A) A person who was convicted of one of the following Class E felonies committed on or after November 1, 1989:
    1. (i) Section 39-11-411 — Accessory after the fact;
    2. (ii) Section 39-13-306 — Custodial interference where person not voluntarily returned by defendant;
    3. (iii) Section 39-13-604(c)(2) — Knowing dissemination of illegally recorded cellular communication;
    4. (iv) Section 39-14-105(a)(2) — Theft;
    5. (v) Section 39-14-114(c) — Forgery;
    6. (vi) Section 39-14-115 — Criminal simulation;
    7. (vii) Section 39-14-116(c) — Hindering secured creditors;
    8. (viii) Section 39-14-117(b) — Fraud in insolvency;
    9. (ix) Section 39-14-118 — Fraudulent use of credit card or debit card;
    10. (x) Section 39-14-121 — Worthless checks;
    11. (xi) Section 39-14-130 — Destruction of valuable papers;
    12. (xii) Section 39-14-131 — Destruction or concealment of will;
    13. (xiii) Section 39-14-133 — Fraudulent or false insurance claim;
    14. (xiv) Section 39-14-137(b) — Fraudulent qualifying for set aside programs;
    15. (xv) Section 39-14-138 — Theft of trade secrets;
    16. (xvi) Section 39-14-139 — Sale of recorded live performances without consent;
    17. (xvii) Section 39-14-143 — Unauthorized solicitation for police, judicial, or safety associations;
    18. (xviii) Section 39-14-147(f) — Fraudulent transfer of motor vehicle with value of less than $20,000;
    19. (xix) Section 39-14-149 — Communication theft (fine only);
    20. (xx) Section 39-14-154 — Home improvement fraud;
    21. (xxi) Section 39-13-1002 — Burglary of an automobile;
    22. (xxii) Section 39-14-408 — Vandalism;
    23. (xxiii) Section 39-14-411 — Utility service interruption or property damage;
    24. (xxiv) Section 39-14-505 — Aggravated criminal littering (2nd and 3rd offenses involving certain weight or volume);
    25. (xxv) Section 39-14-602 — Violation of Tennessee Personal and Commercial Computer Act;
    26. (xxvi) Section 39-14-603 — Unsolicited bulk electronic mail;
    27. (xxvii) Section 39-16-201 — Taking telecommunication device into penal institution;
    28. (xxviii) Section 39-16-302 — Impersonation of licensed professional;
    29. (xxix) Section 39-16-603 — Evading arrest in motor vehicle where no risk to bystanders;
    30. (xxx) Section 39-16-609(e) — Failure to appear (felony);
    31. (xxxi) Section 39-17-106 — Gifts of adulterated candy or food;
    32. (xxxii) Section 39-17-417(f) — Manufacture, delivery, sale, or possession of Schedule V drug (fine not greater than $5,000);
    33. (xxxiii) Section 39-17-417(g)(1) — Manufacture, delivery, sale, or possession of not less than one-half ounce (½ oz.) and not more than ten pounds (10 lbs.) of Schedule VI drug marijuana (fine not greater than $2,500);
    34. (xxxiv) Section 39-17-417(h) — Manufacture, delivery, sale or possession of Schedule VII drug (fine not greater than $1,000);
    35. (xxxv) Section 39-17-418(e) — Simple possession or casual exchange (3rd offense);
    36. (xxxvi) Section 39-17-422(c) — Selling glue for unlawful purpose;
    37. (xxxvii) Section 39-17-423(c) — Counterfeit controlled substance;
    38. (xxxviii) Section 39-17-425(b)(1), (2), (3) — Unlawful drug paraphernalia uses and activities;
    39. (xxxix) Section 39-14-152 — Use of a counterfeit mark or logo;
    40. (xl) Section 39-14-903 — Money laundering offenses;
  2. (B) Except as provided in this subdivision (g)(1)(B), a person who was convicted of a misdemeanor offense committed on or after November 1, 1989. Misdemeanors excluded from consideration are:
    1. (i) Section 39-13-101(a)(1) and (2) — Assault, if the offense was committed prior to July 1, 2000;
    2. (ii) Section 39-13-102 — Aggravated assault of public employee;
    3. (iii) Section 39-13-111 — Domestic assault;
    4. (iv) Section 39-13-113(g) — Violation of protective or restraining order;
    5. (v) Section 39-13-113(h) — Possession of firearm while order of protection in effect;
    6. (vi) Section 39-13-511 — Public indecency 3rd or subsequent offense;
    7. (vii) Section 39-13-511 — Indecent exposure (victim under 13 years of age) or by person in penal institution exposing to a guard;
    8. (viii) Section 39-13-526(b)(1) and (2) — Violation of community supervision by sex offender not constituting offense or constituting misdemeanor;
    9. (ix) Section 39-13-528 — Soliciting minor to engage in Class E sexual offense;
    10. (x) Section 39-13-509 — Unlawful sexual contact by authority figure;
    11. (xi) Section 39-13-514(b)(3)(A) — Patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability;
    12. (xii) Section 39-14-304 — Reckless burning;
    13. (xiii) Section 39-14-406 — Aggravated criminal trespass of a habitation, hospital, or on the campus of any public or private school, or on railroad property;
    14. (xiv) [Former] Section 39-15-201(b)(3) [repealed] — Coercion — abortion;
    15. (xv) Section 39-15-210 — Third or subsequent violation of Child Rape Protection Act of 2006;
    16. (xvi) Section 39-15-401(a) — Child abuse (where child is between ages 7-17);
    17. (xvii) Section 39-15-401(b) — Child neglect and endangerment (where child is between ages 7-13);
    18. (xviii) Section 39-15-404 — Enticing a child to purchase intoxicating liquor — purchasing alcoholic beverage for child;
    19. (xix) Section 39-15-404 — Allowing a minor to consume alcohol on person's premises;
    20. (xx) Section 39-15-414 — Harboring or hiding a runaway child;
    21. (xxi) Section 39-17-315 — Stalking;
    22. (xxii) Section 39-17-431 — Unlawful dispensing of immediate methamphetamine precursor, sale of meth precursor to person on methamphetamine registry or purchase by someone on registry, possess meth precursor with intent to sell to another for unlawful use, purchase meth precursor for another for unlawful use, purchase meth precursor at different times and places to circumvent limits, and use false ID to purchase meth precursor for purpose of circumventing limits;
    23. (xxiii) Section 39-17-437 — Using substance or device to falsify drug test results and selling synthetic urine;
    24. (xxiv) Section 39-17-438 — Possession of the hallucinogenic plant Salvia Divinorum or the synthetic cannabinoids;
    25. (xxv) Section 39-17-452 — Sale or possession of synthetic derivatives or analogues of methcathinone;
    26. (xxvi) Section 39-17-902(a) — Importing, preparing, distributing, processing, or appearing in obscene material or Class A misdemeanors;
    27. (xxvii) Section 39-17-907 — Unlawful exhibition of obscene material;
    28. (xxviii) Section 39-17-911 — Sale or loan to minors of harmful materials;
    29. (xxix) Section 39-17-918 — Unlawful massage or exposure of erogenous areas;
    30. (xxx) Section 39-17-1307(f)(1)(A) — Possession of firearm after being convicted of misdemeanor crime of domestic violence;
    31. (xxxi) Section 39-17-1307(f)(1)(B) — Possession of firearm while order of protection is in effect;
    32. (xxxii) Section 39-17-1307(f)(1)(C) — Possession of firearm while prohibited by state or federal law;
    33. (xxxiii) Section 39-17-1312 — Failure of adult to report juvenile carrying gun in school;
    34. (xxxiv) Section 39-17-1320(a) — Nonparent providing handgun to a juvenile;
    35. (xxxv) Section 39-17-1352 — Failure to surrender handgun carry permit upon suspension;
    36. (xxxvi) Section 39-17-1363 — Violent felon owning or possessing vicious dog;
    37. (xxxvii) Section 39-13-101(a)(3) — Assault (offensive or provocative physical contact);
    38. (xxxviii) Section 39-13-511(a) — Public indecency — first or second offense (punishable by $500 fine only);
    39. (xxxix) Section 39-13-511(b)(2) — Indecent exposure (victim 13 years old or older);
    40. (xl) Section 39-15-412(b) — Disseminating smoking paraphernalia to minor after 3 prior violations;
    41. (xli) Section 39-16-404 — Misuse of official information by public servant;
    42. (xlii) Section 39-17-317 — Disorderly conduct at funerals;
    43. (xliii) Section 39-17-715 — Possession of or consuming alcoholic beverages on K-12 school premises;
    44. (xliv) Section 39-17-914 — Display for sale or rental of material harmful to minors; and
    45. (xlv) Section 55-10-401 — Driving under the influence of an intoxicant;
  3. (C) A person who was convicted of a felony or misdemeanor committed prior to November 1, 1989, if:
    1. (i) The person has never had a previous conviction expunged as the result of the successful completion of a diversion program pursuant to §§ 40-15-102 — 40-15-106 or § 40-35-313; and
    2. (ii) The offense for which the person was convicted:
      1. (a) Did not have as an element the use, attempted use, or threatened use of physical force against the person of another;
      2. (b) Did not involve, by its nature, a substantial risk that physical force against the person of another would be used in the course of committing the offense;
      3. (c) Did not involve the use or possession of a deadly weapon;
      4. (d) Was not a sexual offense for which the offender is required to register as a sexual offender or violent sexual offender under chapter 39, part 2 of this title; or any sexual offense involving a minor;
      5. (e) Did not result in the death, serious bodily injury, or bodily injury of a person;
      6. (f) Did not involve the use of alcohol or drugs and a motor vehicle;
      7. (g) Did not involve the sale or distribution of a Schedule I controlled substance or a Schedule II controlled substance in an amount listed in § 39-17-417(i);
      8. (h) Did not involve a minor as the victim of the offense; and
      9. (i) Did not result in causing the victim or victims to sustain a loss of sixty thousand dollars ($60,000) or more;
  4. (D) A person who was convicted of one (1) of the following Class D felonies committed on or after November 1, 1989:
    1. (i) Section 39-14-103 — Theft of property;
    2. (ii) Section 39-14-104 — Theft of services;
    3. (iii) Section 39-14-112 — Extortion;
    4. (iv) Section 39-14-114 — Forgery;
    5. (v) Section 39-14-115 — Criminal simulation;
    6. (vi) Section 39-14-118 — Illegal possession or fraudulent use of credit card or debit card;
    7. (vii) Section 39-14-121 — Worthless checks;
    8. (viii) Section 39-14-130 — Destruction of valuable papers;
    9. (ix) Section 39-14-133 — False or fraudulent insurance claims;
    10. (x) Section 39-14-137 — Fraudulent qualifying for set-aside programs;
    11. (xi) Section 39-14-138 — Theft of trade secrets;
    12. (xii) Section 39-14-139 — Sale of recorded live performances without consent;
    13. (xiii) Section 39-14-147 — Fraudulent transfer of motor vehicle valued at twenty thousand dollars ($20,000) or more;
    14. (xiv) Section 39-14-149 — Communication theft;
    15. (xv) Section 39-14-150(b) — Identity theft;
    16. (xvi) Section 39-14-152 — Use of a counterfeit mark or logo;
    17. (xvii) Section 39-14-154 — Home improvement fraud;
    18. (xviii) Section 39-14-402 or 39-13-1002 [as applicable] — Burglary — other than habitation or automobile;
    19. (xix) Section 39-14-408 — Vandalism;
    20. (xx) Section 39-14-602(a)-(c) — Violation of Tennessee Personal and Commercial Computer Act;
    21. (xxi) Section 39-14-603 — Unsolicited bulk electronic mail;
    22. (xxii) Section 39-16-502(a)(1) or (a)(2) — False report to law enforcement not involving bomb, fire, or emergency;
    23. (xxiii) Section 39-17-417(d) — Manufacture, deliver, sale, or possession of Schedule III drug (fine not greater than fifty thousand dollars ($50,000));
    24. (xxiv) Section 39-17-417(e) — Manufacture, deliver, sale, or possession of Schedule IV drug (fine not greater than fifty thousand dollars ($50,000));
    25. (xxv) Section 39-17-417(g)(2) — Manufacture, deliver, sale, or possession of certain Schedule VI drugs (fine not greater than fifty thousand dollars ($50,000));
    26. (xxvi) Section 39-17-430 — Prescribing or selling steroid for unlawful purpose;
    27. (xxvii) Section 39-17-433 — Promoting manufacture of methamphetamine;
    28. (xxviii) Section 39-17-438 — Produce, manufacture, delivery, sale, or possession of hallucinogenic plant salvia divinorum or the synthetic cannabinoids (first violation);
    29. (xxix) Section 39-17-454(c) — Manufacture, deliver, dispense, sell, or possess with intent to manufacture, deliver, dispense, or sell a controlled substance analogue (first violation);
    30. (xxx) Section 39-17-607(a) — Making counterfeit or altering lottery ticket (fine not greater than fifty thousand dollars ($50,000));
    31. (xxxi) Section 39-17-608 — Making material false statement on lottery application or record;
    32. (xxxii) Section 39-17-654(c) — Unauthorized person conducting charitable gaming event; and
    33. (xxxiii) Section 53-11-402(a)(3) — Drug fraud;
  5. (E) A person who was convicted of one (1) of the following Class C felonies committed on or after November 1, 1989:
    1. (i) Section 39-14-103 — Theft of property;
    2. (ii) Section 39-14-104 — Theft of services;
    3. (iii) Section 39-14-114 — Forgery;
    4. (iv) Section 39-14-115 — Criminal simulation;
    5. (v) Section 39-14-118 — Illegal possession or fraudulent use of a credit card or debit card;
    6. (vi) Section 39-14-121 — Worthless checks;
    7. (vii) Section 39-14-130 — Destruction of valuable papers;
    8. (viii) Section 39-14-133 — Fraudulent or false insurance claims;
    9. (ix) Section 39-14-137 — Fraudulent qualifying for set-aside programs;
    10. (x) Section 39-14-138 — Theft of trade secrets;
    11. (xi) Section 39-14-139 — Sale of recorded live performances without consent;
    12. (xii) Section 39-14-149 — Communication theft;
    13. (xiii) Section 39-14-150(c) — Identity theft trafficking;
    14. (xiv) Section 39-14-152 — Use of a counterfeit mark or logo;
    15. (xv) Section 39-14-154 — Home improvement fraud;
    16. (xvi) Section 39-14-408 — Vandalism;
    17. (xvii) Section 39-14-602(b)(5) — Violation of Tennessee Personal and Commercial Computer Act;
    18. (xviii) Section 39-14-603 — Unsolicited bulk electronic mail;
    19. (xix) Section 39-14-804 — Theft of animal from or damage to an animal facility;
    20. (xx) Section 39-17-417(c) — Manufacture, deliver, sale, or possession of Schedule II drug, including cocaine or methamphetamine in an amount less than point five (0.5) grams (fine not greater than one hundred thousand dollars ($100,000));
    21. (xxi) Section 39-17-417(e) — Manufacture, deliver, sale, or possession of flunitrazepam (fine not greater than one hundred thousand dollars ($100,000));
    22. (xxii) Section 39-17-417(g)(3) — Manufacture, deliver, sale, or possession of Schedule VI controlled substance (fine not greater than one hundred thousand dollars ($100,000));
    23. (xxiii) Section 39-17-454(c) — Manufacture, delivery, dispense, or sale or possession with the intent to manufacture, deliver, dispense, or sale of a controlled substance analogue (second or subsequent violation); and
    24. (xxiv) Section 39-17-607(b) — Influencing or attempting to influence lottery; or
  6. (F) A person who was convicted of more than one (1) of the offenses listed in this subdivision (g)(1), if the conduct upon which each conviction is based occurred contemporaneously, occurred at the same location, represented a single continuous criminal episode with a single criminal intent, and all such convictions are eligible for expunction under this part. The offenses of a person who is an eligible petitioner under this subdivision (g)(1)(F) shall be considered a single offense for the purposes of this section so that the person is eligible for expunction consideration if all other requirements are met.
2. (2) An eligible petitioner under subdivision (g)(1) may file a petition for expunction of that person's public records involving a criminal offense eligible for expunction if:
  1. (A)
    1. (i) The offense for which the person is seeking expunction is any offense that occurred prior to any conviction for a criminal offense that is ineligible for expunction, including convictions for federal offenses and offenses in other states that would be ineligible for expunction in this state; provided, that a moving or nonmoving traffic offense shall not be considered an offense as used in this subdivision (g)(2)(A)(i); and
    2. (ii) The person has not previously been granted expunction under this subsection (g), subsection (k), or subsection (m) for another criminal offense;
  2. (B) At the time of the filing of the petition for expunction at least:
    1. (i) Five (5) years have elapsed since the completion of the sentence imposed for the offense the person is seeking to have expunged, if the offense is a misdemeanor or Class E felony; or
    2. (ii) Ten (10) years have elapsed since the completion of the sentence imposed for the offense the person is seeking to have expunged, if the offense is a Class C or D felony; and
  3. (C) The person has fulfilled all the requirements of the sentence imposed by the court in which the individual was convicted of the offense, including:
    1. (i) Payment of all fines, restitution, court costs, and other assessments;
    2. (ii) Completion of any term of imprisonment or probation;
    3. (iii) Meeting all conditions of supervised or unsupervised release; and
    4. (iv) If so required by the conditions of the sentence imposed, remaining free from dependency on or abuse of alcohol or a controlled substance or other prohibited substance for a period of not less than one (1) year.
3. (3) A person seeking expunction shall petition the court in which the petitioner was convicted of the offense sought to be expunged is filed. Upon filing of the petition, the clerk shall serve the petition on the district attorney general for that judicial district. Not later than sixty (60) days after service of the petition, the district attorney may submit recommendations to the court and provide a copy of such recommendations to the petitioner.
  Backlinks (1)
  
  38-6-118(d)(2)
4. (4)
  1. (A) Both the petitioner and the district attorney general may file evidence with the court relating to the petition.
  2. (B) The district attorney general may file evidence relating to the petition under seal for review by the court. Evidence filed under seal by the district attorney general is confidential and is not a public record.
5. (5)
  1. (A) The court shall enter an order granting or denying the petition no sooner than sixty-one (61) days after service of the petition upon the district attorney general. Prior to entering an order on the petition, the court shall review and consider all evidence submitted by the petitioner and the district attorney general, including any evidence submitted by the district attorney general under seal pursuant to subdivision (g)(4)(B).
  2. (B) In making a decision on the petition, the court shall weigh the interest of the petitioner against the best interests of justice and public safety; provided, that if the petitioner is an eligible petitioner pursuant to subdivision (g)(1)(A), (g)(1)(B), (g)(1)(C), (g)(1)(D), or (g)(1)(E) and meets the requirements of subdivision (g)(2), then there is a rebuttable presumption that the petition should be granted.
6. (6) If the court denies the petition, the petitioner may not file another such petition until at least two (2) years from the date of the denial.
7. (7) The district attorneys general conference shall, by September 1, 2012, create a simple form to enable a lay person to petition the court for expunction under this subsection (g).
8. (8) The petition and proposed order shall be prepared by the office of the district attorney general and given to the petitioner to be filed with the clerk of the court. A petitioner shall be entitled to a copy of the order of expunction and such copy shall be sufficient proof that the person named in the order is no longer under any disability, disqualification or other adverse consequence resulting from the expunged conviction.
9. (9) [Deleted by 2019 amendment.]
  Backlinks (1)
  
  40-32-105(k)
10. (10) There is created within the district attorneys general conference a district attorneys expunction fund. Moneys in the district attorneys expunction fund shall be used to defray the expense incurred for the required record search and preparation of the petition and the proposed order of expunction under this subsection (g) or subsection (h). Any remaining moneys in the district attorneys expunction fund may be used by the district attorneys generals for law enforcement purposes, including, but not limited to, the hiring of expert witnesses, training, matching federal grants directly related to prosecutorial duties, the purchase of equipment and supplies necessary to carry out prosecutorial functions, the expenses of travel in the performance of official duties of the office, provided all reimbursement for travel expenses shall be in accordance with the provisions of the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter, salaries and salary supplements, which may only be paid through the district attorneys general conference for support staff. Such payments shall be subject to the limitation of § 40-3-209(b) on the use of any funds to supplement the salary of any assistant district attorney. Moneys in the district attorneys expunction fund shall not revert to the general fund but shall be carried forward into the subsequent fiscal year. All funds in the district attorneys expunction fund shall be subject to annual audit by the comptroller of the treasury.
11. (11) There is created within the state treasury a public defenders expunction fund. Moneys in the public defenders expunction fund shall be used to defray the expense incurred by conducting the educational activities required pursuant to this subsection (g). Subject to annual appropriation, any remaining moneys in the public defenders expunction fund may be used in furtherance of the services and programs provided by public defenders for each judicial district. Moneys in the public defenders expunction fund shall not revert to the general fund but shall be carried forward into the subsequent fiscal year.
12. (12)
  1. (A) Notwithstanding any other law to the contrary, an order of expunction granted pursuant to this subsection (g) or subsection (h) entitles the petitioner to have all public records of the expunged conviction destroyed in the manner set forth in this section.
  2. (B) Additionally, such an expunction has the legal effect of restoring the petitioner, in the contemplation of the law, to the same status occupied before the arrest, indictment, information, trial and conviction. Once the expunction order is granted, no direct or indirect collateral consequences that are generally or specifically attendant to the petitioner's conviction by any law shall be imposed or continued.
  3. (C) A petitioner with respect to whom an order has been granted under this subsection (g) or subsection (h) shall not be guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge the arrest, indictment, information, trial or conviction in response to any inquiry made of the petitioner for any purpose.
  4. (D) Expunction under this subsection (g) or subsection (h) means, in contemplation of law, the conviction for the expunged offense never occurred and the person shall not suffer any adverse effects or direct disabilities by virtue of the criminal offense that was expunged.
  5. (E) Notwithstanding § 39-17-1307(b)(1)(B) and (c), a petitioner whose petition is granted pursuant to this subsection (g) or subsection (h), and who is otherwise eligible under state or federal law to possess a firearm, shall be eligible to purchase a firearm pursuant to § 39-17-1316 and apply for and be granted a handgun carry permit pursuant to § 39-17-1351.
13. (13) The clerk of the court maintaining records expunged pursuant to this subsection (g) or subsection (h) shall keep such records confidential. These records shall not be public and can only be used to enhance a sentence if the petitioner is subsequently charged and convicted of another crime. This confidential record is only accessible to the district attorney general, the defendant, the defendant's attorney and the circuit or criminal court judge.
14. (14) [Deleted by 2019 amendment.]
15. (15) A person is not an eligible petitioner for purposes of this subsection (g) if the person was convicted of an offense involving the manufacture, delivery, sale, or possession of a controlled substance and at the time of the offense the person held:
  1. (A) A commercial driver license, as defined in § 55-50-102, and the offense was committed within a motor vehicle, as defined in § 55-50-102; or
  2. (B) Any driver license and the offense was committed within a commercial motor vehicle, as defined in § 55-50-102.
Backlinks (1)
- 40-32-105(b)(6)(C)(i)
(h)
1. (1) For purposes of this subsection (h), “eligible petitioner” means a person who was convicted of a nonviolent crime if the person:
  1. (A) Petitioned the court in which the petitioner was convicted of the offense and the judge finds that the offense was a nonviolent crime;
  2. (B) Petitioned for and received a positive vote from the board of parole to receive a pardon; and
  3. (C) Received a pardon by the governor.
2. (2) Notwithstanding the provisions of this section, effective July 1, 2013, an eligible petitioner under subdivision (h)(1) may file a petition for expunction of that person's public records involving the crime. The procedures in subdivisions (g)(3)-(6), (8), (12) and (13) will apply to a petitioner under this subsection (h).
(i) A person applying for expunction of records pursuant to this section or § 40-35-313 shall be charged the appropriate court clerk's fee pursuant to § 8-21-401, if applicable, unless the person is entitled to have such records removed and destroyed without cost to the person.
(j) A person who is ineligible for expunction of the person's records pursuant to subdivision (a)(1)(E) shall, upon petition by that person to the court having jurisdiction in the previous action, be entitled to removal of public records from electronic databases, as provided in this subsection (j), relating to the person's arrest, indictment, charging instrument, or disposition for any charges other than the offense for which the person was convicted. The public records shall be removed from the relevant electronic databases of the national crime information center system and similar state databases, and the person shall be entered into the Tennessee bureau of investigation's expunged criminal offender and pretrial diversion database with regard to the offenses removed pursuant to this subsection (j). The public records shall also be removed from any public electronic database maintained by a court clerk. Nothing in this subsection (j) shall require court clerks to expunge records relating to an offense for which the person was convicted. Court clerks shall not be liable for any errors or omissions relating to the removal and destruction of records under this section.
(k)
1. (1) Notwithstanding subdivision (g)(2), for purposes of this subsection (k), an “eligible petitioner” means a person who is seeking expunction of no more than two (2) offenses and:
  1. (A) Each of the offenses for which the petitioner seeks expunction:
    1. (i) Are offenses that are eligible for expunction under subdivision (g)(1); and
    2. (ii) Occurred prior to any conviction for a criminal offense that is ineligible for expunction, including convictions for federal offenses and offenses in other states that would be ineligible in this state; provided, that a moving or nonmoving traffic offense shall not be considered an offense as used in this subdivision (k)(1)(A);
  2. (B) The offenses were:
    1. (i) Two (2) misdemeanors; or
    2. (ii) One (1) felony and one (1) misdemeanor;
  3. (C) At the time of the filing of the petition for expunction at least:
    1. (i) Five (5) years have elapsed since the completion of the sentence imposed for any misdemeanor or Class E felony the person is seeking to have expunged; and
    2. (ii) Ten (10) years have elapsed since the completion of the sentence imposed for any Class C or D felony offense the person is seeking to have expunged;
  4. (D) The person has fulfilled all the requirements of the sentences imposed by the court for each offense the petitioner is seeking to expunge, including:
    1. (i) Payment of all fines, restitution, court costs, and other assessments for each offense;
    2. (ii) Completion of any term of imprisonment or probation for each offense;
    3. (iii) Meeting all conditions of supervised or unsupervised release for each offense; and
    4. (iv) Remaining free from dependency on or abuse of alcohol or a controlled substance or other prohibited substance for a period of not less than one (1) year, if so required by the conditions of any of the sentences imposed; and
  5. (E) The person has not previously been granted expunction under subsection (g), this subsection (k), or subsection (m) for another criminal offense.
2. (2) [Deleted by 2024 amendment.]
3. (3) [Deleted by 2019 amendment.]
4. (4) Subdivisions (g)(3)-(6), (8), (12), and (13) shall apply to a petition filed under this subsection (k).
5. (5) If a person was convicted of more than one (1) offense listed in subdivision (g)(1) and the conduct upon which each conviction is based occurred contemporaneously, occurred at the same location, represented a single continuous criminal episode with a single criminal intent, and all such convictions are eligible for expunction under this part, then such convictions shall be considered a single offense for purposes of subdivision (k)(1).
(l) For purposes of this section, and as the context requires, “offense” or “criminal offense” includes an implied consent violation under § 55-10-406.
(m)
1. (1) Notwithstanding subsections (g) and (k), effective July 1, 2023, for purposes of this subsection (m), an “eligible petitioner” means a person who was convicted of a violation of § 2-19-107 – illegal registration or voting, if:
  1. (A) At the time of the filing of the petition for expunction, at least fifteen (15) years have elapsed since the completion of the sentence imposed for the offense the person is seeking to have expunged;
  2. (B) The person has fulfilled all requirements of the sentence imposed by the court for the offense the petitioner is seeking to expunge, including:
    1. (i) Payment of all fines, restitution, court costs, and other assessments for the offense;
    2. (ii) Completion of any term of imprisonment or probation for the offense; and
    3. (iii) Meeting all conditions of supervised or unsupervised release for the offense;
  3. (C) The offense for which the person is seeking expunction occurred prior to any conviction for a criminal offense that is ineligible for expunction, including convictions for federal offenses and offenses in other states that would be ineligible for expunction in this state; provided, that a moving or nonmoving traffic offense shall not be considered an offense as used in this subdivision (m)(1)(C); and
  4. (D) The person has not previously been granted expunction under subsection (g) or subsection (k) for another criminal offense.
2. (2) A person may petition for expunction of an offense under this subsection (m) only one (1) time.
3. (3) Subdivisions (g)(3)-(6), (8), (12), and (13) apply to a petition filed under this subsection (m).
(n)
1. (1) The Tennessee bureau of investigation (TBI) shall develop a request for certification form to be completed by the court and submitted to the TBI prior to entering an order of expunction. The court is not required to submit a certificate to the TBI if the expungement is pursuant to subdivision (a)(1)(A) or (a)(3), or subsection (o). The certificate must contain the name of the person seeking expunction, the person's date of birth and social security number, the offense which the person is seeking to have expunged, the date of arrest, and the appropriate state control number as referenced in § 8-4-115. The TBI shall provide access to the certificate to each clerk that accepts petitions for expunction.
2. (2) After receiving a request for certification, the TBI shall determine if the submitted offense is eligible for expunction pursuant to this section or § 40-32-105 and note the determination on the certificate. The TBI shall provide the court with a copy of the certificate containing the determination. The certificate may also be distributed to the district attorney and the defendant or the defendant's attorney.
3. (3) An order of expunction shall not be entered by the court on or after January 1, 2024, unless a certificate, as required by this subsection (n), is attached to the order of expunction.
4. (4) The certificate provided by the TBI pursuant to subdivision (n)(2) is only a certification as to whether the submitted offense is eligible for expunction. The certification is not a certification that the defendant is eligible for expunction, and the court continues to have the duty to determine eligibility. The TBI shall not be required to search any other source or database in order to make the certification required by this subsection (n).
(o)
1. (1) A person may petition for expunction of the person's arrest record if the court with jurisdiction over the offense for which the person was arrested has no history of the person's arrest for the offense within the court's records. Upon filing of the petition, the clerk shall serve the petition on the district attorney general for that judicial district.
2. (2) Both the petitioner and the district attorney general may file evidence with the court relating to the petition.
3. (3) The clerk's office shall search the court's records and certify to the court whether there is any history of the person's arrest for the offense at issue within the court's records.
4. (4) Prior to entering an order on the petition, the court shall review and consider the clerk's certification and all evidence submitted by the petitioner and the district attorney general. The court may enter an order of expunction of the arrest record if the court finds that there is no history of the person's arrest for the offense within the court's record.
5. (5) A person petitioning the court for expunction pursuant to this subsection (o) shall be charged the appropriate clerk's fee pursuant to § 8-21-401, if applicable.

Backlinks (12)

History (59)

Acts 1973, ch. 318, § 1
1975, ch. 193, § 1
1976, ch. 790, § 1
1977, ch. 161, § 1
1978, ch. 736, § 1
1980, ch. 892, § 1, 2
1982, ch. 756, § 1
T.C.A., §§ 40-2109, 40-4001
Acts 1987, ch. 335, §§ 1-4
T.C.A., § 40-15-106
Acts 1996, ch. 1079, § 127
1997, ch. 455, § 1
1998, ch. 1036, § 1
1998, ch. 1099, § 7
1999, ch. 496, § 1
2000, ch. 645, §§ 3, 5
2000, ch. 664, §§ 1-3
2002, ch. 495, §§ 1-4
2003, ch. 50, § 1
2003, ch. 175, § 1
2005, ch. 429, § 12
2006, ch. 650, §§ 1, 3
2007, ch. 363, § 2
2010, ch. 951, §§ 1, 2
2012, ch. 951, §§ 1-3
2012, ch. 1041, § 3
2012, ch. 1103, §§ 1, 2
2013, ch. 384, §§ 1, 2
2013, ch. 443, §§ 1-3
2014, ch. 671, §§ 1-4
2014, ch. 1008, § 1
2015, ch. 89, §§ 1, 2
2015, ch. 278, §§ 1, 2
2015, ch. 295, § 2
2016, ch. 893, § 1
2016, ch. 960, § 1
2017, ch. 199, §§ 7, 8
2017, ch. 298, § 1
2017, ch. 358, § 1
2017, ch. 456, §§ 1-4
2017, ch. 487, § 1
2018, ch. 586, § 3
2018, ch. 876, § 1
2019, ch. 200, §§ 1-3, 5-9
2021, ch. 361, § 1
2021, ch. 430, § 3
2021, ch. 494, § 1
2021, ch. 539, §§ 5-16
2021, ch. 545, § 5
2022, ch. 677, § 1
2022, ch. 1027, § 1
2022, ch. 1115, § 15
2023, ch. 43, § 1
2023, ch. 137, §§ 1, 2
2023, ch. 315, § 1
2023, ch. 330, § 1
2023, ch. 392, § 1
2024, ch. 962, §§ 1-5
2024, ch. 992, §§ 2, 3.

§ 40-32-102. Officials required to destroy.

(a) The chief administrative official of a municipal, county, or state agency and the clerk of each court where the records are recorded shall remove and destroy the records within sixty (60) days from the date of the expunction order issued under § 40-32-101.
(b) The Tennessee bureau of investigation shall remove expunged records from the person's criminal history within sixty (60) days from the date of receipt of the expunction order.

History (4)

Acts 1973, ch. 318, § 2
1978, ch. 641, § 1
T.C.A., § 40-4002
Acts 2015, ch. 295, § 1.

§ 40-32-103. Prior charges.

This chapter applies to those persons charged with a misdemeanor or a felony prior to July 1, 1973, if the person petitions to the court having jurisdiction in the previous action as provided in § 40-32-101.

History (2)

Acts 1973, ch. 318, § 3
T.C.A., § 40-4003.

§ 40-32-104. Penalties.

Any person who violates this chapter commits a Class A misdemeanor and shall be fined not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000) and imprisoned in the county jail or workhouse not less than thirty (30) days and not more than eleven (11) months and twenty-nine (29) days.

History (3)

Acts 1973, ch. 318, § 4
T.C.A., § 40-4004
Acts 1989, ch. 591, §§ 1, 6.

§ 40-32-105. Expunction of person's public records involving offenses related to status as victim of human trafficking.

(a) Notwithstanding § 40-32-101, a person may file a petition for expunction of that person's public records involving offenses related to the person's status as a victim of human trafficking.
(b) In order to be eligible for expunction pursuant to this section, the petitioner must meet the following requirements:
1. (1) At the time of the filing of the petition for expunction at least one (1) year has elapsed since the completion of the sentence imposed for the petitioner's most recent criminal offense;
2. (2) The petitioner has fulfilled the following requirements of the sentence imposed by any court in which the individual was convicted of an offense:
  1. (A) Completion of any term of imprisonment or probation;
  2. (B) Meeting all conditions of supervised or unsupervised release; and
  3. (C) If so required by the conditions of any of the sentences imposed, remaining free from dependency on or abuse of alcohol or a controlled substance or other prohibited substance for a period of not less than one (1) year;
3. (3) The petitioner has not been convicted of any criminal offense during the one (1) year prior to filing the petition and is not subject to any pending criminal charges;
4. (4) [Deleted by 2022 amendment.]
5. (5) The petitioner has not had public records previously expunged pursuant to this section;
6. (6) The convictions to be expunged:
  1. (A) Did not have as an element the use, attempted use, or threatened use of physical force against the person of another;
  2. (B) Did not involve the use or possession of a deadly weapon; and
  3. (C) Are:
    1. (i) Individually eligible for expunction under § 40-32-101(g); or
    2. (ii) For the offense of aggravated prostitution, under § 39-13-516; and
7. (7) Each of the convictions to be expunged resulted from the petitioner's status as a victim of human trafficking, under § 39-13-314. The petitioner may provide evidence of this requirement by testimony or affidavit. This subdivision (b)(7) does not require a conviction for an offense of which the petitioner was the victim. Any offense to be expunged must have occurred on or after the date on which the petitioner became a victim of human trafficking, as determined by the court.
(c) A person seeking expunction pursuant to this section must petition the court in which the person was most recently convicted of an offense. Upon filing of the petition, the clerk must serve the petition on the district attorneys general for each jurisdiction in which the petitioner has been convicted of an offense that is to be expunged. Not later than sixty (60) days after service of the petition, the district attorneys general may submit recommendations to the court and provide a copy of such recommendations to the petitioner.
(d) Both the petitioner and the district attorneys general may file evidence with the court relating to the petition. If necessary, the court may schedule a hearing for the purpose of taking testimony from the petitioner and any other interested persons. In making a decision on the petition, the court shall consider all evidence and weigh the interests of the petitioner against the best interests of justice and public safety.
(e) If the court determines that the petitioner meets the requirements of subsection (b) and that the expunction is in the best interests of justice and public safety, the court shall order the person's records involving convictions resulting from the person's status as a victim of human trafficking expunged.
(f) If the court denies the petition, the petitioner may not file another such petition until at least two (2) years from the date of the denial.
(g) The district attorneys general conference shall create, by September 1, 2019, a simple form to enable a lay person to petition the court for expunction under this section.
(h) The petition and proposed order must be prepared by the office of the district attorney general and given to the petitioner to be filed with the clerk of the court. A petitioner is entitled to a copy of the order of expunction and such copy is sufficient proof that the person named in the order is no longer under any disability, disqualification, or other adverse consequence resulting from the expunged convictions.
(i)
1. (1) Notwithstanding any other law to the contrary, an order of expunction granted pursuant to this section entitles the petitioner to have all public records of the expunged convictions destroyed in the manner set forth in this section.
2. (2) An expunction granted pursuant to this section has the legal effect of restoring the petitioner, in the contemplation of the law, to the same status occupied before the arrest, indictment, information, trial, and conviction for the expunged offenses. Once the expunction order is granted, no direct or indirect collateral consequences that are generally or specifically attendant to the petitioner's conviction by any law shall be imposed or continued.
3. (3) A petitioner with respect to whom an order has been granted under this section is not guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge the arrest, indictment, information, trial, or conviction in response to any inquiry made of the petitioner for any purpose.
4. (4) As used in this section, expunction means, in contemplation of law, the conviction for the expunged offenses never occurred and the person shall not suffer any adverse effects or direct disabilities, including the payment of fines and fees owed to the court, by virtue of the criminal offenses that were expunged.
5. (5) Notwithstanding § 39-17-1307(b)(1)(B) and (c), a petitioner whose petition is granted pursuant to this section, and who is otherwise eligible under state or federal law to possess a firearm, is eligible to purchase a firearm pursuant to § 39-17-1316 and apply for and be granted a handgun carry permit pursuant to § 39-17-1351.
(j) The clerk of the court maintaining records expunged pursuant to this section shall keep such records confidential. The records are not public and may only be used to enhance a sentence if the petitioner is subsequently charged and convicted of another crime. This confidential record is only accessible to the district attorney general, the defendant, the defendant's attorney, and the circuit or criminal court judge.
(k) Upon filing the petition, the petitioner shall pay the clerk of court a fee, as described in [former] § 40-32-101(g)(9) [repealed].

Backlinks (2)

History (4)

Acts 2019, ch. 199, § 1
2022, ch. 1033, § 1
2022, ch. 1115, § 16
2024, ch. 545, § 1.

Chapter 33 Forfeitures

Part 1 Forfeiture of Conveyances

§ 40-33-101. Conveyances subject to forfeiture.

(a) Except as provided in subsection (b), where there is a final judgment of conviction, in the discretion of the court, conveyances, including vehicles, aircraft or vessels, are subject to forfeiture if used in the commission of:
1. (1) Any offense under title 39, chapter 13, part 5;
2. (2) Any robbery offense under title 39, chapter 13, part 4;
3. (3) A burglary, aggravated burglary, or especially aggravated burglary offense under title 39, chapter 14, part 4; or
4. (4) A felony theft offense under title 39, chapter 14, part 1.
(b)
1. (1) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this part, unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to any of the offenses listed in subdivisions (a)(2)-(4).
2. (2) No conveyance is subject to forfeiture under this part by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; provided, that if the conveyance belongs to an automobile or truck rental company, the burden of proof shall be on the state to prove that the automobile or truck rental company knew, or had reason to know, that the conveyance was or would be used in the commission of an offense for which this part provides for forfeiture of the conveyance.
3. (3) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.

History (5)

Acts 1977, ch. 81, § 1
T.C.A., § 40-4101
Acts 1992, ch. 838, §§ 1, 2
2006, ch. 960, § 4
2013, ch. 285, § 1.

§ 40-33-102. Seizure authorized.

(a) A conveyance subject to forfeiture under this part may be seized by the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee, or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable upon process issued by any circuit or criminal court having jurisdiction over the property.
(b) Seizure without process may be made if the seizure is incident to an arrest or a search under a search warrant.

Backlinks (2)

History (5)

Acts 1977, ch. 81, § 1
1981, ch. 512, § 4
T.C.A., § 40-4102
Acts 2007, ch. 106, § 1
2010, ch. 1040, § 1.

§ 40-33-103. Commencement of action for determination of forfeiture.

In the event of seizure pursuant to § 40-33-102, proceedings under §§ 40-33-104 and 40-33-107 shall be instituted promptly.

History (2)

Acts 1977, ch. 81, § 1
T.C.A., § 40-4103.

§ 40-33-104. Replevin prohibited — Duty of seizing authority.

(a) A conveyance taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable subject only to the orders and decrees of the circuit or criminal court.
(b) When a conveyance is seized under this part, the seizing authority may:
1. (1) Place the conveyance under seal;
2. (2) Remove the conveyance to a place designated by the court having jurisdiction over the property; and/or
3. (3) Require the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee, or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable to take custody of the conveyance and remove it to an appropriate location for disposition in accordance with law.

Backlinks (2)

History (5)

Acts 1977, ch. 81, § 1
1981, ch. 512, § 5
T.C.A. § 40-4104
Acts 2007, ch. 106, § 2
2010, ch. 1040, § 2.

§ 40-33-105. Removal of forfeited conveyance.

When a conveyance is forfeited under this part, the director of the Tennessee bureau of investigation or the director's authorized representative, agent or employee, the commissioner of safety or the commissioner's authorized representative, agent or employee or a sheriff, deputy sheriff, municipal law enforcement officer, campus police officer as defined in § 49-7-118, internal affairs director or internal affairs special agent of the department of correction, or constable shall remove it for disposition in accordance with law.

Backlinks (1)

8-8-201(b)(1)

History (5)

Acts 1977, ch. 81, § 1
1981, ch. 512, § 6
T.C.A., § 40-4105
Acts 2007, ch. 106, § 3
2010, ch. 1040, § 3.

§ 40-33-106. Jurisdiction over disposition of conveyance.

In any county having more than one (1) circuit court, or both a circuit court and a criminal court, the court in the county having jurisdiction of the indictment and trial of all matters relating to the offenses for which forfeiture of a conveyance may be imposed shall have exclusive jurisdiction over the disposition of the conveyances.

History (2)

Acts 1977, ch. 81, § 1
T.C.A., § 40-4106.

§ 40-33-107. Procedure for determination of forfeiture.

In all cases of seizure of any conveyance subject to forfeiture under this part, the procedure shall be as follows:
1. (1) The officer or other person making the seizure shall deliver to the person, if any found in possession of the seized conveyance, a receipt. The receipt shall state a general description of the seized conveyance, the reasons for the seizure, the procedure by which recovery of the conveyance may be sought, including the time period in which a claim for recovery must be presented, and the consequences of failing to file within the time period. If the person found in possession of the conveyance is not the sole unencumbered owner of the conveyance, the court having jurisdiction over the property shall make a reasonable effort to notify the owner or lienholder or both of the seizure by furnishing all parties known to have an interest in the conveyance with a copy of the receipt. A copy of the receipt shall be filed with the clerk of the court having jurisdiction over the property and shall be open to the public for inspection;
2. (2) All conveyances seized under this part shall be sold at public sale by the county sheriff at the direction of the court having jurisdiction over the property in the manner provided by law for judicial sales in civil cases; however, any vehicle seized by a county or municipal law enforcement agency, and forfeited under this part, may, with the permission of the county sheriff at the direction of the court having jurisdiction over the property, be retained by the county or municipal law enforcement agency and used for purposes of law enforcement; provided, that any liens that are filed against the vehicle shall be satisfied by the law enforcement agency retaining the vehicle. Subject to § 40-33-110, the proceeds that inure to the local governing body under this part shall be earmarked and used exclusively for law enforcement purposes in the county or municipality;
3. (3) Any person claiming any conveyance so seized may, within fifteen (15) days after receipt of notification of seizure, file with the court a claim in writing, requesting a hearing and stating the person's interest in the conveyance seized. The claimant shall also file with the claimant's claim a cost bond with one (1) or more good and solvent sureties in the sum of two hundred fifty dollars ($250), the bond being made payable to the state. An indigent person may file the indigent's claim in forma pauperis by filing with the indigent's claim affidavit stating that the indigent is unable to bear the cost of the proceeding;
4. (4) The court shall set a date for hearing within forty-five (45) days from the day a claim requesting the hearing is filed with the court. At each proceeding involving the disposition of the seized property, the state shall have the burden of proving by a preponderance of the evidence that the seized conveyance was used in a manner making it subject to forfeiture under this part, and failure to carry the burden of proof shall operate as a bar at any forfeiture hereunder. The state or local governing body shall be represented at the hearing by the district attorney general, the county attorney or the city attorney for the county or municipality wherein the seizure occurred; and
5. (5) In the event the decision of the court is favorable to the claimant, the clerk of the court shall deliver to the claimant the conveyance so seized. If the ruling of the court is adverse to the claimant, the clerk of the court shall proceed to direct the county sheriff to sell or dispose of the conveyance in accordance with subdivision (2). The expenses of storage, transportation, etc., shall be adjudged as part of the cost of the proceeding in the manner as the court shall fix.

Backlinks (2)

History (6)

Acts 1977, ch. 81, § 2
1981, ch. 266, § 1
T.C.A., § 40-4107
Acts 1983, ch. 240, § 1
1986, ch. 613, §§ 1-3
1992, ch. 623, § 1.

§ 40-33-108. Claim of interest in conveyance subject to forfeiture — Possession — Bond.

(a) Whenever in any proceeding under this part, a claim is filed for any conveyance, the court shall not allow the claim unless the claimant proves that:
1. (1) The claimant has an interest in the conveyance, as owner or otherwise, which the claimant acquired in good faith; and
2. (2) The claimant never had knowledge or reason to believe that the conveyance was used in the commission of a robbery offense under title 39, chapter 13, part 4, or felony theft under title 39, chapter 14, part 1.
(b) Pending any proceeding to recover a conveyance seized under this part, the court may order delivery thereof to any claimant who shall establish the claimant's right to immediate possession thereof, and who shall execute, with one (1) or more sureties approved by the court, and deliver to the clerk of the court, a bond in favor of the state and for the payment of a sum double the appraised value thereof as of the time of the hearing, and conditioned further that, if the conveyance is not returned at the time of hearing, the bond shall stand in lieu of and be forfeited in the same manner as the conveyance.
(c) Within the discretion of the court, the claimant may be awarded possession of the confiscated conveyance pending an appeal of any adverse decision; provided, that the claimant shall be required to execute a bond payable to the state in an amount double the value of the property seized, the sureties to be approved by the court. The condition of the bond shall be that the obligors shall pay to the state, through the court, the full value of the conveyance seized, unless upon an appeal the decision of the court shall be reversed and the property awarded to the claimant.

Backlinks (1)

40-33-109

History (3)

Acts 1977, ch. 81, § 3
T.C.A., § 40-4108
Acts 1992, ch. 838, § 3.

§ 40-33-109. Claim not filed — Disposition of conveyance.

If no claim is interposed, the conveyance shall be forfeited without further proceedings and the conveyance shall be sold or disposed of as provided in this part. The procedure in § 40-33-108 is the sole remedy of any claimant, and no court shall have jurisdiction to interfere therewith by replevin, injunction, supersedeas or in any other manner.

History (2)

Acts 1977, ch. 81, § 4
T.C.A., § 40-4109.

§ 40-33-110. Disposition of forfeited conveyance or proceeds of sale of forfeited conveyance.

(a) Disposition of a forfeited conveyance or proceeds of goods seized under this part shall inure to the benefit of the county in which the goods were seized for enforcement of this part if the goods were seized by county law enforcement officers, or to the municipality in which they were seized if the goods were seized by municipal law enforcement officers, or to the university employing the campus police officers if the goods were seized by campus police officers as defined in § 49-7-118, or to the department of correction if the goods were seized by the internal affairs director or an internal affairs special agent of the department of correction; provided, that the forfeited conveyance or the funds derived from the confiscated goods shall go to the law enforcement agency that seized the conveyance and shall be used exclusively for law enforcement purposes by the county or municipality or university or department of correction; provided further, that, if the law enforcement agency retains a forfeited conveyance, any liens that are filed against the forfeited conveyance shall be satisfied by the law enforcement agency that retains the conveyance.
(b) In all other cases, the proceeds shall be transmitted to the state treasurer and deposited in the state treasury. Upon application of the commissioner of safety, the proceeds, or any part of the proceeds, may be allocated by the director of the budget to the department of safety as expendable receipts for use in the enforcement of this part.
(c) All proceeds resulting from actions of the Tennessee bureau of investigation or awarded to it in a division of funds shall be paid to the state treasurer to be used only for bureau purposes as appropriated by the general assembly.

Backlinks (1)

40-33-107(2)

History (8)

Acts 1977, ch. 81, § 5
1978, ch. 870, §§ 1, 2
1981, ch. 365, § 1
1981, ch. 512, § 7
T.C.A., § 40-4110
Acts 1986, ch. 613, § 4
2007, ch. 106, § 4
2010, ch. 1040, § 4.

§ 40-33-111. Lien for fees of attorney for accused.

The right to a forfeiture as provided in this part shall be inferior to and subject to any lien filed with the court in which the action is pending by an attorney representing the accused on the charge for which the forfeiture or confiscation resulted for the reasonable value of the services of the attorney. The value of the reasonable services represented by the lien shall be subject to the approval of the court that tried the case from which the forfeiture resulted. The arresting officer shall be furnished a copy of the attorney's claimed lien.

History (2)

Acts 1977, ch. 81, § 6
T.C.A., § 40-4111.

Part 2 Forfeiture Procedures Generally

§ 40-33-201. Application.

All personal property, including conveyances, subject to forfeiture under § 39-14-307, § 47-25-1105, § 53-11-451, § 55-16-104, § 55-50-504(g), § 55-10-414, § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020, or § 70-6-202, shall be seized and forfeited in accordance with the procedure set out in this part.

Backlinks (4)

History (5)

Acts 1994, ch. 925, § 1
1996, ch. 910, § 3
1996, ch. 959, § 2
2013, ch. 154, § 33
2015, ch. 344, § 6.

§ 40-33-202. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Applicable agency” means the agency, board, commission or department charged by law or permitted by agreement with conducting the forfeiture proceeding for the particular property seized; and
2. (2) “Secured party” means the holder of a security interest in the seized property acquired in the ordinary course of business within the meaning of § 47-9-102(a) and shall include a recourse party under the terms of a financing agreement.

Backlinks (3)

History (2)

Acts 1994, ch. 925, § 1
2000, ch. 846, § 27.

§ 40-33-203. Seizure.

(a) Upon effecting a seizure, the seizing officer shall prepare a receipt titled a “Notice of Seizure.” The notice of seizure shall be a standard form promulgated by the applicable agency. The applicable agency may adopt an existing notice of seizure form.
(b)
1. (1) Upon seizure of a conveyance, the seizing officer shall make reasonable efforts to determine the owner or owners of the property seized as reflected by public records of titles, registrations and other recorded documents.
2. (2) If the conveyance seized is a commercial vehicle or common or contract carrier and the person in possession of the vehicle at the time of seizure does not have an ownership interest in the vehicle, the seizing officer shall, from the vehicle's manifest, bill of lading or public records of titles, registrations and other recorded documents, make reasonable efforts to determine the owner of the conveyance and notify the owner thereof of the seizure. Unless the cargo of the commercial vehicle or common or contract carrier is contraband or subject to forfeiture under some other provision of state or federal law, the cargo is not subject to forfeiture under this part and, upon the request of the owner of the conveyance, shall immediately be released by the seizing agency to the owner or transporting agent.
3. (3) If the conveyance seized is a commercial vehicle or common or contract carrier and the person in possession of the vehicle at the time of seizure has an ownership interest in the vehicle, the seizing officer shall, from the vehicle's manifest or bill of lading, make reasonable efforts to determine the common or contract carrier responsible for conveying the cargo and notify the carrier of the seizure. Unless the cargo of the commercial vehicle or common or contract carrier is contraband or subject to forfeiture under some other provision of state or federal law, the cargo is not subject to forfeiture under this part and, upon the request of the owner of the cargo, shall immediately be released by the seizing agency to the owner or transporting agent.
4. (4) If the conveyance seized is a commercial vehicle or common or contract carrier and the person in possession of the vehicle at the time of seizure does not have an ownership interest in the vehicle, the seizing officer shall, from the vehicle's manifest, bill of lading or public records of titles, registrations and other recorded documents, make reasonable efforts to determine the owner of the conveyance and notify the owner of the conveyance of the seizure. Unless the interest of the owner of the commercial vehicle or common or contract carrier is subject to forfeiture under § 40-33-210(a)(2), the vehicle or carrier is not subject to forfeiture under this part, the seizing officer shall not seek a forfeiture warrant and, upon the request of the owner of the vehicle or carrier, shall immediately be released by the seizing agency to the owner or transporting agent. For purposes of this subsection (b), “commercial vehicle” includes a private passenger motor vehicle that is used for retail rental for periods of thirty-one (31) days or less.
(c) Upon the seizure of any personal property subject to forfeiture pursuant to § 40-33-201, the seizing officer shall provide the person found in possession of the property, if known, a receipt titled a “Notice of Seizure.” The notice of seizure shall contain the following:
1. (1) A general description of the property seized and, if the property is money, the amount seized;
2. (2) The date the property was seized and the date the notice of seizure was given to the person in possession of the seized property;
3. (3) The vehicle identification number (VIN) if the property seized is a motor vehicle;
4. (4) The reason the seizing officer believes the property is subject to seizure and forfeiture;
5. (5) The procedure by which recovery of the property may be sought, including any time periods during which a claim for recovery must be submitted; and
6. (6) The consequences that will attach if no claim for recovery is filed within the applicable time period.
(d) Upon the seizure of any personal property subject to forfeiture pursuant to § 40-33-201 where the person in possession is not being arrested, the seizing officer shall provide the person found in possession of the property, if known, a notice entitled “Notice of Forfeiture Warrant Hearing”. This notice shall contain the following:
1. (1) The date, time, and court in which the seizing officer will be seeking a forfeiture warrant against the property pursuant to § 40-33-204;
2. (2) A statement that the person in possession is entitled to appear in court at the stated date and time to contest the issuance of a forfeiture warrant against the seized property and that this hearing shall be civil in nature pursuant to § 40-33-204(b); and
3. (3) A statement that if the person in possession does not appear in court, a forfeiture warrant may be issued and the property subject to the forfeiture process set forth in title 40, chapter 33, part 2 and as stated in the Notice of Seizure.
(e)
1. (1) After the seizure of any personal property subject to forfeiture pursuant to § 40-33-201, where the owner of the property is not present at the time of the seizure, regardless of whether an arrest has been made, the seizing officer shall, within five (5) business days of the date of seizure, mail to the owner by return receipt requested mail, at the owner's last known address as determined from public records of titles, registrations, or other recorded documents or information provided by the person in possession, a notice entitled “Notice of Forfeiture Warrant Hearing”. The notice shall contain the following:
  1. (A) The date, time, and court in which the seizing officer will be seeking a forfeiture warrant against the property pursuant to § 40-33-204;
  2. (B) A statement that the owner is entitled to appear in court at the stated date and time to contest the issuance of a forfeiture warrant against the seized property and that this hearing shall be civil in nature pursuant to § 40-33-204(b);
  3. (C) A statement that if the owner does not appear in court, a forfeiture warrant may be issued and the property subject to the forfeiture process set forth in this part, and as stated in the Notice of Seizure; and
  4. (D) A copy of the Notice of Seizure.
2. (2) If an owner cannot be determined from public records of titles, registrations, or other recorded documents or information provided by the person in possession, the officer shall document the attempts made to determine the owner and include the documentation with any application for forfeiture warrant for the judge to review.

Backlinks (1)

40-33-217(g)

History (4)

Acts 1994, ch. 925, § 1
1997, ch. 532, § 1
2013, ch. 382, § 1
2018, ch. 772, § 1.

§ 40-33-204. Forfeiture warrant.

(a) Once personal property is seized pursuant to an applicable provision of law, no forfeiture action shall proceed unless a forfeiture warrant is issued in accordance with this section by a general sessions, circuit, criminal court or popularly elected city judge. The forfeiture warrant shall authorize the institution of a forfeiture proceeding under this part. As used in this subsection (a), “popularly elected city judge” means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
(b)
1. (1) Any affidavit in support of a forfeiture warrant shall be sworn to and state the following:
  1. (A) The legal and factual basis making the property subject to forfeiture;
  2. (B) If the owner or co-owner of the property was not the person in possession of the property at the time of seizure and can be determined from public records of titles, registrations or other recorded documents, the affidavit shall state with particular specificity the officer's probable cause for believing that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture as well as the legal, and factual basis for forfeiture of the interest; and
  3. (C) If the interest of a secured party with a duly perfected security interest as reflected in the public records of titles, registrations or other recorded documents, is sought to be forfeited, the affidavit shall state with particular specificity the officer's probable cause that the secured party's interest in the property is nevertheless subject to forfeiture as well as the legal and factual basis for forfeiture of the interest.
    Backlinks (1)
    
    40-33-205(a)
2. (2) If an arrest was made at the time of the seizure, the officer making the seizure shall apply for a forfeiture warrant by filing a sworn affidavit within five (5) working days following the property seizure. The forfeiture warrant shall be based upon proof by affidavit and shall have attached to it a copy of the notice of seizure. Except as provided in subdivision (b)(4), the hearing on the application for a forfeiture warrant shall be ex parte and based upon the application, the affidavit, and any testimony as may be required in this section.
3. (3)
  1. (A) If no arrest was made at the time of the seizure, the officer making the seizure shall present to the court, at the date and time specified on the notice of forfeiture warrant hearing, the application for a forfeiture warrant, the affidavit in support, the notice of seizure, and the notice of forfeiture warrant hearing. At the hearing on the forfeiture warrant application, the court shall:
    1. (i) Review the application for a forfeiture warrant and the affidavit in support and take testimony from the seizing officer regarding the probable cause to issue a forfeiture warrant, including any testimony as may be required in this section; and
    2. (ii) Review any evidence presented by and take testimony from the person in possession at the time of the seizure regarding why no probable cause exists to issue a forfeiture warrant.
  2. (B) The time period for seeking an ex parte forfeiture warrant under subdivision (b)(2) shall not apply to forfeiture warrant hearings under this subdivision (b)(3).
  3. (C) Except as provided in subdivision (b)(4), if the person in possession at the time of the seizure does not appear at the hearing and has received notice of the hearing, then the court shall review the application for a forfeiture warrant ex parte as provided in subdivision (b)(2).
4. (4)
  1. (A) If the owner of the property is not present at the time of the seizure, regardless of whether an arrest is made, the officer making the seizure shall present to the court, at the date and time specified on the notice of forfeiture warrant hearing, the application for a forfeiture warrant, the affidavit in support, the notice of seizure, and the notice of forfeiture warrant hearing for both the person in possession, if no arrest was made, and the owner of the property.
  2. (B) The time period for seeking an ex parte forfeiture warrant under subdivision (b)(2) shall not apply to forfeiture warrant hearings under this subdivision (b)(4).
  3. (C) The owner of the property must be given reasonable notice of the forfeiture warrant hearing; however, a forfeiture warrant hearing under this subdivision (b)(4) shall be held within forty-five (45) days after the date of seizure.
  4. (D) At the hearing on the forfeiture warrant application, the court shall:
    1. (i) Review the application for a forfeiture warrant and the affidavit in support and take testimony from the seizing officer regarding the probable cause to issue a forfeiture warrant, including any testimony as may be required in this section;
    2. (ii) Review any evidence presented by and take testimony from the person in possession at the time of the seizure, if present, regarding why no probable cause exists to issue a forfeiture warrant; and
    3. (iii) Review any evidence presented by and take testimony from the owner of the property, if present, regarding why no probable cause exists to issue a forfeiture warrant.
  5. (E) If neither the person in possession at the time of the seizure, if no arrest was made, nor the owner of the property appear at the hearing and the person in possession and the owner have received notice of the hearing, the court shall review the application for a forfeiture warrant ex parte as provided in subdivision (b)(2).
5. (5) The taking of testimony shall consist solely of the judge putting the seizing officer, owner of the property, and person in possession under oath and asking questions to determine if probable cause exists for a forfeiture warrant to be issued under this section. Any examination by the judge of the seizing officer shall in no form or manner extend to whether the seizure is part of an ongoing investigation, nor shall the judge's examination extend in any form or manner to the source of any confidential information used in making a stop leading to seizure of the property.
6. (6) All hearings on applications for forfeiture warrants under this section shall be recorded. It is the duty of the court to maintain the recording. Certified copies of the proceeding shall be made available to any party requesting them, and the same shall be admissible as evidence.
Backlinks (3)
(c)
1. (1) The judge shall issue the forfeiture warrant if the judge finds that the offered proof establishes probable cause to believe that:
  1. (A) The property is subject to forfeiture; and
  2. (B) If the property is owned by one whose interest is described in public records of titles, registrations or other recorded documents, that the owner's interest is subject to forfeiture under the applicable provision of law.
2. (2) In a proceeding under subdivision (b)(2), if the seizing officer asserts to the judge that the officer was unable to determine the owner of the seized property or whether the owner's interest is subject to forfeiture within the required five-day period, the judge may grant up to ten (10) additional days to seek a forfeiture warrant if the judge finds that the seizing officer has:
  1. (A) Exercised due diligence and good faith in attempting to determine the owner of the property or whether the owner's interest is subject to forfeiture; and
  2. (B) Made a factual showing that because of the existence of extraordinary and unusual circumstances an exception to the five-day forfeiture warrant requirement is justified.
3. (3) General sessions judges may not authorize magistrates or judicial commissioners who are not licensed to practice law in this state to issue forfeiture warrants.
(d) If the person in possession of the property is not the registered owner as determined from public records of titles, registrations or other recorded documents, the judge may consider other indicia of ownership that proves that the possessor is nonetheless an owner of the property. Other indicia of ownership shall include, but is not limited to, the following:
1. (1) How the parties involved regarded ownership of the property in question;
2. (2) The intentions of the parties relative to ownership of the property;
3. (3) Who was responsible for originally purchasing the property;
4. (4) Who pays any insurance, license or fees required to possess or operate the property;
5. (5) Who maintains and repairs the property;
6. (6) Who uses or operates the property;
7. (7) Who has access to use of the property; and
8. (8) Who acts as if they have a proprietary interest in the property.
(e) If the owner or co-owner of the property was not the person in possession of the property at the time of the seizure and can be determined from public records of titles, registrations or other recorded documents, the judge shall put the seizing officer under oath and ask the following questions:
1. (1) What is the officer's probable cause that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture;
2. (2) What is the officer's probable cause that the co-owner or co-owners who are not in possession of the property at the time it was seized were co-conspirators to the activity making the property subject to forfeiture; and
3. (3) Any other questions necessary to determine the legal and factual basis for forfeiture.
(f) If a secured party's interest is sought to be forfeited, the judge shall put the seizing officer under oath and ask the following questions:
1. (1) What is the officer's probable cause that the secured party is a co-conspirator to the activity making the property subject to forfeiture;
2. (2) Did the secured party at the time the interest attached, have actual knowledge of the intended illegal use of the property; and
3. (3) Any other question deemed necessary to determine the legal and factual basis for forfeiture of the secured party's interest.
(g) Upon issuance of the forfeiture warrant, the judge shall retain the affidavit relied upon in support of the warrant and the officer shall, within seven (7) working days, send the warrant, a copy of the affidavit and the notice of seizure to the applicable agency. By signing and issuing the forfeiture warrant, the judge is affirming that the required finding of probable cause necessary to issue the warrant has been made. Upon receipt of the documents, the applicable agency shall notify any other owner, as may be determined from public records of titles, registrations or other recorded documents, or secured party that a forfeiture warrant has been issued. Upon receipt of the notice of seizure and forfeiture warrant and after interviewing any witnesses, the applicable agency shall release the property if there is no legal and factual basis for forfeiture. The seizing agency shall maintain a copy of the notice of seizure for all property seized at its main office and the notices and receipts shall be public records.
Backlinks (1)
- 40-33-205(a)
(h) If no forfeiture warrant is issued, and the property is not needed for evidence in a criminal proceeding, the seizing agency shall immediately return the property to the owner, as determined from public records of titles, registrations or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure.
(i) Upon the request of any general sessions, circuit, criminal court or popularly elected city judge, the administrative office of the courts shall provide a cassette tape recorder for the purpose of recording the hearing on the application for a forfeiture warrant. As used in this subsection (i), “popularly elected city judge” means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
(j)
1. (1) A person in possession of, a secured party of, or an owner of property for which a forfeiture warrant has been issued by a magistrate or judicial commissioner may appeal the forfeiture warrant within ten (10) days of issuance for review by the general sessions court in the county in which the seizure occurred. On appeal, the general sessions court shall conduct a hearing and review the issuance of the forfeiture warrant within ten (10) days of the appeal being filed.
2. (2) Notwithstanding subsection (g), if a forfeiture warrant was issued by a magistrate or judicial commissioner, the warrant, a copy of the affidavit, and the notice of seizure shall be sent to the applicable agency within:
  1. (A) Seven (7) business days after the time period to appeal the forfeiture warrant has ended and no appeal has been filed; or
  2. (B) Seven (7) business days after the general sessions judge has affirmed the issuance of the forfeiture warrant, if the warrant was appealed.
(k)
1. (1) The seizing agency shall, within five (5) business days of receipt of any forensic chemistry report regarding any alleged controlled substances or controlled substance analogues that are the basis of the seizure, send a copy of the forensic chemistry report to the applicable agency.
2. (2) If the forensic chemistry report shows that the alleged controlled substances that are the basis of the seizure are not controlled substances or controlled substance analogues, and those substances were the sole basis for the seizure, the applicable agency, within five (5) business days of receipt, shall submit an order dismissing the case, or the portion of the case based on the alleged controlled substances or controlled substance analogues, to the administrative law judge or the administrative head of the applicable agency.
3. (3) If the property is not needed for evidence in a criminal proceeding, or is not subject to other forfeiture proceedings, the seizing agency shall make the property available to the owner, as determined from public records of titles, registrations, or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure, within five (5) business days of receipt from the applicable agency of the signed order of dismissal under subdivision (k)(2). A seizing agency that fails to make the property available as required by this subdivision (k)(3) may be considered to be acting in bad faith under § 40-33-215.
(l) In any forfeiture warrant hearing, there shall be a rebuttable presumption that currency seized, for which a person has claimed ownership, is not subject to forfeiture absent evidence to the contrary. The burden to rebut the presumption is on the seizing officer.

Backlinks (2)

History (7)

Acts 1994, ch. 925, § 1
1998, ch. 1070, §§ 1-3
1999, ch. 124, §§ 1, 2
2013, ch. 382, §§ 2, 3
2016, ch. 784, § 1
2017, ch. 441, § 3
2018, ch. 772, §§ 2-8.

§ 40-33-205. Security interests.

(a) If a secured party with a duly perfected security interest receives notification pursuant to § 40-33-204(g) that a forfeiture warrant has been issued with regard to the secured property, the secured party must submit proof of the security interest to the applicable agency within thirty (30) days of receipt of the notification in order for this subsection (a) to apply. A secured party with a duly perfected interest or any successor in interest to the secured party who does not receive notice of intent to forfeit the interest pursuant to § 40-33-204(b)(1)(C), need not file a claim to preserve any right the party may have to the property. Upon receiving proof of a security interest, no cost bond or other pleadings need be filed by the secured party or successor in interest in order to protect its interest in the seized property or to assert a claim to the property as provided in § 40-33-206. If the applicable agency notifies a secured party that it intends to seek forfeiture of the secured party's interest, it shall seek a forfeiture warrant against the secured party as provided in § 40-33-204(b). Upon receiving notice that a forfeiture warrant has been issued, the secured party is required to file a claim for the property as provided in this part.
Backlinks (1)
- 40-33-206(b)(1)
(b) Any secured party, other than one described in subsection (a), or any successor in interest to the secured party may file a claim for seized property by complying with § 40-33-206, within thirty (30) days of the date the forfeiture warrant is issued.

History (1)

Acts 1994, ch. 925, § 1.

§ 40-33-206. Claims.

(a) Any person asserting a claim to any property seized pursuant to the provisions of law set out in § 40-33-201, and described on the notice of seizure, may within thirty (30) days of being notified by the applicable agency that a forfeiture warrant has issued, file with the agency a written claim requesting a hearing and stating the person's interest in the seized property for which a claim is made. The claims may be on forms provided by the applicable agency.
(b)
1. (1) Except as provided in § 40-33-205(a), with the claim the claimant shall also file a cash bond or attorney or corporate surety bond in the sum of three hundred fifty dollars ($350), the bond being made payable to the state of Tennessee; and
2. (2) An indigent person may file a claim in forma pauperis by filing with the claim an affidavit stating that the person is unable to bear the cost of the proceeding.
(c) If a claim or proof of a security interest is not filed with the applicable agency within the time specified by this part, the seized property shall be forfeited and disposed of as provided by law.

Backlinks (2)

History (1)

Acts 1994, ch. 925, § 1.

§ 40-33-207. Hearing date.

(a) Within thirty (30) days from the day the claim is filed, the applicable agency shall establish a hearing date and set the case on the docket.
(b) Nothing in this section shall be construed as requiring the hearing to be conducted within the thirty-day period.

History (1)

Acts 1994, ch. 925, § 1.

§ 40-33-208. Bonding procedure.

(a)
1. (1) Pending any proceeding to forfeit seized property, any owner or co-owner may, and any secured party shall, unless a warrant for the forfeiture of the secured party's interest is issued or unless the seizing agency objects, obtain immediate possession of the property by submitting to the jurisdiction of the applicable agency and executing, with one (1) or more sureties approved by the applicable agency, a bond in favor of the state of Tennessee in the amount provided by this section. If the seizing agency objects, a secured party, owner or co-owner may not obtain possession of the property pursuant to this section until five (5) days after the date the property is seized.
2. (2) If the property seized was other than a motor vehicle, bond shall be in an amount equal to two (2) times the retail value of the property.
3. (3) If the property seized was a motor vehicle titled in the name of one (1) or more persons who are not secured parties, the bond shall be in an amount equal to the NADA Southeastern Edition retail value of the vehicle.
(b) A secured party may obtain immediate possession of the seized property by executing the bond provided in subdivision (a)(2) or by executing an annual bond or letter of credit with a regulated financial institution in the amount of twenty-five thousand dollars ($25,000). Upon submitting proof of the bond or letter of credit, the applicable agency may release the property to the secured party.
(c) Any owner, co-owner or secured party who fails to produce the seized property upon the issuance of a forfeiture order, or who fails to tender to the applicable agency the value of the interest that is forfeited, shall have the bond posted with the applicable agency forfeited in lieu of and in the same manner as the seized property.
(d) Notwithstanding the provisions of any conditional sales contract, security agreement or title 47, chapter 9, to the contrary, a secured party who obtains possession of seized property under this section shall be prohibited from releasing the property to the person in possession of it at the time of seizure, but the secured party shall not otherwise be limited in exercising any right the party could exercise under the security agreement or law. The person in possession of the property at the time of seizure shall be ineligible to redeem any property released to a secured party, or to bid at any sale of the property by any holder of the security interest acting pursuant to a security agreement, contract or title 47, chapter 9.
(e) Any secured party or successor in interest to the secured party who, pending a forfeiture hearing, bonds out and obtains immediate possession of a conveyance seized pursuant to this part shall notify the applicable agency and the seizing agency of any sale of the seized property conducted by the secured party or successor in interest. The secured party or successor in interest shall send to the seizing agency any proceeds resulting from the sale that were in excess of the amount required to satisfy the existing security interest. If the secured party or successor in interest sells the vehicle prior to the disposition of the forfeiture proceeding, the secured party or successor in interest shall notify the applicable agency in writing that a sale was conducted and the results of the sale. The secured party or successor in interest shall also notify the applicable agency of the amount of the security interest and the amount that resulted from the sale. The seizing agency shall be responsible for maintaining possession of any proceeds in excess of the amount of the security interest that the secured party or successor in interest returns to it following the sale of the confiscated vehicle. The seizing agency shall maintain possession of the proceeds until a final disposition in the forfeiture proceeding.
(f) The state of Tennessee or any governmental official acting pursuant to this section shall not be liable for giving immediate possession of seized property to a person or entity pursuant to this section.

History (1)

Acts 1994, ch. 925, § 1.

§ 40-33-209. Hearing officer.

(a) The administrative head of the applicable agency shall contract with the secretary of state for use of administrative law judges to conduct forfeiture hearings.
(b) The administrative law judge is empowered to subpoena witnesses and compel their attendance and to produce records, memoranda, papers and other documents at any hearing authorized by this part.
(c) At all hearings conducted pursuant to this part, the applicable agency shall provide a stenographer or court reporter to take a stenographic record of the evidence adduced at the hearing. Upon application, the claimant shall be entitled to a copy of the stenographic record upon payment of the reasonable costs thereof to be fixed by the administrative head of the applicable agency.
(d) All hearings conducted pursuant to this part shall be contested case hearings and shall be conducted pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

History (2)

Acts 1994, ch. 925, § 1
2017, ch. 352, §§ 1, 2.

§ 40-33-210. Hearing.

(a) In order to forfeit any property or any person's interest in the property pursuant to §§ 39-14-307, 47-25-1105, 53-11-451, 55-10-414, 55-16-104, 55-50-504(g), 57-3-411, 57-5-409, 57-9-201, 67-4-1020 or 70-6-202, the state shall have the burden to prove by a preponderance of evidence that:
1. (1) The seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture under the sections set out in this subsection (a); and
2. (2) The owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture, or, in the case of a secured party, that the standards set out in subsection (f) are met.
  Backlinks (1)
  
  40-33-203(b)(4)
(b) Failure to carry the burden of proof shall operate as a bar to any forfeiture and the property shall be immediately returned to the claimant.
(c)
1. (1) The interest of a co-owner or co-owners who were not in possession of the property at the time it was seized may be forfeited if the co-owners:
  1. (A) Were co-conspirators to the activity making the property subject to forfeiture;
  2. (B) Knew that the property was of a nature making its possession illegal; or
  3. (C) Knew that it was being used in a manner making it subject to forfeiture and consented to the use.
2. (2) If the state meets its burden of proof as to one (1) co-owner of the seized property but fails to do so as to one (1) or more other co-owners, the property shall be forfeited subject to the interest of the innocent co-owners.
(d) If it is determined that the state has carried the burden of proof with regard to all parties claiming an interest in the property, and the ruling of the administrative law judge is adverse to the claimant or claimants, the property shall be sold or disposed of as provided in § 40-33-211.
(e) If the interest of the owner or co-owner of seized property is forfeited pursuant to this section but the interest of the secured party is not, the administrative law judge may, at the request of the secured party, return the seized property for disposition in accordance with the security agreement or other contract. If the property is not returned to the secured party, the forfeiture shall be subject to the secured party's interest.
(f) A secured party's interest may be forfeited if, from evidence presented at the hearing, the administrative law judge finds that:
1. (1) The secured party is a co-conspirator to the activity making the property subject to forfeiture; or
2. (2) The secured party, at the time the interest attached, had actual knowledge of the intended illegal use of the property. A secured party who acquired an interest in the ordinary course of business shall be presumed to have no actual knowledge of an intended illegal use and shall have no duty to inquire as to the record or reputation of a borrower.
(g) The expenses of storage, transportation and other similar costs shall be adjudged as part of the cost of the proceeding in such manner as the administrative law judge shall determine.
(h) The administrative law judge's ruling shall be considered a final order of the applicable agency for purposes of appealing of the order.

Backlinks (1)

40-33-212

History (6)

Acts 1994, ch. 925, § 1
1996, ch. 910, § 4
1996, ch. 959, § 3
2013, ch. 154, § 34
2015, ch. 344, § 7
2017, ch. 352, §§ 3-5.

§ 40-33-211. Property disposition.

(a)
1. (1) The proceeds from all seizures, confiscations and sales made by a state agency pursuant to § 39-14-307, § 47-25-1105, § 53-11-451, § 55-10-414, § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020 or § 70-6-202, shall be transmitted to the state treasurer and deposited in the state treasury. All the seizures, confiscations and sales made by county or municipal law enforcement personnel shall be paid to the county trustee or city recorder, respectively, and shall be used exclusively for the benefit of the seizing county or municipality for law enforcement or drug education purposes. All such seizures, confiscations and sales derived from the activities of a judicial district drug task force shall be paid to an expendable trust fund maintained by the county mayor in a county designated by the district attorney general, and shall be used exclusively in a drug enforcement or drug education program of the district as directed by the board of directors of the judicial district drug task force. If any other provision of law requires that the proceeds from seizures, confiscations and sales made under one (1) of the sections set out in this subsection (a) be deposited in a special fund, the provisions of that other provision shall control.
2. (2) The comptroller's regular audit of a local government shall also include how proceeds derived from forfeited assets are used by county or municipal law enforcement or by a judicial district drug task force. The comptroller of the treasury shall provide information obtained during an audit pursuant to this subdivision (a)(2) to the department for publication on the department's website in accordance with § 40-33-216(c).
  Backlinks (1)
  
  40-33-216(c)
(b) Funds derived from seizures, confiscations and sales shall not be used to supplement the salaries of any public employee or law enforcement officer. All purchases made from the proceeds shall be made in accordance with existing purchasing statutes, including private acts, which establish purchasing provisions or requirements for the county or municipality.
(c) Notwithstanding the provisions of subsections (a) and (b) to the contrary, the revenue derived from the sale of vehicles forfeited under the authority of § 55-50-504(g) shall be distributed as follows:
1. (1) The revenue shall be retained by the entity, either the state or local government, which was responsible for the seizure. The revenue shall be used during each fiscal year to compensate the entity for reasonable and direct expenses involved in the confiscation, towing, storage, and sale of the forfeited vehicles. All expenses claimed by the entity shall be subject to audit and review by the comptroller of the treasury for the purpose of determining that expenses claimed by the entity are direct and reasonable;
2. (2)
  1. (A) Any remaining revenue shall be transmitted to the department of mental health and substance abuse services no later than June 30 of each fiscal year. This revenue shall be placed in a special fund to be known as the “alcohol and drug addiction treatment fund” and shall be available for use after July 1, 1998, to pay the cost of alcohol and drug addiction treatment for persons certified for the treatment by order of either general sessions or criminal court judges, pursuant to a plan and procedures developed by the department of mental health and submitted to the general assembly prior to July 1, 1998. Any moneys in the alcohol and drug addiction treatment fund administered by the state treasurer shall be transferred to the alcohol and drug addiction treatment fund administered by the department of mental health on April 8, 1998. The alcohol and drug addiction treatment fund shall be administered pursuant to rules promulgated by the department of mental health and substance abuse services, which shall establish criteria for application of the funds;
  2. (B) The rules promulgated by the department of mental health and substance abuse services shall include application of a portion of the funds up to a total of two hundred thousand dollars ($200,000), and any grants, gifts, contributions, or other appropriations made to supplement the funds for services related to compulsive gambling disorder, to provide prevention, early intervention, assessment or referral, and evaluation services related to compulsive gambling disorder which shall include all of the following:
    1. (i) Establishing an information and referral hotline to provide public education regarding compulsive gambling and to make treatment referrals;
    2. (ii) Coordinating activities, services and gathering data on the prevalence of problems regarding compulsive gambling;
    3. (iii) Training personnel in the prevention of gambling disorders and in the screening and assessment of these disorders;
    4. (iv) Making assessment services available through local treatment providers; and
    5. (v) Providing development and maintenance of treatment services only to the extent that funds exist to do so and still accomplish the goals intended by creation of the alcohol and drug treatment addiction fund;
  3. (C) Subdivision (c)(2)(B) shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to subdivision (c)(2)(B) unless the proposed improvement for the alcohol and drug treatment fund for fiscal year 2004-2005 is included in the general appropriation act; and
  Backlinks (1)
  
  55-10-410(a)(5)
3. (3)
  1. (A) If a court of competent jurisdiction orders a person to operate only a motor vehicle that is equipped with a functioning ignition interlock device and the judge makes a specific finding that the person is indigent, all costs associated with the lease, purchase, installation, removal and maintenance of such device or with any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4, shall be paid exclusively from the electronic monitoring indigency fund established pursuant to § 55-10-419;
  2. (B) Notwithstanding any other provision of title 55, chapter 10, no funds from the alcohol and drug addiction treatment fund administered by the department of mental health and substance abuse services shall be used for the lease, purchase, installation, removal or maintenance of such device or for any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4.
(d)
1. (1) An owner of property whose interest is forfeited after being arrested for, or charged with, any felony shall be ineligible to purchase the property from, or to bid at any sale of the property conducted by, the seizing agency or its agent.
2. (2) An owner whose interest is forfeited after being arrested for, or charged with, any felony, shall also be ineligible to redeem the property from, or to bid at any sale of the property by, a secured party acting pursuant to the agreement, contract or title 47, chapter 9.
(e) Nothing in this section shall be construed as prohibiting a state, county or municipal agency from using a seized vehicle in accordance with § 53-11-201(b).
(f) Notwithstanding the provisions of subsections (a) and (b) to the contrary, the revenue derived from the sale of vehicles forfeited under the authority of § 55-10-414 shall be distributed as follows:
1. (1) The revenue shall be retained by the entity, either the state or local government, which was responsible for the seizure. The revenue shall be used during each fiscal year to compensate the entity for reasonable and direct expenses involved in the confiscation, towing, storage, and sale of the forfeited vehicles. All expenses claimed by the entity shall be subject to audit and review by the comptroller of the treasury for the purpose of determining that expenses claimed by the entity are direct and reasonable;
2. (2) Any remaining revenue shall be transmitted to the department of mental health and substance abuse services no later than June 30 of each fiscal year. This revenue shall be placed in a special fund to be known as the “alcohol and drug addiction treatment fund” and shall be available for use after July 1, 1998, to pay the cost of alcohol and drug addiction treatment for persons certified for the treatment by order of either general sessions or criminal court judges, pursuant to a plan and procedures developed by the department of mental health and submitted to the general assembly prior to July 1, 1998. Any moneys in the alcohol and drug addiction treatment fund administered by the state treasurer shall be transferred to the alcohol and drug addiction treatment fund administered by the department of mental health on April 8, 1998; and
3. (3)
  1. (A) If a court of competent jurisdiction orders a person to operate only a motor vehicle that is equipped with a functioning ignition interlock device and the judge makes a specific finding that the person is indigent, all costs associated with the lease, purchase, installation, removal and maintenance of such device or with any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4, shall be paid exclusively from the electronic monitoring indigency fund established pursuant to § 55-10-419;
  2. (B) Notwithstanding any other provision of title 55, chapter 10, part 4, no funds from the alcohol and drug addiction treatment fund administered by the department of mental health and substance abuse services shall be used for the lease, purchase, installation, removal or maintenance of such device or for any other cost or fee associated with a functioning ignition interlock device required by title 55, chapter 10, part 4.
(g)
1. (1) Notwithstanding the provisions of this section, the proceeds from all forfeitures of conveyances or real or personal property used in the commission of an offense under title 39, chapter 17, part 10 shall be transmitted to the general fund, where there is established a general fund reserve to be allocated through the general appropriations act, which shall be known as the child abuse fund. Moneys from the fund shall be expended to fund activities authorized by § 39-13-530. Any revenues deposited in this reserve shall remain in the reserve until expended for purposes consistent with this section, and shall not revert to the general fund at the end of the fiscal year. Any excess revenues or interest earned by the revenues shall not revert at the end of the fiscal year, but shall remain available for appropriation in subsequent fiscal years. Any appropriation from the reserve shall not revert to the general fund at the end of the fiscal year, but shall remain available for expenditure in subsequent fiscal years.
2. (2) The general assembly shall appropriate, through the general appropriations act, moneys from the child abuse fund to the department of finance and administration for the child abuse fund. The appropriations shall be specifically earmarked for the purposes set out in § 39-13-530.
(h)
1. (1) Notwithstanding this section, the proceeds from all forfeitures of conveyances or real or personal property used in the commission of an offense under title 39, chapter 13, part 5, shall be transmitted to the general fund where there is established a general fund reserve to be allocated through the general appropriations act, which shall be known as the child abuse fund. Moneys from the fund shall be expended to fund activities authorized by § 39-13-530. Any revenues deposited in this reserve shall remain in the reserve until expended for purposes consistent with this section, and shall not revert to the general fund on any June 30. Any excess revenues or interest earned by the revenues shall not revert on any June 30, but shall remain available for appropriation in subsequent fiscal years. Any appropriation from the reserve shall not revert to the general fund on any June 30, but shall remain available for expenditure in subsequent fiscal years.
2. (2) The general assembly shall appropriate, through the general appropriations act, moneys from the child abuse fund to the department of finance and administration for the child abuse fund. The appropriations shall be specifically earmarked for the purposes set out in § 39-13-530.
(i) Notwithstanding subsections (a) and (b), the revenue derived from the sale of motor vehicles forfeited under the authority of § 55-16-104 shall be distributed as follows:
1. (1) Seventy-five percent (75%) of the revenue shall be retained by the entity responsible for the seizure;
2. (2) Ten percent (10%) of the revenue shall be transferred to the state and placed in the general fund; and
3. (3) Fifteen percent (15%) of the revenue shall be transferred to the department of commerce and insurance, division of consumer affairs, for consumer education.

Backlinks (4)

History (20)

Acts 1994, ch. 925, § 1
1995, ch. 514, § 2
1996, ch. 910, §§ 2, 5
1996, ch. 959, § 4
1997, ch. 148, §§ 1-6
1998, ch. 729, §§ 1, 2
2002, ch. 855, §§ 3, 4, 14
2003, ch. 90, § 2
2004, ch. 833, § 1
2006, ch. 960, §§ 3, 5
2007, ch. 586, § 1
2009, ch. 186, § 5
2010, ch. 921, §§ 1, 2
2010, ch. 1100, § 66
2012, ch. 575, § 1
2013, ch. 154, § 35
2015, ch. 344, § 8
2016, ch. 993, §§ 5, 6
2018, ch. 999, § 3
2018, ch. 1046, § 3.

§ 40-33-212. Settlement agreements.

Only the chief administrative officer of the seizing agency, or the officer's designee, shall be permitted to negotiate or enter into any type of settlement agreement or agreements prior to the forfeiture hearing conducted pursuant to § 40-33-210. In no event shall any officer involved in the seizure of the property be allowed to negotiate or enter into any type of settlement agreement or agreements prior to the forfeiture hearing. All negotiated settlements by any seizing agency are subject to the approval of the chief administrative officer of the applicable agency.

History (1)

Acts 1994, ch. 925, § 1.

§ 40-33-213. Appeals — Venue.

(a) The party aggrieved by the decision of the applicable agency may seek judicial review of the decision by filing a written notice of review. The reviewing court shall use the preponderance of evidence standard in determining whether to sustain or reverse the final order of the applicable agency. The burden of proof on review shall be the same as in the proceedings before the applicable agency.
(b) Except as otherwise provided in this section, an appeal under this part shall be conducted in the same manner as is provided in § 4-5-322, for a contested case hearing under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(c) A notice of review may, at the election of the aggrieved party, be filed in the circuit court or chancery court of Davidson, Washington, Knox, Hamilton, Putnam, Madison, Dyer, Lawrence, or Shelby county; provided, that, the notice of review shall be filed in the county which corresponds with the location of the hearing.
(d) The applicable agency shall be represented in the appeal by an attorney who is employed by the applicable agency.
(e) If the reviewing court reverses the final order of the applicable agency and orders the return of seized property, the court shall also order the payment of attorney's fees incurred during the administrative proceeding, in the same manner provided and subject to the limits found in § 40-33-217, and any reasonable attorney's fees incurred during the appeal.

History (3)

Acts 1994, ch. 925, § 1
2017, ch. 352, § 6
2018, ch. 772, § 9.

§ 40-33-214. Rules.

Any applicable agency authorized to conduct forfeiture hearings pursuant to § 39-14-307, § 47-25-1105, § 53-11-451, § 55-10-414, § 55-50-504(g), § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020, or § 70-6-202 may promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to supplement and administer this part. However, no such rules shall be inconsistent with this part.

History (4)

Acts 1994, ch. 925, § 1
1996, ch. 910, §§ 6, 7
1996, ch. 959, § 5
2013, ch. 154, § 36.

§ 40-33-215. Cause of action against seizing authority in cases of bad faith.

(a) A person who has property seized in accordance with this part shall have a cause of action against the seizing agency if the seizing officer acted in bad faith in seizing or failing to return property seized pursuant to this part.
(b) A person who prevails in an action against a seizing agency pursuant to this section shall be entitled to:
1. (1) Reasonable attorney fees and court costs necessarily incurred in seeking the return of the seized property and in bringing the action pursuant to this section; and
2. (2) Monetary damages resulting from the improper seizure of the property.
(c) Monetary damages recoverable under this section shall be limited to the rental value of property similar to that which was seized for the period of time it was seized but in no event shall the damages exceed the value of the seized property.
(d) For the purposes of this section, a seizing officer “acts in bad faith” when the officer acts intentionally, dishonestly, or willfully or the officer's actions have no reasonable basis in law or fact in regards to the seizure or failure to return the property seized.

Backlinks (2)

History (2)

Acts 1998, ch. 1070, § 4
1999, ch. 124, § 3.

§ 40-33-216. Annual seizure report by department.

(a) By March 1 of each year, the department of safety shall report to the speakers of the senate and the house of representatives and the chairs of the judiciary committee of the senate and the civil justice and criminal justice committees of the house of representatives, a report detailing, for the previous calendar year:
1. (1) The total number of seizure cases opened by the department;
2. (2) The number of seizure cases where an arrest was made;
3. (3) The total number of cases resulting in forfeiture;
4. (4) The types of property seized under this part and the totals of each type;
5. (5) The amount of currency seized;
6. (6) The amount of currency forfeited;
7. (7) The total number of cases which resulted in a default by the property owner;
8. (8) The total amount of currency forfeited as a result of default;
9. (9) The total number of cases which resulted in a settlement;
10. (10) The total amount of currency forfeited as a result of settlement;
11. (11) The total amount of currency returned to the property owners as a result of settlement;
12. (12) The total number of cases resulting in a hearing;
13. (13) The total number of hearings resulting in forfeiture of assets;
14. (14) The total amount of currency forfeited as a result of disposition by hearing;
15. (15) The total amount of currency returned to the property owners as a result of a disposition by hearing; and
16. (16) How proceeds derived from forfeited assets are used by the department.
(b) The department shall include each category of information for the department as a whole and separately for each individual law enforcement agency that opened a forfeiture proceeding with the department in the previous calendar year.
(c) The information reported by the department in subdivision (a)(16) and to the department in § 40-33-211(a)(2) shall be made accessible to the public on the department's website through a prominent link provided on the home page.
Backlinks (1)
- 40-33-211(a)(2)

History (5)

Acts 2016, ch. 861, § 1
2017, ch. 441, §§ 1, 2
2018, ch. 999, §§ 1, 2
2019, ch. 345, § 59
2021, ch. 64, § 51.

§ 40-33-217. Attorney's fees.

(a) Upon entering an order that includes a return of property, in whole or in part, the administrative law judge or the court shall also include an award of reasonable attorney's fees against the seizing agency subject to the limits in subsection (c).
(b) No award of attorney's fees against a seizing agency shall be entered when the initial order is the result of a settlement between the parties.
(c) An award of reasonable attorney's fees under this section shall not exceed ten thousand dollars ($10,000). Failure to submit documentation of an attorney's time and expenses must result in no attorney's fee being awarded.
(d) The award of attorney's fees shall be appealable in the same manner as an initial order under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(e) Compensation shall not be awarded to an attorney whose fees are paid under any federally funded legal services program, or any such program funded by the state. However, compensation shall be determined and allowed in accordance with subsection (f) to an attorney employed in a privately or publicly funded nonprofit public interest law firm or corporation if neither the attorney, the law firm, nor the corporation received, or is entitled to receive, compensation for filing the claim on behalf of the claimant under any federal or state statute or rule other than this section.
(f) Notwithstanding § 4-5-325 or any other law to the contrary, this section shall be the exclusive means for seeking attorney's fees for proceedings conducted under this part. This section does not prohibit a person who files an action pursuant to § 40-33-215 from seeking attorney's fees for that specific action.
(g) For the purposes of this section, “seizing agency” means the agency that issued the Notice of Seizure pursuant to § 40-33-203.
(h) Notwithstanding § 40-33-211, § 53-11-201, or any other law, funds forfeited to a seizing agency under this part may be used to pay attorney's fees ordered under this section.

Backlinks (1)

40-33-213(e)

History (2)

Acts 2018, ch. 772, § 10
2021, ch. 423, §§ 1, 2.

Chapter 34 Contract Sentencing

§ 40-34-101. Short title.

This chapter shall be known as and may be cited as the “Tennessee Contract Sentencing Act of 1979.”

History (2)

Acts 1979, ch. 386, § 1
T.C.A., § 40-4201.

§ 40-34-102. Authority to establish program.

The commissioner of correction and the board of parole are authorized to establish a contract sentencing program, and to promulgate rules and regulations governing it, consistent with this chapter. The rules and regulations shall include eligibility requirements, procedures and the general form and substance of agreements that may be entered into under the program.

History (4)

Impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1979, ch. 386, § 1
T.C.A., § 40-4202
Acts 1998, ch. 1049, § 42.

§ 40-34-103. Sentence agreements — Notice to officials and victims.

(a) Any prisoner sentenced to a period of imprisonment under supervision of the department of correction and who is otherwise eligible to participate in the contract sentencing program may enter into an agreement with the department and the board of parole for a sentence agreement. The department and the board may establish objectives or programs for each eligible prisoner who wishes to enter into an agreement under the contract sentencing program.
(b) The sentence agreement may include the promise of the prisoner to complete certain enumerated objectives, or certain programs offered for prisoners by the department, in return for:
1. (1) The promise of the board to parole the prisoner on a definite, specified named date or a specific date in relation to the release eligibility date of the eligible prisoner; and
2. (2) The promise of the department to provide the means by which the prisoner may have access to the programs and services necessary for the prisoner to fulfill the prisoner's part of the agreement.
(c) Notwithstanding any other law to the contrary, if an inmate has served a minimum of ten (10) consecutive years in continuous confinement in correctional facilities and has entered into a sentencing agreement, there shall be no statutory restriction on the minimum amount of time that the inmate must serve before being paroled pursuant to the terms of the sentencing agreement. No offender who has been convicted as an habitual offender or has been convicted of a crime against the person, no offender who has been convicted of first degree murder, and no offender who has been convicted of a sexual offense as contained in §§ 39-13-501 — 39-13-506, 39-13-507 [repealed], 39-13-101 and 39-12-101 shall be eligible to participate in the contract sentencing program authorized by this subsection (c).
(d) No agreement entered into under this chapter shall be legally binding or enforceable by any of the parties to the agreement.
(e) The commissioner shall notify the district attorney general who prosecuted the case, or the district attorney general's successor, the trial judge in whose court the conviction occurred, or the trial judge's successor, and the victim or the victim's next of kin prior to the execution of a sentencing agreement under subsection (c).

Backlinks (1)

41-21-236(i)

History (8)

Impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1979, ch. 386, § 1
T.C.A., § 40-4203
Acts 1985 (1st Ex. Sess.), ch. 5, § 23
1988, ch. 879, §§ 1, 2
1989, ch. 227, § 52
1996, ch. 675, § 37
1998, ch. 1049, § 42.

§ 40-34-104. Coordination of contract sentencing program.

The governor shall appoint a person to coordinate the contract sentencing program whose duties shall include acting as spokesperson and advocate for prisoners. The coordinator shall receive reasonable compensation for the work and reimbursements for travel expenses in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter, pursuant to § 4-3-1008.

History (2)

Acts 1979, ch. 386, § 1
T.C.A., § 40-4204.

§ 40-34-105. Establishment of alternative objectives of programs — Removal of prisoner from program.

(a) If the objectives of the agreement cannot be met by the department of correction, or if programs or services referred to in the agreement are not available, the department and the board of parole may establish alternative objectives or programs for the prisoner.
(b) If the prisoner cannot complete the prisoner's part of the agreement for disciplinary reasons, the commissioner of correction, or the commissioner's designee, may, for disciplinary purposes or for the safety of the institution, remove the prisoner from the contract sentencing program, in which event the agreement shall be void; provided, that a new agreement may later be entered into with the prisoner in the discretion of the commissioner and the board.

History (4)

Impl. am. Acts 1979, ch. 359, §§ 5, 26
Acts 1979, ch. 386, § 1
T.C.A., § 40-4205
Acts 1998, ch. 1049, § 42.

§ 40-34-106. Prisoners not exempt from department regulations.

Nothing in this chapter shall be construed to exempt any prisoner, supervised by the department of correction, from the effect of any disciplinary rules or regulations established by the commissioner of correction.

History (2)

Acts 1979, ch. 386, § 1
T.C.A., § 40-4206.

§ 40-34-107. [Repealed]

History (5)

Acts 1985 (1st Ex. Sess.), ch. 5, § 35
2011, ch. 410, § 2(a)
2013, ch. 236, § 64
2019, ch. 345, § 60
repealed by Acts 2020, ch. 711, § 5, effective June 15, 2020.

§ 40-34-108. Maximum reduction of sentence.

(a)
1. (1)
  1. (A) Notwithstanding any other law to the contrary, no sentence credits authorized by § 41-21-236 or any other provision of law, or no sentence contract authorized by this chapter or any other provision of law shall have the effect of reducing the amount of time an inmate must serve before the inmate's earliest release eligibility date, undiminished by the sentence credits, by more than thirty-five percent (35%).
  2. (B) For inmates sentenced for offenses committed on or after January 1, 1988, no sentence credits or no sentence contract shall have the effect of reducing the amount of time an inmate must serve before the inmate's earliest release eligibility date, undiminished by the sentence credits, by more than thirty percent (30%).
2. (2) The sentencing commission shall review the effect of these provisions as part of its duties under law.
(b) As used in this section, “sentence credits” includes any credit, whether called such or not, that results in a reduction of the amount of time an inmate must serve on the original sentence or sentences. This section shall not be applicable when the powers granted pursuant to title 41, chapter 1 are in effect to reduce prison overcrowding.

History (1)

Acts 1985 (1st Ex. Sess.), ch. 5, § 52.

Chapter 35 Tennessee Criminal Sentencing Reform Act of 1989

Part 1 General Provisions

§ 40-35-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Criminal Sentencing Reform Act of 1989.”

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-102. Purpose of chapter.

The foremost purpose of this chapter is to promote justice, as manifested by § 40-35-103. In so doing, the following principles are adopted:
1. (1) Every defendant shall be punished by the imposition of a sentence justly deserved in relation to the seriousness of the offense;
2. (2) This chapter is to assure fair and consistent treatment of all defendants by eliminating unjustified disparity in sentencing and providing a fair sense of predictability of the criminal law and its sanctions;
3. (3) Punishment shall be imposed to prevent crime and promote respect for the law by:
  1. (A) Providing an effective general deterrent to those likely to violate the criminal laws of this state;
  2. (B) Restraining defendants with a lengthy history of criminal conduct;
  3. (C) Encouraging effective rehabilitation of those defendants, where reasonably feasible, by promoting the use of alternative sentencing and correctional programs that elicit voluntary cooperation of defendants; and
  4. (D) Encouraging restitution to victims where appropriate;
4. (4) Sentencing should exclude all considerations respecting race, gender, creed, religion, national origin and social status of the individual;
5. (5) In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration; and
6. (6)
  1. (A) A defendant who does not fall within the parameters of subdivision (5), and who is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be considered as a favorable candidate for alternative sentencing options in the absence of evidence to the contrary; however, a defendant’s prior convictions shall be considered evidence to the contrary and, therefore, a defendant who is being sentenced for a third or subsequent felony conviction involving separate periods of incarceration or supervision shall not be considered a favorable candidate for alternative sentencing;
  2. (B) As used in subdivision (6)(A), “separate periods of incarceration or supervision” means that the defendant serves and is released or discharged from a period of incarceration or supervision for the commission of a felony prior to committing another felony;
  3. (C) If a defendant with at least three (3) felony convictions is otherwise eligible, that defendant may still be considered a favorable candidate for any alternative sentencing that is within the jurisdiction of and deemed appropriate by a drug court;
  4. (D) A court shall consider, but is not bound by, the advisory sentencing guideline in this subdivision (6).

Backlinks (2)

History (5)

Acts 1989, ch. 591, § 6
1990, ch. 980, § 21
1994, ch. 736, § 1
2005, ch. 353, § 1
2007, ch. 512, § 1.

§ 40-35-103. Sentencing considerations.

To implement the purposes of this chapter, the following principles apply:
1. (1) Sentences involving confinement should be based on the following considerations:
  1. (A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
  2. (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
  3. (C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant;
2. (2) The sentence imposed should be no greater than that deserved for the offense committed;
3. (3) Inequalities in sentences that are unrelated to a purpose of this chapter should be avoided;
4. (4) The sentence imposed should be the least severe measure necessary to achieve the purposes for which the sentence is imposed;
5. (5) The potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed. The length of a term of probation may reflect the length of a treatment or rehabilitation program in which participation is a condition of the sentence;
6. (6) Trial judges are encouraged to use alternatives to incarceration that include requirements of reparation, victim compensation, community service or all of these; and
7. (7) Available community-based alternatives to confinement and the benefits that imposing such alternatives may provide to the community should be considered when the offense is nonviolent and the defendant is the primary caregiver of a dependent child.

Backlinks (4)

History (2)

Acts 1989, ch. 591, § 6
2019, ch. 309, § 1.

§ 40-35-104. Sentencing alternatives.

(a) A defendant convicted of a felony or a misdemeanor in this state shall be sentenced in accordance with this chapter.
(b)
1. (1) A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to a total sentence of at least one (1) year but not more than three (3) years, shall not be sentenced to serve the sentence in the department of correction, if the legislative body for the county from which the defendant is being sentenced has either contracted with the department, or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department.
2. (2) A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to at least one (1) year but not more than six (6) years, shall not be sentenced to serve the sentence in the department of correction if the defendant is being sentenced from a county with a population of not less than four hundred seventy-seven thousand eight hundred eleven (477,811), according to the 1980 federal census or any subsequent federal census, and the legislative body for the county has contracted with the department or has passed a resolution that expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, the defendant must be sentenced to the local jail or workhouse and not to the department.
Backlinks (5)
(c) The following sentencing alternatives in any appropriate combination are authorized for defendants otherwise eligible under this chapter:
1. (1) Payment of a fine either alone or in addition to any other sentence authorized by this subsection (c);
2. (2) Payment of restitution to the victim or victims either alone or in addition to any other sentence authorized by this subsection (c);
  Backlinks (5)
  
  39-11-118(a)
  39-11-118(b)
  40-35-304(g)
  40-35-304(g)(2)
  40-35-304(g)(5)
3. (3) A sentence of confinement that is suspended upon a term of probation supervision that may include community service or restitution, or both;
  Backlinks (6)
  
  39-13-523(a)(7)
  39-17-1324(i)(3)
  40-35-501(cc)(3)(C)
  40-35-501(k)(4)
  40-35-501(u)(3)(B)
  40-39-207(g)(3)(C)
4. (4) A sentence of periodic confinement that may be served in a local jail or workhouse in conjunction with a term of probation;
5. (5) A sentence of continuous confinement to be served in a local jail or workhouse in conjunction with a term of probation;
6. (6) A sentence of continuous confinement in a local jail or workhouse;
7. (7) Work release in accordance with § 40-35-315;
8. (8) A sentence of continuous confinement in the department of correction if the conviction is for a felony and the sentence is at least one (1) year, unless:
  1. (A) The sentence is prohibited by subsection (b); or
  2. (B) The defendant is convicted of a violation of § 39-14-103, involving property valued at less than two thousand five hundred dollars ($2,500), and the defendant is sentenced as an especially mitigated offender as defined in § 40-35-109 or a standard offender as defined in § 40-35-105; or
9. (9) A community-based alternative to incarceration as a condition of probation, such as participation in a day reporting center program, a recovery and treatment program, or another appropriate community-based program. A defendant may be ordered to participate in a recovery and treatment program only if such a program is indicated by the results of a clinical assessment.
  Backlinks (2)
  
  40-35-310(b)
  40-35-311(e)(1)(B)
(d) This chapter does not deprive a court of any authority conferred by law, including, but not limited to, § 40-35-313, to decree a forfeiture of property, suspend or cancel a license, remove a person from office or impose costs and other monetary obligations if specifically authorized by law.
(e) This chapter does not prevent a court from imposing a sentence of death specifically authorized by law.
(f) The court shall strongly consider utilizing available and appropriate sentencing alternatives for any defendant who, as appropriately documented, including through a validated risk and needs assessment under § 40-35-207(a)(10), has a behavioral health need, such as a mental illness as defined in § 33-1-101, or is chemically dependent as defined in § 16-22-103. The court has sole discretion whether to utilize available sentencing alternatives under this subsection (f).

History (7)

Acts 1989, ch. 591, § 6
1990, ch. 1030, § 36
1991, ch. 374, §§ 1, 2
1992, ch. 878, § 2
1996, ch. 699, § 2
2016, ch. 906, § 6
2021, ch. 409, §§ 9, 10.

§ 40-35-105. Standard offender.

(a) A standard offender is a defendant not sentenced as:
1. (1) A multiple offender, as defined by § 40-35-106;
2. (2) A persistent offender, as defined by § 40-35-107;
3. (3) A career offender, as defined by § 40-35-108;
4. (4) An especially mitigated offender, as defined by § 40-35-109; or
5. (5) A repeat violent offender, as defined by § 40-35-120.
(b) The sentence for a standard offender is within Range I.
(c) If the judgment of conviction does not include a sentence range, it shall be returned to the sentencing court to be completed.

Backlinks (3)

History (2)

Acts 1989, ch. 591, § 6
1994, ch. 994, § 2.

§ 40-35-106. Multiple offender.

(a) A multiple offender is a defendant who has received:
1. (1) A minimum of two (2) but not more than four (4) prior felony convictions within the conviction class, a higher class, or within the next two (2) lower felony classes, where applicable; or
2. (2) One (1) Class A prior felony conviction if the defendant's conviction offense is a Class A or B felony.
(b) In determining the number of prior convictions a defendant has received:
1. (1) “Prior conviction” means a conviction for an offense occurring prior to the commission of the offense for which the defendant is being sentenced;
2. (2) All prior felony convictions, including those occurring prior to November 1, 1989, are included;
3. (3)
  1. (A) A finding or adjudication that a defendant committed an act as a juvenile that would constitute a felony if committed by an adult and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions, shall not be considered as a prior conviction for the purposes of this section unless the juvenile was convicted of a felony in a criminal court;
  2. (B) Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult shall be considered as a prior conviction for the purposes of this section, regardless of whether the juvenile was transferred to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions;
4. (4) Except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or victims, or convictions for the offense of aggravated burglary under § 39-13-1003, convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions; and
5. (5) Prior convictions include convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given.
(c) A defendant who is found by the court beyond a reasonable doubt to be a multiple offender shall receive a sentence within Range II.
(d) The finding that a defendant is or is not a multiple offender is appealable by either party.

Backlinks (1)

40-35-105(a)(1)

History (5)

Acts 1989, ch. 591, § 6
2005, ch. 353, § 2
2009, ch. 603, § 1
2010, ch. 861, § 1
2021, ch. 545, § 10.

§ 40-35-107. Persistent offender.

(a) A persistent offender is a defendant who has received:
1. (1) Any combination of five (5) or more prior felony convictions within the conviction class or higher or within the next two (2) lower felony classes, where applicable; or
2. (2) At least two (2) Class A or any combination of three (3) Class A or Class B felony convictions if the defendant's conviction offense is a Class A or B felony.
(b) In determining the number of prior convictions a defendant has received:
1. (1) Prior conviction means a conviction for an offense occurring prior to the commission of the offense for which the defendant is being sentenced;
2. (2) All prior felony convictions, including those occurring prior to November 1, 1989, are included;
3. (3)
  1. (A) A finding or adjudication that a defendant committed an act as a juvenile that would constitute a felony if committed by an adult and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134 or similar statutes of other states or jurisdictions shall not be considered as a prior conviction for the purposes of this section unless the juvenile was convicted of a felony in a criminal court;
  2. (B) Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult shall be considered as a prior conviction for the purposes of this section, regardless of whether the juvenile was transferred to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions;
4. (4) Except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or victims or convictions for the offense of aggravated burglary under § 39-13-1003, convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions; and
5. (5) Prior convictions includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given.
(c) A defendant who is found by the court beyond a reasonable doubt to be a persistent offender shall receive a sentence within Range III.
(d) The finding that a defendant is or is not a persistent offender is appealable by either party.

Backlinks (1)

40-35-105(a)(2)

History (5)

Acts 1989, ch. 591, § 6
2005, ch. 353, § 3
2009, ch. 603, § 2
2010, ch. 861, § 2
2021, ch. 545, § 11.

§ 40-35-108. Career offender.

(a) A career offender is a defendant who has received:
1. (1) Any combination of six (6) or more Class A, B or C prior felony convictions, and the defendant's conviction offense is a Class A, B or C felony;
2. (2) At least three (3) Class A or any combination of four (4) Class A or Class B felony convictions if the defendant's conviction offense is a Class A or B felony; or
3. (3) At least six (6) prior felony convictions of any classification if the defendant's conviction offense is a Class D or E felony.
(b) In determining the number of prior convictions a defendant has received:
1. (1) “Prior conviction” means a conviction for an offense occurring prior to the commission of the offense for which the defendant is being sentenced;
2. (2) All prior felony convictions, including those occurring prior to November 1, 1989, are included;
3. (3)
  1. (A) A finding or adjudication that a defendant committed an act as a juvenile that would constitute a felony if committed by an adult and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134 or similar statutes of other states or jurisdictions shall not be considered as a prior conviction for the purposes of this section, unless the juvenile was convicted of a felony in a criminal court;
  2. (B) Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult shall be considered as a prior conviction for the purposes of this section, regardless of whether the juvenile was transferred to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions;
4. (4) Except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or victims or convictions for the offense of aggravated burglary under § 39-13-1003, convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions; and
5. (5) “Prior convictions” includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given.
(c) A defendant who is found by the court beyond a reasonable doubt to be a career offender shall receive the maximum sentence within the applicable Range III.
(d) The finding that a defendant is or is not a career offender is appealable by either party.

Backlinks (1)

40-35-105(a)(3)

History (5)

Acts 1989, ch. 591, § 6
2005, ch. 353, § 4
2009, ch. 603, § 3
2010, ch. 861, § 3
2021, ch. 545, § 12.

§ 40-35-109. Especially mitigated offender.

(a) The court may find the defendant is an especially mitigated offender, if:
1. (1) The defendant has no prior felony convictions; and
2. (2) The court finds mitigating, but no enhancement factors.
(b) If the court finds the defendant an especially mitigated offender, the court shall reduce the defendant's statutory Range I minimum sentence by ten percent (10%) or reduce the release eligibility date to twenty percent (20%) of the sentence, or both reductions. If the court employs both reductions, the calculation for release eligibility shall be made by first reducing the sentence and then reducing the release eligibility to twenty percent (20%).
(c) If the defendant is found to be an especially mitigated offender, the judgment of conviction shall so reflect.
(d) The finding that a defendant is or is not an especially mitigated offender is appealable by either party.

Backlinks (3)

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-110. Classification of offenses.

(a) Felonies are classified for the purpose of sentencing into five (5) categories:
1. (1) Class A felonies;
2. (2) Class B felonies;
3. (3) Class C felonies;
4. (4) Class D felonies; and
5. (5) Class E felonies.
(b) An offense designated a felony without specification as to category is a Class E felony.
(c) Misdemeanors are classified for the purpose of sentencing into three (3) categories:
1. (1) Class A misdemeanors;
2. (2) Class B misdemeanors; and
3. (3) Class C misdemeanors.
(d) An offense designated as a misdemeanor without specification as to category is a Class A misdemeanor.

Backlinks (1)

49-7-2207(a)

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-111. Authorized terms of imprisonment and fines for felonies and misdemeanors.

(a) A sentence for a felony is a determinate sentence.
(b) The authorized terms of imprisonment and fines for felonies are:
1. (1) Class A felony, not less than fifteen (15) nor more than sixty (60) years. In addition, the jury may assess a fine not to exceed fifty thousand dollars ($50,000), unless otherwise provided by statute;
2. (2) Class B felony, not less than eight (8) nor more than thirty (30) years. In addition, the jury may assess a fine not to exceed twenty-five thousand dollars ($25,000), unless otherwise provided by statute;
3. (3) Class C felony, not less than three (3) years nor more than fifteen (15) years. In addition, the jury may assess a fine not to exceed ten thousand dollars ($10,000), unless otherwise provided by statute;
4. (4) Class D felony, not less than two (2) years nor more than twelve (12) years. In addition, the jury may assess a fine not to exceed five thousand dollars ($5,000), unless otherwise provided by statute; and
5. (5) Class E felony, not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by statute.
(c)
1. (1) A sentence to pay a fine, when imposed on a corporation for an offense defined in title 39 or for any offense defined in any other title for which no special corporate fine is specified, is a sentence to pay an amount, not to exceed:
  1. (A) Three hundred fifty thousand dollars ($350,000) for a Class A felony;
  2. (B) Three hundred thousand dollars ($300,000) for a Class B felony;
  3. (C) Two hundred fifty thousand dollars ($250,000) for a Class C felony;
  4. (D) One hundred twenty-five thousand dollars ($125,000) for a Class D felony; and
  5. (E) Fifty thousand dollars ($50,000) for a Class E felony.
2. (2) If a special fine for a corporation is expressly specified in the statute that defines an offense, the fine fixed shall be within the limits specified in the statute.
(d) A sentence for a misdemeanor is a determinate sentence.
(e) The authorized terms of imprisonment and fines for misdemeanors are:
1. (1) Class A misdemeanor, not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute;
  Backlinks (2)
  
  39-13-113(g)
  39-14-203(d)(2)
2. (2) Class B misdemeanor, not greater than six (6) months or a fine not to exceed five hundred dollars ($500), or both, unless otherwise provided by statute; and
3. (3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.
(f) In order to furnish the general assembly with information necessary to make an informed determination as to whether the increase in the cost of living and changes in income for residents of Tennessee has resulted in the minimum and maximum authorized fine ranges no longer being commensurate with the amount of fine deserved for the offense committed, every five (5) years, on or before January 15, the fiscal review committee shall report to the chief clerks of the senate and the house of representatives of the general assembly the percentage of change in the average consumer price index (all items-city average) as published by the United States department of labor, bureau of labor statistics and shall inform the general assembly what the statutory minimum and maximum authorized fine for each offense classification would be if adjusted to reflect the compounded cost-of-living increases during the five-year period.

History (2)

Acts 1989, ch. 591, § 6
2007, ch. 61, § 1.

§ 40-35-112. Sentence ranges.

(a) A Range I sentence is as follows:
1. (1) For a Class A felony, not less than fifteen (15) nor more than twenty-five (25) years;
2. (2) For a Class B felony, not less than eight (8) nor more than twelve (12) years;
3. (3) For a Class C felony, not less than three (3) nor more than six (6) years;
4. (4) For a Class D felony, not less than two (2) nor more than four (4) years; and
5. (5) For a Class E felony, not less than one (1) nor more than two (2) years.
(b) A Range II sentence is as follows:
1. (1) For a Class A felony, not less than twenty-five (25) nor more than forty (40) years;
2. (2) For a Class B felony, not less than twelve (12) nor more than twenty (20) years;
3. (3) For a Class C felony, not less than six (6) nor more than ten (10) years;
4. (4) For a Class D felony, not less than four (4) nor more than eight (8) years; and
5. (5) For a Class E felony, not less than two (2) nor more than four (4) years.
(c) A Range III sentence is as follows:
1. (1) For a Class A felony, not less than forty (40) nor more than sixty (60) years;
2. (2) For a Class B felony, not less than twenty (20) nor more than thirty (30) years;
3. (3) For a Class C felony, not less than ten (10) nor more than fifteen (15) years;
4. (4) For a Class D felony, not less than eight (8) nor more than twelve (12) years; and
5. (5) For a Class E felony, not less than four (4) nor more than six (6) years.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-113. Mitigating factors.

If appropriate for the offense, mitigating factors may include, but are not limited to:
1. (1) The defendant's criminal conduct neither caused nor threatened serious bodily injury;
2. (2) The defendant acted under strong provocation;
3. (3) Substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;
4. (4) The defendant played a minor role in the commission of the offense;
5. (5) Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained;
6. (6) The defendant, because of youth or old age, lacked substantial judgment in committing the offense;
7. (7) The defendant was motivated by a desire to provide necessities for the defendant's family or the defendant's self;
8. (8) The defendant was suffering from a mental or physical condition that significantly reduced the defendant's culpability for the offense; however, the voluntary use of intoxicants does not fall within the purview of this factor;
9. (9) The defendant assisted the authorities in uncovering offenses committed by other persons or in detecting or apprehending other persons who had committed the offenses;
10. (10) The defendant assisted the authorities in locating or recovering any property or person involved in the crime;
11. (11) The defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct;
12. (12) The defendant acted under duress or under the domination of another person, even though the duress or the domination of another person is not sufficient to constitute a defense to the crime, including a misdemeanor or non-violent felony committed while the defendant was a victim of human trafficking or a commercial sex act; and
13. (13) Any other factor consistent with the purposes of this chapter.

Backlinks (3)

History (2)

Acts 1989, ch. 591, § 6
2022, ch. 1115, § 17.

§ 40-35-114. Enhancement factors.

If appropriate for the offense and if not already an essential element of the offense, the court shall consider, but is not bound by, the following advisory factors in determining whether to enhance a defendant's sentence:
1. (1) The defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range;
2. (2) The defendant was a leader in the commission of an offense involving two (2) or more criminal actors;
3. (3) The offense involved more than one (1) victim;
4. (4) A victim of the offense was particularly vulnerable because of age or physical or mental disability;
5. (5) The defendant treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense;
6. (6) The personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim was particularly great;
7. (7) The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement;
8. (8) The defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community;
9. (9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense;
10. (10) The defendant had no hesitation about committing a crime when the risk to human life was high;
11. (11) The felony resulted in death or serious bodily injury, or involved the threat of death or serious bodily injury, to another person, and the defendant has previously been convicted of a felony that resulted in death or serious bodily injury;
12. (12) During the commission of the felony, the defendant intentionally inflicted serious bodily injury upon another person, or the actions of the defendant resulted in the death of, or serious bodily injury to, a victim or a person other than the intended victim;
13. (13) At the time the felony was committed, one (1) of the following classifications was applicable to the defendant:
  1. (A) Released on bail or pretrial release, if the defendant is ultimately convicted of the prior misdemeanor or felony;
  2. (B) Released on parole;
  3. (C) Released on probation;
  4. (D) On work release;
  5. (E) On community corrections;
  6. (F) On some form of judicially ordered release;
  7. (G) On any other type of release into the community under the direct or indirect supervision of any state or local governmental authority or a private entity contracting with the state or a local government;
  8. (H) On escape status; or
  9. (I) Incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or felony conviction;
  Backlinks (1)
  
  40-35-506(d)
14. (14) The defendant abused a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense;
15. (15) The defendant committed the offense on the grounds or facilities of a pre-kindergarten through grade twelve (pre-K-12) public or private institution of learning when minors were present;
16. (16) The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult;
17. (17) The defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part, because of the defendant's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone;
18. (18) The offense was an act of terrorism or was related to an act of terrorism;
19. (19) If the defendant is convicted of the offense of aggravated assault pursuant to § 39-13-102, the victim of the aggravated assault was a law enforcement officer, firefighter, correctional officer, youth services officer, probation and parole officer, a state registered security guard/officer, an employee of the department of correction or the department of children's services, a uniformed member of the armed forces or national guard, an emergency medical or rescue worker, emergency medical technician or paramedic, whether compensated or acting as a volunteer; provided, that the victim was performing an official duty and the defendant knew or should have known that the victim was such an officer or employee;
20. (20) If the defendant is convicted of the offenses of rape pursuant to § 39-13-503, sexual battery pursuant to § 39-13-505 or rape of a child pursuant to § 39-13-522, the defendant caused the victim to be mentally incapacitated or physically helpless by use of a controlled substance or controlled substance analogue;
21. (21) If the defendant is convicted of the offenses of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, rape of a child pursuant to § 39-13-522 or statutory rape pursuant to § 39-13-506, the defendant knew or should have known that, at the time of the offense, the defendant was HIV positive;
22. (22)
  1. (A) If the defendant is convicted of the offenses of aggravated arson pursuant to § 39-14-302 or vandalism pursuant to § 39-14-408, the damage or destruction was caused to a structure, whether temporary or permanent in nature, used as a place of worship and the defendant knew or should have known that it was a place of worship;
  2. (B) As used in subdivision (22)(A), “place of worship” means any structure that is:
    1. (i) Approved, or qualified to be approved, by the state board of equalization for property tax exemption pursuant to § 67-5-212, based on ownership and use of the structure by a religious institution; and
    2. (ii) Utilized on a regular basis by a religious institution as the site of congregational services, rites or activities communally undertaken for the purpose of worship;
23. (23) The defendant is an adult and sells to or gives or exchanges a controlled substance, controlled substance analogue or other illegal drug with a minor;
24. (24) The offense involved the theft of property and, as a result of the manner in which the offense was committed, the victim suffered significant damage to other property belonging to the victim or for which the victim was responsible;
25. (25)
  1. (A) The defendant commits an offense:
    1. (i) During the time period between the first occurrence of events or conduct that later results in a declaration of a state of emergency by a county, the governor, or the president of the United States and the time the county, governor, or the president of the United States terminates the state of emergency, as provided in § 58-2-107;
    2. (ii) Within the area or areas threatened by the emergency, as established by the county's, governor's, or president's declaration of a state of emergency; and
    3. (iii) Knowing of the existence of the emergency;
  2. (B) As used in this subdivision (25):
    1. (i) “Emergency” means an occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, that results or may result in substantial injury or harm to the population, or substantial damage to or loss of property; provided, that natural threats may include disease outbreaks and epidemics; and
    2. (ii) “Offense” means the defendant is convicted of a violation of § 39-14-103, § 39-14-104, § 39-14-408, or any other offense involving theft or vandalism that is graded by value pursuant to § 39-14-105, and the value of the property or service taken or property damaged is no greater than the value provided in § 39-14-105 for a Class E felony;
26. (26) The defendant committed the offense of robbery pursuant to § 39-13-401, aggravated robbery pursuant to § 39-13-402, or especially aggravated robbery pursuant to § 39-13-403, on the premises of a licensed pharmacy in an effort to unlawfully obtain, sell, give, or exchange a controlled substance, controlled substance analogue, or other illegal drug;
27. (27) The defendant commits a violent offense, as classified in § 40-35-120(b), against a uniformed law enforcement officer or uniformed member of the armed forces or national guard; and the defendant intentionally selected the person against whom the crime was committed, in whole or in part, because of the person's status as a law enforcement officer or member of the armed forces or national guard;
28. (28) At the time the instant offense was committed, the defendant was illegally or unlawfully in the United States;
29. (29) The offense involved the theft of a firearm from a motor vehicle, as defined in § 55-1-103;
30. (30)
  1. (A) The defendant committed the offense of aggravated assault, as defined in § 39-13-102(a), or attempted first degree murder, as defined in § 39-13-202, on the grounds or premises of a healthcare facility;
  2. (B) As used in this subdivision (30), “healthcare facility” means a hospital licensed under title 33 or 68; and
31. (31) The defendant committed an offense under title 39, chapter 13, part 1, 2, 3, 4, or 5 while engaged in the performance of official duties as a law enforcement officer.

Backlinks (5)

History (24)

Acts 1989, ch. 591, § 6
1992, ch. 837, § 1
1994, ch. 821, § 1
1994, ch. 978, § 5
1995, ch. 302, § 1
1995, ch. 322, § 2
1995, ch. 515, § 2
1997, ch. 437, § 3
1997, ch. 547, § 3
2000, ch. 896, § 1
2002, ch. 849, § 2c
2005, ch. 353, § 5
2007, ch. 173, § 1
2008, ch. 690, § 2
2012, ch. 848, § 33
2015, ch. 443, § 1
2016, ch. 934, § 1
2016, ch. 1025, § 1
2017, ch. 265, §§ 1, 2
2017, ch. 492, § 1
2020, ch. 580, § 18
2021, ch. 108, § 11
2023, ch. 306, § 1
2023, ch. 318, § 1.

§ 40-35-115. Multiple convictions.

(a) If a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently as provided by the criteria in this section.
(b) The court may order sentences to run consecutively if the court finds by a preponderance of the evidence that:
1. (1) The defendant is a professional criminal who has knowingly devoted the defendant's life to criminal acts as a major source of livelihood;
2. (2) The defendant is an offender whose record of criminal activity is extensive;
3. (3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;
4. (4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high;
5. (5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;
6. (6) The defendant is sentenced for an offense committed while on probation;
7. (7) The defendant is sentenced for criminal contempt;
8. (8) The defendant is convicted of two (2) or more offenses involving sexual exploitation of an elderly or vulnerable adult with consideration of the aggravating circumstances arising from the relationship between the defendant and victim, the nature and scope of the sexual acts, and the extent of the physical and mental damage to the victim;
9. (9) The defendant was incarcerated at the time of the offense and is convicted of an offense enumerated in § 39-16-202(a)(2); or
10. (10) The defendant is convicted of two (2) or more offenses involving more than one (1) victim, irrespective of whether the multiple offenses were part of a single criminal episode, and the court finds that a separate consecutive sentence for each offense is in the interest of justice.
(c) The finding concerning the imposition of consecutive or concurrent sentences is appealable by either party.
(d) Sentences shall be ordered to run concurrently if the criteria noted in subsection (b) are not met, unless consecutive sentences are specifically required by statute or the Tennessee Rules of Criminal Procedure.

Backlinks (1)

39-17-1005(d)

History (5)

Acts 1989, ch. 591, § 6
1990, ch. 980, §§ 31, 32
2021, ch. 500, § 15
2023, ch. 347, § 2
2023, ch. 481, § 1.

§ 40-35-116. Revocation of bail on conviction.

(a) If a defendant is convicted of first degree murder, a Class A felony, rape, aggravated robbery, aggravated sexual battery, aggravated kidnapping, aggravated child abuse, statutory rape by an authority figure or a violation of § 39-17-417(b) or (i), the judge shall revoke bail immediately, notwithstanding sentencing hearings, motions for a new trial and related post-guilt determination hearings.
(b) If a defendant is convicted of any other felony offense, the judge may revoke bail immediately, notwithstanding sentencing hearing, motion for a new trial and related post-guilt determination hearings.
(c) If the court revokes the defendant's bail, the defendant shall be housed in a local jail pending the sentencing determination. Following sentencing, the defendant shall be transferred to the custody of the authority to whom the defendant was sentenced.
(d) If a defendant is convicted of first degree murder, the judge may house the defendant in a local jail or may transfer custody to the department of correction pending further proceedings in the trial court.

History (3)

Acts 1989, ch. 591, § 6
1990, ch. 980, § 22
2007, ch. 108, § 1.

§ 40-35-117. Applicability of chapter.

(a) All persons who commit crimes on or after November 1, 1989, shall be tried and sentenced under this chapter.
(b) Unless prohibited by the United States or Tennessee constitutions, any person sentenced on or after November 1, 1989, for an offense committed between July 1, 1982, and November 1, 1989, shall be sentenced under this chapter.
(c) For all persons who committed crimes prior to July 1, 1982, prior law shall apply and remain in full force and effect in every respect, including, but not limited to, sentencing, parole and probation.

Backlinks (1)

39-11-112

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-118. Classification of repealed pre-1989 offenses [For list of classification for current offenses, see the compiler's note in § 40-35-110].

(a) For the purpose of determining the classification of felony offenses in title 39 committed prior to November 1, 1989, the following classifications shall be used:
Backlinks (5)
(b) These classifications shall be used for sentencing after November 1, 1989, if the offense was committed on or after July 1, 1982, and prior to November 1, 1989, except first degree murder, which shall be punished by death or life imprisonment.

Backlinks (2)

History (3)

Acts 1989, ch. 591, § 6
1990, ch. 1030, § 31
1992, ch. 655, § 1.

§ 40-35-119. Classification of prior unclassified felony offenses.

Any prior felony offense committed between July 1, 1982, and November 1, 1989, which has not been classified pursuant to § 40-35-118 or otherwise, is a Class E felony.

History (1)

Acts 1990, ch. 980, § 23.

§ 40-35-120. Repeat violent offenders — Three strikes.

(a) A “repeat violent offender” is a defendant who:
1. (1) Is convicted in this state on or after July 1, 1994, of any offense classified in subdivision (b)(1) as a violent offense; and
2. (2) Has at least two (2) prior convictions for offenses classified in subdivision (b)(1) or (b)(2) as a violent offense; or
3. (3) Is convicted in this state on or after July 1, 1994, of any offense classified in subdivision (c)(1) as a violent offense; and
4. (4) Has at least one (1) conviction for an offense classified in subdivision (c)(1) or (c)(2) as a violent offense; or
5. (5) Is convicted in this state on or after July 1, 1995, of any offense classified in subdivision (d)(1) as a violent offense; and
6. (6) Has at least one (1) prior conviction for an offense classified in subdivision (d)(1) or (d)(2) as a violent offense with the exception of the prior offense of robbery by use of a deadly weapon as listed in § 40-35-118(a).
(b)
1. (1) For purposes of subdivisions (a)(1) and (a)(2), the following offenses are classified as violent offenses:
  1. (A) First degree murder, including any attempt, solicitation or facilitation to commit first degree murder;
  2. (B) Second degree murder and any attempt or facilitation to commit second degree murder;
  3. (C) Especially aggravated kidnapping and any attempt or facilitation to commit especially aggravated kidnapping;
  4. (D) Especially aggravated robbery and any attempt or facilitation to commit especially aggravated robbery;
  5. (E) Aggravated rape and any attempt or facilitation to commit aggravated rape;
  6. (F) Rape of a child and any attempt or facilitation to commit rape of a child;
  7. (G) Aggravated arson and any attempt or facilitation to commit aggravated arson;
  8. (H) Aggravated kidnapping;
  9. (I) Aggravated robbery;
  10. (J) Rape;
  11. (K) Aggravated sexual battery;
  12. (L) Especially aggravated burglary;
  13. (M) Aggravated child abuse;
  14. (N) Aggravated sexual exploitation of minor; and
  15. (O) Especially aggravated sexual exploitation of a minor.
2. (2) For purposes of subdivision (a)(2), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A or B felonies against a person are classified as violent offenses.
Backlinks (6)
(c)
1. (1) For purposes of subdivisions (a)(3) and (a)(4), the following offenses are classified as violent offenses:
  1. (A) First degree murder including any attempt, solicitation or facilitation to commit first degree murder;
  2. (B) Second degree murder;
  3. (C) Especially aggravated kidnapping;
  4. (D) Especially aggravated robbery;
  5. (E) Aggravated rape;
  6. (F) Rape of a child; and
  7. (G) Aggravated arson.
2. (2) For purposes of subdivision (a)(4), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A felonies against a person are classified as violent offenses.
(d)
1. (1) For purposes of subdivisions (a)(5) and (a)(6), the following offenses are classified as violent offenses:
  1. (A) First degree murder;
  2. (B) Second degree murder;
  3. (C) Especially aggravated kidnapping;
  4. (D) Especially aggravated robbery;
  5. (E) Aggravated rape;
  6. (F) Rape of a child;
  7. (G) Aggravated arson;
  8. (H) Aggravated kidnapping;
  9. (I) Rape;
  10. (J) Aggravated sexual battery;
  11. (K) Especially aggravated burglary;
  12. (L) Aggravated child abuse;
  13. (M) Aggravated sexual exploitation of a minor; and
  14. (N) Especially aggravated sexual exploitation of a minor.
2. (2) For purposes of subdivision (a)(6), the offenses that were repealed on November 1, 1989, and are listed in § 40-35-118(a) as Class A or B felonies against a person, with the exception of the offense of robbery by use of a deadly weapon, are classified as violent offenses.
(e) In determining the number of prior convictions a defendant has received:
1. (1) “Prior conviction” means a defendant serves and is released from a period of incarceration for the commission of an offense or offenses so that a defendant must:
  1. (A) To qualify under subdivision (a)(1) and (a)(2), have served two (2) separate periods of incarceration for the commission of at least two (2) of the predicate offenses designated in subdivision (b)(1) or (b)(2) before committing an offense designated in subdivision (b)(1);
  2. (B) To qualify under subdivision (a)(3) and (a)(4), at least one (1) separate period of incarceration for the commission of a predicate offense designated in subdivision (c)(1) or (c)(2) before committing an offense designated in subdivision (c)(1); or
  3. (C) To qualify under subdivision (a)(5) and (a)(6), at least one (1) separate period of incarceration for the commission of a predicate offense designated in subdivision (d)(1) or (d)(2), with the exception of the prior offense of robbery by use of a deadly weapon as listed in § 40-35-118(a), before committing an offense designated in subdivision (d)(1);
2. (2) “Separate period of incarceration” includes a sentence to a community correction program pursuant to chapter 36 of this title, a sentence to split confinement pursuant to § 40-35-306 or a sentence to a periodic confinement pursuant to § 40-35-307. Any offense designated as a violent offense pursuant to subsection (b), (c) or (d) that is committed while incarcerated or committed while the prisoner is assigned to a program whereby the prisoner enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release, medical furlough or that is committed while on escape status from any correctional institution shall be considered as a separate period of incarceration;
3. (3) A finding or adjudication that a defendant committed an act as a juvenile that is designated a predicate offense under subsection (b), (c) or (d) if committed by an adult, and that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-134, or similar statutes of other states or jurisdictions, shall not be considered a prior conviction for the purposes of this section unless the juvenile was convicted of the predicate offense in a criminal court and sentenced to confinement in the department of correction; and
4. (4) “Prior convictions” include convictions under the laws of any other state, government or country that, if committed in this state, would have constituted a predicate offense in subsection (b), (c) or (d) if there are separate periods of incarceration in the other state as required by subdivision (e)(1). If a felony from a jurisdiction other than Tennessee is not a named predicate offense specified in subsection (b), (c) or (d) in this state and if the elements of the felony are the same as a designated predicate offense, it shall be considered a prior conviction; provided, that there are separate periods of incarceration in the other state as required in subdivision (e)(1).
(f) The court shall refuse to accept a plea agreement that fails to recommend that a defendant with a sufficient number of designated prior convictions be sentenced as a repeat violent offender. If the judge refuses to accept the plea agreement, this does not prevent the district attorney general, in accordance with Rule 7 of the Tennessee Rules of Criminal Procedure, from amending the indicted offense to an offense that is not designated as a violent offense in subsection (b) or (c).
(g) The court shall sentence a defendant who has been convicted of any offense listed in subdivision (b)(1), (c)(1) or (d)(1) to imprisonment for life without possibility of parole if the court finds beyond a reasonable doubt that the defendant is a repeat violent offender as defined in subsection (a).
(h) The finding that a defendant is or is not a repeat violent offender is appealable by either party.
(i)
1. (1)
  1. (A) A charge as a repeat violent offender shall be tried within one hundred eighty (180) days of the arraignment on the indictment pursuant to Rule 10 of the Tennessee Rules of Criminal Procedure unless delay is caused by:
    1. (i) The defendant;
    2. (ii) An examination for competency;
    3. (iii) A competency hearing;
    4. (iv) An adjudication of incompetency for trial;
    5. (v) A continuance allowed after a court's determination of the defendant's physical incapacity for a trial; or
    6. (vi) An interlocutory appeal.
  2. (B) A continuance may be granted to any party, including the court, for good cause shown.
2. (2) The district attorney general shall file a statement with the court and the defense counsel within forty-five (45) days of the arraignment pursuant to Rule 10 of the Rules of Criminal Procedure that the defendant is a repeat violent offender. The statement, which shall not be made known to the jury determining the guilt or innocence of the defendant, shall set forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses. If the notice is not filed within forty-five (45) days of the arraignment, the defendant shall be granted a continuance so that the defendant will have forty-five (45) days between receipt of notice and trial.
3. (3) Failure to comply with this subsection (i) does not require release of a person from custody or a dismissal of charges.

Backlinks (1)

40-35-105(a)(5)

History (2)

Acts 1994, ch. 994, § 1
1995, ch. 499, §§ 1-9.

§ 40-35-121. Criminal gang offenses — Enhanced punishment — Procedure.

(a) As used in this section, unless the context otherwise requires:
1. (1) “Criminal gang” means a formal or informal ongoing organization, association or group consisting of three (3) or more persons that has:
  1. (A) As one (1) of its primary activities, the commission of criminal gang offenses;
  2. (B) Two (2) or more members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity;
  Backlinks (1)
  
  39-12-203(3)(A)
2. (2) “Criminal gang member” is a person who is a member of a criminal gang, as defined in subdivision (a)(1), who meets two (2) or more of the following criteria:
  1. (A) Admits to criminal gang involvement;
  2. (B) Is identified as a criminal gang member by a parent or guardian;
  3. (C) Is identified as a criminal gang member by a documented reliable informant;
  4. (D) Resides in or frequents a particular criminal gang's area, adopts their style or dress, their use of hand signs or their tattoos and associates with known criminal gang members;
  5. (E) Is identified as a criminal gang member by an informant of previously untested reliability and the identification is corroborated by independent information;
  6. (F) Has been arrested more than once in the company of identified criminal gang members for offenses that are consistent with usual criminal gang activity; or
  7. (G) Is identified as a criminal gang member by physical evidence such as photographs or other documentation;
3. (3) “Criminal gang offense” means:
  1. (A) A criminal offense committed prior to July 1, 2013 that:
    1. (i) During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or persons and specifically includes rape of a child, aggravated rape and rape; or
    2. (ii) Results, or was intended to result, in the defendant's receiving income, benefit, property, money or anything of value from the commission of any aggravated burglary, or from the illegal sale, delivery, or manufacture of a controlled substance, controlled substance analogue, or firearm; or
  2. (B) The commission or attempted commission, facilitation of, solicitation of, or conspiracy to commit any of the following offenses on or after July 1, 2013:
    1. (i) First degree murder, as defined in § 39-13-202;
    2. (ii) Second degree murder, as defined in § 39-13-210;
    3. (iii) Voluntary manslaughter, as defined in § 39-13-211;
    4. (iv) Assault, as defined in § 39-13-101;
    5. (v) Aggravated assault, as defined in § 39-13-102;
    6. (vi) Kidnapping, as defined in § 39-13-303;
    7. (vii) Aggravated kidnapping, as defined in § 39-13-304;
    8. (viii) Especially aggravated kidnapping, as defined in § 39-13-305;
    9. (ix) Robbery, as defined in § 39-13-401;
    10. (x) Aggravated robbery, as defined in § 39-13-402;
    11. (xi) Especially aggravated robbery, as defined in § 39-13-403;
    12. (xii) Carjacking, as defined in § 39-13-404;
    13. (xiii) Rape, as defined in § 39-13-503;
    14. (xiv) Aggravated rape, as defined in § 39-13-502;
    15. (xv) Rape of a child, as defined in § 39-13-522;
    16. (xvi) Aggravated burglary, as defined in § 39-13-1003;
    17. (xvii) Especially aggravated burglary, as defined in § 39-13-1004;
    18. (xviii) Aggravated criminal trespass, as defined in § 39-14-406;
    19. (xix) Coercion of witness, as defined in § 39-16-507;
    20. (xx) Retaliation for past action, as defined in § 39-16-510;
    21. (xxi) Riot, as defined in § 39-17-302;
    22. (xxii) Aggravated riot, as defined in § 39-17-303;
    23. (xxiii) Inciting to riot, as defined in § 39-17-304;
    24. (xxiv) The illegal sale, delivery or manufacture of a controlled substance or controlled substance analogue, as defined in §§ 39-17-417 and 39-17-454;
    25. (xxv) Possession of a controlled substance or controlled substance analogue with intent to sell, deliver, or manufacture, as defined in § 39-17-417(a)(4) and § 39-17-454;
    26. (xxvi) Unlawful carrying or possession of a weapon, as defined in § 39-17-1307;
    27. (xxvii) Trafficking for commercial sex acts, as defined in § 39-13-309;
4. (4)
  1. (A) “Pattern of criminal gang activity” means prior convictions for the commission or attempted commission of, facilitation of, solicitation of, or conspiracy to commit:
    1. (i) Two (2) or more criminal gang offenses that are classified as felonies; or
    2. (ii) Three (3) or more criminal gang offenses that are classified as misdemeanors; or
    3. (iii) One (1) or more criminal gang offenses that are classified as felonies and two (2) or more criminal gang offenses that are classified as misdemeanors; and
    4. (iv) The criminal gang offenses are committed on separate occasions; and
    5. (v) The criminal gang offenses are committed within a five-year period;
  2. (B)
    1. (i) As used in this subsection (a), “prior conviction” means a criminal gang offense for which a criminal gang member was convicted prior to the commission of the instant criminal gang offense by the defendant and includes convictions occurring prior to July 1, 1997;
    2. (ii) “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted a criminal gang offense. In the event that a conviction from a jurisdiction other than Tennessee is not specifically named the same as a criminal gang offense, the elements of the offense in the other jurisdiction shall be used by the Tennessee court to determine if the offense is a criminal gang offense;
    3. (iii) Convictions for multiple criminal gang offenses committed as part of a single course of conduct within twenty-four (24) hours are not committed on “separate occasions.” However, acts that constitute criminal gang offenses under subdivision (a)(3)(A) shall not be construed to be a single course of conduct.
Backlinks (2)
- 29-3-101(a)(2)(B)
- 29-3-101(a)(2)(B)(ix)
(b) A criminal gang offense committed by a defendant shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed if:
1. (1) The defendant was a criminal gang member at the time of the offense; and
2. (2) The criminal gang offense was committed at the direction of, in association with, or for the benefit of the defendant's criminal gang or a member of the defendant's criminal gang.
(c) A criminal gang offense committed by a defendant who was not a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.
(d) If the criminal gang offense subject to enhancement under subsection (b) or (c) is a Class A felony, the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.
(e) A criminal gang offense committed by a defendant shall be punished two (2) classifications higher than the classification established by the specific statute creating the offense committed if, at the time the offense was committed:
1. (1) The defendant was a criminal gang member;
2. (2) The defendant was also a leader or organizer of the criminal gang; and
3. (3) The offense was at the direction of, in association with, or for the benefit of the defendant's criminal gang or a member of the defendant's criminal gang.
(f) If the criminal gang offense subject to enhancement under subsection (e) is a Class A or B felony, the criminal gang member shall be sentenced as a Class A felon and the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.
(g) If the defendant is charged with a criminal gang offense and the district attorney general intends to seek enhancement of the punishment under subsection (b), (c) or (e), the indictment, in a separate count, shall specify, charge and give notice of the subsection under which enhancement is alleged applicable and of the required prior convictions constituting the gang's pattern of criminal gang activity.
(h)
1. (1) If the defendant is convicted of the underlying criminal gang offense, the jury shall then separately consider whether the defendant was at the time of the offense:
  1. (A) A criminal gang member;
  2. (B) A criminal gang member and a leader or organizer of the gang; or
  3. (C) Not a criminal gang member but committed the offense for the purpose of joining a criminal gang.
2. (2) If the jury convicts the defendant under subdivision (h)(1)(A), (h)(1)(B) or (h)(1)(C), the court shall pronounce judgment and sentence the defendant as provided in this section.
(i) For purposes of establishing a “pattern of criminal gang activity” the following offenses may be considered:
1. (1) Criminal gang offenses, as defined by subdivision (a)(3)(A), committed prior to July 1, 2013; and
2. (2) Criminal gang offenses, as defined by subdivision (a)(3)(B), committed on or after July 1, 2013.

Backlinks (3)

History (7)

Acts 1997, ch. 437, § 1
2011, ch. 493, § 2
2012, ch. 848, § 34
2013, ch. 357, §§ 1–3
2013, ch. 415, § 1
2016, ch. 1034, §§ 1-3
2021, ch. 545, § 13.

§ 40-35-122. [Repealed]

History (4)

Acts 2010, ch. 1090, § 2
2018, ch. 549, § 1
2021, ch. 545, § 6
repealed by Acts 2024, ch. 1038, § 11, effective July 1, 2024.

§ 40-35-123. Neighborhood Protection Act — Injunctive relief against offenders entering residential area.

(a) This section shall be known and may be cited as the “Neighborhood Protection Act.”
(b) A homeowners' association, as defined in § 68-14-302, a neighborhood association, a neighborhood watch, or a similarly organized residential entity that is recognized by state or local law with defined boundaries referenced in the residential entity's charter or governing document, may seek an injunction or restraining order prohibiting an offender from entering the boundaries of the residential area, if:
1. (1) The offender has been convicted of three (3) or more separate offenses of:
  1. (A) Burglary, as defined in § 39-13-1002;
  2. (B) Rape, as defined in § 39-13-503;
  3. (C) Criminal homicide, as defined in § 39-13-201;
  4. (D) Delivering or selling a controlled substance, as defined in § 39-17-417;
  5. (E) Criminal gang activity, as defined in § 40-35-121;
  6. (F) Prostitution, as defined in § 39-13-512;
  7. (G) Theft, if the value of the property or services obtained is more than five hundred dollars ($500), pursuant to title 39, chapter 14, part 1;
  8. (H) Vandalism, as defined in § 39-14-408; or
  9. (I) Aggravated criminal littering, as defined in § 39-14-505, if the conviction is for an amount of litter that exceeds one hundred pounds (100 lbs.) in weight or thirty (30) cubic feet in volume; and
2. (2) Three (3) or more of the offenses were committed within the boundaries of the residential area.
(c) Any injunction or restraining order shall remain in effect for one (1) year, unless modified or dissolved by the court that granted the injunction or restraining order, and may be renewed by the court upon motion of the homeowners' association, neighborhood association, neighborhood watch, or similarly organized residential entity.

History (3)

Acts 2015, ch. 365, § 1
2021, ch. 545, § 7
2022, ch. 941, § 1.

§ 40-35-124. Consideration of prior misdemeanor convictions for sentence enhancements — Qualification requirements for prior misdemeanor convictions — Exclusions.

(a) “Qualifying misdemeanor” means any of the following misdemeanor convictions:
1. (1) A misdemeanor offense of solicitation of a minor, under § 39-13-528;
2. (2) A misdemeanor offense of theft of property, under § 39-14-103;
3. (3) A misdemeanor offense of theft of services, under § 39-14-104;
4. (4) Aggravated criminal trespass, under § 39-14-406;
5. (5) Assault, under § 39-13-101;
6. (6) Assault against a first responder or nurse, under § 39-13-116(a);
7. (7) Child abuse, under § 39-15-401(a);
8. (8) Child neglect or endangerment, under § 39-15-401(b);
9. (9) Criminal attempt of a Class E felony, under § 39-12-101 and § 39-12-107;
10. (10) Criminal conspiracy of a Class E felony, under § 39-12-103 and § 39-12-107;
11. (11) Criminal responsibility for the facilitation of a Class E felony, under § 39-11-403;
12. (12) Driving under the influence, under § 55-10-401;
13. (13) Domestic assault, under § 39-13-111;
14. (14) Electronic tracking of motor vehicles, under § 39-13-606;
15. (15) Escape, under § 39-16-605(c)(1)(A);
16. (16) Evading arrest, under § 39-16-603;
17. (17) False imprisonment, under § 39-13-302;
18. (18) Fraudulent use of a credit card, under § 39-14-118(b);
19. (19) Harassment, under § 39-17-308(a);
20. (20) Inciting to riot, under § 39-17-304;
21. (21) Indecent exposure, under § 39-13-511;
22. (22) Possession of a firearm while a protective order is in effect, under § 39-13-113(h);
23. (23) Providing handguns to juveniles, under § 39-17-1320(a);
24. (24) Public indecency, under § 39-13-517;
25. (25) Reckless burning, under § 39-14-304;
26. (26) Reckless endangerment, under § 39-13-103;
27. (27) Riot, under § 39-17-302;
28. (28) Simple possession or causal exchange of controlled substance, excluding marijuana, under § 39-17-418(a);
29. (29) Solicitation of a Class D felony, under §§ 39-12-102 and 39-12-107;
30. (30) Stalking, under § 39-17-315(b)(1);
31. (31) Unauthorized use of automobiles and other vehicles, under § 39-14-106;
32. (32) Unlawful carrying and possession of a firearm, under §§ 39-17-1307(h)(1) and 39-17-1307(f)(1);
33. (33) Vandalism, under § 39-14-408; or
34. (34) Violation of an order of protection or restraining order, under § 39-13-113(g).
(b) Notwithstanding subsection (c), a defendant convicted of any combination of five (5) or more qualifying misdemeanors is deemed a recidivist misdemeanant and commits a Class E felony on the sixth or subsequent qualifying misdemeanor.
(c) A defendant commits a Class E felony upon a third or subsequent conviction of any combination of the following offenses:
1. (1) Assault against a first responder or nurse, under § 39-13-116(a);
2. (2) Child abuse, under § 39-15-401(a);
3. (3) Child neglect or endangerment, under § 39-15-401(b);
4. (4) Domestic assault, under § 39-13-111;
5. (5) Unlawful carrying and possession of a firearm, under §§ 39-17-1307(h)(1) and 39-17-1307(f)(1);
6. (6) Violation of an order of protection or restraining order, under § 39-13-113(g); or
7. (7) Violation of a no contact order, under § 39-13-113(i).
(d) If the offense date of a preceding qualifying misdemeanor conviction is within ten (10) years of the date of the present offense, all eligible qualifying misdemeanor convictions occurring within twenty (20) years of the offense date of the present offense must be considered when determining the total number of preceding qualifying misdemeanor criminal convictions.
(e) This section does not apply if more than ten (10) years have elapsed between the offense date of the present offense and the offense date of a preceding qualifying misdemeanor conviction.
(f) A preceding qualifying misdemeanor conviction from another jurisdiction other than this state must be considered a preceding qualifying misdemeanor conviction if the elements of the offense are the same as the elements of a comparable offense in this state.
(g) If more than one (1) preceding qualifying misdemeanor conviction occurs on a single date, only one (1) conviction from that date may be used for the purposes of this section.
(h) To seek enhanced punishment under this section, eligible preceding qualifying misdemeanor convictions must be alleged in a separate count of the indictment. The indictment must include:
1. (1) The dates of the offenses;
2. (2) The dates of the convictions;
3. (3) The names of the preceding offenses; and
4. (4) The jurisdiction where the preceding qualifying misdemeanor convictions occurred.
(i) A certified judgment or certified copies of the records of a court clerk constitutes prima facie evidence of a preceding qualifying misdemeanor conviction for purposes of this section.
(j) This section does not prohibit a district attorney general from seeking enhanced punishment under any other laws of this state.

History (1)

Acts 2024, ch. 987, § 3.

Part 2 Procedure for Imposing Sentence

§ 40-35-201. Issue of guilt and sentence to be tried separately — Instructing jury on possible sentences.

(a) In all contested criminal cases, the issue of guilt or innocence is submitted to the trier of fact for a verdict on that issue alone. If the defendant is found or pleads guilty, sentence shall be set in accordance with this chapter in a separate sentencing hearing. Nothing in this chapter shall be construed to deprive a defendant of a right to a jury trial as to the defendant's guilt or innocence pursuant to Rule 23 of the Tennessee Rules of Criminal Procedure and appropriate provisions of the United States or Tennessee constitutions.
(b) In all contested criminal cases, except for capital crimes that are governed by the procedures contained in §§ 39-13-204 and 39-13-205, and as necessary to comply with the Tennessee Constitution, article VI, § 14 and § 40-35-301, the judge shall not instruct the jury, nor shall the attorneys be permitted to comment at any time to the jury, on possible penalties for the offense charged nor all lesser included offenses.
(c) “Plea of guilty” or “guilty plea,” as used in this chapter, includes the plea of nolo contendere as provided in Rule 11 of the Tennessee Rules of Criminal Procedure.

History (3)

Acts 1989, ch. 591, § 6
1994, ch. 847, §§ 1, 2
1998, ch. 1041, § 1.

§ 40-35-202. Notice of intent to seek enhanced punishment — Statement of enhancement and mitigating factors.

(a) If the district attorney general believes that a defendant should be sentenced as a multiple, persistent or career offender, the district attorney general shall file a statement thereof with the court and defense counsel not less than ten (10) days before trial or acceptance of a guilty plea; provided, that notice may be waived by the defendant in writing with the consent of the district attorney general and the court accepting the plea. The statement, which shall not be made known to the jury determining the guilt or innocence of the defendant on the primary offense, must set forth the nature of the prior felony convictions, the dates of the convictions and the identity of the courts of the convictions. The original or certified copy of the court record of any prior felony conviction, bearing the same name as that by which the defendant is charged in the primary offense, is prima facie evidence that the defendant named in the record is the same as the defendant before the court, and is prima facie evidence of the facts set out in the record.
Backlinks (1)
- 40-35-210(f)
(b) In all cases following a finding of guilt, the court may require that:
1. (1) The district attorney general file a statement with the court setting forth any enhancement or mitigating factors the district attorney general believes should be considered by the court; and
2. (2) The defendant file a statement with the court setting forth all mitigating factors known to the defendant and indicating any mitigating factors the defendant believes should be considered by the court.

Backlinks (2)

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-203. Court to impose sentence — Exceptions.

(a) Except as provided in subsection (c) and with respect to fines as provided in § 40-35-301, sentences in felony and misdemeanor cases shall be imposed by the court. Upon a verdict or plea of guilty, the court shall set and conduct a sentencing hearing except as provided in subsection (b). Evidence may, but need not, be presented by both the defendant and the district attorney general on any matter relevant to the issue of sentencing. The sentencing hearing may occur immediately after guilt is determined, subject to the rights of the parties to postpone the hearing under § 40-35-209(a).
(b) Where the sentence is agreed upon by the district attorney general and the defendant and accepted by the court, the court may immediately impose sentence as provided in § 40-35-205(d) and no specific sentencing hearing or presentence reports shall be required. The judge may, in the judge's discretion, direct that a complete presentence report be prepared. No defendant sentenced to the custody of the department of correction shall be committed or conveyed to the department unaccompanied by the completed presentence report or investigation and report required by § 40-35-209(d)(1). Furthermore, a presentence report or investigation and report shall be prepared on all defendants sentenced to a period of continuous confinement of one (1) year or greater in a local jail or workhouse. This requirement shall not be cause for delay in conveying the defendant to the local institution to which the defendant has been committed. There shall be a presentence report and hearing on any issue of sentencing not agreed upon by the parties and accepted by the court.
Backlinks (1)
- 40-35-209(a)
(c) If a capital offense is charged and the jury returns a verdict where death is a possibility, the jury shall fix the punishment in a separate sentencing hearing as otherwise provided by law, unless the jury is waived as to punishment.
Backlinks (1)
- 40-35-209(a)
(d) If the trial judge who presided at the trial on the merits is unavailable because of death, resignation, retirement, ill health or loss of jurisdiction, another judge appointed by the chief justice of the Tennessee supreme court may impose the sentence.
(e) If the criminal offense for which the defendant is charged carries an enhanced punishment for a second or subsequent violation of the same offense, the indictment in a separate count shall specify and charge that fact. If the defendant is convicted of the offense, then the jury must find that beyond a reasonable doubt the defendant has been previously convicted the requisite number of times for the same offense. Upon such finding, the defendant shall be subject to the authorized terms of imprisonment for the felonies and misdemeanors as set forth in § 40-35-111.

Backlinks (1)

40-35-205(a)

History (2)

Acts 1989, ch. 591, § 6
1990, ch. 980, § 24.

§ 40-35-204. Presentence service officers.

(a) The commissioner of correction shall appoint presentence service officers for each court having criminal jurisdiction. These officers may be the existing probation officers. Presentence service officers shall conduct investigations and make reports to sentencing courts relating to the imposition of sentences on defendants.
(b) With permission of the court, and if the commissioner determines that it will not interfere with their other duties, the presentence service officers may:
1. (1) Assist courts or other judicial officers in developing information relating to the setting of bail or other pretrial release or detention decisions; and
2. (2) Develop information about defendants relating to the selection of a defendant for particular correctional programs.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-205. Presentence investigation — Physical or mental examination of defendant.

(a) Upon acceptance of a guilty plea or upon a verdict or finding of guilty, the court shall, in the case of a felony, and may, in the case of a misdemeanor, direct the presentence service officer to make a presentence investigation and report, except as provided in § 40-35-203 and subsection (b). The presentence service officer shall conduct the investigation necessary to prepare a presentence report, meeting the requirements of § 40-35-207 and any other investigation the officer deems appropriate or the court directs and shall independently determine the factual basis for any enhancement or mitigating factors asserted by the parties.
(b) With the concurrence of a defendant, a court may direct the presentence service officer to begin the presentence investigation before the adjudication of the guilt of the defendant. Nothing discovered by the presentence investigation may be disclosed to the district attorney general, the court or the jury before acceptance of a plea of guilty or a verdict or finding of guilty unless the defendant concurs. If the presentence investigation is begun before the adjudication of guilt, the information discovered shall be disclosed to the defendant or defendant's counsel, upon request, after the court's acceptance of a plea of guilty or a verdict or finding of guilt.
(c) The court may order a physical or mental examination of the defendant. If the court determines that an examination should be made, it shall issue an order that the defendant submit to examination at a time and place designated by the court and that the examination be conducted by a physician, psychiatrist, licensed psychologist, licensed psychological examiner, licensed senior psychological examiner or certified psychological assistant designated by the court. Upon the court's written determination that the defendant is indigent, the court may direct that any physical or mental examination provided for in this section shall be performed by the department of correction or mental health and substance abuse services. The examination shall be performed on an outpatient basis if appropriate. The costs of the examination shall be taxed as other costs in cases of indigency.
(d) If the district attorney general and defendant agree on a specific sentence as to the offense classification, length or manner of service of sentence and the court accepts the sentence agreement as the appropriate disposition in the case, no presentence report or hearing shall be required unless so ordered by the court. No defendant sentenced to the custody of the department of correction shall be committed or conveyed to the department unaccompanied by the completed presentence report or investigation and report required by § 40-35-209(d)(1). Furthermore, a presentence report or investigation and report shall be prepared on all defendants sentenced to a period of continuous confinement of one (1) year or greater in a local jail or workhouse. This requirement shall not be cause for delay in conveying the defendant to the local institution to which the defendant has been committed. No sentence agreement shall be binding on the court, which may either accept or reject the agreement pursuant to Rule 11 of the Tennessee Rules of Criminal Procedure. If the court rejects the sentence agreement, the defendant may elect to have a sentencing hearing with a presentence report.
Backlinks (1)
- 40-35-203(b)

History (6)

Acts 1989, ch. 591, § 6
1999, ch. 157, § 1
2001, ch. 334, § 8
2010, ch. 1100, § 68
2012, ch. 575, § 1
2012, ch. 727, § 44.

§ 40-35-206. [Reserved.]

§ 40-35-207. Presentence report — Contents — Validated risk and needs assessment defined.

(a) The presentence report shall set forth:
1. (1) The characteristics and circumstances of the offense committed by the defendant;
2. (2) The defendant's physical and mental history and condition, family history and background, education, occupation and personal habits;
3. (3) Information relating to enhancement or mitigating factors asserted by the parties and its source;
4. (4) The defendant's record of prior convictions, including any juvenile court findings or adjudications that the defendant committed an act as a juvenile that would constitute a Class A or Class B felony if committed by an adult;
5. (5) Information relating to any enhancement or mitigating factors that may affect the sentence imposed although not asserted by the parties and the source from which the information was obtained;
6. (6) If a sentence not involving confinement is likely or is sought by an eligible defendant, information to assist the court in deciding whether to grant probation and in imposing conditions for any probation supervision that may be ordered, including the nature and extent of programs and resources available to assist in rehabilitation of the defendant;
7. (7) If requested by the court, information to assist the court in imposing a fine or restitution, including the financial resources of the defendant, the financial needs of the defendant's dependents and the gain derived from or loss caused by the criminal activity;
8. (8) Any statement relating to sentencing submitted by the victim of the offense or the investigative agency;
9. (9) Information to assist the court in deciding whether to sentence an eligible defendant to an available and appropriate community-based alternative to incarceration as provided in chapter 36 of this title and in imposing the terms and conditions for any such sentence;
10. (10) The results of the validated risk and needs assessment; and
  Backlinks (1)
  
  40-35-104(f)
11. (11) Any other matters the court directs to be included.
(b) The presentence report shall not include a recommendation for confinement or nonconfinement of any defendant unless otherwise required by law.
(c) In misdemeanor cases where the court has ordered a presentence report or hearing and in cases in which neither party asserts the existence of any enhancement or mitigating factors, the court may direct the presentence service officer not to include certain types of information normally required in the report.
(d) As used in this section, “validated risk and needs assessment” means a determination of a person's risk to reoffend and the needs that, when addressed, reduce the risk to reoffend through the use of an actuarial assessment tool designated by the department that assesses the dynamic and static factors that drive criminal behavior.

Backlinks (3)

History (3)

Acts 1989, ch. 591, § 6
2010, ch. 861, § 4
2016, ch. 906, §§ 7, 8.

§ 40-35-208. Filing of report — Availability to parties.

The presentence report shall be filed with the clerk of the court and complete copies shall be made available to the parties within ten (10) days prior to the sentencing hearing, which may be waived by the consent of all parties and the court.

Backlinks (1)

40-38-206

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-209. Sentencing hearing — Transfer of report to department of correction or local jail or workhouse — Form of judgment of conviction.

(a) Before imposing sentence or making other disposition upon acceptance of a plea of guilty or upon a verdict or finding of guilty, the court shall conduct a sentencing hearing without unreasonable delay, but in no event more than forty-five (45) days after the finding of guilt, except as provided in § 40-35-203(b) relating to agreed sentences and § 40-35-203(c) relating to capital crimes. The court, upon the request of either party and with good cause shown, shall continue the sentencing hearing for at least five (5) days, but not more than thirty (30) days, after the filing of a presentence report, unless either party shows good cause for further postponement or unless these time constraints will unduly prejudice the position of either party.
Backlinks (1)
- 40-35-203(a)
(b) At the sentencing hearing, the court shall afford the parties the opportunity to be heard and present evidence relevant to the sentencing of the defendant and may afford the victim of the offense or the family of the victim the opportunity to testify relevant to the sentencing of the defendant. The court may allow the parties to subpoena witnesses and call or cross-examine witnesses, including, but not limited to, the person who prepared the presentence report and any person whose information contained in the presentence report is relevant to the sentencing decision. At the sentencing hearing, the district attorney general shall be the first party to present evidence and then the defendant shall have an opportunity to present evidence. Both parties may be allowed to call witnesses in rebuttal. The rules of evidence shall apply, except that reliable hearsay, including, but not limited to, certified copies of convictions or documents, may be admitted if the opposing party is accorded a fair opportunity to rebut any hearsay evidence so admitted; provided, that this subsection (b) shall not be construed to authorize the introduction of any evidence secured in violation of the United States or Tennessee constitutions.
(c) A record of the sentencing hearing is kept and preserved in the same manner as trial records. The record of the sentencing hearing is part of the record of the case and shall include specific findings of fact upon which application of the sentencing principles was based.
(d)
1. (1) Whenever a defendant is sentenced for a felony to the custody of the department of correction or a local jail or workhouse, the sentencing court shall transmit to the commissioner of correction or the superintendent of the local jail or workhouse a copy of the defendant's presentence report when one is prepared in accordance with this chapter. If the presentence report was controverted at the sentencing hearing, the court shall order the report modified to incorporate any findings of the court that are inconsistent with the original report, and the defendant shall be entitled to file a statement in response to the presentence report and the court's findings. If there is no presentence report and the defendant is sentenced for a felony to the department or local jail or workhouse, the court shall direct the presentence service officer to make an investigation and report in conformity with § 40-35-207. The clerk shall, within ten (10) days after entry of the judgment of conviction of the defendant to a local jail or workhouse, transmit to the superintendent of the institution the original or modified presentence report and shall, within ten (10) days after receiving statements from the counsel for the defendant, transmit a copy to the superintendent and a copy to the district attorney general; provided, that this requirement shall not be cause for delay in conveying the defendant to the local institution to which the defendant has been committed. Notwithstanding any other law to the contrary, no defendant sentenced to the custody of the department shall be committed or conveyed to the department unaccompanied by the completed presentence report or investigation and report required by this section.
  Backlinks (2)
  
  40-35-203(b)
  40-35-205(d)
2. (2) The department has the authority to employ a sufficient number of presentence service officers to provide the additional reports required by this subsection (d).
3. (3) In those counties wherein a presentence report is prepared upon instructions of the court before the trial of any person, the presentence report shall not be commented upon or read to the jury by the judge or the district attorney general or defense counsel.
(e)
1. (1) After the defendant is sentenced, the district attorney general shall complete and file within thirty (30) days the uniform judgment document for the conviction that is signed by all parties; but if not signed by the parties, the clerk shall make a copy of the document available to the parties before entry by the court, which shall indicate for each offense the following:
  1. (A) The type of offense for which the defendant was charged and convicted and the sentence imposed;
  2. (B) Whether the defendant was sentenced as a standard offender;
  3. (C) Whether the defendant was sentenced as a multiple offender;
  4. (D) Whether the defendant was sentenced as a persistent offender;
  5. (E) Whether the defendant was sentenced as a career offender;
  6. (F) Whether the defendant was sentenced as a repeat violent offender;
  7. (G) Whether the defendant was sentenced as a one hundred percent (100%) offender pursuant to § 40-35-501(i);
  8. (H) Whether the defendant was sentenced as an especially mitigated offender;
  9. (I) Whether the sentence was to a local jail;
  10. (J) Whether the sentence was to a local workhouse;
  11. (K) Whether the sentence was to the department;
  12. (L) Whether the sentence was to probation supervision;
  13. (M) Whether the sentence was to continuous confinement or periodic confinement followed by a period of probation supervision;
  14. (N) Whether the sentence was to a community-based alternative to incarceration as provided in chapter 36 of this title;
  15. (O) Whether the sentence runs concurrently or consecutively with any other sentence;
  16. (P) The amount, if any, of pretrial jail credit awarded pursuant to § 40-23-101;
  17. (Q) The social security number of the defendant;
  18. (R) The date of birth of defendant; and
  19. (S) The date the conviction offense was committed.
2. (2) After the defendant is sentenced the uniform judgment document completed by the district attorney general is a public record and is available to anyone upon request.
(f) The supreme court shall promulgate a uniform judgment document for use by the trial judges in this state, and the trial judges shall employ that document for each criminal case resulting in a conviction.
(g) If the judgment of conviction does not include the information required in subsection (e), it shall be returned to the sentencing court to be completed.

History (4)

Acts 1989, ch. 591, § 6
1994, ch. 994, § 3
2000, ch. 800, §§ 3, 4
2009, ch. 379, §§ 1, 2.

§ 40-35-210. Imposition of sentence — Evidence to be considered — Presumptive sentence — Sentence explanation.

(a) At the conclusion of the sentencing hearing, the court shall first determine the appropriate range of sentence.
(b) To determine the specific sentence and the appropriate combination of sentencing alternatives that shall be imposed on the defendant, the court shall consider the following:
1. (1) The evidence, if any, received at the trial and the sentencing hearing;
2. (2) The presentence report;
3. (3) The principles of sentencing and arguments as to sentencing alternatives;
4. (4) The nature and characteristics of the criminal conduct involved;
5. (5) Evidence and information offered by the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114;
6. (6) Any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee;
7. (7) Any statement the defendant wishes to make on the defendant's own behalf about sentencing; and
8. (8) The result of the validated risk and needs assessment conducted by the department and contained in the presentence report.
(c) The court shall impose a sentence within the range of punishment, determined by whether the defendant is a mitigated, standard, persistent, career or repeat violent offender. In imposing a specific sentence within the range of punishment, the court shall consider, but is not bound by, the following advisory sentencing guidelines:
1. (1) The minimum sentence within the range of punishment is the sentence that should be imposed, because the general assembly set the minimum length of sentence for each felony class to reflect the relative seriousness of each criminal offense in the felony classifications; and
2. (2) The sentence length within the range should be adjusted, as appropriate, by the presence or absence of mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.
(d) The sentence length within the range should be consistent with the purposes and principles of this chapter.
(e)
1. (1) In order to ensure fair and consistent sentencing, at a sentencing hearing the court shall place on the record, either orally or in writing, the following:
  1. (A) What enhancing or mitigating factors were considered, if any;
  2. (B) The reasons for the sentence; and
  3. (C) For a sentence of continuous confinement, the estimated number of years and months the defendant will serve before becoming eligible for release.
2. (2) The department of correction shall provide the court with a form to assist in determining the estimation referenced in subdivision (e)(1)(C).
3. (3) The estimation provided pursuant to subdivision (e)(1)(C) is not a basis for post-conviction relief or for a direct appeal of the defendant's sentence.
(f) A sentence must be based on evidence in the record of the trial, the sentencing hearing, the presentence report, the validated risk and needs assessment, and the record of prior felony convictions filed by the district attorney general with the court, as required by § 40-35-202(a).
(g) When the court accepts a plea of guilty or nolo contendere or imposes a sentence on a defendant who has been convicted of a felony offense that occurred on or after July 1, 2021, the court shall specify in its order that the defendant may be subject to an additional year of mandatory reentry supervision pursuant to § 40-35-506 if, at the time of release, the defendant is not an eligible inmate as defined in § 40-35-506.

Backlinks (2)

History (8)

Acts 1989, ch. 591, § 6
1995, ch. 493, § 1
1998, ch. 914, § 1
2000, ch. 800, § 2
2005, ch. 353, § 6
2016, ch. 906, §§ 9, 10
2021, ch. 410, § 16
2022, ch. 952, § 2.

§ 40-35-211. Court to impose determinate sentences only.

In fixing a sentence for a felony or misdemeanor, the court shall impose a specific sentence length for each offense:
1. (1) Specific sentences for a felony shall be for a term of years or months or life, if the defendant is sentenced to the department of correction; or a specific term of years, months or days if the defendant is sentenced for a felony to any local jail or workhouse. Specific sentences for a misdemeanor are for a specific number of months or days or hours or any combination thereof. There are no indeterminate sentences. Sentences for all felonies and misdemeanors are determinate in nature, and the defendant is responsible for the entire sentence undiminished by sentence credits of any sort, except for credits authorized by § 40-23-101 relative to pretrial jail credit, or §§ 52-5-407 and 33-7-102 relative to mental examinations and treatment, and prisoner sentence reduction credits authorized by § 41-21-236.
2. (2) If the minimum punishment for any offense is imprisonment in the penitentiary for one (1) year, but in the opinion of the court the offense merits a lesser punishment, the defendant may be sentenced to the local jail or workhouse for any period less than one (1) year, except as otherwise provided.
3. (3) If a defendant is convicted of an offense designated as a felony but the court imposes a sentence of less than one (1) year in the local jail or workhouse, the defendant shall be considered a felon but shall be sentenced as in the case of a misdemeanor, and, therefore, shall be entitled to sentence credits under § 41-2-111. Upon the defendant becoming eligible for work release, furlough, trusty status or related rehabilitative programs as specified in § 40-35-302(d), the defendant may be placed in the programs by the sheriff or administrative authority having jurisdiction over the local jail or workhouse.

History (3)

Acts 1989, ch. 591, § 6
2000, ch. 947, § 8J
2024, ch. 688, § 130.

§ 40-35-212. Court to determine location and conditions of sentence — Probation — Retention of jurisdiction during sentence.

(a) In imposing a sentence, the court shall determine under what conditions a sentence will be served as provided by law. A defendant may be sentenced to the department of correction unless prohibited by § 40-35-104(b).
(b) A court may also order probation where a defendant is eligible by law either:
1. (1) Immediately upon sentencing;
2. (2) In conjunction with a specific period of confinement pursuant to § 40-35-306; or
3. (3) In conjunction with a period of periodic confinement pursuant to § 40-35-307.
(c) Unless the defendant receives a sentence in the department, the court shall retain full jurisdiction over the manner of the defendant's sentence service.
(d)
1. (1) Notwithstanding subsection (c), the court shall retain full jurisdiction over a defendant sentenced to the department during the time the defendant is being housed in a local jail or workhouse awaiting transfer to the department. The jurisdiction shall continue until the defendant is actually transferred to the physical custody of the department.
2. (2) The sheriff shall promptly transfer any inmate sentenced to the department of correction who is being housed in the sheriff's local jail awaiting transfer when called upon to do so by a department of correction official. The department shall notify the sheriff in writing of the date the department intends to take custody of the inmate for transfer to the department. The notice shall be given as soon as practicable before the transfer date. Failure to do so shall result in the state withholding any housing reimbursement allowance that might otherwise be due the county for housing the inmate for any day or portion of a day that the sheriff fails or refuses to transfer custody of the inmate to the department after being requested in writing to do so. The department shall notify each sheriff of the provisions of this subdivision (d)(2) and the consequences for failing to comply with it.
Backlinks (3)

Backlinks (3)

History (2)

Acts 1989, ch. 591, § 6
2005, ch. 174, § 2.

§ 40-35-213. Eligibility for work release program.

(a) Notwithstanding any other law to the contrary, no person convicted of a sexual offense or violent sexual offense as defined in § 40-39-202, whether in the custody or control of the department of correction, a local government or a private prison contractor, shall be eligible for any work release program offered by or that may be offered by the correctional facility in which the offender is housed.
(b) As used in subsection (a), “work release program” includes any assignment to a work crew in which a prisoner is permitted to go out into the community, whether supervised or unsupervised, but does not include a work assignment to TRICOR or any TRICOR facility.

History (1)

Acts 2008, ch. 901, § 2.

§ 40-35-214. Transfer from county for plea and sentence.

(a) A defendant arrested, held or present in a county, other than that in which an indictment or information is pending against the defendant, may state in writing that the defendant wishes to plead guilty, to waive trial in the county in which the indictment or information is pending and to consent to the disposition of the case in the county in which the defendant was arrested, held or present, subject to the approval of the district attorney general and the court having criminal jurisdiction for each county. Upon receipt of the defendant's statement and of the written approval of the appropriate district attorneys general and courts, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies of the papers to the clerk of the court for the county in which the defendant was arrested, held or present, and the prosecution shall continue in that county.
(b) A defendant arrested, held or present in a county other than the county in which a charge is pending against the defendant may state in writing that the defendant wishes to plead guilty, to waive trial in the county in which the warrant was issued and to consent to the disposition of the case in the county in which the defendant was arrested, held or present, subject to the approval of the district attorney general and the court having criminal jurisdiction for each county. Upon receipt of the defendant's statement and the written approval of the appropriate district attorneys general and courts, the clerk of the court for the county in which the warrant was issued shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court having jurisdiction over the offense charged in the warrant for the county in which the defendant was arrested, held or present, and the prosecution shall continue in that county. When the defendant is brought before the court to plead to a charge filed in the county where the warrant was issued, the defendant may at that time waive indictment and the prosecution may continue based upon the indictment or information originally filed.
(c) If, after the proceeding has been transferred pursuant to subsection (a) or (b) the defendant pleads not guilty, the clerk shall return the papers to the court in which the prosecution was commenced, and the proceeding shall be restored to the docket of that court. The defendant's statement that the defendant wishes to plead guilty shall not be used against the defendant.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-215. Sentence calculation.

(a)
1. (1) The chief administrator of any local jail, workhouse or other facility in which persons serve criminal sentences on nonconsecutive days or in any manner other than continuous confinement or day for day shall formulate and reduce to writing the method by which the facility calculates the service of an hour, day and month.
2. (2) As used in this section “service of an hour, day or month” means the period of time a person must be incarcerated in the facility in order to reduce the person's court imposed sentence by an hour, day or month.
(b) At the first meeting of the county or municipal legislative body in which the facility is located, conducted after July 1, 1995, the chief administrator shall submit the formulation of the method of sentence calculation required by subsection (a) to the legislative body for its approval. The legislative body shall approve or modify and approve the sentence calculation.
(c) Upon the approval by the legislative body of the facility's sentence calculations, the chief administrator shall publish the sentence calculations and cause them to be prominently posted at the local jail, workhouse or facility for which they are applicable.

History (1)

Acts 1995, ch. 440, § 1.

§ 40-35-216. First hours served hour for hour.

Notwithstanding any other law or judgment of conviction to the contrary, the first forty-eight (48) hours of any sentence that a defendant is permitted to serve on nonconsecutive days, or in any manner other than continuous confinement or day for day, shall be served hour for hour. This section shall only apply to sentences imposed pursuant to § 55-10-402.

History (2)

Acts 1995, ch. 440, § 1
2013, ch. 154, § 37.

§ 40-35-217. Sentence conditioned or based upon defendant submitting to birth control, sterilization, or family planning services prohibited.

1. (a) As used in this section, “sterilization” means the process of rendering an individual incapable of sexual reproduction by castration, vasectomy, salpingectomy, or some other procedure and includes endoscopic techniques for female sterilization that can be performed outside of a hospital without general anesthesia such as culdoscopic, hysteroscopic, and laparoscopic sterilization.
2. (b) No guilty plea agreement or plea of nolo contendere shall be accepted by the court nor shall any criminal sentence be imposed by a judge if any part of the plea or sentence is in whole or in part conditioned or based upon the criminal defendant submitting to any form of temporary or permanent birth control, sterilization, or family planning services, regardless of whether the defendant's consent is voluntarily given.
3. (c) A sentencing court shall not make a sentencing determination that is based in whole or in part on the defendant's consent or refusal to consent to any form of temporary or permanent birth control, sterilization, or family planning services, regardless of whether the defendant's consent is voluntarily given.
4. (d) This section shall not apply to the provision of educational services on the matters of temporary or permanent birth control, sterilization, or family planning services.

History (1)

Acts 2018, ch. 917, § 1.

Part 3 Sentences

§ 40-35-301. Fixing of fine by court or jury.

(a) Where the offense is punishable by a fine of fifty dollars ($50.00) or less, the court shall fix the fine in accordance with § 40-35-111.
(b) In a case where the range of punishment includes a fine in excess of fifty dollars ($50.00), the jury finding the defendant guilty shall also fix the fine, if any, in excess of fifty dollars ($50.00). The jury shall report such fine with a verdict of guilty. When imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not to exceed the fine fixed by the jury. The defendant may waive the right to have a jury fix the fine and agree that the court fix it, in which case the court may lawfully fix the fine at any amount that the jury could have. If a plea agreement imposing a fine in excess of fifty dollars ($50.00) and the defendant's written waiver of the constitutional right to have a jury fix the fine are accepted by the court, the court may pronounce sentence, including the fine, without a jury. If the conviction is upon a guilty plea and there is no jury waiver as provided in this subsection (b), a jury shall be impaneled to fix the fine, if any, to be imposed by the court in an amount not to exceed the fine fixed by the jury.

Backlinks (4)

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-302. Misdemeanor sentencing — Rehabilitative program credits — Probation — Supervision of defendants on probation.

(a) In imposing a sentence for a misdemeanor, the court may conduct a separate sentencing hearing. If the court does not conduct a separate sentencing hearing, the court shall allow the parties a reasonable opportunity to be heard on the question of the length of any sentence and the manner in which the sentence is to be served.
(b) In imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours, and the defendant shall be responsible for the entire sentence undiminished by sentence credits of any sort except for credits authorized by § 40-23-101, relative to pretrial jail credit, or §§ 52-5-407 and 33-7-102, relative to mental examinations and treatment, and credits awarded in accordance with either, but not both, § 41-2-111 or § 41-2-147. The court shall impose a sentence consistent with the purposes and principles of this chapter.
(c) When a defendant is serving a misdemeanor sentence, the defendant shall be continuously confined for the duration of the sentence except as provided in subsections (d) and (e); provided, that nothing in this section shall be construed as prohibiting a defendant, in the discretion of the workhouse superintendent or sheriff, from participating in work crews during the time the defendant is to be continuously confined.
(d) In imposing a misdemeanor sentence, the court shall fix a percentage of the sentence that the defendant shall serve. After service of such a percentage of the sentence, the defendant shall be eligible for consideration for work release, furlough, trusty status and related rehabilitative programs. The percentage shall be expressed as zero percent (0%), ten percent (10%), twenty percent (20%), thirty percent (30%), forty percent (40%), fifty percent (50%), sixty percent (60%), seventy percent (70%), seventy-five percent (75%), eighty percent (80%), ninety percent (90%), or one hundred percent (100%). If no percentage is expressed in the judgment, the percentage shall be considered zero percent (0%). When the defendant has served the required percentage, the administrative authority governing the rehabilitative program shall have the authority, in its discretion, to place the defendant in the programs as provided by law. In determining the percentage of the sentence to be served in actual confinement, the court shall consider the purposes of this chapter, the principles of sentencing and the enhancement and mitigating factors set forth in this chapter and shall not impose such percentages arbitrarily.
Backlinks (1)
- 40-35-211(3)
(e) The court has authority to place the defendant on probation either:
1. (1) After service of a portion of the sentence in periodic confinement or continuous confinement; or
2. (2) Immediately after sentencing.
(f)
1. (1) The general sessions courts shall not place a defendant who is convicted of a misdemeanor on probation under the supervision of the state department of correction. Nothing in this subsection (f) is intended to restrict the use, where necessary, of any county or public probation service or private probation company established for the purpose of supervising defendants convicted of misdemeanors, unless the offender is currently being supervised by the state department of correction on a felony offense.
2. (2) When a person employed to provide probation services to defendants convicted of a misdemeanor, whether employed by a municipality, county, public or a private probation company, is first assigned a new probationer, the person shall conduct a search of the Tennessee bureau of investigation's sexual offender and violent sexual offender registration, verification and tracking database to determine if the probationer is a sexual offender or violent sexual offender. If so, the probation officer shall inform the sentencing judge of the probationer's status, if the status is not already known. If the probationer remains on probation, the officer shall also monitor the probationer's compliance with the requirements of § 40-39-211.
(g)
1. (1) Except as provided in subdivision (g)(2):
  1. (A) A private entity that provides probation supervisory services shall be required to perform all of the following:
    1. (i) Provide a report to the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services on a quarterly basis in a form and manner as is specified by the clerk; provided, that the report shall contain all of the information required in subdivision (g)(1)(G);
    2. (ii) Provide an application form to all of the criminal court and general sessions court judges in each judicial district in which the entity proposes to provide misdemeanor probation services. The application shall be on a form and in a manner specified by the judges and shall contain all of the information required by subdivision (g)(1)(E);
    3. (iii) Supervise all misdemeanor defendants sentenced by a proper order of probation to be supervised by the entity and to assist the defendants so sentenced in completing all court-ordered conditions of probation;
    4. (iv) Maintain documentation on all misdemeanor defendants sentenced to be supervised by the entity. All books, records, and documentation maintained by the entity relating to work performed or money received for the supervision of misdemeanor defendants so sentenced must be maintained for a period of three (3) full years from the date of the final payment or audit. The books, records, and documentation are subject to a fiscal and performance audit and review at any reasonable time and upon reasonable notice by the court or courts in which the entity operates, or by their duly appointed representatives, and by the comptroller of the treasury as deemed necessary or appropriate. The comptroller of the treasury may appoint a certified public accountant to prepare the audit. The entity being audited by either the comptroller of the treasury or the comptroller's designee shall pay the cost of the audit. Officials of the entity shall cooperate fully with the comptroller of the treasury or its designee in the performance of the audit; and
    5. (v) Any additional duties that the judge or judges of the courts for which the entity provides misdemeanor probation supervisory services may in writing require;
  2. (B) The following minimum education standards are required for certain employees of an entity established for the purpose of supervising misdemeanor probationers:
    1. (i) The chief executive officer of an entity offering probation supervision shall have a bachelor's degree from an accredited university in any of the following fields: criminal justice, administration, social work or the behavioral sciences and two (2) years of experience in criminal justice or social work; provided, that four (4) years of professional administrative experience with an organization providing services in criminal justice or social work may be substituted for the bachelor's degree; and
    2. (ii) An employee responsible for providing probation supervision and employed by an entity shall have at least four (4) years of experience in a criminal justice or a social services agency providing counseling services or shall have a bachelor's degree or associate's degree from an accredited college or university;
  3. (C) Any entity providing probation supervisory services shall post a liability insurance policy and a performance bond in the amounts stated:
    1. (i) A liability insurance policy in an amount at least equal to the limits of governmental liability established in the Governmental Tort Liability Act, compiled in title 29, chapter 20, that is in effect on the date the services are provided. Nothing in this subdivision (g)(1)(C)(i) shall be construed as prohibiting the entity from carrying a liability insurance policy in excess of the limits of liability provided in the Governmental Tort Liability Act. The policy shall be for the purpose of reimbursing an injured or aggrieved party for any damages or expenses for which the entity providing probation supervisory services is found liable by a court of competent jurisdiction;
    2. (ii) A performance bond issued by a corporate surety in the amount of twenty-five thousand dollars ($25,000). The bond shall be to provide recourse to the governmental entity for which the entity is providing probation supervisory services in the event of nonperformance, default, bankruptcy or failure of the entity to perform the required services;
    3. (iii) The comptroller of the treasury shall design a uniform performance bond form to be used by all private entities providing misdemeanor probation supervisory services in this state;
    4. (iv) A copy of the liability insurance policy and the performance bond shall be filed with the clerk of all courts in each county in which the entity proposes to provide probation supervisory services;
  4. (D) Any entity providing or proposing to provide misdemeanor probation services shall investigate the criminal record for each employee and shall include in its application form any criminal conviction of each employee;
  5. (E) The application form required by subdivision (g)(1)(A)(ii) shall contain the following information:
    1. (i) The title of the entity;
    2. (ii) Its form of business organization;
    3. (iii) The office and mailing address of the entity;
    4. (iv) The names of the employees who will provide services and their position with the entity and their credentials;
    5. (v) A sworn statement that the credentials of all employees meet the minimum standards under subdivision (g)(1)(B);
    6. (vi) A sworn statement that a criminal record search has been conducted and, if a criminal conviction has been discovered, the name of the employee and the criminal conviction;
    7. (vii) A credit history of the entity including any judgments or lawsuits; and
    8. (viii) A description of the services to be provided by the entity and the fee structure for the services to be provided;
  6. (F) The application required by subdivision (g)(1)(A)(ii) shall also contain an affidavit filed under penalties of perjury that it is complete and accurate and contains all of the information required by subdivision (g)(1)(E). The application with the affidavit shall be filed with the clerk of the criminal court and general sessions court in each judicial district in which the entity proposes to provide misdemeanor probation services;
  7. (G) The quarterly report required to be filed pursuant to subdivision (g)(1)(A)(i) shall include the following information:
    1. (i) The caseload for the entity;
    2. (ii) The number of contact hours with offenders;
    3. (iii) The services provided;
    4. (iv) The number of filings for probation revocation and their dispositions;
    5. (v) A financial statement including administrative costs and service costs; and
    6. (vi) Contributions, if any, to the criminal injuries compensation fund;
  8. (H)
    1. (i) It is an offense for a governmental employee, including a judge, or the employee's immediate family, to have a direct or indirect personal interest in a private entity that provides probation supervisory services or to receive anything of value in an individual capacity from the entity;
    2. (ii) It is an offense for a private entity that provides probation supervisory services to give or offer to give anything of value to a governmental employee, including a judge, or the employee's immediate family, in the employee's individual capacity;
    3. (iii) A violation of subdivision (g)(1)(H)(i) or (g)(1)(H)(ii) is a Class C misdemeanor; and
    4. (iv) This section shall not be construed to amend or abridge any contract or operating agreement between any court or county government and any agency or individual presently supplying probation supervisory services to a court or county government pursuant to this chapter;
  9. (I) No private corporation, enterprise, or agency contracting to provide probation services under this section shall engage in any of the following:
    1. (i) Any employment, business or activity that interferes or conflicts with the duties and responsibilities under the contracts authorized by this section;
    2. (ii) No corporation, enterprise or agency shall have personal business dealings, including, but not limited to, lending money, with probationers under its supervision; and
    3. (iii) No corporation, enterprise or agency shall permit any person to supervise a probationer who is a member of the supervisory personnel's immediate family;
  10. (J) As used in this subdivision (g)(1), “immediate family” means and includes the supervisor’s mother, father, siblings, adult children or maternal and paternal grandparents.
2. (2) Except for fiscal and performance audits and reviews conducted by the comptroller of the treasury or the comptroller's designee in accordance with subdivision (g)(1)(A)(iv), subdivision (g)(1) does not apply in counties having a population, according to the 1990 federal census or any subsequent federal census, of:
  3. 4,700 4,750
  4. 7,100 7,175
  5. 27,500 27,750
  6. 31,50031,800
  7. 31,900 32,200
  8. 34,500 34,730
  9. 40,200 40,500
(h) As used in this section, the term “governmental employee” means employees and officials of the state and its political subdivisions who are employed as law enforcement employees or officials, probation and parole employees or officials, judicial employees or officials or correctional employees or officials, including employees and officials of jails and workhouses.
(i)
1. (1) As used in this subsection (i), “sterilization” means the process of rendering an individual incapable of sexual reproduction by castration, vasectomy, salpingectomy, or some other procedure and includes endoscopic techniques for female sterilization that can be performed outside of a hospital without general anesthesia such as culdoscopic, hysteroscopic, and laparoscopic sterilization.
2. (2) A sentencing court shall not make a sentencing determination that is based in whole or in part on the defendant's consent or refusal to consent to any form of temporary or permanent birth control, sterilization, or family planning services, regardless of whether the defendant's consent is voluntarily given.
3. (3) This subsection (i) shall not apply to the provision of educational services on the matters of temporary or permanent birth control, sterilization, or family planning services.
(j) [Deleted by 2021 amendment.]

Backlinks (2)

History (18)

Acts 1989, ch. 591, § 6
1990, ch. 1030, § 37
1991, ch. 458, § 1
1997, ch. 408, §§ 1-4
2000, ch. 827, § 1
2000, ch. 947, § 8J
2001, ch. 359, § 1
2002, ch. 802, § 1
2007, ch. 158, § 1
2009, ch. 124, § 1
2011, ch. 319, §§ 1, 2
2012, ch. 727, § 44
2018, ch. 917, § 2
2019, ch. 148, §§ 1, 2
2019, ch. 244, § 1
2021, ch. 358, § 1
2024, ch. 688, § 131
2024, ch. 743, § 1.

§ 40-35-303. Probation — Eligibility — Terms.

(a) A defendant shall be eligible for probation under this chapter if the sentence actually imposed upon the defendant is ten (10) years or less; however, no defendant shall be eligible for probation under this chapter if convicted of a violation of § 39-13-213(a)(2), § 39-13-304, § 39-13-402, § 39-13-504, § 39-13-532, § 39-15-402, § 39-17-417(b) or (i), § 39-17-1003, § 39-17-1004 or § 39-17-1005. A defendant shall also be eligible for probation pursuant to § 40-36-106(e)(3).
(b) A court shall have authority to impose probation as part of its sentencing determination at the conclusion of the sentencing hearing. There shall be no petition for probation filed by the defendant and probation shall be automatically considered by the court as a sentencing alternative for eligible defendants; provided, that nothing in this chapter shall be construed as altering any provision of present statutory or case law requiring that the burden of establishing suitability for probation rests with the defendant.
(c)
1. (1) If the court determines that a period of probation is appropriate, the court shall sentence the defendant to a specific sentence but shall suspend the execution of all or part of the sentence and place the defendant on supervised or unsupervised probation either immediately or after a period of confinement for a period of time no less than the minimum sentence allowed under the classification and up to and including the statutory maximum time for the class of the conviction offense. If the court imposes a period of probation for only one (1) conviction, then the period of probation shall not exceed eight (8) years, including instances where a period of probation is imposed after a period of confinement. If the court imposes a period of probation for more than one (1) conviction, then the total period of probation imposed shall not exceed ten (10) years.
2. (2)
  1. (A) Except as provided in subdivision (c)(2)(B), if probation is to be granted to a defendant convicted of any of the misdemeanor offenses set out in subdivision (c)(2)(C), subdivision (c)(1) shall govern the length of the term of probation.
  2. (B) Notwithstanding subdivision (c)(2)(A), the judge may sentence a defendant convicted of any of the misdemeanor offenses set out in subdivision (c)(2)(C) to a period of probation not to exceed two (2) years, if the judge finds that the period of probation is necessary:
    1. (i) For the defendant to complete any appropriate treatment program or programs, including, but not limited to, a sanctioned batterer's intervention program, an anger management program or any court-ordered drug or alcohol treatment program;
    2. (ii) To make restitution to the victim of the offense;
    3. (iii) To otherwise effect a change in the behavior of the defendant, including, but not limited to, imposing any of the conditions set forth in subsection (d); or
    4. (iv) To protect and better ensure the safety of the victim or any other member of the victim's family or household, as set out in subsections (m) and (n).
  3. (C) The offenses to which this subdivision (c)(2) applies are:
    1. (i) Domestic assault, as prohibited by § 39-13-111;
    2. (ii) Assault as prohibited by § 39-13-101, vandalism as prohibited by § 39-14-408, or false imprisonment as prohibited by § 39-13-302, where the victim of the offense is a person identified in § 36-3-601(5);
    3. (iii) Violation of a protective order, as prohibited by § 36-3-612;
    4. (iv) Stalking, as prohibited by § 39-17-315; and
    5. (v) A second or third violation of § 55-10-401 if the judge orders a substance abuse treatment program as a condition of probation pursuant to § 55-10-402(a)(2)(B) or (a)(3)(B).
Backlinks (1)
- 40-35-308(c)(1)
(d) Whenever a court sentences an offender to supervised probation, the court shall specify the terms of the supervision and may require the offender to comply with certain conditions that may include, but are not limited to:
1. (1) Meet the offender's family responsibilities;
2. (2) Devote the offender to a specific employment or occupation;
3. (3) Perform, without compensation, services in the community for charitable or governmental agencies;
  Backlinks (2)
  
  41-9-103(a)
  41-9-203(a)
4. (4) Undergo available medical or psychiatric treatment and enter and remain in a specified institution whenever required for that purpose by voluntary self-admission to the institution pursuant to § 33-6-201;
5. (5) Pursue a prescribed secular course of study or vocational training;
6. (6) Refrain from possessing a firearm or other dangerous weapon;
7. (7) Remain within prescribed geographical boundaries and notify the court or the probation officer of any change in the offender's address or employment;
8. (8) Submit to supervision by an appropriate agency or person and report as directed by the court;
9. (9) Satisfy any other conditions reasonably related to the purpose of the offender's sentence and not unduly restrictive of the offender's liberty or incompatible with the offender's freedom of conscience, or otherwise prohibited by this chapter;
10. (10) Make appropriate and reasonable restitution to the victim or the family of the victim involved pursuant to § 40-35-304;
11. (11)
  1. (A) Undergo an alcohol and drug assessment or treatment, or both an assessment and treatment, if the court deems it appropriate and licensed treatment service is available;
  2. (B) Unless the court makes a specific determination that the person is indigent, the expense of the assessment and treatment shall be the responsibility of the person receiving it. If the court finds that the person is indigent under the same standards as used in § 55-10-402(j), the expense or some portion of the expense may be paid from the alcohol and drug addiction treatment fund provided in § 40-33-211, pursuant to a plan and procedures developed by the department of mental health and substance abuse services;
  3. (12)
    1. (A) Use a transdermal monitoring device or other alternative monitoring device if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct and the defendant is granted probation on or after July 1, 2014. If the defendant is granted probation on or after July 1, 2016, and the court orders a monitoring device but determines that the person is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419;
    2. (B) As used in this subdivision (d)(12), “transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device; or
  4. (13) Participation in a day reporting center program, recovery and treatment program, or another appropriate community-based program.
  Backlinks (2)
  
  39-17-439(c)(1)
  39-17-439(c)(2)
Backlinks (1)
- 40-28-602(b)
(e) Probation shall be granted, if at all, at the time of the sentencing hearing except for sentences served in a local jail or workhouse, or except during the time a defendant sentenced to the department of correction is being housed in a local jail or workhouse awaiting transfer to the department as provided in § 40-35-212(d).
(f) The trial judge shall not have the authority to require that the defendant either secure or pay the costs accrued in the case at the instance of the state as a condition of conducting a hearing on the defendant's request for suspension of sentence and probation.
(g) The powers granted in this section shall be exercised by the judge of the trial court presiding at the trial of original conviction or by any successor judge holding court in that jurisdiction.
(h) No probationer shall be allowed to leave the jurisdiction of the probationer's probation officer without the express permission of the trial judge.
(i)
1. (1) In misdemeanor cases, as a condition precedent, the defendant must pay not less than ten dollars ($10.00) nor more than forty-five dollars ($45.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant. The payment shall be made to the clerk of the court in which proceedings against the defendant were pending, to be sent to the agency, department, program, group or association responsible for the supervision of the defendant, unless the defendant is found to be indigent and without anticipated future funds with which to make the payment. The clerk of the court collecting the payment is permitted to retain five percent (5%) of the proceeds collected for the handling and receiving of the proceeds. The court may order the payments to be made directly to the agency, department, program, group or association responsible for the supervision of the defendant in lieu of making the payments to the clerk of the court.
2. (2) In addition to the costs imposed by subdivision (i)(1), the court may require the defendant to pay any or all costs for the defendant's supervision, counseling or treatment in a specified manner, based on the defendant's ability to pay.
3. (3) Willful failure to pay the supervision fee imposed by this subsection (i) to the supervising entity shall be grounds for revocation of probation and the supervising entity shall report all instances of nonpayment to the sentencing court.
(j) The provisions of this section relative to the payment of a supervision fee shall not apply to any person subject to chapter 28, part 2 of this title.
(k) The commissioner of correction, sheriff, warden, superintendent or other official having authority and responsibility for convicted defendants may contract with any appropriate public or private agency not under the commissioner's, sheriff's, warden's, superintendent's or other official's control for custody, care, subsistence, education, treatment or training of the defendants. The cost of the contract services shall be paid by the appropriate state or local entity to the department or the local jail or workhouse.
(l) A probation officer shall make reasonable and diligent effort to notify a victim of any felony that involved violence or the threat of violence that the defendant convicted of that offense is statutorily eligible for probation and that a hearing will be held to determine whether the defendant should be granted probation. The notice shall be given at least three (3) days prior to the hearing. If the victim is less than eighteen (18) years of age or is otherwise unavailable, the probation officer shall make all reasonable and diligent efforts to so notify the family, if any, of the victim.
(m) In determining whether a person convicted of the offense of stalking, aggravated stalking or especially aggravated stalking, as defined in § 39-17-315, or any criminal offense defined in title 39, chapter 13, in which the victim falls within the definition set forth in § 36-3-601(5), should be granted probation, the court shall consider the safety and protection of the victim of the offense and of any other member of the victim's family or household.
(n) If the court grants probation to a person convicted of an offense specified in subsection (m), it may condition the probation on compliance with one (1) or more orders of the court, including, but not limited to:
1. (1) Enjoining the perpetrator from threatening to commit or committing acts of violence against the victim or other household members;
2. (2) Prohibiting the perpetrator from harassing, annoying, telephoning, contacting or otherwise communicating, either directly or indirectly, with the victim;
3. (3) Requiring the perpetrator to stay away from the residence, school, place of employment or a specified place frequented regularly by the victim and by any designated family or household member;
4. (4) Prohibiting the perpetrator from possessing or consuming alcohol, controlled substances or controlled substance analogues; and
5. (5) Prohibiting the perpetrator from using or possessing a firearm or any other specified weapon and requiring the perpetrator to surrender and forfeit any weapon currently possessed.
(o)
1. (1) Probation officers meeting the requirements of this subsection (o) shall have the authority to serve warrants and make arrests solely relating to their duties as probation officers. A probation officer shall also have the authority to bring probationers before the court when directed by the court to do so. While acting in the performance of their duties as probation officers, the probation officers shall have the same authority as a peace officer while serving warrants and making arrests that relate solely to their duties as probation officers.
2. (2) Subdivision (o)(1) shall only apply to a probation officer:
  1. (A) In any county having a charter form of government with a population of less than five hundred thousand (500,000), according to the 2000 federal census or any subsequent federal census;
  2. (B) Employed by a probation office operated by a governmental entity;
  3. (C) Who has completed training equal to the training required by the standards of the peace officer's standards and training commission (POST); and
  4. (D) Who successfully completes at least forty (40) hours of appropriate in-service training each year.
3. (3) Because a probation officer meets the standards and requirements of subdivision (o)(2) does not mean the officer is eligible for the pay supplement for state certified officers authorized in § 38-8-111.
4. (4) This subsection (o) shall not apply to a state probation officer employed by the department of correction and paid by the state of Tennessee.
(p)
1. (1) If a defendant is granted probation pursuant to this section and is released to the department charged by law with the supervision of probationers, the department may contract with an approved private probation provider to furnish probation supervision and services to such defendant if:
  1. (A) The defendant's conviction offense was for a Class E felony; and
  2. (B) The caseloads of state probation officers where the defendant is being supervised are high, resulting in the likelihood that the probationer may receive increased supervision and services from a private probation provider; or
  3. (C) The private probation provider offers specialized services, treatment or training that would be beneficial to a probationer but would not be available if the probationer is supervised by the department.
2. (2) To contract with the department for the supervision of felons described in subdivision (p)(1)(A), a private probation provider shall:
  1. (A) Meet all qualifications established by the private probation council for entities providing misdemeanor probation services;
  2. (B) Keep all records in an electronic format that is accessible upon demand by an approved state agency;
  3. (C) Maintain professional liability insurance of not less than one million dollars ($1,000,000) in addition to a general liability policy; and
  4. (D)
    1. (i) Have been a private provider of misdemeanor probation services for courts exercising criminal jurisdiction in this state for at least fifteen (15) years; or
    2. (ii) Have been a private provider of misdemeanor probation services for courts exercising criminal jurisdiction in this state for at least two (2) years and a state probation officer for at least thirteen (13) years.
3. (3)
  1. (A) A private probation provider who meets the requirements of subdivision (p)(2) and who wants to contract with the department to provide probation services to felons described in subdivision (p)(1)(A), may register with the department and the private probation council.
  2. (B) At the time of registration, the private provider shall submit to the department and council:
    1. (i) Such documentation as is necessary to demonstrate that it meets the requirements of subdivision (p)(2); and
    2. (ii) A specific plan demonstrating how the use of such provider to supervise and provide services to felons described in subdivision (p)(1)(A), who have been granted probation will further the overall goal of reducing the recidivism rate of probationers. Such plan shall also contain statistics for misdemeanor probation services provided by the private provider for the previous ten (10) years. At a minimum, the statistics contained in the plan shall contain the same information required to be maintained by subdivision (p)(5).
  3. (C) If the documentation and recidivism rate reduction plan presented by the private provider demonstrates that it meets the requirements of subdivision (p)(2), the department and council shall approve the private provider and place such provider on a list of companies eligible to contract with the department pursuant to this subsection (p).
4. (4) A supervision contract authorized by this section shall be between the private provider and the department. Once the court grants a person's petition for probation, the department shall be the sole entity that determines who supervises the probationer. No probationer meeting the criteria set out in subdivision (p)(1)(A) shall be placed under the supervision of or supervised by a private provider that has not contracted with the department and is not on the list of companies approved by the department and the council.
5. (5) Any private provider who contracts with the department pursuant to this subsection (p) shall maintain statistics on the probationers supervised pursuant to this subsection (p) and shall submit a quarterly report of such statistics to the person or agency designated by the department. The statistics shall include, but not be limited to:
  1. (A) The number of felony probationers described in subdivision (p)(1)(A) the private provider has contracted to supervise;
  2. (B) The style of the case which resulted in the defendant being placed on probation;
  3. (C) The number of felons described in subdivision (p)(1)(A), whose probation was revoked prior to the end of supervision; and
  4. (D) The recidivism rate of the felony probationers supervised by the private provider under a contract authorized by this subsection (p).
6. (6)
  1. (A) A private provider contracting to supervise felons described in subdivision (p)(1)(A) may charge a supervision fee not to exceed sixty dollars ($60.00) per month. However, if a probationer cannot afford all or part of the supervision fee, the probationer may go before the court placing the defendant on probation and petition that it be waived or reduced. For good cause shown, the court may waive or reduce the supervision fee in appropriate cases.
  2. (B) Willful nonpayment of the supervision fee to the private probation provider shall be grounds for revocation and the provider shall report instances of nonpayment to the department in the manner specified in the contract.
7. (7) No employee of a private provider of probation services shall supervise a felon described in subdivision (p)(1)(A) unless the employee has a bachelor of science degree from an accredited college or university or at least two (2) years of related work experience.
8. (8) This subsection (p) shall not apply to offenders who are governed by the Interstate Compact for Supervision of Adult Offenders, codified in § 40-28-401. The supervision of those offenders shall be controlled by the compact.
(q)
1. (1) A probation officer shall set any required meetings at times and locations that reasonably accommodate the work schedule of the probationer. Upon approval from the department of correction, the probation officer may utilize a technology portal that allows communication between the probationer and the probation officer to occur in real time by voice and video in place of an in-person meeting between the probationer and the probation officer.
2. (2) The department shall promulgate rules governing a defendant's eligibility for video reporting. Rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and must include:
  1. (A) Minimum standards and guidelines for the authorized technology;
  2. (B) Minimum standards and guidelines for how the technology may be used; and
  3. (C) Standards for determining the eligibility and suitability of a defendant to meet reporting requirements through the use of such technology.
3. (3) The eligibility and suitability standards under subdivision (q)(2)(C) must include consideration of the severity of the defendant's underlying criminal conviction and the defendant's criminal history, supervision level, and past supervision history.
(r)
1. (1) Except as provided in subdivision (r)(2), if an offender is required as a condition of probation to submit to transdermal monitoring or other alternative monitoring, it is a Class B misdemeanor:
  1. (A) For the offender to knowingly tamper with, remove, or vandalize the monitoring device; or
  2. (B) For any person to knowingly aid, abet, or assist the offender in tampering with, removing, or vandalizing a monitoring device.
2. (2) If a person violates subdivision (r)(1) and the monitoring device is damaged as a result of the violation, then the offense may be punished as theft under § 39-14-105, after determining value under § 39-11-106.
3. (3) If an entity monitoring the device becomes aware that there has been an attempt to tamper with, disable, remove, or otherwise make the device ineffective, then the entity monitoring the device shall promptly give notice of the violation to the offender's probation officer.

Backlinks (13)

History (36)

Acts 1989, ch. 591, § 6
1990, ch. 982, § 4
1990, ch. 1030, § 32
1991, ch. 458, § 2
1992, ch. 1009, § 1
1993, ch. 221, § 3
1994, ch. 978, § 3
1995, ch. 410, § 4
1997, ch. 211, § 6
2000, ch. 740, § 1
2000, ch. 947, § 8E
2003, ch. 408, § 1
2005, ch. 353, § 7
2005, ch. 433, § 1
2005, ch. 455, § 1
2005, ch. 482, § 7
2006, ch. 973, § 2
2007, ch. 311, § 1
2007, ch. 528, § 1
2009, ch. 186, § 6
2010, ch. 981, §§ 4, 6
2010, ch. 1100, § 66
2012, ch. 575, § 1
2012, ch. 652, § 1
2012, ch. 727, § 44
2012, ch. 848, § 35
2013, ch. 33, § 1
2013, ch. 154, § 38
2014, ch. 567, § 3
2014, ch. 902, § 5
2016, ch. 993, § 14
2016, ch. 1021, § 1
2018, ch. 1046, § 3
2021, ch. 409, §§ 17, 20
2024, ch. 760, § 1
2024, ch. 874, § 3.

§ 40-35-304. Restitution as condition for probation — Petition to modify — Civil judgment for nonpayment — Procedure.

(a) A sentencing court may direct a defendant to make restitution to the victim of the offense as a condition of probation.
(b) Whenever the court believes that restitution may be proper or the victim of the offense or the district attorney general requests, the court shall order the presentence service officer to include in the presentence report documentation regarding the nature and amount of the victim's pecuniary loss.
(c) The court shall specify at the time of the sentencing hearing the amount and time of payment or other restitution to the victim and may permit payment or performance in installments. The court may not establish a payment or performance schedule extending beyond the statutory maximum term of probation supervision that could have been imposed for the offense.
(d) In determining the amount and method of payment or other restitution, the court may consider the financial resources and future ability of the defendant to pay or perform.
(e) As used in this section:
1. (1) “Pecuniary loss” means:
  1. (A) All special damages, but not general damages, as substantiated by evidence in the record or as agreed to by the defendant; and
  2. (B) Reasonable out-of-pocket expenses incurred by the victim resulting from the filing of charges or cooperating in the investigation and prosecution of the offense; provided, that the payment of special prosecutors is not considered an out-of-pocket expense; and
2. (2) “Victim” includes a reciprocal, as defined in § 56-16-102, whether or not formed under the laws of this state, when the reciprocal has compensated a subscriber for loss incurred as a result of the offense, to the extent that the reciprocal paid the compensation to the subscriber.
(f) A defendant, victim or district attorney general at any time may petition the sentencing court to adjust or otherwise waive payment or performance of any ordered restitution or any unpaid or unperformed portion of the restitution. The court shall schedule a hearing and give the victim and the defendant notice of the hearing, including the date, place and time and inform the victim and defendant that each will have an opportunity to be heard. If the court finds that the circumstances upon which it based the imposition or amount and method of payment or other restitution ordered no longer exist or that it otherwise would be unjust to require payment or other restitution as imposed, the court may adjust or waive payment of the unpaid portion of the restitution or other restitution or modify the time or method of making restitution. The court may extend the restitution schedule, but not beyond the term of probation supervision.
(g) The procedure for a defendant sentenced to pay restitution pursuant to § 40-35-104(c)(2), or otherwise, shall be the same as is provided in this section with the following exceptions:
1. (1) If there is no sentencing hearing or presentence report because the defendant's sentence is agreed upon and the payment of restitution is a part of the sentence, the plea agreement shall include the amount of restitution and the other performance requirements set out in subsection (c);
2. (2) A defendant sentenced in whole or in part to the payment of restitution pursuant to § 40-35-104(c)(2), or otherwise, shall be responsible for the payment of the restitution until the expiration of the sentence imposed by the court, and any payment or performance schedule established by the court shall not extend beyond the expiration date;
3. (3) If the court sentences a defendant to payment of restitution and believes that payment to more than one (1) victim is proper, the court shall determine the pecuniary loss of each victim as provided in this section and shall order the amount of restitution to each victim;
4. (4) If, as a result of the defendant's criminal conduct, the victim or victims of the offense are dead at the time of sentencing, the court may sentence the defendant to pay restitution to the victim's or victims' next-of-kin; and
5. (5) Nothing in § 39-11-118, § 40-35-104(c)(2) or this subsection (g) shall be construed to prohibit or delay a victim from applying for and receiving any compensation to which the victim is entitled under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13. If the court orders the defendant to pay restitution pursuant to § 39-11-118, § 40-35-104(c)(2) or this subsection (g), the state shall have a subrogation interest in the restitution payments for the full amount paid the victim under the Criminal Injuries Compensation Act.
(h)
1. (1) Notwithstanding any law to the contrary, upon expiration of the time of payment or the payment schedule imposed pursuant to subsection (c) or (g), if any portion of restitution remains unpaid, then the victim or the victim's beneficiary may convert the unpaid balance into a civil judgment in accordance with the procedure set forth in this subsection (h).
2. (2) Within the twelve-month period following expiration of the time of payment or the payment schedule imposed pursuant to subsection (c) or (g), the victim or the victim's beneficiary may file a certified copy of the restitution order with an appropriate civil court having jurisdiction over the total amount of restitution ordered.
3. (3) At the same time the victim or victim's beneficiary files a certified copy of the restitution order with the civil court, the victim or victim's beneficiary shall have the defendant personally served in accordance with the Tennessee rules of civil procedure. The service shall give notice to the defendant of the victim's or victim's beneficiary's intent to convert the restitution order to a civil judgment, and include a copy of the restitution order and a statement as to the amount of unpaid restitution the victim or victim's beneficiary alleges the defendant still owes.
4. (4) Upon being served, the defendant shall be permitted to file an answer in accordance with the Tennessee rules of civil procedure.
5. (5) Upon service of the defendant and receipt of the defendant's answer, if any, the civil court shall conduct a hearing in order to take proof as to the amount of ordered restitution actually paid. Both the victim or victim's beneficiary and the defendant shall be permitted to offer proof at this hearing. If the court finds by a preponderance of the evidence presented that the amount of restitution actually paid is less than the total amount of restitution ordered pursuant to subsection (c) or (g), then the court shall enter a judgment in favor of the victim or the victim's beneficiary and against the defendant for the amount of the unpaid balance of the restitution.
6. (6) At the hearing conducted in accordance with this subsection (h), the only issues over which the court shall have jurisdiction is whether the defendant was properly served in accordance with the Tennessee rules of civil procedure, whether the restitution order entered against the defendant pursuant to this section has been satisfied by the defendant and, if not, the amount of restitution still owed by the defendant.
7. (7) A civil judgment entered pursuant to this subsection (h) shall remain in effect from the date of entry until it is paid in full or is otherwise discharged and shall be enforceable by the victim or the victim's beneficiary in the same manner and to the same extent as other civil judgments are enforceable.
Backlinks (2)
- 39-13-219(d)(2)
- 40-38-102(c)

Backlinks (10)

History (6)

Acts 1989, ch. 591, § 6
1996, ch. 699, §§ 3, 4
2000, ch. 833, § 1
2014, ch. 596, § 2
2021, ch. 413, § 2
2024, ch. 811, § 1.

§ 40-35-305. Appearance bond.

Upon the imposition of a sentence involving release into the community as provided in this chapter, the trial judge shall possess the power to require the defendant, the judgment against whom has been suspended, to execute an appearance bond in the sum deemed right and proper by the trial judge or, in the alternative, to execute a personal recognizance bond without sureties in the sum the trial judge may fix, both bail bond and recognizance, as the case may be, to contain conditions requiring the appearance of the defendant from court to court or, in the alternative, to appear before the trial judge at any regular or special term of the court.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-306. Split confinement — Probation following partial service of sentence.

(a) A defendant receiving probation may be required to serve a portion of the sentence in continuous confinement for up to one (1) year in the local jail or workhouse, with probation for a period of time up to and including the statutory maximum time for the class of the conviction offense.
(b) A violation of the terms of probation or of the rules of the institution where the defendant is confined shall authorize the court to revoke the sentence of split confinement and impose a sentence in a local jail or workhouse or, unless prohibited by § 40-35-104(b), in the department of correction. The imposed sentence shall not exceed the remainder of the full sentence.
(c) At any time during the period of continuous confinement ordered pursuant to this section, the defendant may apply to the sentencing court to have the balance of the sentence served on probation supervision. The application may be made at no less than two-month intervals.

Backlinks (7)

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-307. Probation coupled with periodic confinement.

(a) A defendant receiving probation may be required to serve a specific portion of the sentence in periodic confinement in the local jail or workhouse for up to one (1) year with probation for a period of time up to and including the statutory maximum time for the class of the conviction offense.
(b) If the court sentences a defendant to a term of probation involving periodic confinement, it shall specify:
1. (1) The total number of months or days to be served in periodic confinement, which shall not exceed one (1) year or the maximum term authorized for the offense, whichever is less; and
2. (2) The days or parts of days the defendant is to be confined.
(c) The court may include in the judgment of conviction suitable provisions to the officer to whose custody the defendant is committed as will ensure that the defendant will be allowed to serve the sentence on nonconsecutive days which may include, but are not limited to, weekends, between hours to be specified in the judgment, which provisions or directions may be revoked, suspended or amended from time to time by the sentencing court until the period of probation begins.
(d) The sheriff, warden, superintendent or other official having responsibility for the safekeeping of the defendant in any local jail or workhouse shall adopt procedures for the release of the defendant at the time specified in the order of judgment and for receiving the defendant back into custody at the specified times. Willful failure of the official to comply with the directions of the court constitutes contempt of court, punishable as provided by law for contempt generally.
(e) Failure of the defendant to surrender to the custody of the sheriff, warden, superintendent or other official responsible for the defendant's safekeeping in the local jail or workhouse within the time specified in the order of judgment constitutes grounds for the revocation or modification of probation in the discretion of the court. The defendant may elect to serve the defendant's entire sentence of confinement on consecutive days; provided, that a failure to comply with subsection (c) or (d) shall give the court the authority, upon a finding of a violation, to impose a sentence of continuous confinement in a local jail or workhouse or, unless prohibited by § 40-35-104(b), in the department of correction for the remainder of the full sentence originally imposed.
(f) At any time during the period of periodic confinement, the defendant may apply to have the balance of the periodic confinement sentence served on probation without further confinement. The application may be made at no less than two-month intervals.

Backlinks (9)

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-308. Modification, removal or release from conditions of probation — Extension of period of probation supervision.

(a) During the term of probation supervision, the sentencing court, on its own motion, or on application of a probation and parole officer, district attorney general or the defendant, may:
1. (1) Modify any condition;
2. (2) Remove a condition; or
3. (3) Release the defendant from further supervision; provided, that release from supervision shall not discharge the defendant from the remainder of the sentence, and the defendant shall remain within the jurisdiction and authority of the sentencing court until the sentence fully expires. During this period, the defendant's probation is subject to revocation.
(b) The court may not make the conditions of supervision more onerous than those originally imposed, except pursuant to a revocation proceeding as provided by law.
(c)
1. (1) Notwithstanding the actual sentence imposed under § 40-35-303(c), at the conclusion of a probation revocation hearing, the court shall have the authority to extend the defendant's period of probation supervision for a period not exceeding one (1) year upon determining on the record that:
  1. (A) The defendant has repeatedly and intentionally failed to comply with court-ordered treatment programming;
  2. (B) The defendant has intentionally violated the conditions of probation regarding contact with the victim or the victim's family; or
  3. (C) The defendant has intentionally failed to comply with restitution orders despite having the ability to pay the restitution owed, and extending the period of probation would be more effective than other available options to ensure that the defendant pays the remaining amount of restitution owed.
2. (2) For each subsequent determination that the defendant has violated a provision or provisions of subdivision (c)(1), the court may extend probation for an additional period not exceeding one (1) year.

History (3)

Acts 1989, ch. 591, § 6
1998, ch. 1049, § 43
2021, ch. 409, § 21.

§ 40-35-309. Probation authorized outside jurisdiction of court — Transfer or retention of jurisdiction.

Whenever a court authorizes a defendant sentenced to supervised probation to reside in this state but outside the jurisdiction of the sentencing court, the court may:
1. (1) Retain jurisdiction over the defendant; or
2. (2) Transfer jurisdiction over the defendant to an appropriate court in the jurisdiction in which the defendant will reside. A court to which jurisdiction is transferred shall have the same powers as the sentencing court.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-310. Revocation of suspension of sentence — Resentence to community-based alternative to incarceration.

(a) The trial judge shall possess the power, at any time within the maximum time that was directed and ordered by the court for the suspension, in accordance with § 40-35-311, to revoke the suspension. The trial judge may order the original judgment to be in full force and effect from the date of the revocation of the suspension and may give credit against the original judgment by the amount of time the defendant has successfully served on probation and suspension of sentence prior to the violation or a portion of that amount of time. If the trial judge revokes the suspension due to conduct by the defendant that resulted in a conviction against the defendant during the defendant's period of probation, then the trial judge may order that the term of imprisonment imposed by the original judgment be served consecutively to any sentence that was imposed upon the conviction.
(b) In addition to the power to restore the original judgment, which may be reduced by an amount of time not to exceed the amount of time the defendant has successfully served on probation and suspension of sentence prior to the violation, when suspension of sentence is revoked, the trial judge may also resentence the defendant for the remainder of the unexpired term to a sentence of probation, including the condition of participating in a community-based alternative to incarceration as provided in § 40-35-104(c)(9); provided, that the violation of the defendant's suspension of sentence is a technical one and does not involve the commission of a new offense.

Backlinks (1)

40-35-311(d)(1)

History (3)

Acts 1989, ch. 591, § 6
2009, ch. 203, § 2
2021, ch. 409, §§ 18, 22, 23.

§ 40-35-311. Issuance of warrant or summons upon violation of conditions of probation — Probation revocation hearing — Admissibility of laboratory report — Revocation of probation and suspension of sentence — Use of validated risk and needs assessment.

(a)
1. (1) Whenever it comes to the attention of the trial judge that a defendant who has been released upon suspension of sentence has been guilty of a breach of the laws of this state or has violated the conditions of probation, the trial judge shall have the power to cause to be issued under the trial judge's hand:
  1. (A) A warrant for the arrest of the defendant as in any other criminal case; or
  2. (B) For a technical violation brought by a probation officer, and subject to the discretion of the judge, a criminal summons.
2. (2) Regardless of whether the defendant is on probation for a misdemeanor or felony, or whether the warrant or summons is issued by a general sessions court judge or the judge of a court of record, a probation officer or a peace officer of the county in which the probationer is found may execute the warrant or serve the summons.
(b) Whenever a person is arrested or summoned for the violation of probation and suspension of sentence, the trial judge granting the probation and suspension of sentence, the trial judge's successor, or any judge of equal jurisdiction who is requested by the granting trial judge to do so shall, at the earliest practicable time, inquire into the charges and determine whether or not a violation has occurred and, at the inquiry, the defendant must be present and is entitled to be represented by counsel and has the right to introduce testimony in the defendant's behalf.
(c)
1. (1) A laboratory report regarding a defendant's drug test may be admissible in probation revocation proceedings, even though the laboratory technician who performed the test is not present to testify, when accompanied by an affidavit containing at least the following information:
  1. (A) The identity of the certifying technician;
  2. (B) A statement of qualifications from the certifying technician;
  3. (C) A specific description of the testing methodology;
  4. (D) A statement that the method of testing was the most accurate test for this particular drug;
  5. (E) A certification that the test results were reliable and accurate;
  6. (F) A declaration that all established procedures and protocols were followed; and
  7. (G) A statement of acknowledgment that submission of false information in the affidavit may subject the affiant to prosecution for the criminal offense of perjury pursuant to § 39-16-702.
2. (2) Notwithstanding subdivision (c)(1), the judge shall, upon seasonable objection and for good cause shown, require that the laboratory technician appear and testify at the probation revocation hearing.
3. (3) If the state intends to introduce a laboratory report and affidavit in lieu of the live testimony of the laboratory technician as authorized by this subsection (c), it shall provide the defendant or the defendant's attorney, if known, with a copy of the report and affidavit at least five (5) days prior to the revocation hearing.
(d)
1. (1) The trial judge may enter judgment upon the question of the charges as the trial judge may deem right and proper under the evidence adduced before the trial judge. If the trial judge finds by a preponderance of the evidence that the defendant has violated the conditions of probation and suspension of sentence, then the court may revoke the defendant's probation and suspension of sentence, in full or in part, pursuant to § 40-35-310. The court may sentence the defendant to a sentence of probation for the remainder of the unexpired term.
2. (2) Notwithstanding subdivision (d)(1), the trial judge shall not revoke a defendant's probation and suspension of sentence for a felony offense, whether temporarily under subdivision (e)(1) or otherwise, based upon one (1) instance of technical violation or violations.
3. (3) [Deleted by 2022 amendment.]
(e)
1. (1) If the trial judge finds by a preponderance of the evidence that the defendant has violated the conditions of probation and suspension of sentence for a felony offense by engaging in conduct that is a second or subsequent instance of a technical violation pursuant to subdivision (d)(2), then the trial judge may temporarily revoke the probation and suspension of sentence by an order duly entered upon the minutes of the court, and:
  1. (A) Impose a term of incarceration not to exceed:
    1. (i) Fifteen (15) days for a first revocation;
    2. (ii) Thirty (30) days for a second revocation;
    3. (iii) Ninety (90) days for a third revocation; or
    4. (iv) The remainder of the sentence for a fourth or subsequent revocation; or
  2. (B) Resentence the defendant for the remainder of the unexpired term to a sentence of probation that includes the condition of participating in a community-based alternative to incarceration as provided in § 40-35-104(c)(9); provided, that the violation of probation and suspension is a technical violation and does not involve the commission of a new offense.
2. (2) If the trial judge revokes a defendant's probation and suspension of sentence after finding, by a preponderance of the evidence, that the defendant has committed a new felony, new Class A misdemeanor, zero tolerance violation as defined by the department of correction community supervision sanction matrix, absconding, or contacting the defendant's victim in violation of a condition of probation, then the trial judge may revoke the probation and suspension of sentence by an order duly entered upon the minutes of the court, and cause the defendant to commence the execution of the judgment as originally entered, which may be reduced by an amount of time not to exceed the amount of time the defendant has successfully served on probation and suspension of sentence prior to the violation.
3. (3) If the trial judge revokes a defendant's probation and suspension of sentence, then the defendant has the right to appeal.
4. (4) If a person is serving two (2) or more concurrent probationary sentences and the person's probation is revoked on one (1) probationary sentence, then the person must receive credit for the time served as a result of that probation revocation against any other concurrent probationary sentence that is subsequently revoked in any jurisdiction in this state.
(f) The court may consider the results of an offender's validated risk and needs assessment in determining the appropriate disposition of the probation violation charge and may request an updated validated risk and needs assessment be performed.
(g) As used in this section, “technical violation” means an act that violates the terms or conditions of probation but does not constitute a new felony, new Class A misdemeanor, zero tolerance violation as defined by the department of correction community supervision sanction matrix, absconding, or contacting the defendant's victim in violation of a condition of probation.

Backlinks (11)

History (10)

Acts 1989, ch. 591, § 6
1995, ch. 51, § 1
1997, ch. 506, § 1
1998, ch. 1065, § 1
2009, ch. 203, § 3
2016, ch. 906, § 11
2021, ch. 409, §§ 24, 25
2021, ch. 541, § 1
2022, ch. 981, §§ 1-4
2022, ch. 1060, §§ 1-8.

§ 40-35-312. Costs of revocation proceeding.

In case of a revocation of a suspension, the costs of the revocation shall be adjudged against the defendant, and the defendant shall be required to pay or secure the costs; provided, that no state and county tax nor attorney general's fee shall accrue upon hearings for the purpose of revoking the suspension. In case the suspension is not revoked upon the hearing, the costs shall be taxed against the county, if the defendant was originally convicted of a misdemeanor, and against the state, if originally convicted of a felony; provided, that, if the trial judge is of the opinion that the proceedings for revocation are not made in good faith, the judge shall have the power to disallow all the costs of the case or, in the alternative, to tax them against the party making the charges against the defendant.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-313. Probation — Conditions — Discharge and dismissal — Expunction from official records — Fee.

(a)
1. (1)
  1. (A) The court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant. The deferral shall be for a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged or not more than the period of the maximum sentence of the felony with which the person is charged. The deferral is conditioned upon the defendant paying an amount to be determined by the court of not less than ten dollars ($10.00) nor more than thirty-five dollars ($35.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant, and upon the defendant paying any or all additional costs of the defendant's supervision, counseling or treatment in a specified manner, based upon the defendant's ability to pay. The payments shall be made to the clerk of the court in which proceedings against the defendant were pending, who shall send the payments to the agency, department, program, group or association responsible for the supervision of the defendant, unless the defendant is found to be indigent and without anticipated future funds with which to make the payment. The clerk of the court collecting the payment is permitted to retain five percent (5%) of the proceeds collected for the handling and receiving of the proceeds as provided in this subdivision (a)(1)(A).
  2. (B)
    1. (i) As used in this subsection (a), “qualified defendant” means a defendant who:
      1. (a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
      2. (b) Is not seeking deferral of further proceedings for any offense committed by any elected or appointed person in the executive, legislative or judicial branch of the state or any political subdivision of the state, which offense was committed in the person's official capacity or involved the duties of the person's office;
      3. (c) Is not seeking deferral of further proceedings for a sexual offense, a violation of § 39-15-502, § 39-15-508, § 39-15-511, or § 39-15-512, driving under the influence of an intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-106 prior to service of the minimum sentence required by § 39-13-106, or a Class A or B felony;
      4. (d) Has not previously been convicted of a felony or a Class A misdemeanor for which a sentence of confinement is served; and
      5. (e) Has not previously been granted judicial diversion under this chapter or pretrial diversion.
    2. (ii) As used in subdivision (a)(1)(B)(i)(c), “sexual offense” means conduct that constitutes:
      1. (a) Aggravated prostitution, as described in § 39-13-516;
      2. (b) Aggravated rape, as described in § 39-13-502;
      3. (c) Aggravated sexual battery, as described in § 39-13-504;
      4. (d) Aggravated sexual exploitation of a minor, as described in § 39-17-1004;
      5. (e) Attempt, as described in § 39-12-101, solicitation, as described in § 39-12-102 or conspiracy, as described in § 39-12-103, to commit any of the offenses enumerated in this subdivision (a)(1)(B)(ii);
      6. (f) Especially aggravated sexual exploitation of a minor, as described in § 39-17-1005;
      7. (g) Rape, as described in § 39-13-503;
      8. (h) Rape of a child, as described in § 39-13-522;
      9. (i) Sexual battery by an authority figure, as described in § 39-13-527;
      10. (j) Sexual exploitation of a minor, as described in § 39-17-1003;
      11. (k) Statutory rape by an authority figure, as described in § 39-13-532;
      12. (l) Incest, as described in § 39-15-302;
      13. (m) Patronizing prostitution from a person who is younger than eighteen (18) years of age or has an intellectual disability, as described in § 39-13-514(b)(3);
      14. (n) Promoting the prostitution of a minor, as described in § 39-13-515(c)(1); or
      15. (o) Continuous sexual abuse of a child, as described in § 39-13-518.
    3. (iii)
      1. (a) As used in this subsection (a), “reasonable conditions” includes, but is not limited to, the use of a transdermal monitoring device or other alternative monitoring device for all qualified defendants granted deferral pursuant to this section on or after July 1, 2014, if the court determines that the defendant's use of alcohol or drugs was a contributing factor in the defendant's unlawful conduct. If the court requires a qualified defendant to use a transdermal monitoring device or other alternative monitoring device on or after July 1, 2016, as a condition of the defendant's release, and the court determines the defendant is indigent, the court shall order that the portion of the costs of the device that the person is unable to pay be paid by the electronic monitoring indigency fund, established in § 55-10-419. “Transdermal monitoring device” means any device or instrument that is attached to the person, designed to automatically test the alcohol or drug content in a person by contact with the person's skin at least once per one-half (½) hour regardless of the person's location, and which detects the presence of alcohol or drugs and tampering, obstructing, or removing the device.
      2. (b) As used in this subsection (a), “reasonable conditions” also includes, but is not limited to, the requirement that a qualified defendant serve a period or periods of confinement in the local jail or workhouse not to exceed a total of thirty (30) days.
2. (2) The provisions of this subsection (a) relative to the payment of a supervision fee shall not apply to any person subject to chapter 28, part 2 of this title. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. If, during the period of probation, the person does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this subsection (a) is without court adjudication of guilt, but a nonpublic record of the discharge and dismissal is retained by the court solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, the person qualifies under this subsection (a) or for the limited purposes provided in subsections (b) and (c). The discharge and dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose, except as provided in subsections (b) and (c). Discharge and dismissal under this subsection (a) may occur only once with respect to any person.
3. (3)
  1. (A) No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court on or after July 1, 1998, unless there is attached to it a certificate from the Tennessee bureau of investigation stating that the defendant does not have a prior felony or Class A misdemeanor conviction. No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court if the defendant was charged with a violation of a criminal statute the elements of which constitute abuse, neglect or misappropriation of the property of a vulnerable person as defined in § 68-11-1002 on or after July 1, 2004, and prior to July 1, 2018, or charged with a violation of § 39-15-507 on or after January 1, 2019, or § 39-15-510 on or after July 1, 2019, unless the order contains a provision that the defendant agrees without contest or any further notice or hearing that the defendant's name shall be permanently placed on the registry governed by § 68-11-1003 a copy of which shall be forwarded to the department of health.
  2. (B) The certificate provided by the bureau pursuant to subdivision (a)(3)(A) is only a certification that according to its expunged criminal offender and pretrial diversion database the defendant is not disqualified from deferral and probation under this section by virtue of a prior felony or Class A misdemeanor conviction. The certificate is not a certification that the defendant is eligible for the deferral and probation, and it shall continue to be the duty of the district attorney general, and judge to make sufficient inquiry into the defendant's background to determine eligibility.
(b) Upon the dismissal of the person and discharge of the proceedings against the person under subsection (a), the person may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the court under subsection (a) and the public records that are defined in § 40-32-101(b), all recordation relating to the person's arrest, indictment or information, trial, finding of guilty and dismissal and discharge pursuant to this section; provided, that no records of a person who is dismissed from probation and whose proceedings are discharged pursuant to this section shall be expunged if the offense for which deferral and probation was granted was a sexual offense as defined by § 40-39-202. Each application shall contain a notation by the clerk evidencing that all court costs are paid in full, prior to the entry of an order of expunction. If the court determines, after hearing, that the person was dismissed and the proceedings against the person discharged, it shall enter the order. The effect of the order is to restore the person, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information. No person as to whom the order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person's failures to recite or acknowledge the arrest, or indictment or information, or trial in response to any inquiry made of the person for any purpose, except when the person who has been availed of the privileges of expunction then assumes the role of plaintiff in a civil action based upon the same transaction or occurrence as the expunged criminal record. In that limited situation, notwithstanding this section or § 40-32-101(a)(3)-(c)(3) to the contrary, the nonpublic records are admissible for the following purposes:
1. (1) A plea of guilty is admissible into evidence in the civil trial as a judicial admission; and
2. (2) A verdict of guilty by a judge or jury is admissible into evidence in the civil trial as either a public record or is admissible to impeach the truthfulness of the plaintiff. In addition, the nonpublic records retained by the court, as provided in subsection (a), shall constitute the official record of conviction and are subject to the subpoena power of the courts of civil jurisdiction.
(c) Notwithstanding this section or § 40-32-101(a)(3)-(c)(3) to the contrary, a plea of guilty or a verdict of guilty by a judge or jury for a criminal felony offense involving an act of terrorism or any other felony offense involving violence, coercion, dishonesty or the disruption of the operations of a state or local government is admissible into evidence in a civil action for the purpose of impeaching the truthfulness, veracity or credibility of a witness if the plea or verdict occurred within ten (10) years of the date the evidence is sought to be admitted and the witness is a party to the civil action. The plea or verdict is admissible for the purposes set out in this subsection (c) notwithstanding the fact that the public records of the plea or verdict have been expunged pursuant to this section either prior to or after the commencement of the civil action at which the plea or verdict is sought to be admitted. In addition, the nonpublic records retained by the court, Tennessee bureau of investigation or a local law enforcement agency shall constitute official records of plea or verdict and are subject to the subpoena power of the courts of civil jurisdiction.
Backlinks (1)
- 16-3-810
(d)
1. (1) Any court dismissing charges against a person and ordering the expunction of a person's public records following the discharge of proceedings pursuant to this section after October 1, 1998, shall send or cause to be sent a copy of the dismissal and expunction order to the Tennessee bureau of investigation for entry into its expunged criminal offender and pretrial diversion database; provided, however, that the court shall not be required to send to the bureau a copy of any dismissal and expunction order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order shall contain the name of the person seeking dismissal and expunction, the person's date of birth and social security number, the offense that was dismissed and the date the dismissal and expunction order is entered.
2. (2) [Deleted by 2019 amendment.]

History (30)

Acts 1989, ch. 591, § 6
1990, ch. 980, §§ 25, 26
1995, ch. 349, § 1
1996, ch. 997, § 1
1997, ch. 455, § 2
1997, ch. 456, § 2
1998, ch. 1099, §§ 8-10
2000, ch. 645, § 2
2000, ch. 813, § 7
2002, ch. 849, §§ 14-16
2003, ch. 323, § 2
2004, ch. 780, § 9
2006, ch. 973, § 3
2007, ch. 528, § 2
2007, ch. 536, § 1
2011, ch. 484, § 2
2012, ch. 766, § 2
2012, ch. 1041, § 4
2014, ch. 567, § 4
2015, ch. 125, § 1
2016, ch. 993, § 15
2016, ch. 1026, § 1
2017, ch. 466, § 4
2018, ch. 951, § 1
2018, ch. 1046, § 3
2018, ch. 1050, §§ 8, 9
2019, ch. 200, § 4
2019, ch. 474, §§ 14, 15
2020, ch. 607, § 1
2020, ch. 741, § 1.

§ 40-35-314. Confinement in local jail or workhouse — Eligibility — Jurisdiction of sentencing court — Transfer for violation of jail rules — Participation in Work Program.

(a) If confinement is directed, the court shall designate the place of confinement as a local jail or workhouse if required pursuant to § 40-35-104(b) or, if the sentence is eight (8) years or less and combined with periodic or split confinement not to exceed one (1) year, the court shall designate the place of confinement as a local jail or workhouse. If confinement in a local jail or workhouse is not mandated by § 40-35-104(b), § 40-35-306 or § 40-35-307, all convicted felons sentenced after November 1, 1989, to continuous confinement for a period of one (1) year or more shall be sentenced to the department of correction. After November 1, 1989, if a court sentences or has sentenced a defendant to a local jail or workhouse when the court was not authorized to do so by this chapter, it shall be deemed that the sentence was a sentence to the department, and the commissioner of correction shall have the authority to take the defendant into the custody of the department.
(b)
1. (1) When imposing the sentence to the local jail or workhouse, the defendant is eligible for release classification status as provided in this chapter; however, the court may specify an earlier percentage of eligibility for all programs except parole. This percentage shall be expressed in one (1) of the following numeric percentages: zero percent (0%), ten percent (10%), twenty percent (20%), thirty percent (30%), forty percent (40%) or fifty percent (50%); provided, that the percentage shall be no higher than the release eligibility percentage under § 40-35-501.
2. (2) In the event the judgment does not specify a percentage as provided in subdivision (b)(1), the defendant shall be eligible for the programs, except parole, six (6) months prior to release eligibility date under § 40-35-501.
(c) The court shall retain full jurisdiction over the defendant during the term of the sentence and may reduce or modify the sentence or may place the defendant on probation supervision where otherwise eligible. Following the first application, applications to reduce or to alter the manner of the service of the sentence may be made at no less than two (2) month intervals.
(d) If a defendant serving a felony sentence violates any condition or rule of the local jail or workhouse, the court shall have full authority to sentence the defendant to continuous confinement in the department of correction for a period not to exceed the remainder of the full sentence originally imposed.
(e) If a defendant serving a felony sentence in a local jail or workhouse develops medical problems that the local jail or workhouse is not equipped to treat, the court shall have full authority to transfer the defendant to the department of correction. If transfer is ordered under this subsection (e), the court shall retain full jurisdiction over the defendant to reduce or modify the sentence.
(f) Subsection (b) also applies to defendants sentenced to the department during the time the defendants are being housed in a local jail or workhouse awaiting transfer to the department as provided in § 40-35-212(d).
(g)
1. (1) Any defendant convicted of a felony and sentenced to serve such sentence in a local jail or workhouse pursuant to this section, § 40-35-104(b), § 40-35-306, or § 40-35-307 shall be ordered, as a part of the sentence, to participate in any work program operated by the jail or workhouse in which the defendant is incarcerated.
2. (2) The sheriff may opt the county out of the requirements of this subsection (g) if the sheriff's local jail or workhouse does not operate a work program or, if it does operate such a program, the increased number of inmates participating would exceed the sheriff's ability to provide security, transportation, or requested work projects.
3. (3) The sheriff may excuse any one (1) or more individual inmates sentenced to the work program if, in the judgment of the sheriff:
  1. (A) The inmate would pose a security or escape risk to the public or other inmates if allowed to participate in a work program outside the facility;
  2. (B) The inmate has physical or mental health conditions that would preclude the inmate from successfully participating in a work program or would endanger others if allowed to participate; or
  3. (C) The county cannot afford to provide the security or transportation for one (1) or more inmates sentenced to the work program pursuant to this section.
4. (4) Any inmate who knowingly refuses to participate in a work program after being sentenced to do so pursuant to this section shall be considered to have violated a rule of the local jail or workhouse and the court may act upon such violation as provided in subsection (d).
5. (5) The liability of any county whose local jail or workhouse operates a work program shall not be increased or changed solely because the work program uses inmates sentenced to the program pursuant to this subsection (g).

Backlinks (3)

History (3)

Acts 1989, ch. 591, § 6
1991, ch. 374, § 3
2013, ch. 168, § 1.

§ 40-35-315. Jurisdiction of sentencing court to order work release.

(a) In any case in which a defendant has been sentenced to a local jail or workhouse or is at a local jail or workhouse subject to § 40-35-212, and the administrative authority of the institution has not formulated a program for work release, the sentencing court shall have jurisdiction to order work release as a part of a sentence, either at the time of sentencing or as a part of any subsequent sentence modification, upon conditions to be set by the sentencing court. This section shall apply to convictions under § 55-10-401 after the mandatory minimum sentences have been served.
(b)
1. (1) Notwithstanding subsection (a), the sentencing court shall not be authorized to order work release as part of the sentence of a person convicted of a sexual offense or violent sexual offense as defined in § 40-39-202.
2. (2) As used in subdivision (b)(1), “work release” includes any assignment to a work crew in which a prisoner is permitted to go out into the community, whether supervised or unsupervised, but does not include a work assignment to TRICOR or any TRICOR facility.

Backlinks (2)

History (3)

Acts 1989, ch. 591, § 6
1990, ch. 980, § 27
2008, ch. 901, § 1.

§ 40-35-316. Jurisdiction of sentencing court to grant furloughs.

(a) In any case in which a defendant has been sentenced to a local jail or workhouse or is at a local jail or workhouse subject to § 40-35-212, the sentencing court shall have jurisdiction to grant furlough for any medical, penological, rehabilitative or humane reason, upon conditions to be set by the sentencing court. This section shall apply to convictions under § 55-10-401 after the mandatory minimum sentences have been served.
(b) The sentencing court shall have no authority to grant a furlough to a defendant pursuant to the authority of subsection (a) for the purpose of allowing the defendant to work unless the defendant is held to and meets all of the eligibility and supervision requirements, testing standards and other criteria imposed by or pursuant to state law.

Backlinks (1)

9-8-307(a)(2)(D)

History (3)

Acts 1989, ch. 591, § 6
1990, ch. 980, § 28
1997, ch. 514, § 1.

§ 40-35-317. Institutional disciplinary rules — Punishment for violations.

(a) Nothing contained in § 40-35-302, § 40-35-306, § 40-35-307 or § 40-35-314 shall prevent the official having responsibility for the custody and safekeeping of the defendant, as an alternative to the judicial remedy provided in those sections, from duly promulgating and enforcing reasonable disciplinary rules and procedures that provide for appropriate punishments for violations of any condition or rule of the institution in which the defendant is incarcerated, such as increasing the amount of time the defendant must serve in confinement or by changing the conditions of the defendant's confinement, or both. Any increase in the amount of time to be served shall not exceed the full sentence originally imposed by the court.
(b) Officials having responsibility for the custody and safekeeping of defendants may promulgate and enforce reasonable disciplinary rules and procedures requiring all able-bodied inmates to participate in work programs. The rules and procedures may provide appropriate punishments for inmates who refuse to work, including, but not limited to, increasing the amount of time the defendant must serve in confinement or changing the conditions of the defendant's confinement, or both. Any increase in the amount of time a defendant must serve for refusing to participate in a work program shall not exceed the sentence originally imposed by the court.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-318. Institutional rehabilitation programs — Eligibility.

(a) If a defendant is sentenced to confinement in a local jail or workhouse, the sheriff or other authority having jurisdiction of the institution shall be empowered and may place the defendant on the rehabilitative programs for which the defendant is eligible under rules and regulations adopted by the institution.
(b) If a defendant is sentenced to confinement in an institution of the department of correction, the commissioner or the commissioner's designee having jurisdiction of the institution shall be empowered and may place the defendant on the rehabilitation program for which the defendant is eligible under the policies and procedures of the department.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-319. Place of confinement if not otherwise provided for — Finality of judgment.

(a) If a defendant convicted of a felony does not receive another type of sentence authorized by this chapter or if a defendant convicted of a felony is either not granted or is ineligible for another sentence authorized by this chapter, the place of confinement shall be designated as the department of correction unless prohibited by other statutes.
(b) Except as provided in § 40-35-212(d) or Rule 35(b) of the Tennessee Rules of Criminal Procedure, once the judgment becomes final in the trial court, the court shall have no jurisdiction or authority to change the sentence in any manner.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-320. Restitution to the state by adult defendant for confinement costs of juvenile involved in same or related criminal act.

(a) Whenever an adult defendant is convicted of an offense arising from the same criminal act or conduct or a related criminal act or conduct that resulted in an adjudication of delinquency against a juvenile and resulted in the treatment and confinement of the juvenile in a department of correction facility for a period that is anticipated to be in excess of ninety (90) days, the sentencing court may order the adult defendant to make restitution to the state in an amount not greater than sixteen thousand five hundred fifty-eight dollars ($16,558) or an amount at least equal to the average daily cost of treating and confining a juvenile in this state multiplied by the average length of time a juvenile in this state is treated and confined by the department, whichever figure is greater. The average daily cost and average stay in the department shall be determined on an annual basis by the commissioner. If it is anticipated that the period of treatment and confinement will be less than ninety (90) days or that the juvenile may receive an alternative form of treatment, including, but not limited to, probation, the sentencing court may order the adult defendant to make restitution to the state in an amount at least equal to the anticipated cost of classifying, treating, confining or supervising the juvenile for the period of time the juvenile is anticipated to be within the custody and control of the department. If the court finds that because of the adult defendant's conduct, the juvenile's period of treatment and rehabilitation will be substantially longer than the average or will require special services such as drug or alcohol rehabilitation, the judge may order the adult defendant to make restitution in an amount not to exceed the estimated cost of providing the necessary treatment and rehabilitation services for the juvenile for the period of time that the services will be required. The estimated costs shall be based upon evidence presented at the sentencing hearing concerning the disposition of the juvenile, the anticipated length of the juvenile's rehabilitation and any special treatment services the juvenile may require.
(b) Before determining whether an order of restitution as authorized by this section is appropriate and the amount of the order if one is appropriate, the sentencing court shall conduct a separate hearing on the issues at which both the adult defendant and the state shall be allowed to be heard and present evidence. The hearing may be held in conjunction with or at the same time as the adult defendant's regular sentencing hearing.
(c) Any order of restitution entered pursuant to this section is in addition to any other fine or penalty imposed by the court for the offense for which the adult defendant was convicted.
(d) Restitution ordered pursuant to this section shall be paid to the clerk of the sentencing court who shall remit the money to the state treasurer for deposit into the state general fund. Funds collected pursuant to this section shall be used to improve the department of children's services' treatment and rehabilitation services. The clerk is allowed to retain one percent (1%) of all funds collected pursuant to this section for administrative costs.
(e) The state may collect a restitution order entered pursuant to this section in the same manner as a judgment in a civil action.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-321. Collection of biological specimens for DNA analysis — Persons convicted of certain offenses — Condition of release from imprisonment.

(a) As used in this section, unless the context otherwise requires, “DNA analysis” means the process through which deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes.
(b) When a court sentences a person convicted of violating or attempting to violate § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-505, § 39-13-522, § 39-13-531 or § 39-15-302 or when a juvenile court adjudicates a person to be a delinquent child for violating or attempting to violate § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-505, § 39-13-522, § 39-13-531 or § 39-15-302, it shall order the person to provide a biological specimen for the purpose of DNA analysis as defined in subsection (a). If the person is not incarcerated at the time of sentencing, the order shall require the person to report to the probation division of the department charged by law with the supervision of probationers, which shall gather the specimen. If a probation officer is not available to gather the specimen, the court may designate a person to do so. The cost of taking, processing and storing the specimen shall be paid by the defendant and shall be collected by the probation officer in the same manner as other fees. If the person is incarcerated at the time of sentencing, the order shall require the chief administrative officer of the institution of incarceration to designate a qualified person to gather the specimen. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation, which shall maintain it as provided in § 38-6-113. The court shall make the providing of the specimen a condition of probation or community correction if either is granted.
(c) If a person convicted of violating or attempting to violate § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-505, § 39-13-522 or § 39-15-302 and committed to the custody of the commissioner of correction for a term of imprisonment has not provided a biological specimen for the purpose of DNA analysis as defined in subsection (a), the commissioner or the chief administrative officer of a local jail shall order the person to provide a biological specimen for the purpose of DNA analysis before completion of the person's term of imprisonment. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation which shall maintain it as provided in § 38-6-113. No person shall be released on parole or otherwise unless and until the person has provided the specimen required by this subsection (c).
(d)
1. (1) When a court sentences a person convicted of any felony offense committed on or after July 1, 1998, or any misdemeanor offense, the conviction for which requires the defendant to register as a sexual offender pursuant to chapter 39, part 2 of this title, on or after July 1, 2007, it shall order the person to provide a biological specimen for the purpose of DNA analysis as defined in subsection (a). If the person is not incarcerated at the time of sentencing, the order shall require the person to report to the probation division of the department charged by law with the supervision of probationers, which shall gather the specimen. If a probation officer is not available to gather the specimen, the court may designate a person to do so. The cost of taking, processing and storing the specimen shall be paid by the defendant and shall be collected by the probation officer in the same manner as other fees. If the person is incarcerated at the time of sentencing, the order shall require the chief administrative officer of the institution of incarceration to designate a qualified person to gather the specimen. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation, which shall maintain it as provided in § 38-6-113. The court shall make the providing of the specimen a condition of probation or community correction if either is granted.
2. (2) If a person convicted of any felony offense or any applicable misdemeanor offense and committed to the custody of the commissioner of correction for a term of imprisonment or sentenced to a period of confinement in a county jail or workhouse has not provided a biological specimen for the purpose of DNA analysis as defined in subsection (a), the commissioner or the chief administrative officer of a local jail may order the person to provide a biological specimen for the purpose of DNA analysis before completion of the person's term of imprisonment. The biological specimen shall be forwarded by the approved agency or entity collecting the specimen to the Tennessee bureau of investigation, which shall maintain it as provided in § 38-6-113.
(e)
1. (1) When a person is arrested on or after January 1, 2008, for the commission of a violent felony as defined in subdivision (e)(3), the person shall have a biological specimen taken for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a). After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113 and shall be forwarded by the arresting authority to the Tennessee bureau of investigation, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.
2. (2) The clerk of the court in which the charges against a person described in subdivision (e)(1) are disposed of shall notify the Tennessee bureau of investigation of final disposition of the criminal proceedings. If the charge for which the sample was taken is dismissed or the defendant is acquitted at trial, then the bureau shall destroy the sample and all records of the sample; provided, that there is no other pending qualifying warrant or capias for an arrest or felony conviction that would otherwise require that the sample remain in the data bank.
3. (3) As used in this subsection (e), “violent felony” means:
  1. (A) First or second degree murder;
  2. (B) Aggravated kidnapping or especially aggravated kidnapping;
  3. (C) Aggravated assault;
  4. (D) Aggravated child abuse;
  5. (E) Robbery, aggravated robbery or especially aggravated robbery;
  6. (F) Aggravated burglary or especially aggravated burglary;
  7. (G) Carjacking;
  8. (H) Sexual battery, sexual battery by an authority figure or aggravated sexual battery;
  9. (I) Statutory rape by an authority figure or aggravated statutory rape;
  10. (J) Rape, aggravated rape, rape of a child or aggravated rape of a child;
  11. (K) Aggravated arson;
  12. (L) Attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (e)(3);
  13. (M) Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (e)(3);
  14. (N) Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (e)(3);
  15. (O) Criminal responsibility, under § 39-11-402(2), for any of the offenses enumerated in this subdivision (e)(3);
  16. (P) Facilitating the commission, under § 39-11-403, of any of the offenses enumerated in this subdivision (e)(3);
  17. (Q) Being an accessory after the fact, under § 39-11-411, to any of the offenses enumerated in this subdivision (e)(3);
  18. (R) Aggravated vehicular homicide;
  19. (S) Criminally negligent homicide;
  20. (T) Reckless homicide;
  21. (U) Vehicular homicide; or
  22. (V) Voluntary manslaughter.

Backlinks (1)

40-39-203(n)

History (10)

Acts 1991, ch. 480, § 2
1995, ch. 11, §§ 1, 2
1995, ch. 131, §§ 2, 3
1995, ch. 382, § 1
1998, ch. 1028, §§ 1, 2
2007, ch. 77, §§ 1, 2
2007, ch. 225, § 2
2010, ch. 964, § 2
2012, ch. 965, § 1
2012, ch. 996, §§ 1, 2.

§ 40-35-322. Preservation of evidence in death penalty cases.

(a) For purposes of this section:
1. (1) “Biological evidence” is any identifiable biological material that was collected as part of a criminal investigation or that may reasonably be used to incriminate or exculpate a person charged with a criminal offense;
2. (2) “Biological evidence” includes the contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable biological material, and applies whether the material is catalogued separately or is present on other evidence collected; and
3. (3) “Biological evidence” does not include perishable liquid or tissue specimens collected for toxicological analysis.
(b) All biological evidence collected for a criminal offense or offenses in which one (1) or more of the defendants received a sentence of death based upon the same criminal acts, whether the defendants were tried separately or together, shall be preserved until all defendants receiving a death sentence based on the same conduct are executed, otherwise die, or all related charges for which the defendants were convicted are dismissed.
(c) Biological evidence required to be preserved by this section shall be preserved as follows:
1. (1) By the investigating law enforcement agency or agencies for biological evidence that was collected for the case but never introduced at a trial; and
2. (2) By the clerk of the court in which any biological evidence was introduced at the defendant's trial.
(d) If the origin of a biological sample is well documented through photographs or case files, and the sample was taken from a larger piece of evidence, only the documented biological sample is required to be preserved.
(e) This section shall apply to:
1. (1) All applicable biological evidence that is collected on or after April 27, 2016; and
2. (2) All applicable biological evidence that was collected prior to April 27, 2016, and is in the custody of, and being preserved by, a court clerk or law enforcement agency or agencies.

History (1)

Acts 2016, ch. 988, § 1.

§ 40-35-323. Grants to fund reentry programs — Grant proposals.

(a) The department of correction shall make four (4) grants in the amount of two hundred fifty thousand dollars ($250,000) each to local county sheriff or probation departments to fund reentry programs that reduce recidivism and probation revocations. The department shall set the guidelines for the request for grant proposals. Priority shall be given to grant proposals that include one (1) or more of the following characteristics:
1. (1) Programs that seek a targeted reduction in recidivism or probation revocations;
2. (2) Programs that identify potential participants by use of a validated risk assessment tool designed for its intended use and target the most intensive supervision and treatment for people at a high risk of reoffending;
3. (3) Programs that use evidence-based rehabilitative services designed to address primarily criminogenic needs;
4. (4) Programs that must be evaluated annually for effectiveness using a nationally recognized assessment, such as the correctional program checklist and correctional program assessment inventory; and
5. (5) Programs that advance interventions that are tailored to fit the learning styles, motivation, and strengths of individual participants.
(b) No more than seventy-five percent (75%) of available grant funds shall be provided upfront to the recipient to continue or establish a program that meets the requirements of this section. The remaining amount of grant funds shall be awarded only if the recipient meets clearly measurable outcomes aimed at reducing recidivism or probation revocations as agreed upon between the department and the grant recipient.
(c)
1. (1) For county sheriff department recipients, the measureable outcomes shall include a percentage reduction in recidivism among those who are incarcerated in the county jail at the time the grant is awarded.
2. (2) For the purposes of this section, “recidivism” means the percentage of convicted misdemeanants, locally-sentenced felons, or state-sentenced felons, who are incarcerated in a state or local facility within three (3) years of the year in which such persons were released from incarceration from the recipients' facility.
3. (3) The baseline for this rate shall be an average of the three (3) fiscal years immediately preceding the fiscal year in which the grant is awarded.
(d)
1. (1) For county probation department recipients, the measureable outcomes shall include a percentage reduction in probation revocations among those persons under the probation department's supervision at the time the grant is awarded.
2. (2) For purposes of this subsection, “percentage reduction in probation revocations” means the percentage of people on supervised probation in the county who are subsequently admitted to the local jail or state department of correction after revocation of their supervision.
3. (3) The baseline for this rate shall be an average of the three (3) fiscal years immediately preceding the fiscal year in which the grant is awarded.
(e) The monies appropriated to fund this section shall be used to supplement, not supplant, any other state or county appropriation for the recipient.
(f) No later than December 31 of each year, the department of correction shall report to the speaker of the house of representatives and speaker of the senate the grants awarded pursuant to this section and the results of the measurable outcomes agreed upon between the department and recipients for the previous fiscal year. The report shall be made available publicly on the department of correction's website.
(g) For the purposes of this section, “probation department” does not mean the department of correction probation department or its offices.
(h) For the purposes of this section, an eligible program participant is a convicted misdemeanant, locally-sentenced felon, or state-sentenced felon who will be incarcerated for such a period of time that will allow for completion of the program before release from incarceration or expiration of sentence; provided, that the offender must not be transported to serve their sentence in a state prison in the custody of the department of correction after successful completion of the program.

History (2)

Acts 2018, ch. 1051, § 1
2019, ch. 249, §§ 1, 2.

§ 40-35-324. Notification of eligibility for expunction.

(a) If practicable, a judge shall, at the time of sentencing, notify a person convicted of an offense that is eligible for expunction of:
1. (1) The person's eligibility to have all public records of the conviction destroyed in the manner set forth in § 40-32-101; and
2. (2) The time period after which the person can petition for expunction of the offense.
(b) The administrative office of the courts shall provide judges handling criminal matters with a reference document listing:
1. (1) Each criminal offense eligible for expunction pursuant to § 40-32-101; and
2. (2) The time period after which each offense is eligible for expunction.

History (1)

Acts 2021, ch. 358, § 2.

§ 40-35-325. Enhancement of statutory penalties for illegal aliens — Applicable circumstances — Reporting to the department of safety.

(a) As used in this section:
1. (1) “Deadly weapon” has the same meaning as defined in § 39-11-106;
2. (2) “Illegal alien” means a person who is illegally or unlawfully in the United States;
3. (3) “School” means a public or private elementary school, middle school, or high school; and
4. (4) “Violent crime” has the same meaning as defined in § 40-38-111(g); provided, that the offense is a felony.
(b) Notwithstanding another law to the contrary, and in addition to the enhancement factors prescribed under § 40-35-114, a court may enhance the statutory penalty up to imprisonment for life without the possibility of parole for a conviction under the following circumstances:
1. (1) The conviction is for the commission of a violent crime and the defendant was an illegal alien at the time the offense was committed;
2. (2) The conviction involves the use or display of a deadly weapon and the defendant was an illegal alien at the time the offense was committed; or
3. (3) The conviction is for the commission of a violent crime committed by an adult and the offense occurred on the property of a school while students or other children were present.
(c) An arrest and subsequent conviction to which the enhancement factors would apply under subdivision (b)(1) or (b)(2) must be reported to the department of safety.

History (1)

Acts 2024, ch. 1063, § 1.

Part 4 Appeal of Sentence

§ 40-35-401. Appeal of sentence by defendant — Time for filing — Grounds — Determination — Standard.

(a) The defendant in a criminal case may appeal from the length, range or the manner of service of the sentence imposed by the sentencing court. The defendant may also appeal the imposition of consecutive sentences. An appeal pursuant to this section shall be taken within the same time and in the same manner as other appeals in criminal cases. If there is an appeal of the conviction, the appeal of the sentence shall be taken at the same time. There is no appellate review of the sentence in a postconviction or habeas corpus proceeding.
(b) An appeal from a sentence may be on one (1) or more of the following grounds:
1. (1) The sentence was not imposed in accordance with this chapter;
2. (2) The sentence is excessive under the sentencing considerations set out in §§ 40-35-103 and 40-35-210; or
3. (3) The sentence is inconsistent with the purposes of sentencing set out in §§ 40-35-102 and 40-35-103.
(c) If a sentence is appealed, the appellate court may:
1. (1) Dismiss the appeal;
2. (2) Affirm, reduce, vacate or set aside the sentence imposed;
3. (3) Remand the case or direct the entry of an appropriate sentence or order; or
4. (4) Direct any further proceedings appropriate or required under the circumstances.
(d) When reviewing sentencing issues raised pursuant to subsection (a), including the granting or denial of probation and the length of sentence, the appellate court shall conduct a de novo review on the record of the issues. The review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.

History (2)

Acts 1989, ch. 591, § 6
2005, ch. 353, § 8.

§ 40-35-402. Appeal of sentence by state — Standard.

(a) The district attorney general in a criminal case may appeal from the length, range or manner of the service of the sentence imposed by the sentencing court. The district attorney general may also appeal the imposition of concurrent sentences. In addition, the district attorney general may also appeal the amount of fines and restitution imposed by the sentencing court. An appeal pursuant to this section shall be taken within the same time and in the same manner as other appeals in criminal cases. The right of the appeal of the state is independent of the defendant's right of appeal.
(b) An appeal from a sentence is limited to one (1) or more of the following conditions:
1. (1) The court improperly sentenced the defendant to the wrong sentence range;
2. (2) The court granted all or part of the sentence on probation;
3. (3) The court ordered all or part of the sentences to run concurrently;
4. (4) The court improperly found the defendant to be an especially mitigated offender;
5. (5) The court failed to impose the fines recommended by the jury;
6. (6) The court failed to order the defendant to make reasonable restitution; or
7. (7) The sentence is inconsistent with the purposes or considerations of sentencing set out in §§ 40-35-102 and 40-35-103.
(c) If the sentence is appealed by the state, the appellate court may affirm, vacate, set aside, increase or reduce the sentence imposed or remand the case or direct the entry of an appropriate order.
(d) When reviewing sentencing issues raised pursuant to this section, the appellate court shall conduct a de novo review on the record of the issues. The review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.

History (3)

Acts 1989, ch. 591, § 6
1998, ch. 796, §§ 1, 2
2005, ch. 353, § 9.

Part 5 Release and Parole

§ 40-35-501. Release eligibility status — Calculations.

(a)
1. (1) A felony sentence to the department of correction or to a local jail or workhouse shall be served according to this chapter. An inmate shall not be eligible for parole until reaching the inmate's release eligibility date; provided, that nothing in this section shall be construed as prohibiting the offender, in the discretion of the commissioner or sheriff, from participating in work crews that are under direct guard supervision.
2. (2) Except for inmates who receive sentences of imprisonment for life without possibility of parole, only inmates with felony sentences of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years shall be eligible for parole consideration.
3. (3) Notwithstanding any other law, inmates with felony sentences of two (2) years or less shall have the remainder of their original sentence suspended upon reaching their release eligibility date. The release shall not occur for sentences of two (2) years or less when the sentences are part of a consecutive sentence whose term is greater than two (2) years. The department of correction shall notify the district attorney general and the appropriate sheriff, jail administrator, workhouse superintendent or warden of the release eligibility date of all felons with sentences of two (2) years or less in the institution.
  Backlinks (2)
  
  40-9-124
  40-28-605
4. (4) No inmate shall be released under this section until at least ten (10) days after receipt of all sentencing documents by the department and ten (10) days after the department has sent notice of the release eligibility dates to the district attorney general and the appropriate sheriff, jail administrator, workhouse superintendent or warden.
5. (5) Suspension of sentence in this manner shall be to probation supervision under terms and conditions established by the department.
6. (6)
  1. (A) The district attorney general or the appropriate sheriff, jail administrator, workhouse superintendent or warden acting through the district attorney general may file a petition with the sentencing court requesting denial of suspension of sentence based on disciplinary violations during time served in the institution. The district attorney general may file a petition with the sentencing court requesting denial of suspension of sentence based on the offender's threat to public safety as indicated by a pattern of prior violent or drug-related criminal behavior evidenced by convictions for at least two (2) crimes against the person or two (2) drug offenses under § 39-17-417. The district attorney general shall promptly send a copy of any petition filed under this subsection (a) to the appropriate sheriff, jail administrator, workhouse superintendent, warden and defense attorney.
  2. (B) The court may deny suspension for the remainder of the sentence or any portion of the sentence after a hearing to determine the merits of the petition. The hearing shall be held within twenty (20) days of filing or the petition is deemed to be denied and may be continued by the court for reasonable cause. The inmate may petition the court for review of the denial of probation after sixty (60) days have elapsed since a hearing denying release under this subsection (a). There shall be no appeal from a court order or judgment under this subsection (a). Upon denial of suspension of sentence the clerk of the court shall promptly notify the department.
7. (7)
  1. (A) For those individuals placed on probation pursuant to subdivision (a)(3), the court is authorized to revoke probation pursuant to the revocation proceedings of § 40-35-311. If the sentencing court revokes probation, the sentencing court may cause the defendant to commence the execution of the judgment as originally entered, less any credit for time served, plus any sentence credits earned and retained by the inmate. Any defendant who has been placed on probation pursuant to subdivision (a)(3), and whose probation is subsequently revoked on the same sentence, is no longer eligible for release on probation pursuant to subdivision (a)(3). However, a defendant who is placed on probation pursuant to § 40-35-303, § 40-35-306, or § 40-35-307, and whose probation is revoked pursuant to § 40-35-311, shall not be ineligible for release on that sentence pursuant to subdivision (a)(3).
  2. (B) Nothing in subdivision (a)(7)(A) prohibits the sentencing court from:
    1. (i) Suspending the original sentence at any time prior to its expiration, notwithstanding whether the offender is incarcerated in a local jail or a prison; or
    2. (ii) Resentencing the defendant for the remainder of the unexpired sentence to any community-based alternative to incarceration authorized by chapter 36 of this title; provided, that the violation of probation is a technical one and does not involve the commission of a new offense.
Backlinks (1)
- 41-21-219(a)
(b) Release eligibility for each defendant sentenced as an especially mitigated offender shall occur after service of either twenty percent (20%) or thirty percent (30%) of the actual sentence imposed, less sentence credits earned and retained by the defendant. The percentage of service shall be stated on the judgment order. If the order is silent, release eligibility shall occur after service of twenty percent (20%) of the actual sentence imposed.
(c) Release eligibility for each defendant sentenced as a Range I standard offender shall occur after service of thirty percent (30%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(d) Release eligibility for each defendant sentenced as a Range II multiple offender shall occur after service of thirty-five percent (35%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(e) Release eligibility for each defendant sentenced as a Range III persistent offender shall occur after service of forty-five percent (45%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(f) Release eligibility for each defendant sentenced as a career offender shall occur after service of sixty percent (60%) of the actual sentence imposed less sentence credits earned and retained by the defendant.
(g) There shall be no release eligibility for a defendant receiving a sentence of imprisonment for life without parole as a repeat violent offender.
(h)
1. (1) Release eligibility for a defendant committing the offense of first degree murder on or after November 1, 1989, but prior to July 1, 1995, who receives a sentence of imprisonment for life occurs after service of sixty percent (60%) of sixty (60) years less sentence credits earned and retained by the defendant, but in no event shall a defendant sentenced to imprisonment for life be eligible for parole until the defendant has served a minimum of twenty-five (25) full calendar years of the sentence, notwithstanding the governor's power to reduce prison overcrowding pursuant to title 41, chapter 1, part 5, any sentence reduction credits authorized by § 41-21-236, or any other provision of law relating to sentence credits.
2. (2) There shall be no release eligibility for a person committing first degree murder, on or after July 1, 1995, and receiving a sentence of imprisonment for life. The person shall serve one hundred percent (100%) of sixty (60) years less sentence credits earned and retained. However, sentence reduction credits authorized by § 41-21-236 or any other law may:
  1. (A) For offenses committed before July 1, 2024, reduce the sentence imposed by the court by up to fifteen percent (15%); and
  2. (B) For offenses committed on or after July 1, 2024, reduce by up to fifteen percent (15%) the percentage of the sentence imposed by the court that the person must serve before becoming eligible for release on parole but shall not alter the sentence expiration date.
3. (3) There shall be no release eligibility for a defendant receiving a sentence of imprisonment for life without possibility of parole for first degree murder, attempted first degree murder, or aggravated rape of a child.
(i)
1. (1) There shall be no release eligibility for a person committing an offense, on or after July 1, 1995, that is enumerated in subdivision (i)(2). The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236 or any other provision of law, shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
2. (2) The offenses to which subdivision (i)(1) applies are:
  1. (A) [Deleted by 2020 amendment.]
  2. (B) Murder in the second degree;
  3. (C) Especially aggravated kidnapping;
  4. (D) Aggravated kidnapping;
  5. (E) Especially aggravated robbery;
  6. (F) Aggravated rape;
  7. (G) Rape;
  8. (H) Aggravated sexual battery;
  9. (I) Rape of a child;
  10. (J) Aggravated arson;
  11. (K) Aggravated child abuse;
  12. (L) Aggravated rape of a child, if the defendant was a juvenile at the time of the commission of the offense;
  13. (M) Sexual exploitation of a minor involving more than one hundred (100) images;
  14. (N) Aggravated sexual exploitation of a minor involving more than twenty-five (25) images; or
  15. (O) Especially aggravated sexual exploitation of a minor.
  Backlinks (2)
  
  49-5-417(a)(1)(K)
  49-5-511(c)(1)
3. (3) Nothing in this subsection (i) shall be construed as affecting, amending or altering § 39-13-523, which requires child sexual predators, aggravated rapists, child rapists and multiple rapists to serve the entire sentence imposed by the court undiminished by any sentence reduction credits.
4. (4) For the offenses of murder in the second degree, especially aggravated kidnapping, aggravated kidnapping, especially aggravated robbery, or aggravated arson, this subsection (i) only applies to offenses committed on or after July 1, 1995, and before July 1, 2022.
5. (5) For the offenses of rape, aggravated sexual battery, aggravated child abuse, sexual exploitation of a minor, aggravated sexual exploitation of a minor, or especially aggravated sexual exploitation of a minor, this subsection (i) only applies to offenses committed on or after July 1, 1995, and before July 1, 2021.
Backlinks (3)
(j) There shall be no release eligibility for a person committing a violation of § 39-17-1324(a) or (b) on or after January 1, 2008, and before July 1, 2022, until the person has served one hundred percent (100%) of the minimum mandatory sentence established in § 39-17-1324(g) or (h) and imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other law shall operate to reduce the mandatory minimum sentence imposed by the court by more than fifteen percent (15%).
Backlinks (1)
- 39-17-1324(e)(2)
(k)
1. (1) There shall be no release eligibility for a person committing aggravated robbery, as defined in § 39-13-402(a)(1), on or after July 1, 2010, and before July 1, 2022, until the person has served eighty-five percent (85%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
2. (2) There shall be no release eligibility for a person committing aggravated robbery, as defined in § 39-13-402, on or after January 1, 2008, and before July 1, 2022, if the person has at least one (1) prior conviction for aggravated robbery, as defined in § 39-13-402, or especially aggravated robbery, as defined in § 39-13-403. The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained; however, no sentence reduction credits authorized by § 41-21-236 or any other provision of law shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
3. (3)
  1. (A) “Prior conviction” means, for purposes of this section, unless the context otherwise requires, that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of an aggravated robbery or especially aggravated robbery prior to or at the time of committing an aggravated robbery on or after January 1, 2008.
  2. (B) “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would constitute the offense of aggravated robbery. If an offense involving a robbery accomplished by use of a firearm in a jurisdiction other than this state is not identified as aggravated robbery or especially aggravated robbery in this state, it shall be considered a prior conviction if the elements of the felony are the same as the elements for aggravated robbery or especially aggravated robbery.
4. (4) “Separate period of incarceration or supervision” includes a sentence to any of the sentencing alternatives set out in § 40-35-104(c)(3)-(9). An aggravated robbery shall be considered as having been committed after a separate period of incarceration or supervision if the aggravated robbery is committed while the person was:
  1. (A) On probation, parole or community correction supervision for an aggravated robbery or especially aggravated robbery;
  2. (B) Incarcerated for an aggravated robbery or especially aggravated robbery;
  3. (C) Assigned to a program whereby the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release or medical furlough for an aggravated robbery or especially aggravated robbery; or
  4. (D) On escape status from any correctional institution when incarcerated for an aggravated robbery or especially aggravated robbery.
5. (5) There shall be no release eligibility for a person committing attempted first degree murder as defined in § 39-13-202 where the victim suffers serious bodily injury as defined in § 39-11-106, on or after July 1, 2013, and before July 1, 2022, until the person has served eighty-five percent (85%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below seventy-five percent (75%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
6. (6)
  1. (A) There shall be no release eligibility for a person committing aggravated child neglect or endangerment as defined in § 39-15-402, on or after July 1, 2013, and before July 1, 2014, until the person has served seventy percent (70%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below fifty-five percent (55%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
  2. (B) There shall be no release eligibility for a person committing aggravated child neglect or endangerment as defined in § 39-15-402, on or after July 1, 2014, until the person has served eighty-five percent (85%) of the sentence imposed by the court, less sentence credits earned and retained. However, sentence reduction credits authorized by § 41-21-236 or any other law shall not:
    1. (i) For offenses committed before July 1, 2024, reduce below fifty-five percent (55%) the percentage of sentence imposed by the court such person must serve before becoming release eligible; and
    2. (ii) For offenses committed on or after July 1, 2024, reduce below fifty-five percent (55%) the percentage of sentence imposed by the court that the person must serve before becoming eligible for release on parole and shall not alter the sentence expiration date.
7. (7) There shall be no release eligibility for a person committing aggravated assault as defined in § 39-13-102, that results in death of another, on or after July 1, 2013, and before July 1, 2022, until the person has served seventy-five percent (75%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other provision of law, shall operate to reduce below sixty percent (60%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
8. (8)
  1. (A) There shall be no release eligibility for a person committing aggravated vehicular homicide, as defined in § 39-13-218(a), on or after July 1, 2015, and before July 1, 2022, until the person has served sixty percent (60%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below forty-five percent (45%) the percentage of sentence such person must serve before becoming release eligible.
  2. (B) For purposes of determining if conduct occurring on or after July 1, 2015, and before July 1, 2022, constitutes a violation of § 39-13-218, and if that violation is governed by this subdivision (k)(8), prior convictions for predicate offenses required by § 39-13-218 may be used regardless of when they occurred.
(l)
1. (1) There shall be no release eligibility for a person committing continuous sexual abuse of a child as defined in § 39-13-518 on or after July 1, 2014, until the person has served the entire sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. Such person shall be permitted to earn any credits for which the person is eligible and the credits may be used for the purpose of increased privileges, reduced security classification, or for any purpose other than the reduction of the sentence imposed by the court.
2. (2) In addition to the punishment authorized by this section, a person sentenced under § 39-13-518 shall, upon release, receive a sentence of community supervision for life pursuant to § 39-13-524.
Backlinks (1)
- 41-21-236(a)(2)(C)(iii)
(m) The release eligibility date provided for in this section is separately calculated for each offense for which a defendant is convicted. For consecutive sentences, the periods of ineligibility for release are calculated for each sentence and are added together to determine the release eligibility date for the consecutive sentences.
(n) The release eligibility date provided for in this section is the earliest date an inmate convicted of a felony is eligible for parole. The date is conditioned on the inmate's good behavior while in prison. For a violation of any of the rules of the department of correction or institution in which the inmate is incarcerated or while on any release program other than parole, the commissioner or the commissioner's designees may defer the release eligibility date so as to increase the total amount of time an inmate must serve before becoming eligible for parole. This increase may, in the discretion of the commissioner, be in any amount of time not to exceed the full sentence originally imposed by the court and shall be imposed pursuant to regulations promulgated by the commissioner that give notice of the length of discretionary increases that may be imposed for a violation of each of the rules of the department or institution.
(o)
1. (1) The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as “close custody”. The decertification shall continue for the duration of the classification and for a period of one (1) year thereafter.
2. (2) The department of correction shall not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as “maximum custody”. The decertification shall continue for the duration of the classification and for a period of two (2) years thereafter.
(p) Extensions in the release eligibility date provided for in this section and in other sections of this chapter shall only be imposed following a hearing conducted in accordance with due process of law.
(q) Notwithstanding any other provision of this chapter relating to release eligibility and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, compiled in chapter 34 of this title, the board of parole is authorized to grant a prisoner parole as specified in a sentence agreement entered into by the prisoner and the board. In granting the parole, the board may impose any conditions and limitations that the board deems necessary.
(r) Notwithstanding any other law to the contrary, the department is responsible for calculating the sentence expiration date and the release eligibility date of any felony offender sentenced to the department and any felony offender sentenced to confinement in a local jail or workhouse for one (1) or more years.
(s) To assist the department in fulfilling the duty specified in subsection (p), the clerk of the court shall send a copy of each judgment document for a felony conviction to the department. These copies shall be forwarded to the department no less than one (1) time each month so that all judgments rendered in one (1) calendar month have been received by the department by the fifteenth day of the following month.
(t) There shall be no release eligibility for a person committing the offense of carjacking under § 39-13-404, on or after July 1, 2016, and before July 1, 2022, until such person has served seventy-five percent (75%) of the sentence imposed by the court less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236 or any other law, shall operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
(u)
1. (1) For the offenses listed in subdivision (u)(2) committed on or after January 1, 2017, and before July 1, 2022, there shall be no release eligibility until the person has served eighty-five percent (85%) of the sentence imposed by the court, less sentence credits earned and retained. However, no sentence reduction credits authorized by § 41-21-236, or any other law, shall operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
2. (2) The offenses to which this subsection (u) is applicable are:
  1. (A) The manufacture, delivery, or sale of a controlled substance, pursuant to § 39-17-417, where the instant offense is classified as a Class A, B, or C felony and the person has two (2) or more prior convictions for the manufacture, delivery, or sale of a controlled substance classified as a Class A, B, or C felony, pursuant to § 39-17-417, prior to or at the time of committing the instant offense; and
  2. (B) Aggravated burglary, pursuant to § 39-13-1003, or especially aggravated burglary, pursuant to § 39-13-1004, if the person has two (2) or more prior convictions for either aggravated burglary, pursuant to § 39-13-1003, especially aggravated burglary, pursuant to § 39-13-1004, or a combination of the two (2) offenses prior to or at the time of committing the instant offense.
3. (3) For purposes of this subsection (u):
  1. (A)
    1. (i) “Prior conviction” means, unless the context otherwise requires, that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B);
    2. (ii) “Prior conviction” includes convictions under the laws of any other state, government, or country that, if committed in this state, would constitute the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B). If a relevant offense in a jurisdiction other than this state is not identified as the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B) in this state, it shall be considered a prior conviction if the elements of the felony are the same as the elements in this state; and
  2. (B) “Separate period of incarceration or supervision” includes a sentence to any of the sentence alternatives set out in § 40-35-104(c)(3)-(9). The applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B) shall be considered as having been committed after a separate period of incarceration or supervision if it is committed while the person was:
    1. (i) On probation, parole, community correction supervision, or supervised release for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B);
    2. (ii) Incarcerated for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B);
    3. (iii) Assigned to a program where the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, education release, restitution release, or medical furlough for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B); or
    4. (iv) On escape status from any correctional institution when incarcerated for the applicable offense listed in subdivision (u)(2)(A) or (u)(2)(B).
4. (4) For purposes of this subsection (u), a prior conviction shall not be considered if ten (10) or more years have elapsed between the date of the instant conviction and the date of any immediately preceding conviction for the relevant offense. If, however, the date of a prior conviction is within ten (10) years of the date of the instant conviction, and the instant conviction is for an offense that occurs on or after January 1, 2017, then every conviction for such offense occurring within ten (10) years of the date of the immediately preceding conviction shall be considered in determining the number of prior offenses. However, in no event shall a conviction occurring more than twenty (20) years from the date of the instant conviction be considered a prior offense for the purposes of this subsection (u).
(v) There shall be no release eligibility for a person committing the offense of driving under the influence, as defined in § 55-10-401, on or after January 1, 2019, if the person has at least six (6) prior convictions for driving under the influence, as determined under § 55-10-405. The person shall serve one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained; however, sentence reduction credits authorized by § 41-21-236 or any other law may:
1. (1) For offenses committed before July 1, 2024, reduce the sentence imposed by the court by up to fifteen percent (15%); and
2. (2) For offenses committed on or after July 1, 2024, reduce by up to fifteen percent (15%) the percentage of the sentence imposed by the court that the person must serve before becoming eligible for release on parole but shall not alter the sentence expiration date.
(w) Notwithstanding this section, a defendant sentenced under this chapter shall be authorized to earn and retain any sentence reduction credits authorized by § 41-21-236 or any other provision of law relating to sentence reduction credits. However, no sentence reduction credits earned or retained by a defendant sentenced for committing a Class A, B, or C felony against a person under title 39, chapter 13, shall operate to permit the defendant's release on parole, probation, or community correction supervision until the defendant has served the applicable percentage of the actual sentence imposed, as specified in subsections (b)-(f) and without consideration of sentence credits earned and retained by the defendant. Any sentence reduction credits earned and retained during that time shall be credited:
1. (1) For offenses committed before July 1, 2024, toward the defendant's expiration of sentence; and
2. (2) For offenses committed on or after July 1, 2024, toward the defendant's release eligibility date for release on parole but shall not alter the sentence expiration date.
(x)
1. (1) Notwithstanding this part or title 40, chapter 28, part 1 to the contrary, the commissioner of correction may certify as eligible for parole a chronically debilitated or incapacitated inmate who:
  1. (A) Is at least seventy (70) years of age;
  2. (B) Has served a minimum of five (5) years in custody;
  3. (C) Is not serving a sentence for:
    1. (i) A violent sexual offense, as defined in § 40-39-202; or
    2. (ii) More than one (1) conviction for first degree murder, pursuant to § 39-13-202, or facilitation of first degree murder;
  4. (D) Is not serving a sentence of imprisonment for life without possibility of parole; and
  5. (E) Has two (2) sworn statements from physicians, at least one (1) of whom is the department of correction's director of medical services, certifying that the condition of the inmate is chronic, incurable, and will likely result in the inmate's death.
2. (2) If a person is granted parole pursuant to this subsection (x), the board of parole shall send the notice required by § 40-28-505(c) to the members of the general assembly who represent the district where the offender last resided prior to incarceration.
(y)
1. (1)
  1. (A) For the offenses listed in subdivision (y)(2) committed on or after July 1, 2021, but before July 1, 2024, there shall be no release eligibility until the person has served eighty-five percent (85%) of the sentence imposed by the court, less sentence credits earned and retained. However, sentence reduction credits authorized by § 41-21-236, or any other law, shall not operate to reduce below seventy percent (70%) the percentage of sentence imposed by the court such person must serve before becoming release eligible.
  2. (B) For the offenses listed in subdivision (y)(2) committed on or after July 1, 2024, there shall be no release eligibility until the person has served eighty-five percent (85%) of the sentence imposed by the court, undiminished by sentence reduction credits earned and retained. However, sentence reduction credits authorized by § 41-21-236 or any other law may reduce by up to fifteen percent (15%) the percentage of the sentence imposed by the court that the person must serve before becoming eligible for release on parole but shall not alter the sentence expiration date.
2. (2) The offenses to which this subsection (y) applies are:
  1. (A) Unlawful possession of a firearm by a person convicted of a felony crime of violence, an attempt to commit a felony crime of violence, or a felony involving use of a deadly weapon, under § 39-17-1307(b)(1)(A);
  2. (B) Unlawful possession of a firearm by a person convicted of a felony drug offense, under § 39-17-1307(b)(1)(B);
  3. (C) Unlawful possession of a handgun by a person convicted of a felony, under § 39-17-1307(c); and
  4. (D) Unlawfully providing a handgun to a juvenile or permitting a juvenile to possess a handgun, under § 39-17-1320.
(z) There shall be no release eligibility for a person committing facilitation of rape of a child, under § 39-13-522, or aggravated rape of a child, under § 39-13-531, on or after July 1, 2021, until the person has served one hundred percent (100%) of the sentence imposed by the court less sentence credits earned and retained. However, sentence reduction credits authorized by § 41-21-236 or any other law shall not:
1. (1) For offenses committed before July 1, 2024, reduce the mandatory minimum sentence imposed by the court by more than fifteen percent (15%); and
2. (2) For offenses committed on or after July 1, 2024, reduce by more than fifteen percent (15%) the percentage of the sentence imposed by the court that the person must serve before becoming eligible for release on parole and shall not alter the sentence expiration date.
(aa)
1. (1) Notwithstanding any provisions of this section to the contrary, there shall be no release eligibility for a person committing an offense, on or after July 1, 2021, that is enumerated in subdivision (aa)(2). The person shall serve one hundred percent (100%) of the sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. The person shall be permitted to earn any credits for which the person is eligible and the credits may be used for the purpose of increased privileges, reduced security classification, or for any purpose other than the reduction of the sentence imposed by the court.
2. (2) The offenses to which subdivision (aa)(1) applies are:
  1. (A) Female genital mutilation, as defined in § 39-13-110;
  2. (B) Domestic assault, as defined in § 39-13-111, when the offense is a felony offense;
  3. (C) Trafficking for a commercial sex act, as defined in § 39-13-309;
  4. (D) Advertising commercial sexual abuse of a minor, as defined in § 39-13-315;
  5. (E) Rape, as defined in § 39-13-503;
  6. (F) Aggravated sexual battery, as defined in § 39-13-504;
  7. (G) Sexual battery, as defined in § 39-13-505;
  8. (H) Aggravated statutory rape, as defined in § 39-13-506(c);
  9. (I) Indecent exposure, as defined in § 39-13-511, when the offense is a felony offense;
  10. (J) Patronizing prostitution, as defined in § 39-13-514(b)(3);
  11. (K) Promoting prostitution, as defined in § 39-13-515;
  12. (L) Public indecency, as defined in § 39-13-517(d)(3);
  13. (M) Continuous sexual abuse of a child, as defined in § 39-13-518;
  14. (N) Sexual battery by an authority figure, as defined in § 39-13-527;
  15. (O) Solicitation of a minor, as defined in § 39-13-528, when the offense is a felony offense;
  16. (P) Soliciting sexual exploitation of a minor, as defined in § 39-13-529;
  17. (Q) Statutory rape by an authority figure, as defined in § 39-13-532;
  18. (R) Promoting travel for prostitution, as defined in § 39-13-533;
  19. (S) Unlawful photographing in violation of privacy, as defined in § 39-13-605, when the victim is under thirteen (13) years of age;
  20. (T) Observation without consent, as defined in § 39-13-607(d)(2);
  21. (U) Incest, as defined in § 39-15-302;
  22. (V) Child abuse or child neglect or endangerment, as defined in § 39-15-401;
  23. (W) Aggravated child abuse or aggravated child endangerment or neglect, as defined in § 39-15-402;
  24. (X) Using a minor to produce, import, prepare, distribute, process, or appear in obscene material, as defined in § 39-17-902(b);
  25. (Y) Unlawful sale, distribution, or transportation with intent to sell or distribute of a child-like sex doll, as defined in § 39-17-910(f);
  26. (Z) Sexual exploitation of a minor, as defined in § 39-17-1003;
  27. (AA) Aggravated sexual exploitation of a minor, as defined in § 39-17-1004;
  28. (BB) Especially aggravated sexual exploitation of a minor, as defined in § 39-17-1005;
  29. (CC) Conspiracy, under § 39-12-103, to commit any of the offenses listed in this subdivision (aa)(2);
  30. (DD) Criminal attempt, under § 39-12-101, to commit any of the offenses listed in this subdivision (aa)(2); or
  31. (EE) Solicitation, under § 39-12-102, to commit any of the offenses listed in this subdivision (aa)(2).
(bb)
1. (1) Notwithstanding this section to the contrary, there is no release eligibility for a person committing an offense, on or after July 1, 2022, that is enumerated in subdivision (bb)(2). The person shall serve one hundred percent (100%) of the sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. The person is permitted to earn credits pursuant to § 41-21-236 for satisfactory program performance, and those credits may be used for the purpose of increased privileges, reduced security classification, or for any purpose other than the reduction of the sentence imposed by the court.
2. (2) The offenses to which subdivision (bb)(1) applies are:
  1. (A) Attempted first degree murder, as defined in § 39-13-202;
  2. (B) Second degree murder, as defined in § 39-13-210;
  3. (C) Vehicular homicide, as defined in § 39-13-213(a)(2);
  4. (D) Aggravated vehicular homicide, as defined in § 39-13-218;
  5. (E) Especially aggravated kidnapping, as defined in § 39-13-305;
  6. (F) Especially aggravated robbery, as defined in § 39-13-403;
  7. (G) Carjacking, as defined in § 39-13-404; and
  8. (H) Especially aggravated burglary, as defined in § 39-13-1004.
(cc)
1. (1)
  1. (A) Notwithstanding this section to the contrary, there is no release eligibility for a person committing an offense, on or after July 1, 2022, that is enumerated in subdivision (cc)(2). The person shall serve one hundred percent (100%) of the sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn; provided, that credits earned by the person pursuant to § 41-21-236 for satisfactory program performance may be used to reduce by up to fifteen percent (15%) the percentage of the sentence imposed by the court that the person must serve before becoming eligible for release on parole but shall not alter the sentence expiration date.
  2. (B) Notwithstanding § 40-28-122(c), § 40-35-506, or another law to the contrary, a person released on parole pursuant to subdivision (cc)(1)(A) for an offense listed in subdivision (cc)(2) may, upon a revocation for violating the conditions of parole, be required to serve a term of incarceration, not to exceed the remainder of the sentence.
  3. (C) A person who commits an offense enumerated in subdivision (cc)(2) is permitted to earn credits for which the person is eligible, and the credits may be used, in addition to the use of program performance credits as provided in subdivision (cc)(1)(A), for the purpose of increased privileges, reduced security classification, or for any purpose other than the reduction of the sentence imposed by the court.
2. (2) The offenses to which subdivision (cc)(1) applies are:
  1. (A) Aggravated assault, as defined in § 39-13-102(a)(1)(A)(iii) or § 39-13-102(a)(1)(B)(iii), if the offense involved the use of a deadly weapon;
  2. (B) Aggravated assault, as defined in § 39-13-102(a)(1)(A)(iv);
  3. (C) Aggravated assault, as defined in § 39-13-102, if the offense resulted in serious bodily injury to or the death of another;
  4. (D) Aggravated assault against a law enforcement officer, first responder, or nurse, as defined in § 39-13-116(b)(3), if the offense involved the use of a deadly weapon;
  5. (E) Aggravated assault against a law enforcement officer, first responder, or nurse, as defined in § 39-13-116(b)(1), (b)(2), or (b)(4);
  6. (F) Voluntary manslaughter, as defined in § 39-13-211;
  7. (G) Vehicular homicide, as defined in § 39-13-213(a)(1), (a)(3), or (a)(4);
  8. (H) Reckless homicide, as defined in § 39-13-215;
  9. (I) Aggravated kidnapping, as defined in § 39-13-304;
  10. (J) Involuntary labor servitude, as defined in § 39-13-307;
  11. (K) Trafficking persons for forced labor or services, as defined in § 39-13-308;
  12. (L) Aggravated robbery, as defined in § 39-13-402;
  13. (M) Aggravated burglary, as defined in § 39-13-1003;
  14. (N) Aggravated arson, as defined in § 39-14-302;
  15. (O) Possessing or using a firearm or antique firearm during commission of or attempt to commit a dangerous felony, as defined in § 39-17-1324;
  16. (P) The manufacture, delivery, or sale of a controlled substance, as defined in § 39-17-417, where the instant offense is classified as a Class A, B, or C felony and the person has two (2) or more prior convictions for the manufacture, delivery, or sale of a controlled substance classified as a Class A, B, or C felony, pursuant to § 39-17-417, prior to or at the time of committing the instant offense; and
  17. (Q) Criminally negligent homicide, as defined in § 39-13-212.
3. (3)
  1. (A) “Prior conviction” means, for purposes of this subsection (cc), unless the context otherwise requires, that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of the applicable offense listed in subdivision (cc)(2)(P).
  2. (B) “Prior conviction” includes convictions under the laws of any other state, government, or country that, if committed in this state, would constitute the applicable offense listed in subdivision (cc)(2)(P). If a relevant offense in a jurisdiction other than this state is not identified as the applicable offense listed in subdivision (cc)(2)(P) in this state, then it is considered a prior conviction if the elements of the felony are the same as the elements for the applicable offenses listed in subdivision (cc)(2)(P).
  3. (C) “Separate period of incarceration or supervision” includes a sentence to any of the sentencing alternatives set out in § 40-35-104(c)(3)-(9). The applicable offense listed in subdivision (cc)(2)(P) is deemed as having been committed after a separate period of incarceration or supervision if the offense is committed while the person was:
    1. (i) On probation, parole, or community correction supervision for the applicable offense listed in subdivision (cc)(2)(P);
    2. (ii) Incarcerated for the applicable offense listed in subdivision (cc)(2)(P);
    3. (iii) Assigned to a program whereby the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release, or medical furlough for the applicable offense listed in subdivision (cc)(2)(P); or
    4. (iv) On escape status from any correctional institution when incarcerated for the applicable offense listed in subdivision (cc)(2)(P).
(dd) Notwithstanding other provisions of this section to the contrary, there shall be no release eligibility for a person committing the offense of aggravated human trafficking, as defined in § 39-13-316, on or after July 1, 2022. The person shall serve one hundred percent (100%) of the sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. The person shall be permitted to earn any credits for which the person is eligible, and the credits may be used for the purpose of increased privileges, reduced security classification, or for a purpose other than the reduction of the sentence imposed by the court.
(ee) Notwithstanding this section to the contrary, there is no release eligibility for a person committing the offense of vehicular homicide, as defined in § 39-13-213, and leaving the scene of the accident, as defined in § 55-10-101(a), on or after July 1, 2023. The person shall serve one hundred percent (100%) of the sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. The person shall be permitted to earn any credits for which the person is eligible, and the credits may be used for the purpose of increased privileges, reduced security classification, or for a purpose other than the reduction of the sentence imposed by the court.
(ff) Notwithstanding this section to the contrary, for inmates with a felony sentence of two (2) years or more based on an offense committed on or after July 1, 2024:
1. (1) Sentence reduction credits earned pursuant to § 41-21-236 shall not operate to alter the defendant's sentence expiration date, but may be used to reduce the percentage of the sentence imposed by the court that the defendant must serve before becoming eligible for release on parole;
2. (2) Release eligibility for the defendant shall occur when the defendant becomes eligible for release on parole or upon expiration of the entire sentence imposed on a defendant; and
3. (3) If a defendant is released on or following the release eligibility date, then the defendant shall serve the remainder of the actual sentence imposed on parole.

Backlinks (3)

History (43)

Acts 1989, ch. 591, § 6
1990, ch. 729, § 1
1991, ch. 374, § 6
1993, ch. 221, § 1
1993, ch. 473, §§ 3, 9
1994, ch. 994, § 4
1995, ch. 492, § 1
1998, ch. 743, §§ 3, 4
1999, ch. 516, § 6
2001, ch. 53, § 3
2006, ch. 890, § 24
2007, ch. 525, § 2
2007, ch. 528, § 3
2007, ch. 594, § 4
2009, ch. 203, § 1
2010, ch. 1090, § 3
2012, ch. 727, §§ 44, 45
2012, ch. 1073, § 6
2013, ch. 425, § 1
2013, ch. 426, § 1
2013, ch. 461, § 4
2014, ch. 867, §§ 1, 2
2014, ch. 940, § 3
2015, ch. 433, § 2
2016, ch. 876, § 2
2016, ch. 899, § 1
2016, ch. 906, § 12
2019, ch. 211, §§ 2, 3
2019, ch. 486, § 12
2019, ch. 488, § 1
2020, ch. 765, §§ 1, 2
2021, ch. 104, § 2
2021, ch. 108, § 12
2021, ch. 282, § 1
2021, ch. 394, § 2
2021, ch. 525, § 2
2021, ch. 545, § 14
2021, ch. 563, § 1
2022, ch. 988, §§ 1-10
2022, ch. 1089, § 8
2023, ch. 416, § 4
2024, ch. 976, § 8
2024, ch. 1038, §§ 1-7.

§ 40-35-502. Conversion of fractions in calculations.

(a) For purposes of calculating the release eligibility date, a fraction of a month is construed to mean:
1. (1) For one tenth (0.1) of a month, three (3) days;
2. (2) For two tenths (0.2) of a month, six (6) days;
3. (3) For three tenths (0.3) of a month, nine (9) days;
4. (4) For four tenths (0.4) of a month, twelve (12) days;
5. (5) For five tenths (0.5) of a month, fifteen (15) days;
6. (6) For six tenths (0.6) of a month, eighteen (18) days;
7. (7) For seven tenths (0.7) of a month, twenty-one (21) days;
8. (8) For eight tenths (0.8) of a month, twenty-four (24) days; and
9. (9) For nine tenths (0.9) of a month, twenty-seven (27) days.
(b) For purposes of calculating the release eligibility date for a sentence of less than one (1) year, a fraction of a day is construed to mean that the next day is the release eligibility date.

History (1)

Acts 1989, ch. 591, § 6.

§ 40-35-503. Authority to determine release status of felon — Grounds for denying release status — Hearings — Improvement of skills — Presumptions — Written statement of reason for denial of parole.

(a) The board of parole has the authority to parole inmates with felony sentences of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years.
(b) Release on parole is a privilege and not a right, and no inmate convicted shall be granted parole if the board finds that:
1. (1) There is a substantial risk that the incarcerated individual will not conform to the conditions of the release program;
2. (2)
  1. (A) The release from custody at the time would depreciate the seriousness of the crime of which the incarcerated individual stands convicted or promote disrespect for the law, except that the board's finding shall not be the sole basis for denying parole unless the individual is serving a sentence for any of the following offenses, in which case the board may deny parole for seriousness of the offense:
    1. (i) First degree murder or an attempt to commit, solicitation of, or facilitation of first degree murder;
    2. (ii) Second degree murder or an attempt to commit or facilitation of second degree murder;
    3. (iii) Voluntary manslaughter;
    4. (iv) Aggravated vehicular homicide;
    5. (v) Vehicular homicide;
    6. (vi) Especially aggravated kidnapping or an attempt to commit or facilitation of especially aggravated kidnapping;
    7. (vii) Trafficking for a commercial sex act;
    8. (viii) A human trafficking offense;
    9. (ix) Advertising commercial sexual abuse of a minor;
    10. (x) Especially aggravated robbery or an attempt to commit or facilitation of especially aggravated robbery;
    11. (xi) Aggravated rape of a child or an attempt to commit or facilitation of aggravated rape of a child;
    12. (xii) Aggravated rape or an attempt to commit or facilitation of aggravated rape;
    13. (xiii) Rape of a child or an attempt to commit or facilitation of rape of a child;
    14. (xiv) Rape;
    15. (xv) Aggravated sexual battery;
    16. (xvi) Especially aggravated burglary;
    17. (xvii) Aggravated child abuse;
    18. (xviii) Aggravated sexual exploitation of a minor;
    19. (xix) Especially aggravated sexual exploitation of a minor;
    20. (xx) Aggravated vehicular assault;
    21. (xxi) Aggravated abuse of an elderly or vulnerable adult; or
    22. (xxii) Vehicular assault;
  2. (B) If the board denies parole for the seriousness of the offense, then the board shall state in writing how the inmate can improve the inmate's chances of being released on parole at the inmate's next hearing;
3. (3) The release from custody at the time would have a substantially adverse effect on institutional discipline; or
4. (4) The incarcerated individual's continued correctional treatment, medical care or vocational or other training in the institution will substantially enhance the incarcerated individual's capacity to lead a law-abiding life when given release status at a later time.
(c) No person convicted of a sex crime shall be released on parole unless a psychiatrist or licensed psychologist designated as a health service provider has examined and evaluated the inmate and certified that, to a reasonable medical certainty, the inmate does not pose the likelihood of committing sexual assaults upon release from confinement. The examination and evaluation shall be provided by psychiatrists or licensed psychologists designated as health service providers whose services are contracted or funded by the department of correction or the board of parole. The board shall consider any other evaluation by a psychiatrist or licensed psychologist designated as a health service provider that may be provided by the incarcerated individual.
(d)
1. (1) Within one (1) year prior to an incarcerated individual's release eligibility date, an employee of the department of correction shall meet with the incarcerated individual to create a release plan. The board of parole shall conduct a hearing within a reasonable time prior to or upon the individual's release eligibility date to determine the individual's fitness for parole.
2. (2) At the hearing, the board shall permit the video testimony of the immediate family members of the victim of a incarcerated individual's criminal offense relative to the fitness of the incarcerated individual for parole, if the family members are unable to attend the hearing. The board may, by rule, establish reasonable guidelines as to what constitutes a family member being unable to attend a hearing.
(e) The board shall notify the district attorney general and the sentencing court or their successors of the eligibility hearing in the manner provided for in § 40-28-107(c).
(f) If the board determines that a incarcerated individual should be released on parole, it shall furnish reasons for that decision to the district attorney general who prosecuted the incarcerated individual, the chief law enforcement official of the agency that prosecuted the case and the judge who tried that incarcerated individual or to their successors, upon their request.
(g)
1. (1) In determining whether an inmate should be granted parole, the board shall consider as a factor the extent to which the inmate has attempted to improve the inmate's educational, vocational or employment skills through available department of correction programs while the inmate was incarcerated.
2. (2) In cases in which the offender was convicted of a homicide, the board shall also consider as a factor the extent to which the offender obstructed or continues to obstruct the ability of law enforcement to recover the remains of the victim.
(h) Notwithstanding subsection (b), there is a presumption that an inmate convicted of a Class E or Class D nonviolent felony offense is to be released on parole upon the inmate reaching the inmate's release eligibility date unless good cause is shown as to why the inmate should not be released. As used in this subsection (h), “nonviolent felony offense” means a felony offense that does not involve serious bodily injury, as defined in § 39-11-106, or death to a victim or bystander, does not involve threats reasonably calculated to produce such results, and does not involve sexual contact or sexual penetration as those terms are defined in § 39-13-501.
(i)
1. (1) Notwithstanding subsection (b), there is a presumption that an eligible inmate must be released on parole, except for good cause shown, upon the inmate reaching the inmate's release eligibility date or any subsequent parole hearing.
2. (2) For purposes of this subsection (i), “eligible inmate” means an inmate who:
  1. (A)
    1. (i) Is currently serving a sentence for a Class E or Class D felony offense; or
    2. (ii) Is currently serving a sentence for a felony that is not classified as a violent offense under § 40-35-120(b);
  2. (B) Is determined to be low risk to reoffend or most appropriately supervised in the community under the most recent validated risk and needs assessment performed under § 41-1-126;
  3. (C) Has successfully completed the programming recommended by the department of correction based on a validated risk and needs assessment performed under § 41-1-126, or can complete any recommended programming while on parole supervision;
  4. (D) Has not received a Class A or Class B disciplinary offense under department of correction policy within one (1) year of the inmate's parole hearing; and
  5. (E) Has not been convicted of a violent sexual offense, as defined in § 40-39-202; sexual offense, as defined in § 40-24-108(b) or § 40-39-202; or sex offense, as defined in § 39-13-703.
3. (3) This subsection (i) does not eliminate or otherwise affect the requirements of subsection (c) or § 40-28-116(a)(2).
(j) Upon declining to grant parole in any case, the board must state in writing the reason for declining parole and how the inmate can improve the inmate's chance of being released on parole in the future.

Backlinks (1)

40-35-506(b)(1)

History (12)

Acts 1989, ch. 591, § 6
1990, ch. 729, § 2
1990, ch. 980, § 34
1992, ch. 991, § 18
1993, ch. 235, § 1
1994, ch. 730, § 2
2012, ch. 727, § 58
2019, ch. 488, § 2
2021, ch. 381, §§ 1, 2
2021, ch. 409, § 19
2021, ch. 410, §§ 12-14
2022, ch. 944, § 2.

§ 40-35-504. Release classification status programs — Parole — Penalty for violation of parole.

(a) When the board of parole determines that an eligible inmate should be granted parole, the inmate may be placed on supervised parole under the prescribed conditions and in accordance with § 40-28-118. If it is determined that an eligible inmate should not be granted parole, the board shall thereupon inform the inmate, in writing, of the date the inmate will be reconsidered for parole.
(b) A defendant convicted of a felony who has been admitted to parole shall be supervised by the department of correction and shall make periodic reports to an assigned parole officer for not less than one (1) year. Thereafter, the defendant may be relieved from making any further periodic reports if the parole officer, with the consent of the director of probation and parole, determines that:
1. (1) The defendant has abided by the terms of parole in a satisfactory manner;
2. (2) There is a reasonable likelihood that the defendant will remain at liberty without violating the law; and
3. (3) Relief from further periodic reporting is not incompatible with the welfare of society.
(c) A defendant relieved from reporting shall still be considered to be within the jurisdiction of the board and the department of correction or the local jail or workhouse authorities and shall be subject to termination of parole status for the remainder of the sentence originally imposed. The director of probation and parole may reinstitute required periodic reporting at any time.
(d) A defendant who violates the terms of parole is subject to the terms of §§ 40-28-121 — 40-28-123, which shall govern the termination of parole.
(e) If a defendant who has been placed on parole is convicted of a felony committed while on parole, the board, in its discretion, may revoke the defendant's parole and require the defendant to serve the remainder of the sentence originally imposed, or a portion of the original sentence as the board may determine, before the defendant begins serving the sentence for the crime committed while on parole.
(f) Upon revocation of supervised or unsupervised parole by the board under subsection (d) or (e), the time a defendant spent on parole shall not be considered as service of the sentence unless the board determines to grant all or part of the time to the defendant.

Backlinks (1)

9-8-307(a)(2)(D)

History (2)

Acts 1989, ch. 591, § 6
2012, ch. 727, § 59.

§ 40-35-505. Orientation to post-release or parole issues.

Before the release of an inmate under this chapter, the department of correction shall conduct an orientation for the inmate concerning relevant post-release or parole issues. As a part of the department's existing orientation program, the orientation shall address issues of restoration of citizenship, voting and the availability of services relating to education, employment, family and child support. Specific attention shall be given to, but not limited to, high school equivalency credentials approved by the state board of education and adult education, access to health care and health insurance, reinstatement of licenses and voting rights and food stamps.

History (2)

Acts 2004, ch. 752, § 1
2023, ch. 114, § 8.

§ 40-35-506. Eligible inmates — Release on mandatory reentry supervision.

(a) As used in this section, “eligible inmate” means an inmate who:
1. (1) Is serving a felony sentence for an offense that occurred on or after July 1, 2021;
2. (2) Is eligible for parole consideration;
3. (3) Is calculated to have one (1) year or less remaining until expiration of all sentences that the inmate is serving or set to serve, or is calculated to reach the inmate's release eligibility date with less than one (1) year remaining until expiration;
4. (4) Does not have an active detainer for new or untried charges or sentences to serve in other jurisdictions;
5. (5) Has not been classified as maximum or close custody for disciplinary reasons in the previous two (2) years; and
6. (6) If the inmate has previously had the inmate's probation or parole revoked, has served at least six (6) months since returning to custody after revocation of probation or parole.
(b)
1. (1) The department of correction shall determine whether an inmate is an eligible inmate. Notwithstanding § 40-35-503, an eligible inmate must be released on mandatory reentry supervision one (1) year prior to the inmate's sentence expiration date as calculated by the department or, if the inmate is not eligible for parole one (1) year prior to the inmate's sentence expiration date, upon reaching the inmate's release eligibility date. Upon release, an eligible inmate is subject to mandatory reentry supervision until the inmate's sentence expiration date. The release must be under the terms and conditions established by the department of correction. The board of parole shall issue a certificate of mandatory reentry supervision to such offenders.
2. (2) Eligible inmates released on mandatory reentry supervision must be considered released on parole and must be supervised and subject to violations or revocation under chapter 28 of this title to the same extent as discretionary parolees. All provisions relative to imposition of graduated sanctions under chapter 28 of this title apply to eligible inmates released on mandatory reentry supervision.
3. (3) Upon the issuance of a violation warrant regarding an eligible inmate, the inmate does not earn credit toward completion of the sentence until the removal of the delinquency.
4. (4) Mandatory reentry supervision for eligible inmates is not a commutation of sentence nor any other form of executive clemency.
(c) Notwithstanding § 40-35-111, upon expiration of a sentence of confinement for a person who is not an eligible inmate, the inmate must be released and subject to mandatory reentry supervision for a period of one (1) year following the inmate's sentence expiration date under conditions to be prescribed by the department of correction. Noncriminal, technical violations of supervision conditions by ineligible inmates must not result in revocation of supervision or incarceration. The mandatory reentry supervision period must be calculated by the department of correction.
(d) Mandatory reentry supervision under this section constitutes release into the community under the direct or indirect supervision of any state or local governmental authority or a private entity contracting with the state or a local government for purposes of § 40-35-114(13).

Backlinks (2)

History (1)

Acts 2021, ch. 410, § 15.

Chapter 36 Community Corrections

Part 1 General Provisions

§ 40-36-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Community Corrections Act of 1985.”

History (1)

Acts 1985 (1st Ex. Sess.), ch. 3, § 2.

§ 40-36-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:
1. (1) “Application process and procedures” means the criteria and guidelines developed by the department of correction for the establishment of community corrections plans, the granting of funds for programs authorized by this chapter and the monitoring, evaluation and review of programs funded under this chapter;
2. (2) “Board” means a local community corrections advisory board as established in this chapter;
3. (3) “Commissioner” means the commissioner of correction;
4. (4) “Community” includes the county or counties comprising a judicial district as provided in title 16, chapter 2, part 5;
5. (5) “Community-based alternatives to incarceration” means services and programs provided in local jurisdictions for eligible offenders in lieu of incarceration in state penal institutions or local jails and workhouses. The alternatives include noncustodial community corrections options, short-term community residential treatment options and individualized evaluation and treatment services as provided in § 40-36-302;
6. (6) “Community corrections plan” means a document prepared by a local community corrections advisory board, endorsed by the county legislative body and submitted to the department of correction in accordance with the requirements set forth in the application process and procedures, which identifies proposed community based programs to be implemented within the county in accordance with the terms of this chapter and justifies the funding of the programs with regard to local need and community support;
7. (7) “County legislative body” includes the governing legislative body of any county organized under Article XI, § 9 of the Tennessee Constitution and any county commission authorized by private act;
8. (8) “County mayor” includes the chief executive officer of any county organized under Article XI, § 9 of the Tennessee Constitution and any county mayor authorized by private act;
9. (9) “Court” means the trial judge exercising sentencing jurisdiction over an eligible offender under this chapter and includes any successor of the trial judge;
10. (10) “Nonprofit human service agency” means a not-for-profit organization that provides treatment, guidance, training or other rehabilitation services to individuals, families or groups in such areas as health, education, vocational training, special education, social services, psychological counseling and alcohol and drug treatment;
11. (11) “Nonviolent felony offender”/“nonviolent felony offense” means a person committing a felony offense, or a felony offense, that does not involve serious bodily injury, as that term is defined in § 39-11-106, or death to a victim or bystander, does not involve threats reasonably calculated to produce such results and does not involve sexual contact or sexual penetration as those terms are defined in § 39-13-501;
12. (12) “Plan” means the “community corrections plan” defined in subdivision (6);
13. (13) “Recipient” includes any entity receiving, directly or indirectly, any financial aid under this chapter;
14. (14) “Renovation” means the repair, remodeling, alteration or expansion of existing buildings or structures to make them habitable or suitable for program operations and includes the acquisition and installation of necessary initial equipment; and
15. (15) “Violent felony offender”/“violent felony offense” means a person committing a felony offense, or a felony offense, that does involve the criteria mentioned in subdivision (11).

History (4)

Acts 1985 (1st Ex. Sess.), ch. 3, § 5
1998, ch. 1049, §§ 44-47
2003, ch. 90, § 2
2012, ch. 727, § 46.

§ 40-36-103. Purposes of chapter.

The purposes of this chapter are to:
1. (1) Establish a mechanism for using state funds to contract with local governments and qualified private entities to develop community-based alternatives to incarceration that provide a treatment-centered pathway and community-based supervision for offenders, thereby reserving state penal institution, local jail, or workhouse bed space for other offenders;
2. (2) Facilitate the growth of treatment-centered pathways to alleviate geographical disparities in Tennessee with respect to the availability of such pathways available to judges at sentencing; and
3. (3) Reduce the number of felony offenders committed to state penal institutions, local jails, and workhouses for whom a treatment-centered pathway and appropriate evidence-based community supervision will result in less recidivism and more effective outcomes.

History (3)

Acts 1985 (1st Ex. Sess.), ch. 3, § 3
2021, ch. 409, § 12
2023, ch. 483, § 1.

§ 40-36-104. Goals of this chapter — Use of funding — Appropriation of funding.

(a) This chapter is intended to accomplish the following goals:
1. (1) Maintain safe and cost efficient community correctional programs that also involve close supervision of offenders;
2. (2) Promote accountability of offenders to their local community by requiring direct financial restitution to victims of crimes and community service restitution to local governments and community agencies;
3. (3) [Deleted by 2021 amendment.]
4. (4) Reduce the number of nonviolent felony offenders committed by participating counties to correctional institutions and jails by punishing these offenders in noncustodial options as provided in this chapter;
5. (5) Provide opportunities for offenders demonstrating special needs to receive services that enhance their ability to provide for their families and become contributing members of their community;
6. (6) Encourage the involvement of local officials and leading citizens in their local correctional system; and
7. (7) Promote the development of community corrections programs which are tailored to the specific needs of each participating county, and which are creative and innovative, within this state.
(b) Funds awarded under this chapter, including funds paid pursuant to contracts entered in accordance with this chapter, must not be used to supplant existing state or local government funds and must not be used for:
1. (1) Construction, renovation, or operation of local correctional facilities; provided, however, that this subdivision (b)(1) does not prohibit the use of such funds to expand jail-based programs for offenders sentenced to split confinement in conjunction with a sentence of probation under chapter 35 of this title;
2. (2) Construction, renovation, or operation of state facilities; or
3. (3) Salaries of state probation and parole officers.
(c) Administrative costs connected with the expenditure of funds awarded under this chapter shall not exceed a percentage amount established by the department of correction.
(d) Funding under this chapter shall be appropriated on an annual basis and any unspent moneys shall be returned to the department of correction to be used for reallocation to other programs administered by the department of correction as authorized under this chapter.

History (2)

Acts 1985 (1st Ex. Sess.), ch. 3, § 4
2021, ch. 409, §§ 13, 14.

§ 40-36-105. Duties of the department of correction.

In addition to those otherwise provided by law, the department of correction has the following powers, duties and responsibilities:
1. (1) Administer this chapter within the goals and mandates of this chapter;
2. (2) Conduct statewide public education concerning the purposes and goals of this chapter and make a report to the criminal justice committee of the house of representatives, judiciary committee of the senate, and fiscal review committee regarding the effectiveness of diversion of offenders from state correctional institutions;
3. (3) Provide technical assistance and training to local governments, private agencies and local community corrections advisory boards regarding community corrections and this chapter;
4. (4) Facilitate the development of local community corrections plans;
5. (5) Develop minimum standards, policies and administrative rules in accordance with the requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the statewide implementation of this chapter;
6. (6) Develop and implement an application process and procedures;
7. (7) Review community corrections plans and provide grant funding; and
8. (8) The department of correction may conduct evaluations of funding recipients under this chapter, annually or as often as needed, to ensure accountability and to measure the efficiency of the community-based alternatives to incarceration conducted under this chapter, and contractors must participate in the evaluations. The form and methods of the evaluations must be determined by the department. Funding recipients under this chapter must substantially comply with the standards and administrative regulations of the department defining the effectiveness of a community-based alternative to incarceration and must maintain, collect, and provide to the department, annually or as otherwise requested, any information required by the department for evaluation, which may include, but is not limited to:
  1. (A) The number of individuals admitted to the community-based alternative to incarceration;
  2. (B) The ratio of staff members to offenders;
  3. (C) The number of successful completions of the community-based alternative to incarceration;
  4. (D) The average time for an individual to successfully complete the community-based alternative to incarceration;
  5. (E) The number of individuals in the community-based alternative to incarceration who have incurred a new arrest, new conviction, or revocation of a community correction sentence, including the type of arrest, conviction, or revocation and the underlying conduct resulting in the arrest, conviction, or revocation; and
  6. (F) The average time an individual spends in the community-based alternative to incarceration before a new arrest, conviction, or revocation.

History (7)

Acts 1985 (1st Ex. Sess.), ch. 3, § 14
1998, ch. 1049, § 45
2012, ch. 727, § 46
2013, ch. 236, § 44
2019, ch. 345, § 61
2021, ch. 64, § 52
2021, ch. 409, § 15.

§ 40-36-106. Eligible offenders.

(a)
1. (1) An offender who meets all of the following minimum criteria shall be considered eligible for punishment in the community under this chapter:
  1. (A) Persons who, without this option, would be incarcerated in a correctional institution;
  2. (B) Persons who are convicted of property-related or drug- or alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, chapter 13, parts 1-5;
  3. (C) Persons who are convicted of nonviolent felony offenses;
  4. (D) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved;
  5. (E) Persons who do not demonstrate a present or past pattern of behavior indicating violence;
  6. (F) Persons who do not demonstrate a pattern of committing violent offenses;
  7. (G) Persons who have not been convicted of a sexual offense under title 39, chapter 13, part 5;
  8. (H) Persons who do not meet the definition of a sexual offender or violent sexual offender under § 40-39-202; and
  9. (I) Persons who are not required to serve a sentence of community supervision for life under § 39-13-524.
2. (2) Persons who are sentenced to incarceration or are on escape at the time of consideration will not be eligible for punishment in the community.
(b) Offenders shall not be excluded from the program on the basis of prior convictions for nonviolent felony offenses, but may, at the discretion of the court and local community corrections advisory board, be excluded on the basis of prior convictions for felony offenses that would not meet the eligibility criteria provided in subsection (a).
(c) Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chronic alcohol or drug abuse or mental health problems, but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under this chapter.
(d) The eligibility criteria established in this section shall be interpreted as minimum state standards, guiding the determination of eligibility of offenders under this chapter.
(e)
1. (1) Notwithstanding any law to the contrary, the court is authorized to sentence an eligible defendant as defined in this section to any appropriate community-based alternative to incarceration provided in accordance with the terms of this chapter, and under the additional terms and conditions as the court may prescribe, in lieu of incarceration in a state penal institution or local jail or workhouse.
2. (2) In sentencing an eligible defendant to any community-based alternative to incarceration, the court shall possess the power to set the duration of the sentence for the offense committed at any period of time up to the maximum sentence within the appropriate sentence range and shall retain the authority to alter or amend at any time the length, terms or conditions of the sentence imposed.
3. (3)
  1. (A) The court also has the power to terminate an offender from the program and to place the offender on supervised or unsupervised probation upon a showing that the offender did abide by the conditions imposed on the original sentence and that the offender's placement on probation presents no substantial risk to public safety. This authority of the court extends to offenders not originally eligible for probation after service of at least one (1) year.
  2. (B) Failure to comply with the terms of probation subjects the offender to revocation proceedings conducted by the court pursuant to § 40-35-311. If incarcerated, the offender receives credit only for actual time served in the community-based alternative program.
  Backlinks (1)
  
  40-35-303(a)
4. (4) The court shall also possess the power to revoke the sentence imposed at any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentenced, and the court may resentence the defendant to any appropriate sentencing alternative, including incarceration, for any period of time up to the maximum sentence provided for the offense committed, less any time actually served in any community-based alternative to incarceration. The resentencing shall be conducted in compliance with § 40-35-210.
5. (5) The district attorney general, victim, defense attorney and probation and parole officer should be consulted regarding potential referrals to the program; however, the court shall have the final decision.
6. (6) Upon a judge sentencing a person to be supervised under this chapter by an organization under contract with a governmental entity and governed by this chapter, the department of correction or another state agency shall not penalize, financially or otherwise, the organization for providing such service.
(f) Nothing in this section shall prevent a court from permitting an eligible defendant to participate in a community-based alternative to incarceration as a condition of probation in conjunction with a suspended sentence, split confinement or periodic confinement as provided in chapter 35 of this title.

History (7)

Acts 1985 (1st Ex. Sess.), ch. 3, § 6
1993, ch. 221, § 2
1996, ch. 675, § 38
1998, ch. 1049, § 48
2005, ch. 353, § 17
2021, ch. 409, § 11
2023, ch. 483, § 2.

Part 2 Local Community Corrections Advisory Board

§ 40-36-201. Creation and composition of local community corrections advisory board.

(a)
1. (1) To qualify for funding under this chapter, a local community corrections advisory board shall be established by the county legislative body. The board shall represent a cross-section of the local population, shall ensure minority and female representation and shall consist, at a minimum, of the following representatives or their designees:
  1. (A) A representative of county government nominated by the county mayor and confirmed by the county legislative body;
  2. (B) The sheriff of the county;
  3. (C) The district attorney general of the judicial district in which the county is located;
  4. (D) A criminal defense attorney residing in the county, nominated by the presiding judge of the judicial district in which the county is located and confirmed by the county legislative body;
  5. (E) A representative of a nonprofit human service agency, nominated by the county mayor and the other local community corrections advisory board members who serve by virtue of their elected office and confirmed by the county legislative body;
  6. (F) Two (2) state probation and parole officers assigned to work in the county, nominated by the department of correction and confirmed by the county legislative body; and
  7. (G) At a minimum, three (3) private citizens residing in the county, nominated by the county mayor and other local community corrections advisory board members who serve by virtue of their elected office and confirmed by the county legislative body. If a city participates, a citizen shall be nominated by the mayor and confirmed by the council.
2. (2) Confirmations by the county legislative body of the appropriate representatives shall be by majority vote. The size of the local community corrections advisory board shall be determined locally but must meet the minimum number and type of representatives.
(b) The sheriff and district attorney general shall serve on the local community corrections advisory board during their terms of office. In order to provide staggered terms on the local community corrections advisory board, the positions on the board identified as the county government representative, the criminal defense attorney, one (1) of the probation and parole officers and one (1) private citizen representative shall be initially appointed to a term of three (3) years, and thereafter to terms of two (2) years. The remaining members of the board shall be appointed for a term of two (2) years. Vacancies shall be filled in the same manner as original appointments for any unexpired term. Members of the local community corrections advisory board may be reappointed to the board in accordance with the procedures set forth in subsection (a).
(c) Where two (2) or more counties within a single judicial district combine and apply for funds under this chapter, they may establish one (1) community corrections advisory board serving the jurisdictions involved. At a minimum, this board shall include all of the positions set forth in subsection (a). The representatives to fill the positions may come from any of the participating counties and may be selected as determined by agreement of the legislative bodies of the counties involved.

Backlinks (2)

History (5)

Acts 1985 (1st Ex. Sess.), ch. 3, § 7
1987, ch. 449, § 1
1998, ch. 1049, §§ 44, 49-51
2003, ch. 90, § 2
2012, ch. 727, § 46.

§ 40-36-202. Duties of local community corrections advisory board — Staff — Meetings and officers.

(a) The local community corrections advisory board is empowered by resolution of the county legislative body to perform the following duties:
1. (1) Assess community-wide needs and advise the county legislative body regarding specific program options;
2. (2) Participate in the establishment of local eligibility standards for local community corrections programs that meet the local needs of the community;
3. (3) Adopt the local community corrections plan for submission to the county legislative body;
4. (4) Adopt program policies;
5. (5) Recommend to the county legislative body the awarding of subcontracts to proprietary, nonprofit or governmental entities to provide community corrections services, in their discretion;
6. (6) Monitor the effectiveness of local community correctional services and advise the county legislative body regarding needed modifications;
7. (7) Inform and educate the general public regarding the need for diversion of selected nonviolent offenders from confinement in correctional institutions in order to gain greater public support for corrections; and
8. (8) Make an annual report to the county legislative body of the progress of the programs.
(b) The county legislative body may authorize either the local community corrections advisory board or the county mayor to employ, supervise and/or terminate the program staff, who shall be deemed county employees.
(c) Employees hired by the county to administer this chapter in the community shall meet minimum qualifications as set forth by the department of correction in statewide administrative regulations. The local community corrections advisory board or the county mayor, as designated by the county legislative body, shall review and confirm all potential candidates for employment.
(d) Any local community corrections advisory board initially created under this chapter shall receive an orientation developed and conducted by the local government with the assistance of the department of correction within thirty (30) days after the last initial appointment to the board is made.
(e) Each local community corrections advisory board shall meet on a regular basis to transact business, and each local community corrections advisory board shall elect its own chair, vice chair, secretary and necessary committees.

History (6)

Acts 1985 (1st Ex. Sess.), ch. 3, § 8
1986, ch. 731, § 1
1994, ch. 819, §§ 1, 2
1998, ch. 1049, §§ 44, 45
2003, ch. 90, § 2
2012, ch. 727, § 46.

Part 3 Finances

§ 40-36-301. Eligibility for financial aid.

(a) A single county or a group of counties within a single judicial district shall be eligible for direct financial aid under this chapter.
(b) A private agency may be eligible for direct financial aid under this chapter only in a county that has not established a local community corrections advisory board, and only after the county legislative body in the county has received notice that an application for direct financial aid has been made by a private agency and fails to establish a local community corrections advisory board within thirty (30) days; however, nothing in this chapter shall prohibit a private agency from receiving indirect financial aid for such a program through a local community corrections advisory board once the board is established by the county legislative body.
(c)
1. (1) Entities eligible for financial aid under this chapter and entering into agreements for the aid shall receive one hundred percent (100%) state funding with no local matching funds required for the estimated cost of the program; provided, that this section shall not prohibit the use of federal funds. In order to receive the funding, each eligible entity shall submit an application to the county commission in a form to be determined by the department of correction.
2. (2) Agreements for the aid must contain a statement of the agreed to amount representing one hundred percent (100%) of the estimated cost of the program, or in lieu thereof, the specific formula or method or methods as to how the amount of the one hundred percent (100%) funding will be calculated.
(d) Where a group of counties combine and submit a joint application for funds, the application shall contain a cooperative agreement indicating each jurisdiction's willingness to collaborate in the proposed program and to meet specific objectives. In addition, the multijurisdictional applications shall provide for the appointment of one (1) fiscal agent to coordinate the financial activities of the grant award.
(e) A county legislative body that does not establish a local community corrections advisory board may request that the department of correction operate the program in that county. The department of correction shall establish an advisory council substantially similar in composition to the council described in § 40-36-201, which shall advise the department of correction on program operations within that county.

History (6)

Acts 1985 (1st Ex. Sess.), ch. 3, § 9
1986, ch. 731, § 2
1988, ch. 552, § 1
1994, ch. 820, § 1
1998, ch. 1049, §§ 44-46
2012, ch. 727, § 46.

§ 40-36-302. Community-based options and services.

(a) Community corrections funds can be used to develop or expand the range of community punishments and services at the local level. Community-based program options may include, but are not limited to, the following:
1. (1) Noncustodial community corrections options that involve close supervision but that do not involve housing of the offender in a jail, workhouse or community facility. Examples include, but are not limited to:
  1. (A) Community service supervision;
  2. (B) Victim restitution supervision and victim-offender mediation;
  3. (C) Alcohol or drug outpatient treatment;
  4. (D) House arrest; and
  5. (E) Psychiatric counseling;
2. (2)
  1. (A) Short-term community residential treatment options that involve close supervision in a residential setting. Examples include, but are not limited to:
    1. (i) Emergency shelters;
    2. (ii) Detoxification centers;
    3. (iii) Community residential restitution centers for nonviolent offenders and probation and parole violators;
    4. (iv) Community residential treatment centers for special needs offenders and probation and parole violators; and
    5. (v) Inpatient drug or alcohol treatment;
  2. (B) The residential options are not intended to create overcrowding in the local jail, but rather to develop additional small community-based facilities whose focus is on treatment rather than detention;
3. (3) Enrolling community corrections participants in residential in-house drug and alcohol treatment for detoxification and counseling. Enrollments shall be based upon an objective assessment that a participant is alcohol or drug dependent and requires detoxification. Awards for detoxification services shall only be made for inpatient services; and
4. (4) Individualized services that evaluate and treat the special needs of the population served under this chapter. Services to the court to assist in the evaluation and screening of eligible candidates may include the purchase of psychological, medical, educational or vocational, drug or alcohol urine screening and client specific plan diagnostic evaluations. Other services that may be purchased on an individualized basis may include job training, alcohol or drug counseling, individual or family counseling, adult education programming that includes preparation and testing toward obtaining a high school equivalency credential approved by the state board of education, or transportation subsidies. These services are intended to fill gaps in the local community correctional system and to enable the nonviolent offender to be treated near the offender's home.
(b) The options set out in subsection (a) may be used in conjunction with a period of shock incarceration or in conjunction with a term of probation and/or a term of split confinement or periodic confinement as provided in chapter 35 of this title.
(c) Community corrections funds may also be used to acquire, renovate and operate community facilities established to provide the options and services set forth in subsection (a).
(d) Counties may provide or contract with qualified proprietary, nonprofit or governmental entities for the provision of services under this chapter.
(e) Any options or services established under this chapter shall serve offenders from the entire judicial district in which the county is located.
(f) Any community-based program set out in subsection (a) that provides housing for alternatively sentenced criminal offenders shall notify the chief law enforcement officer of the county and the chief law enforcement officer of the municipality in which the housing facilities exist of the identity, criminal record and location of the alternatively sentenced criminal offenders proposed to be located at the facilities. The notices shall be in compliance with the confidentiality provisions of title 33 and shall also meet the privacy requirements of the federal Health Insurance Portability and Accountability Act of 1996, (42 U.S.C. § 1320d et seq.)

Backlinks (1)

40-36-102(5)

History (4)

Acts 1985 (1st Ex. Sess.), ch. 3, § 10
1986, ch. 731, § 3
2003, ch. 287, § 1
2023, ch. 114, § 9.

§ 40-36-303. Prohibited use of funds — Administrative costs — Accounting system — Annual audit.

(a) Recipients of community corrections funds shall not use these funds to supplant existing funds from the state or the local government for existing correctional programs. In addition, the funds shall not be utilized for the following purposes:
1. (1) Construction, renovation or operation of county or municipal jails;
2. (2) Construction, renovation or operation of state facilities; or
3. (3) Salaries of state probation and parole officers.
(b) Administrative costs connected with the expenditure of community corrections funds under this chapter shall not exceed a percentage amount established by the department of correction.
(c) The comptroller of the treasury is directed to develop a uniform accounting system conforming to generally accepted accounting principles for the boards operating under this chapter. The uniform accounting system shall be subject to the approval of the commissioner of finance and administration. Upon the approval of the commissioner of finance and administration, each local community corrections advisory board shall establish and maintain the uniform accounting system.
(d)
1. (1) The annual reports and all books of accounts and financial records of all funds received by grant, contract or otherwise from state, local or federal sources shall be subject to audit annually by the comptroller of the treasury or the department of correction, or both. The audit may be performed by a licensed independent public accountant selected by the local community corrections advisory board and approved by the comptroller of the treasury. The cost of any audit shall be paid by the local community corrections advisory board.
2. (2) The comptroller of the treasury shall ensure that audits are prepared in accordance with generally accepted governmental auditing standards and determine if the audits meet minimum audit standards prescribed by the comptroller of the treasury. No audit may be accepted as meeting the requirements of this section until approved by the comptroller of the treasury.
3. (3) All audits shall be completed as soon as practicable after the end of the fiscal year of the local community corrections advisory board. One (1) copy of each audit shall be furnished to each member of the local community corrections advisory board and the comptroller of the treasury. Copies of each audit shall also be made available to the press.

History (3)

Acts 1985 (1st Ex. Sess.), ch. 3, § 11
1998, ch. 1049, §§ 44-46
2012, ch. 727, § 46.

§ 40-36-304. Community corrections plan — Funding criteria — Participation in and withdrawal from chapter.

(a) A community corrections plan shall be developed by the local community corrections advisory board that sufficiently documents the local need and support for the proposed programs. The local community corrections advisory board's plan shall also have the written endorsement of the county legislative body prior to its submission to the department of correction.
(b) The format for any community corrections plan shall be specified by the department of correction in its application process and procedures.
(c)
1. (1) Funding under this chapter shall be granted on an annual basis, with the disbursement of funds on a quarterly basis at the beginning of each quarter after the submission and approval of an expenditure monitoring report and program monitoring report. At the end of the fiscal year, any unspent moneys by the program shall be returned to the department of correction to be used for reallocation to other programs administered by the department of correction as authorized under this chapter; provided, that counties are eligible to apply for any unspent funds that exist at the beginning of the fourth quarter.
2. (2) The department of correction has the discretion and authority to award contracts for a period not exceeding three (3) years. The department of correction may require that a duly adopted and endorsed community corrections plan covering the full term of the contract be submitted to the department of correction. Funding and conditions of funding for the length of the contract will be negotiated between the department of correction and the grantee. Nothing in this section shall prejudice the rights of the department of correction to suspend, modify or terminate grants under § 40-36-305.
(d) Funding under this chapter shall be granted to counties on the basis of a documentation of local need, together with consideration of whether the local community corrections advisory board's community corrections plan, including budget requests, is consistent with the goals of this chapter, the geographical and program considerations of the state and funding availability. In addition, the department of correction shall consider the following criteria pertaining to the jurisdiction in question when granting funds under this chapter:
1. (1) Number of nonviolent felony commitments to the department of correction;
2. (2) Population and existing conditions at the local jail;
3. (3) Rate of felony commitments per one thousand (1,000) population within the judicial district;
4. (4) Population of the judicial district and percent of population between eighteen (18) and twenty-nine (29) years of age;
5. (5) Availability of local correctional services;
6. (6) Sufficient local service capability to support the community corrections programs; and
7. (7) Demonstrated involvement and support from the judiciary, local criminal justice or correctional officials and local government in the development of the community corrections plan.
(e) Funding and grant evaluation criteria shall be outlined in the application process and procedures to be developed by the department of correction in order that each applicant may know the basis upon which funds will be granted.
(f) Participation in the programs set forth in this chapter is voluntary. Any participating county may, by written authorization of its county legislative body, notify the department of correction of its intention to withdraw from the Community Corrections Act. The withdrawal will become effective on the last day of the grant year.

History (4)

Acts 1985 (1st Ex. Sess.), ch. 3, § 12
1990, ch. 616, § 1
1998, ch. 1049, §§ 44-46
2012, ch. 727, § 46.

§ 40-36-305. Continued grant funding — Additional incentive funding — Noncompliance with plan.

(a) In order to remain eligible for continued grant funding, a recipient must substantially comply with the standards and administrative regulations of the department of correction defining program effectiveness. Each recipient will participate in an evaluation to determine local and state program effectiveness. The form of this evaluation will be determined by the department of correction.
(b) Continued grant funding shall be based on demonstrated effectiveness in reducing the number of commitments that would likely have occurred without the programs funded under this chapter and also on evidence that the programs are not dealing with persons who otherwise would have been on regular probation; provided, that each recipient, having been deemed eligible for continued grant funding by the department of correction and having entered into an agreement with the department of correction for direct financial aid under this chapter, shall have exclusive authority to provide the contracted services within the agreed upon jurisdiction for the duration of the contract. Nothing in this subsection (b) shall be construed to diminish the department of correction's authority under this section.
(c) Subject to funding availability, each participating county is eligible to receive additional incentive funding for extending programs to other eligible offenders or for adding new programs if it exceeds the objectives of its community corrections plan.
(d) If the department of correction determines that there are reasonable grounds to believe that a participating county is not complying with its plan or the minimum standards, the department of correction shall give thirty (30) days' written notice to the county legislative body, the local community corrections advisory board and the administrator of the program. If the department of correction finds that the participating county is not complying with its plan or the minimum standards established in this chapter, the department of correction shall require the county legislative body to provide a written agreement as to how and when the specific deficiencies identified by the department of correction will be corrected. If no agreement is submitted to the department of correction within the time limit the department of correction has specified or if the deficiencies are not corrected within forty-five (45) days after the agreement has been approved by the department of correction, the department of correction may suspend any part or all of the funding until compliance is achieved.

Backlinks (1)

40-36-304(c)(2)

History (4)

Acts 1985 (1st Ex. Sess.), ch. 3, § 13
1996, ch. 871, § 1
1998, ch. 1049, §§ 44-46
2012, ch. 727, § 46.

§ 40-36-306. Supervision fee.

(a) A supervision fee in the amount of fifteen dollars ($15.00) per month is imposed upon every offender serving a sentence under the supervision of a community corrections grantee. The fee may be waived in those cases determined to be hardship cases, as defined in § 40-28-202.
(b) The grantee shall be responsible for collecting and accounting for the fees.
(c) Any fees collected pursuant to this section shall be retained by the grantee and reported to the department of correction.
(d) The department of correction shall offset the amount of any fees collected under this section against any sums due under the grant contract with the grantee.
(e) The grantee shall make an investigation of the financial and other circumstances of any person under its supervision and, based upon the person's ability to pay, shall require the person to pay thirty dollars ($30.00) for each month or portion of a month the person remains under the supervision of the grantee to the general fund beginning thirty (30) days from the date the offender is placed under the supervision of the grantee or, in the case of an offender, the date of employment. The payment required under this subsection (e) shall not exceed ten percent (10%) of the offender's net income. In cases of hardship as defined in § 40-28-202, the department of correction may modify the payment required by this subsection (e) to an appropriate amount given the nature and magnitude of the hardship.
(f) In addition to any other fees imposed by this section, the trial court may assess an additional fee against any offender sentenced to participate in a community corrections program, either as a community corrections sentence or as a condition of probation, to offset the cost of the program; provided, that the program is one that has been certified by the department of correction as meeting promulgated criteria relating to achievement of goals and cost of the program.

History (5)

Acts 1990, ch. 616, § 2
1996, ch. 871, §§ 2, 3
1996, ch. 951, § 1
1998, ch. 1049, § 45
2012, ch. 727, § 46.

Chapter 38 Victims' Rights

Part 1 Victims' Bill of Rights

§ 40-38-101. Legislative intent — Short title.

(a) The general assembly finds and declares that victims and witnesses shall have certain rights in this state and that they shall be made aware of these rights.
(b) This part shall be known and may be cited as the “Victims' Bill of Rights.”

History (2)

Acts 1990, ch. 957, § 1
1993, ch. 527, § 1.

§ 40-38-102. Rights of crime victims and prosecution witnesses.

(a) All victims of crime and prosecution witnesses have the right to:
1. (1) Be treated with dignity and compassion; and
2. (2) Protection and support with prompt action in the case of intimidation or retaliation from the defendant and the defendant's agents or friends.
(b)
1. (1) Without requiring the expenditure of additional funds or additional construction or renovation whenever possible, victims of crime and prosecution witnesses should be provided waiting areas that are separate and secure from the defendant or defense witnesses during all stages of the judicial process.
2. (2) In order to accomplish the goals of this section, the court security committee established by § 16-2-505(d)(2) shall have among its duties the responsibility to assess existing facilities to determine where space could be allocated to provide the secure waiting areas described in subdivision (b)(1). A report of this assessment shall be included in the findings provided to the county legislative body and the administrative office of the courts pursuant to § 16-2-505(d)(3)(B). In cases where the committee determines that existing facilities cannot accommodate the goals of this section, the committee shall include in its report recommendations as to how a secure waiting area could be provided for in new construction and renovation projects. In a jurisdiction where existing facilities cannot meet the goals of this section, the local government should consider the recommendation of the committee's report in planning for any new construction or renovation of courtroom facilities.
(c) All victims of crime shall have the right to collect court-ordered restitution in the same manner as a civil judgment, as authorized pursuant to § 37-1-131(b)(2) or § 40-35-304(h).

Backlinks (2)

History (4)

Acts 1990, ch. 957, § 2
1993, ch. 527, § 2
1996, ch. 1044, § 1
2001, ch. 370, § 1.

§ 40-38-103. Rights of crime victims — Generally.

(a) All victims of crime shall, upon their request, have the right to:
1. (1) Be fully informed orally, in writing or by video tape by the office of the district attorney general, acting through the appropriate victim-witness coordinator, of the following:
  1. (A) The various steps and procedures involved in the criminal justice system;
  2. (B) The procedure and basis for continuances in the proceedings;
  3. (C) The procedure involved in the plea-bargaining process and how to request input into the process;
  4. (D) The times, dates and locations of all pertinent stages in the proceedings following presentment or indictment by the grand jury;
  5. (E) The methods by which the victim may have input into a convicted defendant's sentence, including the presentence report and the sentencing hearing;
  6. (F) The stages in the appellate process and how to obtain information concerning appellate action that has an effect on the defendant's conviction or sentence and the date a defendant's sentence becomes final;
  7. (G) How to obtain pertinent information relating to the possible release of an appropriate inmate, including notification of any department of correction decision permitting the inmate's release into the community or any scheduled hearing by the board of parole concerning the inmate's parole or application for executive clemency;
  8. (H) The methods by which the victim may obtain restitution directly from the defendant and information about obtaining assistance in obtaining restitution; and
  9. (I) The methods by which the victim may obtain a monetary award or other benefits from the criminal injuries compensation fund and information about obtaining assistance in securing the award or benefits;
2. (2) Whenever possible, be advised and informed of plea bargaining discussions and agreements prior to the entry of any plea agreement where the victim is a victim of violent crime involving death of a family member or serious bodily injury, speak at parole hearings, submit a victim impact statement to the courts and the board of parole and give impact testimony at court sentencing hearings;
3. (3) Be informed that § 41-21-240 requires the department to notify them, upon their request, at least ninety (90) days prior to the date an inmate with a sentence of two (2) years or more is scheduled to be released by reason of expiration of the inmate's sentence and be informed how the request of the department is made; and
4. (4) Be compensated for expenses actually and reasonably incurred as the result of traveling to and from the trial of the defendant or defendants and traveling to and from appellate, postconviction or habeas corpus proceedings resulting from the trial of the defendant or defendants alleged to have committed a compensable offense subject to title 29, chapter 13, part 1, and the availability of funds in the criminal injuries compensation fund.
(b) Upon the request of a victim of violent crime involving serious bodily injury or death of a relative, the victim shall be supplied information and a request form by the law enforcement agency responsible for the investigation of the crime or the arrest of the defendant, the sheriff or other custodian of the defendant, or the victim-witness coordinator as to how the victim or relative of a victim may request and secure notification of the release from custody of an offender from a jail or detention facility prior to trial. The jailer, sheriff, or other custodian of criminal offenders shall maintain a physical or electronic record or file of the victim's request for notification and, prior to the release of an offender about whom a notification request has been made, give immediate and prompt notice of the release to the requesting victim or family member of a victim by the most direct means available, including telephone, messenger, or telegram; provided, that if the victim or family member of a victim is registered with the state's electronic victim notification system, the notice required by this section shall be communicated by the method or methods indicated by the registration in the system. Any identifying information contained in the request forms shall be confidential. For purposes of this subsection (b), “identifying information” means the name, home and work addresses, telephone numbers, email address, and social security number of the person being notified or requesting that notification be provided.
(c) In a prosecution for any criminal homicide, an appropriate photograph of the victim while alive shall be admissible evidence when offered by the district attorney general to show the general appearance and condition of the victim while alive.

Backlinks (2)

History (9)

Acts 1990, ch. 957, § 3
1993, ch. 527, §§ 3, 9-11
1996, ch. 709, § 2
1997, ch. 509, § 3
1998, ch. 1037, § 2
1998, ch. 1049, § 52
2009, ch. 176, § 5
2015, ch. 527, § 1
2018, ch. 598, § 3.

§ 40-38-104. Death of child or primary wage earner — Compensation — Preferences.

(a) If a child is the victim of a homicide not committed by the parents, the parents of the child shall be able to apply to the criminal injuries compensation fund for reimbursement to the parents for expenses incurred in obtaining necessary grief counseling.
(b) All vocational schools and technical institutes operated by the board of regents shall, if there are limitations as to the number of persons who may be admitted to a particular school or institute or in a particular class or program, give preference in making the admissions to victims of violent crime. For purposes of this subsection (b), “victim” means the person who will become the primary wage earner in the victim's family if the victim was the primary wage earner and the crime resulted in the victim's death or permanent disability.

History (2)

Acts 1990, ch. 957, § 4
1993, ch. 527, § 4.

§ 40-38-105. Criminal cases — Prompt disposal — Priority of cases involving crimes against the person.

(a) All parties affected by a criminal offense, including the victim, survivors of the victim and witnesses to the offense, shall be able to expect that the operation of the criminal justice system will not be unnecessarily delayed and that they will be able to return to normal lives as soon as possible. To this end, all persons involved in the criminal justice system shall make every effort to dispose of any charges against a defendant within one hundred eighty (180) days of the date of the defendant's indictment and, in those cases in which the defendant is charged with a crime of violence involving death or serious bodily injury to a victim, all applications for continuance of any court date by any party shall be in writing setting out the reasons for the continuance. If, at any time during the proceeding, the court grants a continuance to the defendant and the defendant is not represented by an attorney, the court shall file an order in the records setting out the reasons why the court granted the continuance. If, for any reason, the case is not tried or otherwise disposed of in one hundred eighty (180) days of the indictment, the court shall set out in a certificate the reasons why the case is still pending before the court.
(b) All parties affected by a criminal offense shall be able to expect that cases involving crimes against the person are given judicial and prosecutorial priority over cases involving property crimes.

History (2)

Acts 1990, ch. 957, § 5
1993, ch. 527, §§ 5, 6, 12.

§ 40-38-106. Property offenses — Rights of victims.

Victims of crimes involving offenses against property shall have the right to:
1. (1) Recover property in the custody of the police or the court as soon as is reasonably possible;
2. (2) Restitution ordered as a condition of probation or a suspended sentence or parole and the swift revocation of the privileges for failure to make the ordered restitution; and
3. (3) Once a claim under the criminal injuries compensation fund has been filed with the state, the claim shall be disposed of expeditiously and any award or other benefit to which a victim may be entitled shall be paid promptly.

History (2)

Acts 1990, ch. 957, § 6
1993, ch. 527, §§ 7, 8.

§ 40-38-107. Communication of rights and resources to victim.

(a) The state treasurer, in consultation with the executive director of the district attorneys general conference, shall prepare and distribute to each district attorney general a booklet, pamphlet, brochure, handout or other publication that sets forth all of the provisions of this chapter and a summary of any other provision of law or regulation that pertains to victims or that would be of assistance to victims. It is the duty of the office of district attorney general to deliver free of charge to each victim, assisted by the victim-witness coordinator, a copy of the publication setting out the provisions of this chapter and other pertinent provisions.
(b) It also is the duty of the appropriate victim-witness coordinator to distribute to the victim a listing of all appropriate referral services that are available in that particular area to victims of crime.

History (1)

Acts 1990, ch. 957, § 7.

§ 40-38-108. Immunity for failure to comply.

Failure to comply with any provision of this part shall not create a cause of action or claim for damages against the state, a political subdivision of the state, a government employee or other official or entity, and no such cause of action shall be maintained. No defendant or person charged with a criminal offense may claim any prejudice or assign any error based upon the failure to comply with any provision of this part by the court or any other official of the state.

History (1)

Acts 1993, ch. 527, § 13.

§ 40-38-109. Notice to crime victims of eligibility for compensation.

The office of the district attorney general shall notify, in writing, each victim of a violent crime who may be eligible for compensation under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13, of the methods by which the victim may obtain compensation. The written notice shall be substantially in the form and content as prescribed by the state treasurer. In cases involving the death of a victim, the notification shall be given to the closest relative to the deceased victim. For purposes of this section, “closest relative” has the same meaning as that given in § 34-1-101.

History (1)

Acts 1998, ch. 785, § 30.

§ 40-38-110. Victim's right to notification of proceedings — Confidentiality.

(a) A victim of crime has the right to be informed of the following proceedings or occurrences by the appropriate agency at the earliest practicable opportunity:
1. (1) Cancelled or rescheduled hearings;
2. (2) Bail hearing for the defendant;
3. (3) Dismissal of the defendant's case;
4. (4) Pardon of the defendant;
5. (5) Defendant's recapture;
6. (6) Defendant's release from a mental institution under § 52-5-411 or § 33-6-708; and
7. (7) Defendant's transfer to a different correctional complex if the complex has a lower security designation.
(b) This section shall not be construed as limiting rights already in existence under Tennessee statute and shall be construed as working in conjunction with existing statutes.
(c) The victim has a duty to keep current information regarding the victim's location so that the appropriate agency may be able to contact the victim.
(d)
1. (1) Any identifying information concerning a crime victim received pursuant to this section shall be confidential.
2. (2) For purposes of subdivision (d)(1), “identifying information” means the name, home and work addresses, telephone numbers and social security number.

Backlinks (1)

10-7-504(j)(1)

History (3)

Acts 2000, ch. 859, § 1
2009, ch. 176, § 6
2024, ch. 688, § 132.

§ 40-38-111. Notifying victim of rights — Definitions — Confidentiality.

(a) Victims, under the Tennessee Constitution, Article I, § 35, have the right to be informed of proceedings and the right to be informed of each of the rights conferred upon the victims.
(b) When a victim appears before a judicial commissioner, magistrate or general sessions court clerk or one of the clerk's duly sworn deputies to obtain an arrest warrant, the commissioner, magistrate, general sessions court clerk or the clerk's duly sworn deputy shall notify the victim of the victim's rights under the Tennessee Constitution, Article I, § 35. The victims of crime state coordinating council will provide, upon request, sufficient copies of the form or brochure to be used to provide notice to victims under this subsection (b).
(c) If a law enforcement officer obtains an arrest warrant on behalf of a victim, the agency employing the officer shall notify the victim of the victim's rights under the Tennessee Constitution, Article I, § 35 and of the first court date at which the defendant will be required to appear. The victims of crime state coordinating council will provide, upon request, sufficient copies of the form or brochure to be used to provide notice to victims under this subsection (c).
(d) At the defendant's initial court appearance, the judge shall inform the victim, if the victim is present, of the victim's rights under the Tennessee Constitution, Article I, § 35. The judge shall also inform the victim that the clerk of the court will have a form on which the rights are listed and a telephone number that the victim can call for further information regarding future proceedings involving the defendant.
(e) Following the indictment or presentment being returned by a grand jury against the defendant for a violent crime, the district attorney general of the district in which the indictment or presentment was returned shall notify the victim of the offense of that victim's rights under the Tennessee Constitution, Article I, § 35, and of the dates of all future trial court proceedings involving the defendant.
(f) Following the indictment or presentment being returned by a grand jury against the defendant for a nonviolent crime, the district attorney general of the district in which the indictment or presentment was returned shall notify the victim of the offense of that victim's rights under the Tennessee Constitution, Article I, § 35 and shall give the victim a telephone number to call for further information regarding future trial court proceedings involving the defendant.
(g) As used in this section, “violent crime” means any of the following offenses:
1. (1) Aggravated arson, as defined in § 39-14-302;
2. (2) Aggravated assault, as defined in § 39-13-102 which results in serious bodily injury;
3. (3) Aggravated child abuse and neglect, as defined in § 39-15-402;
4. (4) Aggravated kidnapping, as defined in § 39-13-304;
5. (5) Aggravated rape, as defined in § 39-13-502;
6. (6) Aggravated robbery, as defined in § 39-13-402;
7. (7) Aggravated sexual battery, as defined in § 39-13-504;
8. (8) Aggravated vehicular homicide, as defined in § 39-13-218;
9. (9) Carjacking, as defined in § 39-13-404;
10. (10) Criminally negligent homicide, as defined in § 39-13-212;
11. (11) Especially aggravated burglary, as defined in § 39-13-1004;
12. (12) Especially aggravated kidnapping, as defined in § 39-13-305;
13. (13) Especially aggravated robbery, as defined in § 39-13-403;
14. (14) First degree murder, as defined in § 39-13-202;
15. (15) Incest, as defined in § 39-15-302;
16. (16) Kidnapping, as defined in § 39-13-303;
17. (17) Rape, as defined in § 39-13-503;
18. (18) Rape of a child, as defined in § 39-13-522;
19. (19) Reckless homicide, as defined in § 39-13-215;
20. (20) Second degree murder, as defined in § 39-13-210;
21. (21) Sexual battery by an authority figure, as defined in § 39-13-527;
22. (22) Sexual battery, as defined in § 39-13-505;
23. (23) Stalking, as defined in § 39-17-315;
24. (24) Statutory rape, as defined in § 39-13-506;
25. (25) Vehicular assault, as defined in § 39-13-106;
26. (26) Vehicular homicide, as defined in § 39-13-213; or
27. (27) Voluntary manslaughter, as defined in § 39-13-211.
Backlinks (1)
- 40-35-325(a)(4)
(h) As used in this section, “nonviolent crime” means any crime not defined as a “violent crime” in subsection (g).
(i)
1. (1) Any identifying information concerning a crime victim obtained pursuant to this section shall be confidential.
2. (2) For purposes of subdivision (i)(1), “identifying information” means the name, home and work addresses, telephone numbers and social security number.

Backlinks (2)

History (4)

Acts 2000, ch. 790, § 1
2004, ch. 547, § 2
2009, ch. 176, § 7
2021, ch. 545, § 16.

§ 40-38-112. Responsibilities of office of the prosecuting attorney — Duty of victim.

(a) After indictment, presentment or information, the office of the prosecuting attorney, through the victim witness coordinator, shall provide the victim with the following information:
1. (1) The procedural steps involved in a criminal prosecution;
2. (2) Dates, times and places of all proceedings involving the victim's case;
3. (3) The availability of victim's compensation benefits; and
4. (4) Forms to invoke compensation benefits and other rights.
(b) The victim has a duty to keep current information regarding the victim's location so that the victim-witness coordinator may be able to contact the victim, if necessary.

History (1)

Acts 2000, ch. 790, § 2.

§ 40-38-113. Information required to be provided to victim by law enforcement agencies.

Law enforcement agencies shall provide notice of the following information to any victim of crime:
1. (1) The victim's rights under the Tennessee Constitution, Article I, § 35, to be free from intimidation, harassment and abuse throughout the criminal justice system;
2. (2) The availability, if any, of crisis intervention services and emergency and medical services;
3. (3) The name of the law enforcement agency and telephone number;
4. (4) In cases of domestic violence, the procedures and resources available for protection of the victim;
5. (5) The names and telephone numbers of public and private victim assistance programs, including the state criminal injuries compensation program and programs that provide counseling, treatment and other support services; and
6. (6) The procedural steps involved in a criminal prosecution.

History (1)

Acts 2000, ch. 801, § 1.

§ 40-38-114. Conference between victim and prosecuting attorney prior to final disposition of case.

(a) The prosecuting attorney shall confer with the victim prior to the final disposition of a criminal offense, including the views of the victim regarding a decision not to proceed with a criminal prosecution or a decision to dismiss a charge or to enter into plea or sentencing agreements or the victim's views regarding a decision to enter a pretrial or other type of diversion program.
(b) The prosecuting attorney shall confer with the victim before the commencement of a trial. Any information received by the victim relating to the substance of the case shall be confidential, unless otherwise authorized by law or required by the courts to be disclosed.
(c) The rights of the victim do not include the authority to direct the prosecution of the case.
(d) Failure of the prosecuting attorney to confer with the victim does not affect the validity of an agreement between the prosecutor and the defendant in the case, a pretrial diversion of the defendant, a dismissal of an indictment or complaint filed against the defendant, a plea entered by the defendant or any other disposition in the case.
(e) Under this section, the victim has a duty to keep current information regarding the victim's location so the prosecuting attorney may be able to contact the victim. If the prosecuting attorney is unable to contact the victim due to the victim's failure to keep current information regarding the victim's location, the prosecuting attorney may only confer with the victim if practical under the circumstances.

History (1)

Acts 2000, ch. 802, § 1.

§ 40-38-115. Crime victim advocate.

(a) Any victim of crime may have a crime victim advocate from a crime assistance program or a victim-witness coordinator as provided for in § 8-7-206 present at any defense interviews with the victim. This section applies if practical and if the presence of the crime victim advocate or victim-witness coordinator does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate or victim-witness coordinator is to provide emotional support to the victim.
(b) As used in subsection (a), “crime assistance program” includes, but is not limited to, programs that provide appropriate counseling and support to victims.

History (1)

Acts 2000, ch. 803, § 1.

§ 40-38-116. Victim's right to a speedy trial.

(a) In any criminal proceeding in which a continuance is requested, the court shall consider the victim's views and the victim's right to a speedy trial. If the continuance is granted over the victim's objection, the court shall state on the record the reason for the continuance and the procedures that have been taken to avoid further delays.
(b) In determining a date for any criminal trial or other important criminal hearing, the court shall consider the interests of the victim's right to a speedy trial.

History (1)

Acts 2000, ch. 804, § 1.

§ 40-38-117. Victim's right to refuse interview with defendant.

Any victim of crime has the right to refuse a request by the defendant, the defendant's attorney or any other person acting on behalf of the defendant for an interview or other communication with the victim.

History (1)

Acts 2000, ch. 785, § 1.

§ 40-38-118. Informing victim of Tennessee statewide automated victim information and notification services.

(a) When a law enforcement officer responds to a report of a crime, and the crime is one (1) of the crimes listed in subsection (b), the officer shall inform the alleged victim of the Tennessee statewide automated victim information and notification service created by part 5 of this chapter, provided by the Tennessee sheriffs' association. The officer shall provide written informational materials, if available, and briefly explain the purpose of the program and the requirements for participating. If the alleged victim is injured or otherwise unable to understand the officer, the officer shall leave materials, if available, regarding the notification system with the alleged victim.
(b) The offenses to which this section applies are:
1. (1) Domestic assault, as prohibited by § 39-13-111;
2. (2) Vandalism, as prohibited by § 39-14-408, or false imprisonment, as prohibited by § 39-13-302, where the victim of the offense is a domestic abuse victim, as defined in § 36-3-601;
3. (3) Violation of an order of protection or restraining order, as prohibited by § 39-13-113; and
4. (4) Stalking, as prohibited by § 39-17-315.
(c) Any law enforcement agency that does not already have written informational materials regarding the Tennessee statewide automated victim information and notification service shall, by July 1, 2016, obtain a supply, if available, from the victim witness coordinator in the district attorneys general office or from the Tennessee sheriffs' association.

History (1)

Acts 2016, ch. 1073, § 1.

§ 40-38-119. Rights of victim of a sexually-oriented crime.

(a) As used in this section:
1. (1) “Crime assistance program” includes, but is not limited to, programs that provide appropriate counseling and support to victims;
2. (2) “Sexually-oriented crime” means those crimes listed in § 29-13-118(b); and
3. (3) “Victim” means a victim of a sexually-oriented crime.
(b) A victim of a sexually-oriented crime has the right, upon request, to:
1. (1) Consult with a crime victim advocate from a crime assistance program or a victim-witness coordinator as provided for in § 8-7-206 at any stage of the criminal proceeding;
2. (2) Have a support person of the victim's choosing present during any forensic medical examination and during any interview with law enforcement, the prosecuting attorney, the defendant, or the defendant's attorney, and to have a support person present in the courtroom when the victim is testifying against the defendant;
3. (3) Be interviewed by a law enforcement officer of the gender of the victim's choosing if reasonably available;
4. (4) Be informed by the appropriate agency of a change in the status of the victim's case, including whether the case has been closed or reopened;
5. (5) Be notified when the investigating agency has received results of the medical forensic evidence DNA analysis from the Tennessee bureau of investigation or other similar qualified laboratory;
6. (6) Be informed of whether a DNA sample was obtained from the analysis and whether the analysis resulted in a match to a DNA profile in state or federal databases unless disclosure would impede or compromise the investigation; and
7. (7)
  1. (A) Be informed, upon a victim's request, by the appropriate law enforcement agency at least sixty (60) days before the intended date of destruction or disposal of the victim's sexual assault evidence collection kit evidence or other evidence from an unsolved sexual assault case if the intended date of destruction or disposal is prior to the expiration of the applicable statute of limitations; and
  2. (B) Request retention of the evidence for an additional twelve (12) months or for a time period agreed upon by the victim and the appropriate law enforcement agency.
(c) The victim has a duty to keep current information regarding the victim's location so that the appropriate agency may be able to contact the victim.

Backlinks (1)

39-13-519(c)(1)

History (2)

Acts 2021, ch. 362, § 9
2022, ch. 1115, § 18.

Part 2 Victim Impact Statement Act

§ 40-38-201. Short title.

This part shall be known and may be cited as the “Victim Impact Statement Act.”

History (1)

Acts 1993, ch. 438, § 1.

§ 40-38-202. Sentencing judge to consider impact statement prior to sentencing.

The sentencing judge shall solicit and consider a victim impact statement prior to sentencing a convicted offender who has caused physical, emotional or financial harm to a victim, as defined in § 40-38-203.

History (1)

Acts 1993, ch. 438, § 2.

§ 40-38-203. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Victim” means an individual who suffers direct or threatened physical, emotional or financial harm as the result of the commission of a crime or an immediate family member of a minor victim or a homicide victim;
2. (2) “Victim impact statement” means a statement providing information about the financial, emotional and physical effects of the crime on the victim and the victim's family and specific information about the victim, the circumstances surrounding the crime and the manner in which it was perpetrated; and
3. (3) “Victim representative” means a spouse, parent, child, sibling or other relative of a deceased or incapacitated victim or of a victim who is under eighteen (18) years of age or a person who has had a close personal relationship with the victim and who is designated by the court to be a victim representative.

Backlinks (4)

History (1)

Acts 1993, ch. 438, § 3.

§ 40-38-204. Notification of opportunity to present impact statement — Policy — Development of impact statement form.

(a) If a defendant is convicted of a felony involving one (1) or more identifiable victims who suffered death or physical, emotional, or financial injury, the department of correction shall ensure notification of the victim or the victim representative and advise the victim or victim representative of the opportunity to present a victim impact statement.
(b) The department shall establish a policy concerning the victim impact statement. This policy shall include the development of a uniform victim impact statement form. In developing the form, the department shall first consult with the executive director of the district attorneys general conference.

History (1)

Acts 1993, ch. 438, § 4.

§ 40-38-205. Impact statement to be part of presentence report — Contents — Number of statements.

Prior to imposition of sentence in a felony case, the department of correction shall prepare a written victim impact statement as part of the presentence report on the defendant. The statement shall include applicable information obtained during consultation with the victim or the victim representative. If the victim or victim representative cannot be located or declines to participate in the preparation of the statement, the department shall include a notation to that effect in the statement. If there are multiple victims and preparation of individual victim impact statements is not feasible, the department may submit one (1) or more representative statements.

Backlinks (1)

40-38-207

History (1)

Acts 1993, ch. 438, § 5.

§ 40-38-206. Filing of presentence report.

The presentence report shall be filed with the clerk of the court within ten (10) days prior to the sentencing hearing as provided in § 40-35-208.

History (1)

Acts 1993, ch. 438, § 6.

§ 40-38-207. Impact statement to be considered as evidence.

Any victim impact statement submitted to the court under § 40-38-205 shall be considered as evidence in determining whether the mitigating factors in § 40-35-113 and the enhancement factors in § 40-35-114 apply.

History (1)

Acts 1993, ch. 438, § 7.

§ 40-38-208. Submission of statement or cooperation in preparation of statement not required.

This part shall not be construed to require a victim or victim representative to submit a victim impact statement or to cooperate in the preparation of a victim impact statement.

History (1)

Acts 1993, ch. 438, § 8.

Part 3 Constitutional Rights of Victims

§ 40-38-301. Intent of general assembly.

(a) It is the intent of the general assembly by enactment of this part to implement and make fully operational the provisions of Constitution of Tennessee, Article I, § 35 , relative to the rights of victims of crime. The proposed amendment that became the Constitution of Tennessee, Article I, § 35 was ratified by the voters of Tennessee at the November 3, 1998, general election, but there was some question as to whether it required the general assembly to define certain terms before the amendment could be implemented and in full force and effect.
(b) It is the further intent of the general assembly that this part only govern the implementation of the Constitution of Tennessee, Article I, § 35. If any other provision of law confers additional, enhanced or more expansive rights upon victims of crime than are set out in this part or the Constitution of Tennessee, Article I, § 35, a victim shall also be entitled to the additional, enhanced or expansive statutory rights.
(c) If any other provision of law contains a broader definition of “crime,” “victim” or “critical stages of the criminal justice process” for any purpose other than implementation of the Constitution of Tennessee, Article I, § 35, the broader definition shall control for such purpose.

History (1)

Acts 2000, ch. 577, § 1.

§ 40-38-302. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Crime” means:
  1. (A) Any offense the punishment for which is a Class A, B, C, D or E felony;
  2. (B) First degree murder; or
  3. (C) Assault under § 39-13-101(a)(1);
2. (2) “Critical stages of the criminal justice process” are:
  1. (A) Bond hearings or bond reduction hearings if hearing from the victim is deemed relevant by the appropriate district attorney general;
  2. (B) Any hearing on a motion to dismiss or on a plea agreement requiring approval by the trial court;
  3. (C) The defendant's sentencing hearing;
  4. (D) Any hearing at which the issue of whether the defendant should pay restitution or the amount of restitution that should be paid is discussed;
  5. (E) Any parole hearing at which the defendant's release on parole will be discussed or determined; and
  6. (F) Any other hearing that proposes a final disposition of the case;
3. (3) “Family member” means the victim's spouse, natural parent, child, adopted child, grandparent, grandchild, stepparent, adoptive parent, or brother or sister of the whole or half-blood or by adoption. If a “family member” is a minor, the minor may be represented by a guardian where appropriate; and
4. (4)
  1. (A) “Victim” means:
    1. (i) A natural person against whom a crime was committed;
    2. (ii) If the victim is a minor, then the parent or legal guardian of the minor; or
    3. (iii) If the victim is deceased or is physically or emotionally unable to exercise the victim's rights, then the following persons, or their designees, in the order of preference in which they are listed:
      1. (a) A family member; or
      2. (b) A person who resided with the victim;
  2. (B) “Victim” does not include any person charged with or alleged to have committed the crime or who is charged with some form of criminal responsibility for commission of the crime.

History (2)

Acts 2000, ch. 577, § 1
2008, ch. 1163, § 1.

§ 40-38-303. Victim's immunity from suit except for testimony that is intentionally and maliciously false and defamatory.

(a) In order for a victim of crime to meaningfully exercise the victim's constitutional right to be heard, when relevant, at all critical stages of the criminal justice process, a victim is immune from civil liability or any civil cause of action brought by the offender that arises from the victim's testimony at the offender's hearing before the board of parole or a panel of the board. The immunity from suit shall not apply if the victim's testimony is intentionally and maliciously false and defamatory.
(b)
1. (1) If the offender brings a cause of action against the victim based upon the victim's testimony before the board of parole or a panel of the board, in spite of the immunity conferred by subsection (a), as an attachment to the complaint, the offender shall proffer all statements made by the victim alleged to be intentionally and maliciously false and defamatory. Within five (5) days the court shall examine the offender's complaint to determine if the statements of the victim proffered by the offender could reasonably be construed as sufficient to overcome the victim's immunity conferred by this section.
2. (2) If the court finds that the victim's statements to the board of parole or a panel of the board may reasonably be construed as intentionally and maliciously false and defamatory, it shall allow the cause of action to proceed.
3. (3) If the court finds that the offender has not produced sufficient evidence to overcome the victim's immunity conferred by subsection (a), it shall dismiss the cause of action with prejudice.
4. (4) If the court finds that, not only was the action without merit but was brought for the purpose of intimidating, harassing or abusing the victim in violation of the Constitution of Tennessee, Article I, § 35, it:
  1. (A) Shall notify the appropriate warden of the offender's institution and recommend disciplinary action against the offender, including the loss of sentence reduction credits; and
  2. (B) May prohibit the offender from filing any future actions of a similar nature in the court.

History (1)

Acts 2009, ch. 50, § 1.

Part 4 Senator Tommy Burks Victim Assistance Academy

§ 40-38-401. Creation.

There is created the Senator Tommy Burks victim assistance academy, referred to in this part as the “academy”, to be organized and administered in accordance with this part.

History (1)

Acts 2008, ch. 1077, § 2.

§ 40-38-402. Expenses — Grants.

The academy shall be attached to the Tennessee Coalition Against Domestic and Sexual Violence. All administrative expenses incurred by the academy shall be paid from grants and funds the academy or the Tennessee Coalition Against Domestic Sexual Violence receives pursuant to § 40-38-405.

History (1)

Acts 2008, ch. 1077, § 2.

§ 40-38-403. Purpose.

Notwithstanding its association with the Tennessee Coalition Against Domestic and Sexual Violence, the purpose of the academy is to improve services to victims of all types of crime by making available a comprehensive, basic-level victim assistance curriculum and training program to victim services providers and allied professionals.

Backlinks (1)

40-38-405

History (1)

Acts 2008, ch. 1077, § 2.

§ 40-38-404. Funding.

Funding for the academy shall come from grants, donations, gifts and appropriations made for that purpose.

History (1)

Acts 2008, ch. 1077, § 2.

§ 40-38-405. Use of state funds.

The department of finance and administration, office of criminal justice programs, is authorized to make an annual grant from the fund created under § 40-24-107, to the Tennessee Coalition Against Domestic and Sexual Violence for the purpose of supporting the activities of the academy; provided, however, that no such grant shall be issued unless the coalition submits to the department of finance and administration, office of criminal justice programs, a plan specifying the use of the moneys and the plan is approved by the office of criminal justice programs. In determining whether to approve the plan for any given year, the office of criminal justice programs shall ensure the plan specifies that the money shall be used to benefit victims of all types of crime as provided in § 40-38-403. The grant authorized in this section shall not exceed one hundred thousand dollars ($100,000) and is subject to authorization contained in the general appropriations act.

Backlinks (1)

40-38-402

History (1)

Acts 2008, ch. 1077, § 2.

Part 5 Statewide Automated Victim Information and Notification System

§ 40-38-501. Creation.

There is created the statewide automated victim information and notification system, referred to as the “victim notification system” in this part, to be organized and administered in accordance with this part and to make the statewide automated victim information and notification system operational.

History (1)

Acts 2009, ch. 488, § 2.

§ 40-38-502. System attached to Tennessee sheriffs’ association — Payment of administrative expenses out of the statewide automated victim information and notification system fund.

The victim notification system shall be attached to the Tennessee sheriffs' association. All administrative expenses incurred by the program shall be paid from grants and funds the Tennessee sheriffs' association receives pursuant to § 40-38-504 and grants authorized by § 40-38-505 from the statewide automated victim information and notification system fund established in § 67-4-602(h).

History (1)

Acts 2009, ch. 488, § 2.

§ 40-38-503. Purpose.

Notwithstanding its association with the Tennessee sheriffs' association, the purpose of the victim notification system is to increase the safety of victims of crime by providing access to timely and reliable information about the custody status of offenders in county jails. This information in the victim notification system shall be available twenty-four (24) hours a day over the telephone, through the internet or by e-mail. Victims of crime and other concerned citizens can register to be notified immediately in the event of an offender's release, transfer or escape.

History (1)

Acts 2009, ch. 488, § 2.

§ 40-38-504. Funding.

Funding for the victim notification system shall come from grants, including grants authorized by § 40-38-505, donations, gifts and appropriations made for that purpose.

Backlinks (1)

40-38-502

History (1)

Acts 2009, ch. 488, § 2.

§ 40-38-505. Grants from the statewide automated victim information and notification system fund — Plan for use of the moneys.

The department of finance and administration, office of criminal justice programs, is authorized to make an annual grant from the fund created in § 67-4-602(h)(2), to the Tennessee sheriffs' association for the purpose of supporting implementation and management of the victim notification system; provided, however, that no such grant shall be issued unless the association submits to the department of finance and administration, office of criminal justice programs, a plan specifying the use of the moneys and the plan is approved by the office of criminal justice programs. The grant authorized in this section is subject to authorization contained in the general appropriations act.

Backlinks (3)

History (2)

Acts 2009, ch. 488, § 2
2019, ch. 261, § 1.

§ 40-38-506. Computer related expenses.

Upon the initial deposit of thirty-four thousand dollars ($34,000) into the victim notification fund from the one dollar ($1.00) additional privilege tax on litigation imposed by § 67-4-602(h), thirty-four thousand dollars ($34,000) shall be allocated to the department of revenue for defrayal of computer-related expenses required by implementation of this part.

History (1)

Acts 2009, ch. 488, § 2.

§ 40-38-507. Criminal proceedings notification system.

(a) As an extension of the existing victim notification system created by this part, the Tennessee sheriffs' association shall establish a criminal proceedings notification system as a pilot program for the purpose of increasing the transparency and efficiency of the criminal justice process by providing timely information about each stage of the criminal process to interested parties.
(b) The information in the criminal proceedings notification system must be available twenty-four (24) hours per day over the telephone, through the internet, or by email. Any interested party may register with the Tennessee sheriffs' association to be automatically notified:
1. (1) At least twenty-four (24) hours before any hearing in the matter for which the person registered, including, but not limited to, bail hearing, pretrial hearings, trial, and sentencing. The notice must include information on what type of hearing will occur and the date, time, and location for the hearing; and
2. (2) No more than twenty-four (24) hours after a hearing was conducted in the matter for which the person registered. The notice must include information on whether the hearing occurred as scheduled and, if so, a brief summary of the outcome of the hearing.
(c) Funding for the criminal proceedings notification system must be appropriated by the general assembly, and moneys from the statewide automated victim information and notification system fund created in § 67-4-602(h)(2) must not be used for the criminal proceedings notification system.
(d) The pilot program established by this section begins July 1, 2022, and ends June 30, 2025.

History (1)

Acts 2022, ch. 1140, § 1.

Part 6 Home Address Confidentiality Program

§ 40-38-601. Part definitions.

As used in this part:
1. (1) “Address confidentiality program” or “program” means the program created under this part to protect the confidentiality of the confidential address of a relocated victim of domestic abuse, stalking, human trafficking, rape, sexual battery, or any other sexual offense;
2. (2) “Administrator of elections” means the chief county election administrative officer appointed by the county election commission and such official's designee or designees;
3. (3) “Applicant” means the person who applies to be a program participant and who is or has been a victim of domestic abuse, stalking, human trafficking, rape, sexual battery, or another sexual offense;
4. (4) “Application” means the form or forms submitted, in the manner prescribed by the secretary of state, by an individual requesting certification for the address confidentiality program;
5. (5) “Application assistant” means an employee or volunteer at an agency or organization that serves victims of domestic abuse, stalking, human trafficking, rape, sexual battery, or any other sexual offense, who has received training and certification from the secretary of state to help individuals complete applications to be program participants;
6. (6) “Co-applicant” means the spouse, parent, or fiduciary of the applicant who lives in the same residence as the applicant at the time the application is made and who resides in the same residence with the applicant while the applicant is a program participant;
7. (7) “Confidential address” means the actual address of a program participant's residence, school, institution of higher education, business, or place of employment, as specified on an application to be a program participant or on a notice of change of address filed under this part;
8. (8) “Coordinator of elections” means the official appointed by the secretary of state in accordance with § 2-11-201 as the chief administrative election officer of the state and such official's designee or designees;
9. (9) “Domestic abuse” has the same meaning as defined in § 36-3-601;
10. (10) “Domestic abuse victim” has the same meaning as defined in § 36-3-601;
11. (11) “Fiduciary” has the same meaning as defined in § 34-1-101;
12. (12) “Governmental entity” means the state, a political subdivision of the state, or any department, agency, board, commission, or other instrumentality of the state or a political subdivision of the state;
13. (13) “Human trafficking” has the same meaning as used in § 39-13-314;
14. (14) [Deleted by 2021 amendment.]
15. (15) “Parent” includes biological and adoptive parents, as defined in § 36-1-102;
16. (16) “Person with a disability” has the same meaning as defined in § 34-1-101;
17. (17) “Process” means judicial process and all orders, demands, notices, or other papers required or permitted by law to be served on a program participant;
18. (18) “Program participant” or “participant” means a person who is certified by the secretary of state as a program participant and who is an applicant, co-applicant, the child of an applicant or co-applicant, or a person with a disability for whom an applicant or co-applicant serves as a fiduciary;
19. (19) “Secretary of state” or “secretary” means the secretary of state of Tennessee and any designee of the secretary;
20. (20) “Sexual offender” has the same meaning as defined in § 40-39-202;
21. (21) “Sexual offense” means a sexual offense or violent sexual offense as defined in § 40-39-202;
22. (22) “Stalking” has the same meaning as defined in § 39-17-315; and
23. (23) “Substitute address” means an address designated by the secretary of state under the address confidentiality program that is used instead of a confidential address as set forth by this part.

History (3)

Acts 2018, ch. 1004, § 1
2020, ch. 577, § 1
2021, ch. 140, §§ 1-3.

§ 40-38-602. Crime victim address confidentiality program.

(a) The secretary of state shall establish a crime victim address confidentiality program, which must be open to applicants who are victims of domestic abuse, stalking, human trafficking, rape, sexual battery, or another sexual offense, as well as co-applicants, the children of an applicant or co-applicant living at the same address as the applicant or co-applicant, and persons with disabilities for whom an applicant or co-applicant serves as a fiduciary and are living at the same address as the applicant or co-applicant if those persons satisfy the requirements of this part, at no cost to the program participant.
(b) This program shall provide the participant with the use of a substitute address for the participant and shall not disclose the participant's name, confidential address, phone number, or any other information contained within the program participant's file except as otherwise provided by this part.
(c) Whenever a program participant is required by law to swear to or affirm the participant's address, the participant may use the participant's substitute address. Wherever a program participant is required by law to establish residency, the participant may present evidence of program participation and use the participant's substitute address. Where residency must be verified in order to establish eligibility for public benefits, the governmental entity requiring verification shall submit a written request to the secretary of state, on a form prescribed by the secretary of state, whereby the secretary of state shall provide the governmental entity with a statement as to whether the program participant is eligible for benefits, based on the information known to the secretary of state.
(d) The substitute address shall not be used:
1. (1) For purposes of listing, appraising, or assessing property taxes and collecting property taxes; or
2. (2) On any document related to real property recorded with a county clerk and recorder.
(e) Notwithstanding any other applicable law, the substitute address may be used for motor vehicle records and may be printed on a person's driver or photo identification license.
(f) Except as otherwise provided in this part, a program participant's confidential address, and any other information contained within a program participant's file, maintained by a state or local government agency, or disclosed by the secretary of state under this part, is not a public record. This subsection (f) shall not apply:
1. (1) To any public record created more than thirty (30) days prior to the date that the program participant applied to be certified in the program; or
2. (2) If a program participant voluntarily requests that a state or local government agency use the participant's confidential address or voluntarily gives the confidential address to the state or local government agency, except voter registration records and absentee ballot requests shall be confidential for purposes of this part.
(g) For any public record created within thirty (30) days prior to the date that a program participant applied to be certified in the program, a state or local governmental agency shall redact the confidential address from a public record or change the confidential address to the substitute address in the public record, if a program participant presents evidence of program certification and requests the agency that maintains the public record to use the substitute address instead of the confidential address on the public record.
(h) Except as provided in this part, where a program participant has provided evidence of program participation to a governmental entity, any record that includes a program participant's confidential address pursuant to this part shall be confidential and not available for inspection by anyone other than the program participant.
(i) Notwithstanding any other applicable law, documentation concerning any tool of designation or identification or internal processes implemented by a governmental entity in documenting program participation within the governmental entity's records shall be confidential and not available for inspection.
(j) An application or voter registration form completed under this part, along with any supporting materials, is not a public record that is subject to inspection and shall be kept confidential.

Backlinks (1)

40-38-607(f)(1)

History (3)

Acts 2018, ch. 1004, § 1
2020, ch. 577, § 2
2021, ch. 140, §§ 4-6.

§ 40-38-603. Eligibility to participate in address confidentiality program.

A person who is required by law to be registered under any of the following is not eligible to participate in the address confidentiality program:
1. (1) Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, compiled in chapter 39, part 2 of this title;
2. (2) Tennessee Animal Abuser Registration Act, compiled in chapter 39, part 1 of this title;
3. (3) Registry of persons who have abused, neglected, or misappropriated the property of vulnerable individuals, compiled in title 68, chapter 11, part 10; or
4. (4) Drug offender registry under § 39-17-436.

Backlinks (2)

History (1)

Acts 2018, ch. 1004, § 1.

§ 40-38-604. Application for substitute address.

(a) Except for a person described in § 40-38-603, an adult person, or a parent or fiduciary acting on behalf of a minor or person with a disability, may apply to the secretary of state with the assistance of an application assistant to have an address designated by the secretary of state serve as the person's substitute address, or the substitute address of the minor or person with a disability on whose behalf the application is filed, where the applicant, or the individual on whose behalf the application is filed, resides at an address not previously identified in any public record as the person's address, or has relocated to a new residence within the preceding thirty (30) calendar days or presently intends to relocate to a new residence within ninety (90) calendar days from the date of the application. The application shall be made on a form prescribed by the secretary of state and filed in the office of the secretary of state in the manner prescribed by the secretary of state.
(b) The application must contain all of the following:
1. (1) The mailing address and telephone number or numbers at which the secretary of state may contact the applicant;
2. (2) The address or addresses of the applicant's residence, school, institution of higher education, business, or place of employment that the applicant requests not be disclosed for the reason that disclosure will increase the risk that the applicant, or the minor or person with a disability on whose behalf the application is made, will be threatened or physically harmed by another person;
3. (3) Documentary evidence that, either:
  1. (A) There exists an ongoing criminal case that may result or a criminal case that has resulted in a conviction by a judge or jury or by a defendant's guilty plea, in which the applicant, or the minor or person with a disability on whose behalf the application was filed, was a victim of domestic abuse, stalking, human trafficking, rape, sexual battery, or any other sexual offense; or
  2. (B) A court of competent jurisdiction has granted an order of protection to the applicant, or the minor or person with a disability on whose behalf the application is made, and which is in effect at the time of application;
4. (4) In the absence of an ongoing criminal case that may result or has resulted in a conviction or an order of protection granted by a court of competent jurisdiction within this state which is in effect at the time of application, a notarized statement by a licensed professional with knowledge of the circumstances, such as an attorney, social worker, or therapist, confirming that such individual believes that the applicant, or the minor or person with a disability on whose behalf the application is made, is in danger of further harm;
5. (5) A sworn statement by the applicant that disclosure of the confidential address or addresses would endanger the safety of the applicant or the minor or person with a disability on whose behalf the application is made;
6. (6)
  1. (A) Documentary evidence, in the form and manner prescribed by rule by the secretary of state, that the applicant, or the minor or person with a disability on whose behalf the application is made, has moved to a new residence unknown to the offender within the previous thirty (30) calendar days; or
  2. (B) A sworn statement by the applicant that the applicant, or the minor or person with a disability on whose behalf the application is made, currently resides at an address unknown to the offender and not previously identified in any public record as the person's address or has the present intent to move to a new address unknown to the offender within the following ninety (90) calendar days. If the applicant does not move to a new address within the following ninety (90) calendar days or fails to provide documentary evidence of the new residence address to the secretary of state within this time frame, in the form and manner prescribed by rule by the secretary of state, the program participant's certification shall be cancelled, unless the secretary of state determines that the program participant is currently residing at a shelter, as defined in § 71-6-202, or a similar facility;
  Backlinks (2)
  
  40-38-605(c)
  40-38-605(d)
7. (7) A voter registration form to be completed if the applicant is eligible to vote and wishes to register to vote or update a current voter registration;
8. (8) A sworn statement that the program participant understands all of the following:
  1. (A) That during the time the program participant chooses to have a confidential voter registration record, the program participant may vote only by absentee ballot;
  2. (B) That the program participant may provide a program participant identification number instead of the residence address on an application for an absentee ballot or on an absentee voter's ballot identification envelope statement of voter with the applicant's signature;
  3. (C) That casting any ballot in person will reveal the program participant's precinct and residence address to precinct election officials and employees of the county election commission and may reveal the program participant's precinct or residence address to members of the public; and
  4. (D) That if the program participant signs an election petition, the program participant's residence address will be made available to the public;
9. (9) A knowing and voluntary designation of the secretary of state as the agent for the purposes of receiving service of process and the receipt of mail;
10. (10) A knowing and voluntary release and waiver of all future claims against the state for any claim that may arise from participation in the address confidentiality program, except for a claim based on the performance or nonperformance of a public duty that was manifestly outside the scope of the officer's or employee's office or employment or in which the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner;
11. (11) The notarized signature of the applicant, the name and notarized signature of the application assistant who assisted the applicant, and the date on which the applicant and the application assistant signed the application; and
12. (12) If at the time of application, the applicant, or the minor or person with a disability on whose behalf the application is made, is subject to a court order or is involved in court action related to the dissolution of marriage proceedings, child support, or the allocation of parental responsibilities or parenting time, the name of the court, contact information for the court, and the case number associated with those proceedings.
(c) Upon receiving a properly completed application under subsection (a), the secretary of state shall:
1. (1) Certify the applicant, co-applicant, or the minor or person with a disability on whose behalf the application is filed, as a program participant and provide evidence of such certification to the program participant;
2. (2) Designate each eligible address listed in the application as a confidential address;
3. (3) Issue the program participant a unique substitute address;
4. (4) Issue the program participant a unique program participant identification number;
5. (5) Provide information to the program participant concerning the manner in which the program participant may use the secretary of state as the program participant's agent for the purposes of receiving mail and receiving service of process;
6. (6) Provide information to the program participant concerning the process to vote as a program participant, if the program participant is eligible to vote; and
7. (7) Forward all first class mail, legal documents, and certified mail received by the secretary of state to the program participant.
(d) Except for a person described in § 40-38-603, a co-applicant may apply to the secretary of state with the assistance of an application assistant to use the same substitute address as an applicant with whom the co-applicant resides. The co-applicant's application must contain the following information:
1. (1) The name of the applicant with whom the co-applicant is applying for the substitute address;
2. (2) The relationship of the co-applicant to the applicant, such as spouse, parent, or fiduciary;
3. (3) The mailing address and telephone number at which the secretary of state may contact the co-applicant;
4. (4) The address of the co-applicant and applicant's residence, school, institution of higher education, business, or place of employment that the applicant and co-applicant request not to be disclosed for the reason that disclosure will increase the risk that the applicant, or the child or person with a disability on whose behalf the application is made, will be threatened or physically harmed by another person;
5. (5) Documentary evidence of the co-applicant's relationship with the applicant in the form and manner prescribed by rule by the secretary of state;
6. (6) A sworn statement by the co-applicant that disclosure of the confidential address or addresses would endanger the safety of the applicant, or the child or person with a disability on whose behalf the application is made;
7. (7)
  1. (A) Documentary evidence, in the form and manner prescribed by rule by the secretary of state, that the co-applicant has moved with the applicant, or the child of the applicant or the person with a disability for whom the applicant serves as a fiduciary, to a new residence unknown to the offender within the previous thirty (30) calendar days; or
  2. (B) A sworn statement by the co-applicant that the co-applicant intends to move with the applicant, or the child of the applicant or the person with a disability for whom the applicant serves as a fiduciary, to an address unknown to the offender and not previously identified in any public record as the address of the applicant or co-applicant, or to a new address unknown to the offender within the following ninety (90) calendar days. If the co-applicant or the applicant does not move to the same new residence address within the following ninety (90) calendar days or fails to provide documentary evidence of the new residence address to the secretary of state within this time frame, in the manner and rule provided by the secretary of state, then the co-applicant's program participation must be cancelled, unless the secretary of state determines that the co-applicant is currently residing at a shelter, as defined in § 71-6-202, or a similar facility, with the applicant, the child of the applicant, or the person with a disability for whom the applicant serves as a fiduciary;
8. (8) A voter registration form to be completed if the co-applicant is eligible to vote and wishes to register to vote or update a current voter registration application;
9. (9) A sworn statement that the co-applicant understands all of the following:
  1. (A) That during the time the co-applicant chooses to have a confidential voter registration record, the co-applicant may only vote by absentee ballot;
  2. (B) That the co-applicant may provide a program participant identification number instead of the residence address on an application for an absentee ballot or on an absentee voter's ballot identification envelope statement of voter with the co-applicant's signature; and
  3. (C) That casting any ballot in person will reveal the co-applicant's precinct and residence address to precinct election officials and employees of the county election commission and may reveal the co-applicant's precinct or residence address to members of the public;
10. (10) A knowing and voluntary designation of the secretary of state as the agent for the purposes of receiving service of process and the receipt of the mail;
11. (11) A knowing and voluntary release and waiver of all future claims against the state for any claim that may arise from participation in the address confidentiality program, except for a claim based on the performance or nonperformance of a public duty that was manifestly outside the scope of the officer's or employee's office or employment in which the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner;
12. (12) The notarized signature of the co-applicant, the name and notarized signature of the application assistant who assisted the co-applicant, and the date on which the co-applicant and application assistant signed the application; and
13. (13) If, at the time of application, the co-applicant, or the child of the co-applicant or the person with a disability for whom the co-applicant serves as a fiduciary, is subject to a court order or is involved in court action related to the dissolution of marriage proceedings, child support, or the allocation of parental responsibilities or parenting time, the name of the court, contact information for the court, and the case number associated with those proceedings.

Backlinks (2)

History (4)

Acts 2018, ch. 1004, § 1
2020, ch. 577, § 3
2021, ch. 140, §§ 7-9
2024, ch. 620, §§ 1-3.

§ 40-38-605. Notification of change of program participant's address — Renewal of certification.

(a) A program participant shall notify the office of the secretary of state of any change in the participant's residence address and application information within thirty (30) days after any change has occurred by submitting a notice of change to the office of the secretary of state on a form prescribed by the secretary of state. If registered to vote, the applicant shall also complete a change of address form for voter registration purposes.
(b) The certification of a program participant shall be valid for four (4) years after the date of the filing of the application for the program participant, unless the certification is withdrawn or invalidated before the end of that four-year period.
(c) A program participant who continues to be eligible to participate in the program may renew the program participant's certification by submitting a renewal application to the secretary of state with or without the assistance of an application assistant. The renewal application shall be on a form prescribed by the secretary of state and shall contain all of the information described in § 40-38-604, except for the information described in § 40-38-604(b)(6) and (11).
(d) A co-applicant who was under eighteen (18) years of age when enrolled in the program, but who is at least eighteen (18) years of age at the time the renewal application is submitted, may renew the co-applicant's participation in the program by submitting a renewal application to the secretary of state with the assistance of an application assistant. The renewal application must be on a form prescribed by the secretary of state and contain all of the information described in § 40-38-604, except for the information described in § 40-38-604(b)(6).
(e) When a program participant renews the program participant's certification, the program participant shall continue to use the program participant's original program participant identification number and substitute address.

Backlinks (1)

40-38-608(a)(4)

History (2)

Acts 2018, ch. 1004, § 1
2024, ch. 620, §§ 4-6.

§ 40-38-606. Request that governmental and private entities use substitute address — Registration as voter — Service of process.

(a) A program participant may request that a governmental entity use the address designated by the secretary of state as the program participant's substitute address. Except as otherwise provided by this part, if the program participant requests that a governmental entity use the substitute address and provides evidence of certification as a program participant, the governmental entity shall accept the substitute address.
(b) If a program participant's employer, school, or institution of higher education is not a governmental entity, the program participant may request that the employer, school, or institution of higher education use the substitute address designated by the secretary of state as the program participant's address.
(c) The program participant may also request that private businesses and other non-governmental entities use the substitute address designated by the secretary of state as the program participant's address.
(d) Program participants shall not be required to provide their confidential address to any public school for purposes of enrollment for themselves or their minor children, but rather shall be permitted to provide the public school with evidence of certification as a program participant and the participant's substitute address. Where residency must be verified in order to enroll a student in a public school, the individual responsible for verifying eligibility for enrollment shall submit a written request to the secretary of state, on a form prescribed by the secretary of state, whereby the secretary of state shall provide that individual with a statement as to whether the program participant, or the program participant's minor child, is eligible for enrollment, based on the information known to the secretary of state.
(e) A program participant may be required to provide the program participant's residence address for purposes of obtaining utility services. Notwithstanding any contrary law, and except as otherwise provided by this part, if a program participant provides a utility service provider with evidence of certification as a program participant, the utility service provider shall treat the program participant's residence address and identifying information as confidential in accordance with the procedures established at § 10-7-504(a)(15). In such instances, the program participant may also request that the utility service provider use the substitute address.
(f) Except as otherwise provided in this part, it shall be the responsibility of the program participant to provide the program participant's substitute mailing address to all governmental and private entities to ensure the confidentiality of the program participant's confidential address.
(g) A participant shall be registered as a voter of the precinct in which the person is a resident.
(h)
1. (1) The office of the secretary of state shall place all first class mail, legal documents, and certified mail received by the secretary of state on behalf of a program participant into an envelope or package and mail that envelope or package to the program participant at the mailing address the program participant provided to the secretary of state for that purpose within three (3) business days of receipt. The secretary of state may contract with the United States postal service to establish special postal rates for the envelopes or packages used in mailing a program participant's first class mail, legal documents, and certified mail under this section.
2. (2)
  1. (A) Upon receiving service of process on behalf of a program participant, the office of the secretary of state shall immediately forward the process by certified mail, return receipt requested, to the program participant at the mailing address the program participant provided to the secretary of state for that purpose. Service of process upon the office of the secretary of state on behalf of a program participant shall constitute service upon the program participant under the Rules of Civil Procedure.
  2. (B) The secretary of state may prescribe by rule the manner in which process may be served on the secretary of state as the agent of a program participant.
  3. (C) Upon request by a person who intends to serve process on an individual, the secretary of state shall confirm whether the individual is a program participant but shall not disclose any other information concerning a program participant.

History (1)

Acts 2018, ch. 1004, § 1.

§ 40-38-607. Confidentiality of program participant's voter registration record — Voter registration and absentee deadlines applicable — Exemption from jury duty.

(a) The coordinator of elections and the administrator of elections shall keep a program participant's voter registration record confidential.
(b) The form shall be stored in a secure manner and the coordinator of elections and administrator of elections shall have access to the form and to the residence address contained in the form.
(c) The coordinator of elections and administrator of elections shall record the program participant's program participant identification number in a separate voter registration database with the participant's name, residence address, and precinct. This list shall be confidential. Only the participant identification number shall be included in the statewide official voter registration list, which contains all active and inactive voters.
(d) The coordinator of elections and administrator of elections shall, as appropriate, direct that the program participant's name, address, and precinct information, as well as any other contact information, be removed from the program participant's voter registration record, voter registration databases, and the official registration list, as well as any pollbook, poll list, or signature pollbook in which it appears and from any publicly available registration list in which it appears.
(e) If the program participant is registered to vote in another state, the coordinator of elections or administrator of elections shall notify the appropriate authority in that state to cancel the program participant's voter registration.
(f) The coordinator of elections shall inform the program participant:
1. (1) That the program participant is being placed on the absentee list pursuant to § 40-38-602;
2. (2) That if the program participant wishes to vote in an election and keep their residence address confidential, the program participant shall cast an absentee ballot by mail;
3. (3) Of the procedure for the program participant to cast an absentee ballot;
4. (4) That appearing in person will reveal the program participant's precinct and residence address to precinct election officials and employees of the election commission and may reveal the program participant's precinct or residence address to members of the public; and
5. (5) That if the program participant appears in person, the individual must cast a provisional ballot.
(g) If the program participant submits an absentee ballot, such ballot shall be processed by the administrator of elections in order to ensure the highest level of confidentiality and protection of the voting process.
(h) All applicable voter registration and absentee deadlines shall apply. The coordinator of elections may establish procedures for the submission and processing of absentee ballots for such participants in accordance with this part and other applicable law.
(i) Program participants will be exempt from selection for state and municipal jury duty.

History (1)

Acts 2018, ch. 1004, § 1.

§ 40-38-608. Cancellation of program participant's certification — Notice of cancellation — Request to withdraw from program — Responsibility to notify others that substitute address is no longer valid.

(a) The secretary of state shall cancel the certification of a program participant if any of the following are true:
1. (1) The program participant's application contained one or more false statements;
2. (2) The program participant failed to relocate to a new address or failed to provide documentary evidence of the new residence address to the secretary of state, in the form and manner prescribed by the secretary of state, within ninety (90) days from the date of application, unless the secretary of state determines that the program participant is currently residing at a shelter, as defined by § 71-6-202, or a similar facility;
3. (3) The program participant obtains a name change, unless the program participant provides the secretary of state with documentation of a legal name change within ten (10) business days of the name change;
4. (4) The program participant's certification has expired and the program participant has not renewed the certification in accordance with § 40-38-605;
5. (5) The program participant is found by the secretary of state, after proper notice, to be unreachable for a period of twenty (20) days or more, as defined by rules promulgated by the secretary of state;
6. (6) The secretary of state becomes aware that circumstances have changed such that the participant no longer meets the criteria set forth under this part that would allow participation in the program;
7. (7) The participant submits to the secretary of state a written, notarized request to cease being a program participant on a form prescribed by the secretary of state;
8. (8) The program participant, who applied to participate in the program as a co-applicant, no longer has a legal spousal, parental, or fiduciary relationship that would qualify them to participate in the program as a co-applicant; or
9. (9) The program participant, who applied to participate in the program as a co-applicant, no longer resides at the same residence as the applicant with whom the co-applicant applied.
(b) The secretary of state shall send notice of certification cancellation to the program participant setting out the reasons for cancellation. The program participant has the right to appeal the cancellation and request, within thirty (30) days from the date of the notice of cancellation, a contested case hearing before an administrative law judge, in accordance with rules promulgated by the secretary of state and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(c) A program participant may request to withdraw the program participant's participation in the program by submitting a written, notarized request, on a form prescribed by the secretary of state that includes all of the following:
1. (1) The person's program participant identification number;
2. (2) A statement that the participant wishes to cease being a program participant;
3. (3) An acknowledgement that by withdrawing their participation, the person's address will no longer be kept confidential, the secretary of state will no longer accept or process mail received on the person's behalf, and the person's voter registration will no longer be kept confidential; and
4. (4) A statement that the administrator of elections will either:
  1. (A) Treat the person's existing voter registration form in the same manner as other voter registration forms; or
  2. (B) Purge the participant's voter registration.
(d) If an individual ceases to be a program participant, by reason of either cancellation or withdrawal, it shall be the responsibility of the individual to notify persons and entities that use the substitute address that the substitute address is no longer valid.

History (3)

Acts 2018, ch. 1004, § 1
2020, ch. 577, §§ 4, 5
2021, ch. 140, § 10.

§ 40-38-609. Disclosure of substitute address or other information by secretary of state — Requests for disclosure.

(a) Except as otherwise provided by this part, the secretary of state shall not disclose the confidential address or any other information contained within a program participant's file, other than the substitute address designated by the secretary of state, except under the following circumstances:
1. (1) If directed by a court order signed by a judge of a court of competent jurisdiction;
2. (2) Upon written request, on a form prepared by the secretary of state, by the chief law enforcement officer of a county or municipality, or an authorized representative of the Tennessee bureau of investigation, Tennessee highway patrol, or a federal law enforcement agency, if related to an ongoing official investigation; or
3. (3) Upon written request, on a form prepared by the secretary of state, by a director of a state or federal agency, if the secretary of state determines that there exists a bona fide legal or administrative requirement of the use of the program participant's confidential address such that the director is unable to fulfill legal duties and obligations without the confidential address.
(b) Upon written request by the director of a state or federal agency, the chief law enforcement officer of a county or municipality, or an authorized representative of the Tennessee bureau of investigation, Tennessee highway patrol, or a federal law enforcement agency who intends to request access to an individual's confidential address under this section, or any other information contained within a program participant's file, the secretary of state shall confirm whether the individual is a program participant but shall not disclose any additional information concerning the program participant until such time as a written request for disclosure as described in this section is granted. Subject to subsections (d) and (e), a determination regarding such a written request shall be made by the secretary within three (3) business days following receipt of a completed request for disclosure.
(c) When making a request for the disclosure of the program participant's confidential address, or any other information contained within a program participant's file, whether before a court of law or by written request to the secretary of state, the party or parties requesting the disclosure must show by clear and convincing evidence that the disclosure of the confidential address or other records is necessary for a legitimate governmental purpose that cannot otherwise be accomplished and which outweighs the risk of harm to the program participant.
(d) Written requests for disclosure of the program participant's confidential address, or any other information contained within a program participant's file, shall be submitted to the office of the secretary of state, on a form prescribed by the secretary of state, for consideration by the secretary or the secretary's designee. Except for a request from a law enforcement agency under subdivision (a)(2), the secretary shall provide the program participant with notice of the requested disclosure and an opportunity to respond in writing to the request stating any objections to the disclosure. The secretary shall issue a determination in writing, which shall be provided to both the requesting party and the program participant, setting out the information that is to be disclosed and the reason for the disclosure.
(e) Any party may, within ten (10) business days of the date of the secretary's decision, appeal the secretary's decision by filing with the office of the secretary of state a written request for a contested case hearing before an administrative law judge under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, on a form prescribed by the secretary of state. The program participant, or the program participant's parent or fiduciary if applicable, shall have an opportunity to present evidence at the contested case hearing regarding the potential harm to the safety of the program participant if the program participant's confidential address, or any other information contained in the program participant's file, is disclosed. If no request for appeal is filed within ten (10) business days of the secretary's decision, then the secretary's decision shall be implemented according to its terms.
(f) Disclosure of a participant's confidential address, or any other information contained within a program participant's file, under this section shall be limited under the terms of the court's order or the secretary's determination to ensure that the disclosure and dissemination of the confidential address will be no greater than necessary for the specific purpose for which it was requested.
(g) Individuals granted access to the program participant's confidential information, whether by court order or by virtue of the individual's position as an employee of a governmental entity, are prohibited from knowingly disclosing such information to unauthorized individuals, except as otherwise required by law.
(h) No person shall knowingly obtain a program participant's confidential address or telephone number from any governmental agency knowing that the person is not authorized to obtain the address information.
(i) Nothing in this section shall be construed as to prevent the secretary of state from granting a request for disclosure to a state or local government agency pursuant to this part upon receipt of a program participant's written and notarized consent to do so.

History (1)

Acts 2018, ch. 1004, § 1.

§ 40-38-610. Unlawful acts.

(a) A person who falsely attests in an application that disclosure of the confidential address would endanger the safety of the applicant, or the minor or person with a disability on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application commits perjury.
(b) Any individual who knowingly discloses a program participant's confidential address, or any other confidential information belonging to a program participant, in violation of this part commits a Class A misdemeanor. Where the disclosure resulted in harm to the program participant, the resulting harm shall be considered an enhancement factor when determining any punishment imposed.
(c) Any individual who knowingly obtains a program participant's confidential address, or any other confidential information belonging to a program participant, in violation of this part, knowing that the individual is not authorized to obtain the information, commits a Class A misdemeanor. Where the disclosure resulted in harm to the program participant, the resulting harm shall be considered an enhancement factor when determining any punishment imposed.

History (1)

Acts 2018, ch. 1004, § 1.

§ 40-38-611. List of agencies that provide services to victims of domestic abuse or a sexual offense to assist persons applying to be program participants.

(a) The secretary of state shall establish a list of state and local agencies and nonprofit agencies that provide counseling and shelter services to victims of domestic abuse or a sexual offense to assist persons applying to be program participants.
(b) Notwithstanding any contrary law, a state, local, or nonprofit agency or application assistant that provides counseling, shelter, or any other services to a program participant shall not be required to disclose the confidential address or any other information concerning the program participant for any reason.
(c) The secretary of state is authorized to promulgate rules under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, pertaining to application assistants and shall provide training and certification as application assistants to representatives of state, local, and nonprofit agencies that provide counseling and shelter services to victims of domestic abuse or a sexual offense. The secretary of state may partner with nonprofit agencies, or other governmental agencies, to provide training or other services in connection with the program.
(d) Any assistance or counseling rendered to an applicant by the office of the secretary of state shall in no way be construed as legal advice.

History (1)

Acts 2018, ch. 1004, § 1.

§ 40-38-612. Effect of program participation on custody or visitation orders.

(a) Nothing in this part, including participation in the program created by this part, shall affect custody or visitation orders in effect prior to or during program participation.
(b) Program participation does not constitute evidence of domestic abuse, stalking, human trafficking, or any sexual offense and shall not be considered for purposes of making an order allocating parental responsibilities or parenting time, except that a court may consider practical measures to keep a program participant's confidential address confidential when making an order allocating parental responsibilities or parenting time.

History (1)

Acts 2018, ch. 1004, § 1.

§ 40-38-613. Effect of negligent disclosure of program participant's confidential address — Notification of disclosure.

(a) No actionable duty or any right of action shall accrue against the state, a county, a municipality, an agency of the state or county or municipality, or an employee of the state or county or municipality in the event of negligent disclosure of a program participant's confidential address.
(b) In the event that the state, a county, a municipality, an agency of the state or county or municipality, or an employee of the state or county or municipality negligently or otherwise unlawfully discloses the program participant's confidential address, such entity must immediately upon learning of the disclosure notify the program participant of the disclosure and the full extent of the disclosure.

History (1)

Acts 2018, ch. 1004, § 1.

Chapter 39 Offender Registration and Monitoring

Part 1 Tennessee Animal Abuser Registration Act

§ 40-39-101. Short title.

This part shall be known and may be cited as the “Tennessee Animal Abuser Registration Act.”

History (1)

Acts 2015, ch. 413, § 1.

§ 40-39-102. Part definitions.

As used in this part:
1. (1) “Abuser” or “animal abuser” means a person who has been convicted in this state of committing an animal abuse offense;
2. (2) “Animal” means a companion animal, and a “non-livestock animal”, as defined in § 39-14-201. “Animal” does not mean “livestock”, as defined in § 39-14-201, or “wildlife”, as defined in § 70-1-101;
3. (3) “Animal abuse offense” means:
  1. (A) Aggravated cruelty to animals, under § 39-14-212;
  2. (B) Animal fighting, under § 39-14-203, where the defendant's act constitutes a felony; and
  3. (C) A criminal offense against animals, under § 39-14-214;
4. (4) “Companion animal” means any dog, defined as any live dog of the species Canis familiaris, or cat, defined as any live cat of the species Felis catus;
5. (5) “Conviction” means a judgment entered by a Tennessee court upon a plea of guilty, a plea of nolo contendere, or a finding of guilt by a jury or the court, notwithstanding any pending appeal or habeas corpus proceeding arising from the judgment. Conviction includes a disposition of pretrial diversion under § 40-15-105, a disposition of judicial diversion under § 40-35-313, or the equivalent dispositions from other jurisdictions;
6. (6) “Director” means the director of the TBI; and
7. (7) “TBI” means the Tennessee bureau of investigation.

History (1)

Acts 2015, ch. 413, § 1.

§ 40-39-103. Publication of list of persons convicted of animal abuse on TBI website — Length of time name maintained on list — Removal of name.

(a) Beginning January 1, 2016, the TBI shall post a publicly accessible list on its website of any person convicted of an animal abuse offense on and after that date.
(b)
1. (1) The list shall include a photograph taken of the convicted animal abuser as part of the booking process, the animal abuser's full legal name, and other identifying data as the TBI determines is necessary to properly identify the animal abuser and to exclude innocent persons.
2. (2) The list shall not include the abuser's social security number, driver license number, or any other state or federal identification number.
(c) The court clerks shall forward a copy of the judgment and date of birth of all persons convicted of an animal abuse offense to the TBI within sixty (60) calendar days of the date of judgment.
(d)
1. (1) Upon a person's first conviction for an animal abuse offense, the TBI shall maintain the person's name and other identifying information, described in subsection (b), on the list published under subsection (a) for two (2) years following the date of conviction, after which time the TBI shall remove the person's name and identifying information from the list; provided, that the person is not convicted of another animal abuse offense during that two-year period.
2. (2) Upon a person's subsequent conviction for an animal abuse offense, the TBI shall maintain the person's name and other identifying information, described in subsection (b), on the list published under subsection (a) for five (5) years following the date of the most recent conviction, after which time the TBI shall remove the person's name and identifying information from the list; provided, that the person is not convicted of another animal abuse offense during that five-year period.
(e) The list shall remain on the TBI website for such time as determined by the director.
(f) The TBI shall remove the person's name and identifying information from the registry list if the sole offense for which the person is required to be subject to the mandates of the registry is expunged, pursuant to § 40-32-101.

Backlinks (1)

10-7-504(a)(4)(E)

History (1)

Acts 2015, ch. 413, § 1.

§ 40-39-104. Promulgation of rules.

The TBI may promulgate rules to effectuate the purposes of this part. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

History (1)

Acts 2015, ch. 413, § 1.

Part 2 Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004

§ 40-39-201. Short title — Legislative findings.

(a) This part shall be known as and may be cited as the “Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004.”
(b) The general assembly finds and declares that:
1. (1) Repeat sexual offenders, sexual offenders who use physical violence and sexual offenders who prey on children are violent sexual offenders who present an extreme threat to the public safety. Sexual offenders pose a high risk of engaging in further offenses after release from incarceration or commitment and protection of the public from these offenders is of paramount public interest;
2. (2) It is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses collected pursuant to this part, to allow members of the public to adequately protect themselves and their children from these persons;
3. (3) Persons convicted of these sexual offenses have a reduced expectation of privacy because of the public's interest in public safety;
4. (4) In balancing the sexual offender's and violent sexual offender's due process and other rights against the interests of public security, the general assembly finds that releasing information about offenders under the circumstances specified in this part will further the primary governmental interest of protecting vulnerable populations from potential harm;
5. (5) The registration of offenders, utilizing complete and accurate information, along with the public release of specified information concerning offenders, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems that deal with these offenders;
6. (6) To protect the safety and general welfare of the people of this state, it is necessary to provide for continued registration of offenders and for the public release of specified information regarding offenders. This policy of authorizing the release of necessary and relevant information about offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive;
7. (7) The offender is subject to specified terms and conditions that are implemented at sentencing or, at the time of release from incarceration, that require that those who are financially able must pay specified administrative costs to the appropriate registering agency, which shall retain one hundred dollars ($100) of the costs for the administration of this part and the investigation of sexual offenses, including the purchase of specialized equipment for use in the investigation of sexual offenses, and must be reserved for such purposes at the end of each fiscal year, with the remaining fifty dollars ($50.00) of fees to be remitted to the state treasury to be deposited into the general fund of the state; provided, that a juvenile offender required to register under this part shall not be required to pay the administrative fee until the offender reaches eighteen (18) years of age; and
8. (8) The general assembly also declares, however, that in making information about certain offenders available to the public, the general assembly does not intend that the information be used to inflict retribution or additional punishment on those offenders.

History (6)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2008, ch. 1164, § 1
2011, ch. 483, § 4
2020, ch. 668, § 3
2022, ch. 931, § 1.

§ 40-39-202. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Conviction” means a judgment entered by a Tennessee court upon a plea of guilty, a plea of nolo contendere, a finding of guilt by a jury or the court notwithstanding any pending appeal or habeas corpus proceeding arising from the judgment. “Conviction” includes, but is not limited to, a conviction by a federal court or military tribunal, including a court-martial conducted by the armed forces of the United States, and a conviction, whether upon a plea of guilty, a plea of nolo contendere or a finding of guilt by a jury or the court in any other state of the United States, other jurisdiction or other country. A conviction, whether upon a plea of guilty, a plea of nolo contendere or a finding of guilt by a jury or the court for an offense committed in another jurisdiction that would be classified as a sexual offense or a violent sexual offense if committed in this state shall be considered a conviction for the purposes of this part. An adjudication in another state for a delinquent act committed in another jurisdiction that would be classified as a violent juvenile sexual offense under this section, if committed in this state, shall be considered a violent juvenile sexual offense for the purposes of this part. “Convictions,” for the purposes of this part, also include a plea taken in conjunction with § 40-35-313 or its equivalent in any other jurisdiction. “Conviction” also includes a juvenile delinquency adjudication for a violent juvenile sexual offense if the offense occurs on or after July 1, 2011;
2. (2) “Designated law enforcement agency” means any law enforcement agency that has jurisdiction over the primary or secondary residence, place of physical presence, place of employment, school or institution of higher education where the student is enrolled or, for offenders on supervised probation or parole, the department of correction or court ordered probation officer;
3. (3) “Employed or practices a vocation” means any full-time or part-time employment in the state, with or without compensation, or employment that involves counseling, coaching, teaching, supervising, volunteering or working with minors in any way, regardless of the period of employment, whether the employment is financially compensated, volunteered or performed for the purpose of any government or education benefit;
4. (4) “Institution of higher education” means a public or private:
  1. (A) Community college;
  2. (B) College;
  3. (C) University; or
  4. (D) Independent postsecondary institution;
5. (5) “Law enforcement agency of any institution of higher education” means any campus law enforcement arrangement authorized by § 49-7-118;
6. (6) “Local law enforcement agency” means:
  1. (A) Within the territory of a municipality, the municipal police department;
  2. (B) Within the territory of a county having a metropolitan form of government, the metropolitan police department; or
  3. (C) Within the unincorporated territory of a county, the sheriff's office;
7. (7) “Minor” means any person under eighteen (18) years of age;
8. (8) “Month” means a calendar month;
9. (9) “Offender” means sexual offender, violent sexual offender and violent juvenile sexual offender, unless otherwise designated. An offender who qualifies both as a sexual offender and a violent sexual offender or as a violent juvenile sexual offender and as a violent sexual offender shall be considered a violent sexual offender;
10. (10) “Offender against children” means any sexual offender, violent sexual offender or violent juvenile sexual offender if the victim in one (1) or more of the offender's crimes was a child of twelve (12) years of age or less;
11. (11) “Parent” means any biological parent, adoptive parent or step-parent, and includes any legal or court-appointed guardian or custodian; however, “parent” shall not include step-parent if the offender's victim was a minor less than thirteen (13) years of age;
12. (12) “Primary residence” means a place where the person abides, lodges, resides or establishes any other living accommodations in this state for five (5) consecutive days;
13. (13) “Register” means the initial registration of an offender, or the re-registration of an offender after deletion or termination from the SOR;
14. (14) “Registering agency” means a sheriff's office, municipal police department, metropolitan police department, campus law enforcement agency, the Tennessee department of correction, a private contractor with the Tennessee department of correction or the board;
15. (15) “Relevant information deemed necessary to protect the public” means that information set forth in § 40-39-206(d)(1)-(15);
16. (16) “Report” means appearance before the proper designated law enforcement agency for any of the purposes set out in this part;
17. (17) “Resident” means any person who abides, lodges, resides or establishes any other living accommodations in this state, including establishing a physical presence in this state;
18. (18) “Secondary residence” means a place where the person abides, lodges, resides or establishes any other living accommodations in this state for a period of fourteen (14) or more days in the aggregate during any calendar year and that is not the person's primary residence; for a person whose primary residence is not in this state, a place where the person is employed, practices a vocation or is enrolled as a student for a period of fourteen (14) or more days in the aggregate during any calendar year; or a place where the person routinely abides, lodges or resides for a period of four (4) or more consecutive or nonconsecutive days in any month and that is not the person's primary residence, including any out-of-state address;
19. (19) “Sexual offender” means a person who has been convicted in this state of committing a sexual offense or has another qualifying conviction;
20. (20) “Sexual offense” means:
  1. (A) The commission of any act that, on or after November 1, 1989, constitutes the criminal offense of:
    1. (i) Sexual battery, under § 39-13-505;
    2. (ii) Statutory rape, under § 39-13-506, if the defendant has one (1) or more prior convictions for mitigated statutory rape under § 39-13-506(a), statutory rape under § 39-13-506(b) or aggravated statutory rape under § 39-13-506(c), or if the judge orders the person to register as a sexual offender pursuant to § 39-13-506(d);
    3. (iii) [Deleted by 2024 amendment.]
    4. (iv) Sexual exploitation of a minor, under § 39-17-1003;
    5. (v) False imprisonment where the victim is a minor, under § 39-13-302, except when committed by a parent of the minor;
    6. (vi) Kidnapping, where the victim is a minor, under § 39-13-303, except when committed by a parent of the minor;
    7. (vii) Indecent exposure, under § 39-13-511, upon a third or subsequent conviction;
    8. (viii) Solicitation of a minor, under § 39-13-528 when the offense is classified as a Class D felony, Class E felony or a misdemeanor;
    9. (ix) Spousal sexual battery, for those committing the offense prior to June 18, 2005, under former [former] § 39-13-507 [repealed];
    10. (x) Attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (20)(A);
    11. (xi) Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (20)(A);
    12. (xii) Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (20)(A);
    13. (xiii) Criminal responsibility, under § 39-11-402(2), to commit any of the offenses enumerated in this subdivision (20)(A);
    14. (xiv) Facilitating the commission, under § 39-11-403, to commit any of the offenses enumerated in this subdivision (20)(A);
    15. (xv) Being an accessory after the fact, under § 39-11-411, to commit any of the offenses enumerated in this subdivision (20)(A);
    16. (xvi) Aggravated statutory rape, under § 39-13-506(c);
    17. (xvii) Soliciting sexual exploitation of a minor — exploitation of a minor by electronic means, under § 39-13-529;
    18. (xviii) Promotion of prostitution, under § 39-13-515;
    19. (xix) Patronizing prostitution where the victim is a minor, under § 39-13-514;
    20. (xx) Observation without consent, under § 39-13-607, upon a third or subsequent conviction;
    21. (xxi) Observation without consent, under § 39-13-607 when the offense is classified as a Class E felony;
    22. (xxii) Unlawful photographing under § 39-13-605 when the offense is classified as a Class E or Class D felony;
    23. (xxiii) Sexual contact with inmates, under § 39-16-408;
    24. (xxiv) Unlawful photographing, under § 39-13-605, when convicted as a misdemeanor if the judge orders the person to register as a sexual offender pursuant to § 39-13-605;
    25. (xxv) Aggravated unlawful photography, under § 39-13-611; or
    26. (xxvi) Sexual abuse of a corpse, under § 39-17-312(a)(4);
  2. (B) The commission of any act, that prior to November 1, 1989, constituted the criminal offense of:
    1. (i) Sexual battery, under [former] § 39-2-607 [repealed];
    2. (ii) Statutory rape, under [former] § 39-2-605 [repealed], only if the facts of the conviction satisfy the definition of aggravated statutory rape;
    3. (iii) Assault with intent to commit rape or attempt to commit sexual battery, under [former] § 39-2-608 [repealed];
    4. (iv) Incest, under [former] § 39-4-306 [repealed];
    5. (v) Use of a minor for obscene purposes, under [former] § 39-6-1137 [repealed];
    6. (vi) Promotion of performance including sexual conduct by a minor, under [former] § 39-6-1138 [repealed];
    7. (vii) Criminal sexual conduct in the first degree, under [former] § 39-3703 [repealed];
    8. (viii) Criminal sexual conduct in the second degree, under [former] § 39-3704 [repealed];
    9. (ix) Criminal sexual conduct in the third degree, under [former] § 39-3705 [repealed];
    10. (x) Kidnapping where the victim is a minor, under [former] § 39-2-303 [repealed], except when committed by a parent of the minor;
    11. (xi) Solicitation, under [former] § 39-1-401 [repealed] or [former] § 39-118(b) [repealed], to commit any of the offenses enumerated in this subdivision (20)(B);
    12. (xii) Attempt, under § [former] 39-1-501 [repealed], [former] § 39-605 [repealed], or [former] § 39-606 [repealed], to commit any of the offenses enumerated in this subdivision (20)(B);
    13. (xiii) Conspiracy, under [former] § 39-1-601 [repealed] or [former] § 39-1104 [repealed], to commit any of the offenses enumerated in this subdivision (20)(B); or
    14. (xiv) Accessory before or after the fact, or aider and abettor, under title 39, chapter 1, part 3 [repealed], to any of the offenses enumerated in this subdivision (20)(B);
  Backlinks (2)
  
  40-39-207(j)(2)
  40-39-301(2)
21. (21) “Social media” means websites and other online means of communication that are usually used by large groups of people to share information, to develop social and professional contacts, and that customarily require an identifying password and user identification to participate;
22. (22) “SOR” means the TBI's centralized record system of offender registration, verification and tracking information;
23. (23) “Student” means a person who is enrolled on a full-time or part-time basis in any public or private educational institution, including any secondary school, trade or professional institution or institution of higher learning;
24. (24) “TBI” means the Tennessee bureau of investigation;
25. (25) “TBI registration form” means the Tennessee sexual offender registration, verification and tracking form;
26. (26) “TDOC” means the Tennessee department of correction;
27. (27) “TIES” means the Tennessee information enforcement system;
28. (28)
  1. (A) “Violent juvenile sexual offender” means a person who is adjudicated delinquent in this state for any act that constitutes a violent juvenile sexual offense; provided, that the person is at least fourteen (14) years of age but less than eighteen (18) years of age at the time the act is committed;
  2. (B) Upon an adjudication of delinquency in this state for an act that constitutes a violent juvenile sexual offense, the violent juvenile sexual offender shall also be considered a violent sexual offender under this part, unless otherwise set out in this part;
29. (29)
  1. (A) “Violent juvenile sexual offense” means an adjudication of delinquency, for any act committed on or after July 1, 2011, that, if committed by an adult, constitutes the criminal offense of:
    1. (i) Aggravated rape, under § 39-13-502;
    2. (ii) Rape, under § 39-13-503;
    3. (iii) Rape of a child, under § 39-13-522, if:
      1. (a) The victim is at least four (4) years younger than the offender; or
      2. (b) For acts occurring on or after July 1, 2024, the victim is less than four (4) years younger than the offender, and the judge, taking into account the facts and circumstances surrounding the delinquent act, orders that the juvenile be required to register as a violent juvenile sexual offender;
    4. (iv) Aggravated rape of a child, under § 39-13-531; or
    5. (v) Criminal attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (29)(A);
  2. (B) “Violent juvenile sexual offense” also means an adjudication of delinquency, for any act committed on or after July 1, 2014, that, if committed by an adult, constitutes the criminal offense of:
    1. (i) Aggravated sexual battery, under § 39-13-504;
    2. (ii) Criminal attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (29)(B);
  Backlinks (2)
  
  40-39-203(q)
  40-39-207(j)(1)
30. (30) “Violent sexual offender” means a person who has been convicted in this state of committing a violent sexual offense or has another qualifying conviction;
31. (31) “Violent sexual offense” means the commission of any act that constitutes the criminal offense of:
  1. (A) Aggravated rape, under [former] § 39-2-603 [repealed] or § 39-13-502;
  2. (B) Rape, under [former] § 39-2-604 [repealed] or § 39-13-503;
  3. (C) Aggravated sexual battery, under [former] § 39-2-606 [repealed] or § 39-13-504;
  4. (D) Rape of a child, under § 39-13-522;
  5. (E) Attempt to commit rape, under [former] § 39-2-608 [repealed];
  6. (F) Aggravated sexual exploitation of a minor, under § 39-17-1004;
  7. (G) Especially aggravated sexual exploitation of a minor under § 39-17-1005;
  8. (H) Aggravated kidnapping where the victim is a minor, under § 39-13-304, except when committed by a parent of the minor;
  9. (I) Especially aggravated kidnapping where the victim is a minor, under § 39-13-305, except when committed by a parent of the minor;
  10. (J) Sexual battery by an authority figure, under § 39-13-527;
  11. (K) Solicitation of a minor, under § 39-13-528 when the offense is classified as a Class B or Class C felony;
  12. (L) Spousal rape, under [former] § 39-13-507(b)(1) [repealed];
  13. (M) Aggravated spousal rape, under [former] § 39-13-507(c)(1) [repealed];
  14. (N) [Deleted by 2023 amendment.]
  15. (O) Statutory rape by an authority figure, under § 39-13-532;
  16. (P) Criminal attempt, under § 39-12-101, [former] § 39-12-501 [repealed], [former] § 39-605 [repealed], or [former] § 39-606 [repealed], to commit any of the offenses enumerated in this subdivision (31);
  17. (Q) Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (31);
  18. (R) Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (31);
  19. (S) Criminal responsibility, under § 39-11-402(2), to commit any of the offenses enumerated in this subdivision (31);
  20. (T) Facilitating the commission, under § 39-11-403, to commit any of the offenses enumerated in this subdivision (31);
  21. (U) Being an accessory after the fact, under § 39-11-411, to commit any of the offenses enumerated in this subdivision (31);
  22. (V) Incest, under § 39-15-302;
  23. (W) Aggravated rape of a child under § 39-13-531;
  24. (X) [Deleted by 2024 amendment.]
  25. (Y) Trafficking for a commercial sex act, under § 39-13-309;
  26. (Z) Promotion of prostitution, under § 39-13-515, where the person has a prior conviction for promotion of prostitution; or
  27. (AA) Continuous sexual abuse of a child, under § 39-13-518; and
  Backlinks (1)
  
  40-39-207(j)(2)
32. (32) “Within forty-eight (48) hours” means a continuous forty-eight-hour period, not including Saturdays, Sundays or federal or state holidays.

History (29)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2006, ch. 890, §§ 6-9
2007, ch. 262, §§ 1, 2
2007, ch. 465, §§ 1, 4
2007, ch. 594, § 6
2008, ch. 714, § 1
2008, ch. 1164, § 2
2010, ch. 1138, §§ 1-5
2011, ch. 483, §§ 5-9
2012, ch. 727, §§ 47, 60
2012, ch. 753, §§ 1, 2
2012, ch. 883, § 2
2012, ch. 1075, § 4
2014, ch. 722, § 1
2014, ch. 729, § 1
2014, ch. 744, § 1
2014, ch. 770, §§ 1, 5, 6
2014, ch. 977, § 3
2015, ch. 284, § 1
2015, ch. 316, § 1
2015, ch. 516, § 6
2016, ch. 941, § 2
2018, ch. 719, § 1
2019, ch. 437, § 2
2021, ch. 402, § 3
2023, ch. 459, § 1
2024, ch. 545, §§ 2, 3
2024, ch. 888, § 1.

§ 40-39-203. Offender registration — Registration forms — Contents.

(a)
1. (1) Within forty-eight (48) hours of establishing or changing a primary or secondary residence, establishing a physical presence at a particular location, becoming employed or practicing a vocation or becoming a student in this state, the offender shall register or report in person, as required by this part. Likewise, within forty-eight (48) hours of release on probation or any alternative to incarceration, excluding parole, the offender shall register or report in person, as required by this part.
2. (2) Regardless of an offender's date of conviction, adjudication or discharge from supervision, an offender whose contact with this state is sufficient to satisfy the requirements of subdivision (a)(1) is required to register in person as required by this part, if the person was required to register as any form of sexual offender, juvenile offender or otherwise, in another jurisdiction prior to the offender's presence in this state.
3. (3) An offender who resides and is registered in this state and who intends to move out of this state shall, within forty-eight (48) hours after moving to another state or within forty-eight (48) hours of becoming reasonably certain of the intention to move to another state, register or report to the offender's designated law enforcement agency the address at which the offender will reside in the new jurisdiction.
4. (4) Within forty-eight (48) hours of a change in any other information given to the registering agency by the offender that is contained on the registration form, the offender must report the change to the registering agency.
5. (5) Within forty-eight (48) hours of being released from probation or parole, an offender must report to the proper law enforcement agency, which shall then become the registering agency and take over registry duties from the department of correction.
6. (6) Within forty-eight (48) hours of a material change in employment or vocation status, the offender shall report the change to the person's registering agency. For purposes of this subdivision (a)(6), “a material change in employment or vocational status” includes being terminated involuntarily from the offender's employment or vocation, voluntarily terminating the employment or vocation, taking different employment or the same employment at a different location, changing shifts or substantially changing the offender's hours of work at the same employment or vocation, taking additional employment, reducing the offender's employment or any other change in the offender's employment or vocation that differs from that which the offender originally registered. For a change in employment or vocational status to be considered a material one, it must remain in effect for five (5) consecutive days or more.
7. (7) Within three (3) days, excluding holidays, of an offender changing the offender's electronic mail address information, any instant message, chat or other internet communication name or identity information that the person uses or intends to use, whether within or without this state, the offender shall report the change to the offender's designated law enforcement agency.
(b)
1. (1) An offender who is incarcerated in this state in a local, state or federal jail or a private penal institution shall, within forty-eight (48) hours prior to the offender's release, register or report in person, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), as follows:
  1. (A) If incarcerated in a state, federal or private penal facility, with the warden or the warden's designee; or
  2. (B) If incarcerated in a local jail, with the sheriff or the sheriff's designee.
  Backlinks (1)
  
  40-39-204(b)(2)
2. (2) After registering or reporting with the incarcerating facility as provided in subdivision (b)(1), an offender who is incarcerated in this state in a local, state or federal jail or a private penal institution shall, within forty-eight (48) hours after the offender's release from the incarcerating institution, report in person to the offender's registering agency, unless the place of incarceration is also the person's registering agency.
3. (3) Notwithstanding subdivisions (b)(1) and (2), an offender who is incarcerated in this state in a local, state or federal jail or a private penal institution and who has not registered pursuant to § 40-39-212(a) or any other law shall, by August 1, 2011, be required to report in person, register, complete and sign a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), as follows:
  1. (A) If incarcerated in a state, federal or private penal facility, with the warden or the warden's designee; or
  2. (B) If incarcerated in a local jail, with the sheriff or the sheriff's designee.
(c) An offender from another state, jurisdiction or country who has established a primary or secondary residence within this state or has established a physical presence at a particular location shall, within forty-eight (48) hours of establishing residency or a physical presence, register or report in person with the designated law enforcement agency, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3).
(d)
1. (1) An offender from another state, jurisdiction or country who is not a resident of this state shall, within forty-eight (48) hours of employment, commencing practice of a vocation or becoming a student in this state, register or report in person, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), with:
  1. (A) The sheriff in the county or the chief of police in the municipality within this state where the offender is employed or practices a vocation; or
  2. (B) The law enforcement agency or any institution of higher education, or if not applicable, the designated law enforcement agency with jurisdiction over the campus, if the offender is employed or practices a vocation or is a student.
2. (2) Within forty-eight (48) hours of an offender from another state, jurisdiction or country who is not a resident of this state making a material change in the offender's vocational or employment or vocational status within this state, the offender shall report the change to the person's registering agency. For purposes of this subdivision (d)(2), “a material change in employment or vocational status” includes being terminated involuntarily from the offender's employment or vocation, voluntarily terminating the employment or vocation, taking different employment or the same employment at a different location, changing shifts or substantially changing the offender's hours of work at the same employment or vocation, taking additional employment, reducing the offender's employment or any other change in the offender's employment or vocation that differs from that which the offender originally registered. For a change in employment or vocational status to be considered a material one, it must remain in effect for five (5) consecutive days or more.
(e) An offender from another state, jurisdiction or country who becomes a resident of this state, pursuant to the Interstate Compact for Supervision of Adult Offenders, compiled in title 40, chapter 28, part 4, shall, within forty-eight (48) hours of entering the state, register or report in person with the board, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3), in addition to the requirements of title 40, chapter 28, part 4 and the specialized conditions for sex offenders from the board.
(f) Offenders who do not maintain either a primary or secondary residence, as defined in this part, shall be considered homeless and are subject to the registration requirements of this part. Offenders who do not maintain either a primary or secondary residence shall be required to report to their registering agency monthly for so long as they do not maintain either a primary or secondary residence.
(g) Offenders who were previously required to register or report under former title 40, chapter 39, part 1 [repealed], shall register or report in person with the designated law enforcement agency by August 31, 2005. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from this requirement, as otherwise provided by this part.
(h) An offender who indicates to a designated law enforcement agency on the TBI registration form the offender's intent to reside in another state, jurisdiction or country and who then decides to remain in this state shall, within forty-eight (48) hours of the decision to remain in the state, report in person to the designated law enforcement agency and update all information pursuant to subsection (i).
(i) TBI registration forms shall require the registrant's signature and disclosure of the following information, under penalty of perjury, pursuant to § 39-16-702(b)(3):
1. (1) Complete name and all aliases, including, but not limited to, any names that the offender may have had or currently has by reason of marriage or otherwise, including pseudonyms and ethnic or tribal names;
2. (2) Date and place of birth;
3. (3) Social security number;
4. (4) A photocopy of a valid driver license, or if no valid driver license has been issued to the offender, a photocopy of any state or federal government issued identification card;
5. (5) For an offender on supervised release, the name, address and telephone number of the registrant's probation or parole officer or other person responsible for the registrant's supervision;
6. (6) Sexual offenses or violent sexual offenses for which the registrant has been convicted, the date of the offenses and the county and state of each conviction; or the violent juvenile sexual offense for which the registrant has been adjudicated delinquent, the date of the act for which the adjudication was made and the county and state of each adjudication;
7. (7) Name of any current employers and length of employment, including physical addresses and phone numbers;
8. (8) Current physical address and length of residence at that address, which shall include any primary or secondary residences. For the purpose of this section, a post office box number shall not be considered an address;
9. (9) Mailing address, if different from physical address;
10. (10) Any vehicle, mobile home, trailer or manufactured home used or owned by an offender, including descriptions, vehicle information numbers and license tag numbers;
11. (11) Any vessel, live-aboard vessel or houseboat used by an offender, including the name of the vessel, description and all identifying numbers;
12. (12) Name and address of each institution of higher education in this state where the offender is employed or practices a vocation or is a student;
13. (13) Race and gender;
14. (14) Name, address and phone number of offender's closest living relative;
15. (15) Whether victims of the offender's convictions are minors or adults, the number of victims and the correct age of the victim or victims and of the offender at the time of the offense or offenses, if the ages are known;
16. (16) Verification by the TBI or the offender that the TBI has received the offender's DNA sample;
17. (17) A complete listing of the offender's electronic mail address information, including usernames, any social media accounts the offender uses or intends to use, instant message, other internet communication platforms or devices, and the offender's username, screen name, or other method by which the offender accesses these accounts or websites;
18. (18) Whether any minors reside in the primary or secondary residence;
19. (19)
  1. (A) Any other registration, verification and tracking information, including fingerprints and a current photograph of the offender, vehicles and vessels, as referred to in subdivisions (i)(10) and (i)(11), as may be required by rules promulgated by the TBI, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
  2. (B) By January 1, 2007, the TBI shall promulgate and disseminate to all applicable law enforcement agencies, correctional institutions and any other agency that may be called upon to register an offender, rules establishing standardized specifications for the photograph of the offender required by subdivision (i)(19)(A). The rules shall specify that the photograph or digital image submitted for each offender must conform to the following compositional specifications or the entry will not be accepted for use on the registry and the agency will be required to resubmit the photograph:
    1. (i) Head Position:
      1. (a) The person being photographed must directly face the camera;
      2. (b) The head of the person should not be tilted up, down or to the side; and
      3. (c) The head of the person should cover about fifty percent (50%) of the area of the photo;
    2. (ii) Background:
      1. (a) The person being photographed should be in front of a neutral, light-colored background; and
      2. (b) Dark or patterned backgrounds are not acceptable;
    3. (iii) The photograph must be in focus;
    4. (iv) Photos in which the person being photographed is wearing sunglasses or other items that detract from the face are not permitted; and
    5. (v) Head Coverings and Hats:
      1. (a) Photographs of applicants wearing head coverings or hats are only acceptable due to religious beliefs, and even then, may not obscure any portion of the face of the applicant; and
      2. (b) Photos of applicants with tribal or other headgear not specifically religious in nature are not permitted;
20. (20) Copies of all passports and immigration documents; and
21. (21) Professional licensing information that authorizes an offender to engage in an occupation or carry out a trade or business.
Backlinks (3)
(j)
1. (1) Notwithstanding the registration deadlines otherwise established by this section, any person convicted of a sexual offense or violent sexual offense in this state or who has another qualifying conviction as defined in § 40-39-202, but who is not required to register for the reasons set out in subdivision (j)(2), shall have until August 1, 2007, to register as a sexual offender or violent sexual offender in this state.
2. (2) Subdivision (j)(1) shall apply to offenders:
  1. (A) Whose convictions for a sexual offense or violent sexual offense occurred prior to January 1, 1995;
  2. (B) Who were not on probation, parole or any other alternative to incarceration for a sexual offense or prior sexual offense on or after January 1, 1995;
  3. (C) Who were discharged from probation, parole or any other alternative to incarceration for a sexual offense or violent sexual offense prior to January 1, 1995; or
  4. (D) Who were discharged from incarceration without supervision for a sexual offense or violent sexual offense prior to January 1, 1995.
(k) No later than the third day after an offender's initial registration, the registration agency shall send by the United States postal service or by electronic means the original signed TBI registration form containing information required by subsection (i) to TBI headquarters in Nashville.
(l) The offender's signature on the TBI registration form creates the presumption that the offender has knowledge of the registration, verification and tracking requirements of this part.
(m) Registry information regarding all registered offender's electronic mail address information, any instant message, chat or other internet communication name or identity information may be electronically transmitted by the TBI to a business or organization that offers electronic communication or remote computing services for the purpose of prescreening users or for comparison with information held by the requesting business or organization. In order to obtain the information from the TBI, the requesting business or organization that offers electronic communication or remote computing services shall agree to notify the TBI forthwith when a comparison indicates that any such registered sex offender's electronic mail address information, any instant message, chat or other internet communication name or identity information is being used on their system. The requesting business or organization shall also agree that the information will not be further disseminated.
(n) If the offender's DNA sample has not already been collected pursuant to § 40-35-321 or any other law and received by the TBI, the offender's DNA sample shall be taken by the registering agency at the time the offender registers or at the offender's next scheduled registration or reporting and sent to the TBI.
(o) An offender who registers or reports as required by this section prior to July 1, 2008, shall provide the additional information on the registration form required by this section at the offender's next scheduled registration or reporting date.
(p) An offender who is housed in a halfway house or any other facility as an alternative to incarceration where unsupervised contact is permitted outside of the facility is required to register or report with the registering agency as set out in § 40-39-204 in the city or county of the facility in which the offender is housed. The registering agency shall be responsible for the duties set out in § 40-39-205(b) during the time that the offender is housed in the facility.
(q) Any court exercising juvenile jurisdiction that adjudicates a juvenile as delinquent for conduct that qualifies such juvenile as a violent juvenile sexual offender shall transmit the information set out in subsection (i) pertaining to such violent juvenile sexual offender to the TBI for inclusion on the SOR within forty-eight (48) hours of the offender's adjudication for the qualifying offenses set out in § 40-39-202(29).

Backlinks (1)

40-39-206(d)

History (13)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2006, ch. 890, §§ 10-14
2007, ch. 126, § 1
2007, ch. 465, §§ 2, 3
2008, ch. 979, §§ 1-3
2008, ch. 1164, § 3
2010, ch. 1138, §§ 6, 7
2011, ch. 222, § 1
2011, ch. 267, § 1
2011, ch. 483, §§ 10-12
2012, ch. 727, § 48
2015, ch. 516, §§ 3, 7.

§ 40-39-204. Entering required data on SOR for verification, identification, and enforcement — Reporting to update information or registration form — Administrative costs — TBI as central repository — Tolling of registration requirements — Exemptions.

(a) The TBI shall maintain and make available a connection to the SOR for all criminal justice agencies with TIES internet capabilities, by which registering agencies shall enter original, current and accurate data required by this part. The TBI shall provide viewing and limited write access directly to the SOR through the TIES internet to registering agencies for the entry of record verification data, changes of residence, employment or other pertinent data required by this part and to assist in offender identification. Registering agencies should immediately, but in no case to exceed twelve (12) hours from registration, enter all data received from the offender as required by the TBI and § 40-39-203(i), into the TIES internet for the enforcement of this part by TBI, designated law enforcement agencies, TDOC, and private contractors with TDOC.
(b)
1. (1) Violent sexual offenders shall report in person during the months of March, June, September, and December of each calendar year, to the designated law enforcement agency, on a date established by such agency, to update the offender's fingerprints, palm prints and photograph, as determined necessary by the agency, and to verify the continued accuracy of the information in the TBI registration form. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from the in-person reporting and fingerprinting, as otherwise provided by this part. At the time of the violent offender's initial registration or initial reporting date for the calendar year, the violent sexual offender shall pay the specified administrative costs, not to exceed one hundred fifty dollars ($150), one hundred dollars ($100) of which shall be retained by the designated law enforcement agency to be used for the purchase of equipment, to defray personnel and maintenance costs and any other expenses incurred as a result of the implementation of this part. The remaining fifty dollars ($50.00) shall be remitted by the registering agency to the state treasury to be deposited into the general fund of the state. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from paying the administrative cost as otherwise provided by this part.
2. (2) At least once during the months of March, June, September, and December of each calendar year, all violent juvenile sexual offenders shall report in person to the offender's registering agency to update the offender's fingerprints, palm prints and photograph, as determined necessary by the agency, and to verify the continued accuracy of the information transmitted to the TBI by the registering agency as defined in § 40-39-202. Offenders in custody shall register as set out in § 40-39-203(b)(1).
Backlinks (1)
- 40-39-217(a)(2)
(c) Once a year, all sexual offenders shall report in person, no earlier than seven (7) calendar days before and no later than seven (7) calendar days after the offender's date of birth, to the designated law enforcement agency to update the offender's fingerprints, palm prints and photograph, as determined necessary by the agency, to verify the continued accuracy of the information in the TBI registration form and to pay the specified administrative costs, not to exceed one hundred fifty dollars ($150), one hundred dollars ($100) of which shall be retained by the designated law enforcement agency to be used for the purchase of equipment, to defray personnel and maintenance costs and any other expenses incurred as a result of the implementation of this part. The remaining fifty dollars ($50.00) shall be submitted by the registering agency to the state treasury to be deposited in the general fund of the state. Offenders whose initial registration occurs after the annual reporting period shall be required to pay the administrative costs at the time of the initial registration. Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities are exempt from the in-person reporting and fingerprinting and administrative cost as otherwise provided by this part. However, if an offender is released or discharged from a nursing home, assisted living facility or mental health institution or is no longer continuously confined to home or a health care facility due to mental or physical disabilities, the offender shall, within forty-eight (48) hours, register in person with the designated law enforcement agency, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3). If the offender has previously registered prior to the release or discharge, the offender shall, within forty-eight (48) hours, report in person to the designated law enforcement agency and update all information pursuant to this section.
(d) Within three (3) days after the offender's verification, the designated law enforcement agency with whom the offender verified shall send by United States postal service or by electronic means the original signed TBI registration form containing information required by § 40-39-203(i) to TBI headquarters in Nashville. The TBI shall be the state central repository for all original TBI registration forms and any other forms required by § 40-39-207 that are deemed necessary for the enforcement of this part. The designated law enforcement agency shall retain a duplicate copy of the TBI registration form as a part of the business records for that agency.
(e) If a person required to register under this part is reincarcerated for another offense or as the result of having violated the terms of probation, parole, conditional discharge or any other form of alternative sentencing, the offender shall immediately report the offender's status as a sexual offender or violent sexual offender to the facility where the offender is incarcerated or detained and notify the offender's appropriate registering agency, if different, that the offender is currently being detained or incarcerated. Registration, verification and tracking requirements for such persons are tolled during the subsequent incarceration. Within forty-eight (48) hours of the release from any subsequent reincarcerations, the offender shall register with the appropriate designated law enforcement agency. Likewise, if a person who is required to register under this part is deported from this country, the registration, verification and tracking requirements for such persons are tolled during the period of deportation. Within forty-eight (48) hours of the return to this state after deportation, the offender shall register with the appropriate designated law enforcement agency.
(f) Offenders who reside in nursing homes and assisted living facilities and offenders committed to mental health institutions or continuously confined to home or health care facilities due to mental or physical disabilities shall be exempted from the in-person reporting, fingerprinting and administrative cost requirements; however, it shall be the responsibility of the offender, the offender's guardian, the person holding the offender's power of attorney or, in the absence thereof, the administrator of the facility, to report any changes in the residential status to TBI headquarters in Nashville by United States postal service. Further, if an offender is released or discharged from a nursing home, assisted living facility, mental health institution or is no longer continuously confined to home or a health care facility due to mental or physical disabilities, the offender shall, within forty-eight (48) hours, register in person with the designated law enforcement agency, completing and signing a TBI registration form, under penalty of perjury, pursuant to § 39-16-702(b)(3). If the offender has previously registered prior to the release or discharge, the offender shall, within forty-eight (48) hours, report in person to the designated law enforcement agency and update all information pursuant to this section.
(g) Offenders who do not maintain either a primary or secondary residence, as defined in this part, shall be considered homeless, and are subject to the reporting requirements of this part. The offenders who are considered homeless shall be required to report to their registering agency monthly. By the authority established in § 40-39-206(f), the TBI shall develop tracking procedures for the continued verification and tracking of these offenders in the interest of public safety.
(h) Each offender shall report to the designated law enforcement agency at least twenty-one (21) days before traveling out of the country; provided, that offenders who travel out of the country frequently for work or other legitimate purpose, with the written approval of the designated law enforcement agency, and offenders who travel out of the country for emergency situations shall report to the designated law enforcement agency at least twenty-four (24) hours before traveling out of the country.

Backlinks (1)

40-39-203(p)

History (10)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2006, ch. 890, §§ 15, 16
2008, ch. 1164, §§ 4, 16
2010, ch. 1138, §§ 16-18
2011, ch. 266, § 1
2011, ch. 483, § 13
2012, ch. 727, § 61
2015, ch. 516, § 5
2020, ch. 668, §§ 4, 5.

§ 40-39-205. Creation and distribution of forms — Acknowledgement forms.

(a) TBI registration forms shall be designed, printed and distributed by and at the expense of the TBI. These forms shall include instructions for compliance with this part and a statement of understanding and acknowledgment of those instructions to be signed by the offender. TBI registration forms shall be available from registering agencies, parole officers, probation officers and other public officers and employees assigned responsibility for the supervised release of convicted felons into the community.
(b) It shall be the duty of the offender's designated registering agency, its representatives and designees, including any district attorney general's criminal investigator, to verify the accuracy and completeness of all information contained in the offender's SOR.
Backlinks (1)
- 40-39-203(p)
(c) The officer or employee responsible for supervising an offender who has been released on probation, parole or any other alternative to incarceration shall:
1. (1) Promptly obtain the offender's signed statement acknowledging that the named officer or employee has:
  1. (A) Fully explained, and the offender understands, the registration, verification and tracking requirements and sanctions of this part and the current sex offender directives established by the department of correction;
  2. (B) Provided the offender with a blank TBI registration form and assisted the offender in completing the form; and
  3. (C) Obtained fingerprints, palm prints and photographs of the offender, and vehicles and vessels, as determined necessary by the agency;
2. (2) Immediately, but in no case to exceed twelve (12) hours from registration, enter all data received from the offender, as required by the TBI and § 40-39-203(i), into the TIES internet. The officer or employee shall, within three (3) days, send by United States postal service or by electronic means the signed and completed TBI registration form to TBI headquarters in Nashville. The photographs of the offender, vehicles and vessels, and the fingerprints should also be sent by United States postal service within three (3) days, if not electronically submitted to TBI headquarters in Nashville. The registering agency shall retain a duplicate copy of the TBI registration form as a part of the business records for that agency.
(d) Not more than forty-eight (48) hours prior to the release of an offender from incarceration, with or without supervision, the warden of the correctional facility or the warden's designee, or sheriff of the jail or the sheriff's designee, shall obtain the offender's signed statement acknowledging that the official has fully explained, and the offender understands, the registration, verification and tracking requirements and sanctions of this part. If the offender is to be released with or without any type of supervision, the warden of the correctional facility or the warden's designee, or sheriff of the jail or the sheriff's designee, shall assist the offender in completing a TBI registration form. The warden or the warden's designee, or the sheriff or the sheriff's designee, shall also obtain fingerprints, palm prints and photographs of the offender, vehicles and vessels, as determined necessary by the agency. The official shall send by United States postal service the signed and completed TBI registration form to TBI headquarters in Nashville within three (3) days of the release of the offender. The photographs of the offender, vehicles and vessels, and the fingerprints should also be sent by United States postal service within three (3) days, if not electronically submitted to TBI headquarters in Nashville.
(e) If the offender is placed on unsupervised probation, the court shall fully explain to the offender, on the court record, the registration, verification and tracking requirements and sanctions of this part. The court shall then order the offender to report within forty-eight (48) hours, in person, to the appropriate registering agency to register as required by this part.
(f) Through press releases, public service announcements or through other appropriate public information activities, the TBI shall attempt to ensure that all offenders, including those who move into this state, are informed and periodically reminded of the registration, verification and tracking requirements and sanctions of this part.

History (5)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2006, ch. 890, § 17
2012, ch. 727, § 62
2015, ch. 516, § 4.

§ 40-39-206. Centralized record system — Reporting — Violations — Confidentiality of certain registration information — Immunity from liability — Public information regarding offenders.

(a) Using information received or collected pursuant to this part, the TBI shall establish, maintain and update a centralized record system of offender registration, verification and tracking information. The TBI may receive information from any credible source and may forward the information to the appropriate law enforcement agency for investigation and verification. The TBI shall promptly report current sexual offender registration, verification and tracking information to the identification division of the federal bureau of investigation.
(b) Whenever there is a factual basis to believe that an offender has not complied with this part, pursuant to the powers enumerated in subsection (e), the TBI shall make the information available through the SOR to the district attorney general, designated law enforcement agencies and the probation officer, parole officer or other public officer or employee assigned responsibility for the offender's supervised release.
(c) Notwithstanding any law to the contrary, officers and employees of the TBI, local law enforcement, law enforcement agencies of institutions of higher education, courts, probation and parole, the district attorneys general and their employees and other public officers and employees assigned responsibility for offenders' supervised release into the community shall be immune from liability relative to their good faith actions, omissions and conduct pursuant to this part.
(d) For any offender convicted in this state of a sexual offense or violent sexual offense, as defined by this part, that requires the offender to register pursuant to this part, the information concerning the registered offender set out in subdivisions (d)(1)-(16) shall be considered public information. If an offender from another state establishes a residence in this state and is required to register in this state pursuant to § 40-39-203, the information concerning the registered offender set out in subdivisions (d)(1)-(16) shall be considered public information regardless of the date of conviction of the offender in the other state. In addition to making the information available in the same manner as public records, the TBI shall prepare and place the information on the state's internet home page. This information shall become a part of the Tennessee internet criminal information center when that center is created within the TBI. The TBI shall also establish and operate a toll-free telephone number, to be known as the “Tennessee Internet Criminal Information Center Hotline,” to permit members of the public to call and inquire as to whether a named individual is listed among those who have registered as offenders as required by this part. The following information concerning a registered offender is public:
1. (1) The offender's complete name, as well as any aliases, including, but not limited to, any names that the offender may have had or currently has by reason of marriage or otherwise, including pseudonyms and ethnic or tribal names;
  Backlinks (1)
  
  40-39-202(15)
2. (2) The offender's date of birth;
3. (3) The sexual offense or offenses or violent sexual offense or offenses of which the offender has been convicted;
4. (4) The primary and secondary addresses, including the house number, county, city and ZIP code in which the offender resides;
5. (5) The offender's race and gender;
6. (6) The date of last verification of information by the offender;
7. (7) The most recent photograph of the offender that has been submitted to the TBI SOR;
8. (8) The offender's driver license number and issuing state or any state or federal issued identification number;
9. (9) The offender's parole or probation officer;
10. (10) The name and address of any institution of higher education in the state at which the offender is employed, carries on a vocation or is a student;
11. (11) The text of the provision of law or laws defining the criminal offense or offenses for which the offender is registered;
12. (12) A physical description of the offender, including height, weight, color of eyes and hair, tattoos, scars and marks;
13. (13) The criminal history of the offender, including the date of all arrests and convictions, the status of parole, probation or supervised release, registration status and the existence of any outstanding arrest warrants for the sex offender;
14. (14) The address of the offender's employer or employers;
15. (15) The license plate number and a description of all of the offender's vehicles; and
16. (16) Whether the offender is an offender against children, as defined by § 40-39-202.
Backlinks (2)
- 40-39-214(a)
- 40-39-214(b)
(e) For any violent juvenile sexual offender who is adjudicated for a violent juvenile sexual offense, the information concerning the violent juvenile sexual offender set out in (d) shall be confidential, except as otherwise provided under § 40-39-207(j) and any other provision of law.
Backlinks (2)
- 40-39-207(j)(1)
- 40-39-207(j)(2)
(f) The TBI has the authority to promulgate any necessary rules to implement and administer this section. These rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Backlinks (1)
- 40-39-204(g)

History (7)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2007, ch. 531, §§ 1, 2
2008, ch. 1164, §§ 5, 6, 15
2010, ch. 1138, §§ 8-10
2011, ch. 483, § 14
2014, ch. 770, § 4.

§ 40-39-207. Request for termination of registration requirements — Tolling of reporting period — Review of decisions to deny termination of reporting requirements — Lifetime registration.

(a)
1. (1) Except as otherwise provided in subdivision (a)(3), unless a plea was taken in conjunction with § 40-35-313, no sooner than ten (10) years after termination of active supervision on probation, parole, or any other alternative to incarceration, or no sooner than ten (10) years after discharge from incarceration without supervision, an offender required to register under this part may file a request for termination of registration requirements with TBI headquarters in Nashville. If the person is required to register under this part due to a plea taken in conjunction with § 40-35-313, an offender required to register under this part may file a request for termination of registration upon successful completion of a term of judicial diversion pursuant to § 40-35-313 and upon receiving an order from a court of competent jurisdiction signifying the successful completion of the term of judicial diversion and the dismissal of charges pursuant to § 40-35-313.
2. (2) Notwithstanding subdivision (a)(1), if a court of competent jurisdiction orders that an offender's records be expunged pursuant to § 40-32-101, and the offense being expunged is an offense eligible for expunction under § 40-32-101, the TBI shall immediately remove the offender from the SOR and the offender's records shall be removed as provided in § 40-39-209.
3. (3) Notwithstanding subdivision (a)(1), no sooner than three (3) years after termination of active supervision on probation, parole, or any other alternative to incarceration, or no sooner than three (3) years after discharge from incarceration without supervision, an offender required to register under this part due to conviction under § 39-16-408 may file a request for termination of registration requirements with TBI headquarters in Nashville.
4. (4) Notwithstanding subdivision (a)(1), an offender who is required to register pursuant to this part because the offender was convicted of the offense of aggravated prostitution under § 39-13-516 and the offense was committed prior to July 1, 2024, may file a request for termination of registration requirements with TBI headquarters in Nashville.
5. (5) Notwithstanding subdivision (a)(1), an offender who is required to register pursuant to this part because the offender was convicted of the offense of criminal exposure of another to human immunodeficiency virus (HIV) under § 39-13-109(a)(1) and the offense was committed prior to July 1, 2023, may file a request for termination of registration requirements with TBI headquarters in Nashville.
Backlinks (1)
- 40-39-209
(b) Upon receipt of the request for termination, the TBI shall review documentation provided by the offender and contained in the offender's file and the SOR, to determine whether the offender has complied with this part. In addition, the TBI shall conduct fingerprint-based state and federal criminal history checks, to determine whether the offender has been convicted of any additional sexual offenses, as defined in § 40-39-202, or violent sexual offenses, as defined in § 40-39-202.
(c) The TBI shall remove an offender's name from the SOR and notify the offender that the offender is no longer required to comply with this part if it is determined that:
1. (1) The offender has successfully completed a term of judicial diversion, pursuant to § 40-35-313, for an offense under § 39-13-505 or § 39-13-506(a) or (b), for which the person is required to register under this part;
2. (2) The offender previously entered a term of judicial diversion, pursuant to § 40-35-313, prior to May 24, 2019, for the offense for which the person is required to register under this part and subsequently successfully completes the term of judicial diversion; or
3. (3) The offender has not been convicted of any additional sexual offense or violent sexual offense during the ten-year period and the offender has substantially complied with this part and former part 1 of this chapter [repealed].
(d) If it is determined that the offender has been convicted of any additional sexual offenses or violent sexual offenses during the ten-year period or has not substantially complied with this part and former part 1 of this chapter [repealed], the TBI shall not remove the offender's name from the SOR and shall notify the offender that the offender has not been relieved of the provisions of this part.
(e) If an offender is denied a termination request based on substantial noncompliance, the offender may petition again for termination no sooner than five (5) years after the previous denial.
(f) Immediately upon the failure of a sexual offender to register or otherwise substantially comply with the requirements established by this part, the running of the offender's ten-year reporting period shall be tolled, notwithstanding the absence or presence of any warrant or indictment alleging a violation of this part.
(g)
1. (1) An offender whose request for termination of registration requirements is denied by a TBI official may petition the chancery court of Davidson County or the chancery court of the county where the offender resides, if the county is in Tennessee, for review of the decision. The review shall be on the record used by the TBI official to deny the request. The TBI official who denied the request for termination of registration requirements may submit an affidavit to the court detailing the reasons the request was denied.
2. (2) An offender required to register under this part shall continue to comply with the registration, verification and tracking requirements for the life of that offender, if that offender:
  1. (A) Has one (1) or more prior convictions for a sexual offense, as defined in § 40-39-202, regardless of when the conviction or convictions occurred;
  2. (B) Has been convicted of a violent sexual offense, as defined in § 40-39-202; or
  3. (C) Has been convicted of an offense in which the victim was a child of twelve (12) years of age or less.
3. (3) For purposes of subdivision (g)(2)(A):
  1. (A) “Prior conviction” means that the person serves and is released or discharged from, or is serving, a separate period of incarceration or supervision for the commission of a sexual offense prior to or at the time of committing another sexual offense;
  2. (B) “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would constitute a sexual offense. If an offense in a jurisdiction other than this state is not identified as a sexual offense in this state, it shall be considered a prior conviction if the elements of the offense are the same as the elements for a sexual offense; and
  3. (C) “Separate period of incarceration or supervision” includes a sentence to any of the sentencing alternatives set out in § 40-35-104(c)(3)-(9). A sexual offense shall be considered as having been committed after a separate period of incarceration or supervision if the sexual offense is committed while the person was:
    1. (i) On probation, parole or community correction supervision for a sexual offense;
    2. (ii) Incarcerated for a sexual offense;
    3. (iii) Assigned to a program whereby the person enjoys the privilege of supervised release into the community, including, but not limited to, work release, educational release, restitution release or medical furlough for a sexual offense; or
    4. (iv) On escape status from any correctional institution when incarcerated for a sexual offense.
(h)
1. (1) Any offender required to register pursuant to this chapter because the offender was convicted of the offense of statutory rape under § 39-13-506 and the offense was committed prior to July 1, 2006, may file a request for termination of registration requirements with TBI headquarters in Nashville, if the offender would not be required to register if the offense was committed on or after July 1, 2006.
2. (2) Upon receipt of the request for termination, the TBI shall review documentation provided by the offender and contained in the offender's file and the SOR, to determine whether the offender would not be required to register if the offender committed the same offense on or after July 1, 2006. In addition, the TBI shall conduct fingerprint-based state and federal criminal history checks, to determine whether the offender has been convicted of any additional sexual offenses, as defined in § 40-39-202, or violent sexual offenses, as defined in § 40-39-202.
3. (3) If it is determined that the offender would not be required to register if the offense was committed on or after July 1, 2006, that the offender has not been convicted of any additional sexual offenses or violent sexual offenses and that the offender has substantially complied with this part and any previous versions of this part, the TBI shall remove the offender's name from the SOR and notify the offender that the offender is no longer required to comply with this part.
4. (4) If it is determined that the offender would still be required to register even if the statutory rape had been committed on or after July 1, 2006, or that the offender has been convicted of any additional sexual offenses or violent sexual offenses during the period of registration or has not substantially complied with this part and the previous versions of this part, the TBI shall not remove the offender's name from the SOR and shall notify the offender that the offender has not been relieved of this part.
5. (5) An offender whose request for termination of registration requirements is denied by a TBI official may petition the chancery court of Davidson County or the chancery court of the county where the offender resides, if the county is in this state, for review of the decision. The review shall be on the record used by the TBI official to deny the request. The TBI official who denied the request for termination of registration requirements may submit an affidavit to the court detailing the reasons the request was denied.
(i)
1. (1)
  1. (A) If a person convicted of an offense was not required to register as an offender prior to August 1, 2007, because the person was convicted, discharged from parole or probation supervision or discharged from incarceration without supervision prior to January 1, 1995, for an offense now classified as a sexual offense, the person may file a request for termination of registration requirements with TBI headquarters in Nashville, no sooner than five (5) years from August 1, 2007, or the date the person first registered with the SOR, whichever date is later.
  2. (B) The procedure, criteria for removal and other requirements of this section shall otherwise apply to an offender subject to removal after five (5) years as specified in subdivision (i)(1)(A).
2. (2) If a person convicted of an offense was not required to register as an offender prior to August 1, 2007, because the person was convicted, discharged from parole or probation supervision or discharged from incarceration without supervision prior to January 1, 1995, for an offense now classified as a violent sexual offense, the person shall continue to comply with the registration, verification and tracking requirements for the life of that offender.
3. (3)
  1. (A) If a person convicted of an offense was not required to register as an offender prior to July 1, 2010, for an offense now classified as a sexual offense, the person may file a request for termination of registration requirements with TBI headquarters in Nashville, no sooner than five (5) years from July 1, 2010, or the date the person first registered with the SOR, whichever date is later.
  2. (B) The procedure, criteria for removal and other requirements of this section shall otherwise apply to an offender subject to removal after five (5) years as specified in subdivision (i)(3)(A).
  3. (C) If a person convicted of an offense was not required to register as an offender prior to July 1, 2010, for an offense now classified as a violent sexual offense, the person shall continue to comply with the registration, verification and tracking requirements for the life of that offender.
4. (4) Unless otherwise authorized by law, a person required to register as any form of a sexual offender in this state due to a qualifying offense from another jurisdiction which is classified as a sexual offense in this state may apply for removal from the registry pursuant to subdivision (a)(1) following the later of:
  1. (A) Ten (10) years from the date of termination of active supervision or probation, parole or any other alternative to incarceration, or after discharge from incarceration without supervision; or
  2. (B) Five (5) years after being added to the Tennessee sexual offender registry.
(j)
1. (1) Violent juvenile sexual offenders who are currently registered as such and who receive a subsequent adjudication in juvenile court or a court having juvenile court jurisdiction for one of the offenses listed in § 40-39-202(29) or a crime that if committed in this state would require registration shall be required to register for life. Information concerning the violent juvenile sexual offender who commits a subsequent offense listed in § 40-39-202(29), which was formerly considered confidential under § 40-39-206(e), shall be deemed public information once the offender reaches the offender’s eighteenth birthday.
2. (2) Violent juvenile sexual offenders who are currently registered as such and who, upon reaching the age of eighteen (18), are convicted of a sexual offense as set out in § 40-39-202(20) or a violent sexual offense as set out in § 40-39-202(31) shall be required to register for life. Information concerning the violent juvenile sexual offender who commits a subsequent offense listed in § 40-39-202(20) or § 40-39-202(31), which was formerly considered confidential under § 40-39-206(e), shall be deemed public information.
3. (3) Violent juvenile sexual offenders who reach the age of twenty-five (25), and who have not been adjudicated or convicted of a subsequent qualifying offense as set out in subdivisions (j)(1) and (2) or any offense set out in subdivision (g)(2)(C), shall be eligible for termination from the SOR. Upon reaching the age of twenty-five (25), the violent juvenile sexual offender may apply for removal from the SOR by use of a form created by the TBI. The form will contain a statement, sworn to by the offender under the penalty of perjury, that the offender has not been convicted of or adjudicated delinquent of any of the offenses set out in subdivisions (j)(1) and (2) or any offense set out in subdivision (g)(2)(C).
4. (4) TBI shall also conduct fingerprint-based state and federal criminal history checks to determine whether the violent juvenile sexual offender has been convicted of or adjudicated on any prohibited crimes as set out in subdivisions (j)(1) and (2) or any offense set out in subdivision (g)(2)(C), including crimes committed in other jurisdictions.
5. (5) If the violent juvenile sexual offender has not been convicted or adjudicated delinquent in any of the prohibited crimes, the offender shall be removed from the sex offender registry.
Backlinks (1)
- 40-39-206(e)

Backlinks (2)

History (13)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2006, ch. 890, § 18
2008, ch. 1164, § 7
2010, ch. 1138, § 11
2011, ch. 483, § 15
2014, ch. 744, § 2
2014, ch. 770, §§ 2, 3
2015, ch. 284, §§ 2, 3
2015, ch. 469, § 2
2019, ch. 502, §§ 1, 2
2023, ch. 459, § 2
2024, ch. 545, § 5.

§ 40-39-208. Violations — Penalty — Venue — Providing records for prosecution.

(a) It is an offense for an offender to knowingly violate any provision of this part. Violations shall include, but not be limited to:
1. (1) Failure of an offender to timely register or report;
2. (2) Falsification of a TBI registration form;
3. (3) Failure to timely disclose required information to the designated law enforcement agency;
4. (4) Failure to sign a TBI registration form;
5. (5) Failure to pay the annual administrative costs, if financially able;
6. (6) Failure to timely disclose status as a sexual offender or violent sexual offender to the designated law enforcement agency upon reincarceration;
7. (7) Failure to timely report to the designated law enforcement agency upon release after reincarceration;
8. (8) Failure to timely report to the designated law enforcement agency following reentry in this state after deportation;
9. (9) Failure to timely report to the offender's designated law enforcement agency when the offender moves to another state; and
10. (10) Conviction of a new sexual offense, violent sexual offense, or violent juvenile sexual offense.
(b) A violation of this part is a Class E felony. No person violating this part shall be eligible for suspension of sentence, diversion or probation until the minimum sentence is served in its entirety.
(c) The first violation of this part is punishable by a fine of not less than three hundred fifty dollars ($350) and imprisonment for not less than ninety (90) days.
(d) A second violation of this part is punishable by a fine of not less than six hundred dollars ($600) and imprisonment for not less than one hundred eighty (180) days.
(e) A third or subsequent violation of this part is punishable by a fine of not less than one thousand one hundred dollars ($1,100) and imprisonment for not less than one (1) year.
(f) A violation of this part is a continuing offense. If an offender is required to register pursuant to this part, venue lies in any county in which the offender may be found or in any county where the violation occurred.
(g) In a prosecution for a violation of this section, upon the request of a district attorney general, law enforcement agency, the department of correction or its officers or a court of competent jurisdiction and for any lawful purpose permitted by this part, the records custodian of SOR shall provide the requesting agency with certified copies of specified records being maintained in the registry.
(h) The records custodian providing copies of records to a requesting agency, pursuant to subsection (g), shall attach the following certification:
1. I, , HAVING BEEN APPOINTED BY THE DIRECTOR OF THE TENNESSEE BUREAU OF INVESTIGATION AS CUSTODIAN OF THE BUREAU'S CENTRALIZED RECORDS SYSTEM OF SEXUAL AND VIOLENT SEXUAL OFFENDERS, REGISTRATION, VERIFICATION AND TRACKING INFORMATION (SOR), HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF THE RECORDS MAINTAINED WITHIN SAID REGISTRY.
2. SIGNATURE TITLE DATE
3. AFFIX THE BUREAU SEAL HERE
(i) Sexual offender, violent sexual offender and violent juvenile sexual offender registry files and records maintained by the TBI may be digitized. A digitized copy of any original file or record in the TBI's possession shall be deemed to be an original for all purposes, including introduction into evidence in all courts or administrative agencies.
(j) Notwithstanding any law to the contrary, a violent juvenile sexual offender who knowingly violates this part commits a delinquent act as defined by the juvenile code.

Backlinks (2)

History (8)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2006, ch. 890, § 19
2008, ch. 1164, § 8
2009, ch. 145, § 1
2011, ch. 483, §§ 16, 17
2012, ch. 727, § 49
2019, ch. 232, § 1.

§ 40-39-209. Removing records from SOR.

Except as otherwise provided in § 40-39-207(a)-(d), no record shall be removed from the SOR, unless ordered by a court of competent jurisdiction as part of an expunction order pursuant to § 40-32-101, so long as the offense is eligible for expunction under § 40-32-101.

Backlinks (1)

40-39-207(a)(2)

History (3)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2008, ch. 1164, § 9.

§ 40-39-210. Death of offender.

Upon receipt of notice of the death of a registered offender, verified through the registering agency or TBI officials by obtaining a copy of the offender's certificate of death, by checking the social security death index or by obtaining a copy of an accident report, the TBI shall remove all data pertaining to the deceased offender from the SOR.

History (3)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2008, ch. 1164, § 10.

§ 40-39-211. Residential and work restrictions.

(a)
1. (1) While mandated to comply with the requirements of this chapter, no sexual offender, as defined in § 40-39-202, or violent sexual offender as defined in § 40-39-202, shall knowingly establish a primary or secondary residence or any other living accommodation or knowingly accept employment within one thousand feet (1,000′) of the property line of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center, or public athletic field available for use by the general public.
2. (2) For purposes of this subsection (a), “playground” means any indoor or outdoor facility that is intended for recreation of children and owned by the state, a local government, or a not-for-profit organization, and includes any parking lot appurtenant to the indoor or outdoor facility.
(b) No sexual offender, violent sexual offender, or violent juvenile sexual offender, as those terms are defined in § 40-39-202, shall knowingly:
1. (1) Reside within one thousand feet (1,000′) of the property line on which the offender's former victims or the victims' immediate family members reside;
2. (2) Come within one hundred feet (100′) of any of the offender's former victims, except as otherwise authorized by law; or
3. (3) Contact any of the offender's former victims or the victims' immediate family members without the consent of the victim or consent of the victim's parent or guardian if the victim is a minor being contacted by telephone, in writing, by electronic mail, internet services or any other form of electronic communication, unless otherwise authorized by law.
(c)
1. (1) While mandated to comply with the requirements of this part, no sexual offender or violent sexual offender, whose victim was a minor, shall knowingly reside or conduct an overnight visit at a residence in which a minor resides or is present. Notwithstanding this subsection (c), the offender may reside, conduct an overnight visit, or be alone with a minor if the offender is the parent of the minor, unless:
  1. (A) The offender's parental rights have been or are in the process of being terminated as provided by law;
  2. (B) Any minor or adult child of the offender was a victim of a sexual offense or violent sexual offense committed by the offender; or
  3. (C) The offender has been convicted of a sexual offense or violent sexual offense and the following conditions have been satisfied:
    1. (i) The victim of the sexual offense or violent sexual offense was a minor twelve (12) years of age or less; and
    2. (ii) A circuit court, exercising its jurisdiction over civil matters, has found by clear and convincing evidence that the offender presents a danger of substantial harm to the minor.
2. (2) For purposes of subdivision (c)(1)(C):
  1. (A) The district attorney general for the judicial district in which the minor resides may petition the court to make a finding described in subdivision (c)(1)(C)(ii) at any time the offender is required to register pursuant to this part;
  2. (B) The offender must be provided notice and an opportunity to be heard;
  3. (C) When determining whether the offender poses a danger of substantial harm to a minor, the court may consider the facts and circumstance of the offense, the offender's most recent efforts to rehabilitate, compliance with community supervision as provided in § 39-13-524 if applicable, any violations of this part as specified in § 40-39-208, and other relevant evidence;
  4. (D) All files and records of the court in the proceeding must be treated as confidential and shall not be open to the public or disclosed to the public, but are open to:
    1. (i) The judge, officers, and professional staff of the court;
    2. (ii) The parties to the proceeding and their counsel and representatives;
    3. (iii) Any parent or legal guardian of the minor other than the offender;
    4. (iv) The offender's registering agency; and
    5. (v) With permission of the court, any other person or agency having a legitimate interest in the proceeding;
  5. (E) The court must enter a written order stating its findings. If the court finds that the offender presents a danger of substantial harm to the minor, the district attorney general shall provide the court's finding to the offender's registering agency;
  6. (F) No sooner than two (2) years after the date of entry of the circuit court's order, the offender may petition the court for reconsideration of a finding that the offender presents a danger of substantial harm to the minor. The offender must show, by clear and convincing evidence, that the offender no longer presents a danger of substantial harm to the minor; and
  7. (G) An appeal from a final order or judgment under subdivision (c)(1)(C)(ii) may be made to the court of appeals. A finding that the offender presents a danger of substantial harm to the minor shall remain in effect pending the outcome of the appeal.
Backlinks (1)
- 39-15-401(c)(2)
(d)
1. (1) No sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, shall knowingly:
  1. (A) Be upon or remain on the premises of any building or grounds of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when the offender has reason to believe children under eighteen (18) years of age are present;
  2. (B) Stand, sit idly, whether or not the offender is in a vehicle, or remain within one thousand feet (1,000′) of the property line of any building owned or operated by any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when children under eighteen (18) years of age are present, while not having a reason or relationship involving custody of or responsibility for a child or any other specific or legitimate reason for being there; or
  3. (C) Be in any conveyance owned, leased or contracted by a school, licensed day care center, other child care facility or recreation center to transport students to or from school, day care, child care, or a recreation center or any related activity thereof when children under eighteen (18) years of age are present in the conveyance.
2. (2) Subdivision (d)(1) shall not apply when the offender:
  1. (A) Is a student in attendance at the school;
  2. (B) Is attending a conference with school, day care, child care, park, playground or recreation center officials as a parent or legal guardian of a child who is enrolled in the school, day care center, other child care center or of a child who is a participant at the park, playground or recreation center and has received written permission or a request from the school's principal or the facility's administrator;
  3. (C) Resides at a state licensed or certified facility for incarceration, health or convalescent care; or
  4. (D) Is dropping off or picking up a child or children and the person is the child or children's parent or legal guardian who has provided written notice of the parent's offender status to the school's principal or a school administrator upon enrollment.
3. (3) The exemption provided in subdivision (d)(2)(B) shall not apply if the victim of the offender's sexual offense or violent sexual offense was a minor at the time of the offense and the victim is enrolled in the school, day care center, recreation center or other child care center that is participating in the conference or other scheduled event.
(e) Changes in the ownership or use of property within one thousand feet (1,000′) of the property line of an offender's primary or secondary residence or place of employment that occur after an offender establishes residence or accepts employment shall not form the basis for finding that an offender is in violation of the residence restrictions of this section.
(f) A violation of this part is a Class E felony. No person violating this part shall be eligible for suspension of sentence, diversion or probation until the minimum sentence is served in its entirety.
(g)
1. (1) The first violation of this part is punishable by a fine of not less than three hundred fifty dollars ($350) and imprisonment for not less than ninety (90) days.
2. (2) A second violation of this part is punishable by a fine of not less than six hundred dollars ($600) and imprisonment for not less than one hundred eighty (180) days.
3. (3) A third or subsequent violation of this part is punishable by a fine of not less than one thousand one hundred dollars ($1,100) and imprisonment for not less than one (1) year.
4. (4) A violation of this part due solely to a lack of the written permission required pursuant to subdivision (d)(2) shall be punishable by fine only.
(h)
1. (1)
  1. (A) While mandated to comply with the requirements of this part, it is an offense for three (3) or more sexual offenders, as defined in § 40-39-202, or violent sexual offenders, as defined in § 40-39-202, or a combination thereof, to establish a primary or secondary residence together or inhabit the same primary or secondary residence at the same time.
  2. (B) Each sexual offender or violent sexual offender who establishes or inhabits a primary or secondary residence in violation of subdivision (h)(1)(A) commits a violation of this section.
  3. (C) Subdivision (h)(1)(A) shall not apply if the residence is located on property that is, according to the relevant local, county, or municipal zoning law, zoned for a use other than residential or mixed-use.
2. (2)
  1. (A) No person, corporation, or other entity shall knowingly permit three (3) or more sexual offenders, as defined in § 40-39-202, violent sexual offenders, as defined in § 40-39-202, or a combination thereof, while such offenders are mandated to comply with the requirements of this part, to establish a primary or secondary residence in any house, apartment or other habitation, as defined by § 39-14-401(1)(A), owned or under the control of such person, corporation, or entity.
  2. (B) Subdivision (h)(2)(A) shall not apply if the residence is located on property that is, according to the relevant local, county, or municipal zoning law, zoned for a use other than residential or mixed-use.
3. (3) This subsection (h) shall not apply to any residential treatment facility in which more than three (3) sexual offenders, as defined in § 40-39-202, violent sexual offenders, as defined in § 40-39-202, or combination thereof, reside following sentencing to such facility by a court or placement in such facility by the board of parole for the purpose of in-house sexual offender treatment; provided, the treatment facility complies with the guidelines and standards for the treatment of sexual offenders established by the sex offender treatment board pursuant to § 39-13-704.
(i) The restrictions set out in subsections (a)-(d) and (k) shall not apply to a violent juvenile sexual offender required to register under this part unless otherwise ordered by a court of competent jurisdiction.
(j) Notwithstanding any law to the contrary, a violent juvenile sexual offender who knowingly violates this section commits a delinquent act as defined by the juvenile code.
(k)
1. (1) As used in this subsection (k), unless the context otherwise requires:
  1. (A)
    1. (i) “Alone with” means one (1) or more offenders covered by this subsection (k) is in the presence of a minor or minors in a private area; and
      1. (a) There is no other adult present in the area;
      2. (b) There is another adult present in the area but the adult is asleep, unconscious, or otherwise unable to observe the offender and the minor or minors;
      3. (c) There is another adult present in the area but the adult present is unable or unwilling to come to the aid of the minor or minors or contact the proper authorities, if necessary; or
      4. (d) There is another adult present in the area but the adult is also a sexual offender or violent sexual offender mandated to comply with the requirements of this part;
    2. (ii) If the offender is in a private area where the offender has the right to be, the offender is not “alone with” a minor or minors if the offender is engaged in an otherwise lawful activity and the presence of the minor or minors is incidental, accidental, or otherwise unrelated to the offender's lawful activity; and
  2. (B)
    1. (i) “Private area” means in or on any real or personal property, regardless of ownership, where the conduct of the offender is not readily observable by anyone but the minor or minors alone with the offender;
    2. (ii) If the private area contains multiple rooms, such as a hotel, motel, or other place of temporary lodging, any room, rooms, or other area that the offender occupies with a minor or minors and that otherwise meets the requirements of this definition shall be considered a private area.
2. (2) Unless otherwise permitted by subsection (c), while mandated to comply with the requirements of this part, no sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, shall be alone with a minor or minors in a private area.

Backlinks (2)

History (15)

Acts 2004, ch. 921, § 1
2005, ch. 316, § 1
2006, ch. 890, § 20
2008, ch. 1164, § 11
2009, ch. 597, § 1
2010, ch. 750, §§ 1, 2
2010, ch. 1145, § 1
2011, ch. 308, § 1
2011, ch. 483, §§ 18-20
2014, ch. 992, § 1
2015, ch. 516, §§ 1, 2, 8
2018, ch. 643, § 1
2018, ch. 898, § 1
2019, ch. 374, § 1
2020, ch. 636, § 1.

§ 40-39-212. Registration requirement.

(a) Upon the court's acceptance of a defendant's entry of a plea of guilty or a finding of guilt by a jury or judge after trial, and, notwithstanding the absence of a final sentencing and entry of a judgment of conviction, any defendant who is employed or practices a vocation, establishes a primary or secondary residence or becomes a student in this state and who enters a plea of guilty to a sexual offense as defined by § 40-39-202 or a violent sexual offense as defined by § 40-39-202, shall be required to register with a registering agency.
Backlinks (1)
- 40-39-203(b)(3)
(b) Notwithstanding the absence of a final sentencing and entry of a judgment of conviction, any defendant who is employed or practices a vocation, establishes a primary or secondary residence or becomes a student in this state and who enters a plea of guilty to an offense in another state, county or jurisdiction that may result in a conviction of a sexual offense as defined by § 40-39-202 or a violent sexual offense as defined by § 40-39-202, shall be required to register with a registering agency.
(c) Upon the court's acceptance of a defendant's entry of a plea of guilty, and notwithstanding the absence of a final sentencing and entry of a judgment of conviction, any defendant from another state who enters a plea of guilty to an offense in this state that may result in a conviction of a sexual offense as defined by § 40-39-202 or a violent sexual offense as defined by § 40-39-202, shall be required to register with a registering agency.
(d) This part shall apply to offenders who received diversion under § 40-35-313 or its equivalent in any other jurisdiction.

History (3)

Acts 2007, ch. 451, § 1
2008, ch. 1164, § 12
2010, ch. 1138, § 12.

§ 40-39-213. Possession of offender identification required.

(a) Every offender required to register pursuant to this part who is a resident of this state, and who is eligible, shall be responsible for obtaining a valid driver license or photo identification card that has been properly designated by the department of safety pursuant to § 55-50-353. Every offender eligible to receive the license or identification card shall always have the license or identification card in the offender's possession. If the offender is ineligible to be issued a driver license or photo identification card, the department shall provide the offender some other form of identification card or documentation that, if it is kept in the offender's possession, will satisfy the requirements of this section and § 55-50-353; such identification must be kept in the offender's possession at all times. If any offender is determined to be indigent, an identification card or other documentation in lieu of an identification card shall be issued to the offender at no cost.
(b) A violation of this section is a Class E felony punishable by fine only of not less than two hundred fifty dollars ($250).
(c) Every offender required to register pursuant to this part shall have obtained the documentation required by this section and presented it to the offender's registering agency no later than sixty (60) days from the date in which such person is required to register pursuant to this part.
(d) Notwithstanding any provision of this section to the contrary, no violent juvenile sexual offender shall be required to obtain a photo identification card or a valid driver license that has been properly designated by the department of safety pursuant to § 55-50-353, until such violent juvenile sexual offender attains eighteen (18) years of age.

Backlinks (1)

55-50-353(a)

History (3)

Acts 2008, ch. 1143, § 1
2010, ch. 1138, §§ 13-15
2011, ch. 483, § 21.

§ 40-39-214. Providing information in registry.

(a) Except as provided in subsection (c), immediately after an offender registers or updates a registration, TBI shall provide all information in the registry about the offender that is made public pursuant to § 40-39-206(d) to the following:
1. (1) The United States attorney general, who shall include that information in the national sex offender registry or other appropriate databases;
2. (2) Appropriate law enforcement agencies, including probation and parole offices, and each school and public housing agency, in each area in which the individual resides, is an employee, establishes a physical presence or is a student;
3. (3) Each jurisdiction where the sex offender resides, is an employee, establishes a physical presence or is a student and each jurisdiction from or to which a change of residence, employment or student status occurs;
4. (4) Any agency responsible for conducting employment-related background checks;
5. (5) Social service entities responsible for protecting minors in the child welfare system;
6. (6) Volunteer organizations in which contact with minors or other vulnerable individuals might occur; and
7. (7) Any organization, company or individual who requests such notifications pursuant to procedures established by TBI.
(b) In addition to the information provided pursuant to subsection (a), TBI shall provide all information in the registry about the offender, regardless of whether the information is made public pursuant to § 40-39-206(d), to the organization described in subdivision (a)(1) and appropriate law enforcement agencies.
(c) Notwithstanding subsection (a), TBI is not required to provide information to an organization or individual described in subdivision (a)(6) or (a)(7) more frequently than once every five (5) business days and an organization in subdivision (a)(6) or (a)(7) may elect to receive notification less frequently than five (5) business days.

History (2)

Acts 2008, ch. 1164, § 13
2011, ch. 483, § 22.

§ 40-39-215. Offenses — Sexual offenders, violent sexual offenders, or violent juvenile sexual offenders — Defense.

(a)
1. (1) While mandated to comply with the requirements of this chapter, it is an offense for a sexual offender, violent sexual offender or a violent juvenile sexual offender, as those terms are defined in § 40-39-202, whose victim was a minor, to knowingly:
  1. (A) Pretend to be, dress as, impersonate or otherwise assume the identity of a real or fictional person or character or a member of a profession, vocation or occupation while in the presence of a minor or with the intent to attract or entice a minor to be in the presence of the offender;
  2. (B) Engage in employment, a profession, occupation or vocation, regardless of whether compensation is received, that the offender knows or should know will cause the offender to be in direct and unsupervised contact with a minor; or
  3. (C) Operate, whether authorized to do so or not, any vehicle or specific type of vehicle, including, but not limited to, an ice cream truck or emergency vehicle, for the purpose of attracting or enticing a minor to be in the presence of the offender.
2. (2) It is a defense to a violation of this subsection (a) that the offender was the parent of the minor in the offender's presence.
(b) While mandated to comply with the requirements of this chapter, it is an offense for a sexual offender, violent sexual offender, or a violent juvenile sexual offender, if the offender's victim was a minor, to knowingly rent or offer for rent a swimming pool, hot tub, or other body of water to be used for swimming that is located on property owned or leased by the offender or is otherwise under the control of the offender.
(c) A violation of this section is a Class A misdemeanor.

History (3)

Acts 2008, ch. 1164, § 13
2011, ch. 483, § 23
2022, ch. 1058, §§ 1, 2.

§ 40-39-216. Restricting access to public library.

(a) Public library boards shall have the authority to reasonably restrict the access of any person listed on the sexual offender registry. Such authority may be delegated by the board to a library administrator.
(b) In determining the reasonableness of the restrictions, the board shall consider the following criteria:
1. (1) The likelihood of children being present in the library at the times and places to be restricted;
2. (2) The age of the victim of the offender; and
3. (3) The chilling effect of the use of the library by other patrons if the offender is not restricted.
(c) Nothing in this section shall prevent the board from imposing a total ban of the offender's access to a public library so long as the criteria in subsection (b) are considered.
(d) The restrictions of this section shall be effective upon the mailing of notice to the address of the offender as listed on the sexual offender registry. The notice shall state with specificity, the time and space restrictions. The board, or if so delegated, the library administrator, shall state in the notice that the criteria in subsection (b) have been considered.
(e) A registered sex offender who enters upon the premises of a public library in contravention of the restrictions five (5) days after mailing of the notice may, at the discretion of the library administrator, be prosecuted for criminal trespass pursuant to § 39-14-405.

History (2)

Acts 2011, ch. 287, § 1
2017, ch. 126, § 15.

§ 40-39-217. Community notification system.

(a)
1. (1) Any county, metropolitan form of government or municipality may, by a two-thirds (⅔) vote of the legislative body, choose to establish a community notification system whereby certain residences, schools and child-care facilities within the county, metropolitan form of government or municipality are notified when a person required to register pursuant to this part as a sexual offender or violent sexual offender resides, intends to reside, or, upon registration, declares to reside within a certain distance of such residences, schools and child-care facilities.
2. (2) The legislative body of any county, metropolitan form of government or municipality that enacts a community notification system pursuant to this subsection (a) may, at the same time as the system is established, enact a notification fee of not more than fifty dollars ($50.00) per year from each offender in the county, metropolitan form of government or municipality for the purpose of defraying the costs of the community notification. The notification fee shall be collected at the same time as the one-hundred-fifty-dollar administrative fee collected pursuant to § 40-39-204(b).
(b) Forms of notification a county, metropolitan form of government or municipality may elect to establish include:
1. (1) Notification by the sheriff's office or police department to residents, schools and child-care facilities located within a specified number of feet from the offender's residence;
2. (2) A community notification flyer, whether made by regular mail or hand delivered, to all legal residences within the specified area;
3. (3) Posting a copy of the notice in a prominent place at the office of the sheriff and at the police station closest to the declared residence of the offender;
4. (4) Publicizing the notice in a local newspaper, or posting electronically, including the internet;
5. (5) Notifying homeowners associations within the immediate area of the declared residence of the offender; or
6. (6) Any other method reasonably expected to provide notification.
(c) Nothing in this section shall be construed as prohibiting the Tennessee bureau of investigation, a sheriff, or a chief of police from providing community notification under this section electronically or by publication or periodically to persons whose legal residence is more than the applicable distance from the residence of an offender.

History (1)

Acts 2014, ch. 751, § 1.

§ 40-39-218. [Repealed]

History (2)

Acts 2015, ch. 469, § 1
repealed by Acts 2024, ch. 545, § 4, effective July 1, 2024.

Part 3 Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act

§ 40-39-301. Part definitions.

As used in this part, unless the context otherwise requires:
1. (1) “Serious offender” means any person who is convicted in this state, on or after July 1, 2004, of any offense that may cause “serious bodily injury” as defined in § 39-11-106. “Serious offender” includes any person who is convicted in any other jurisdiction of any offense that would constitute a serious offense as defined in this part. “Serious offender” also includes any person who has been released on probation or parole following a conviction for any serious offense, as defined in this part, to the extent that the person continues to be subject to active supervision by the department of correction;
2. (2) “Sexual offense” means any of the crimes enumerated in § 40-39-202(20), including specifically:
  1. (A) The commission of any act that constitutes the criminal offense of:
    1. (i) Aggravated rape, under § 39-13-502;
    2. (ii) Rape, under § 39-13-503;
    3. (iii) Aggravated sexual battery, under § 39-13-504;
    4. (iv) Sexual battery, under § 39-13-505;
    5. (v) Statutory rape, under § 39-13-506;
    6. (vi) Sexual exploitation of a minor, under § 39-17-1003;
    7. (vii) Aggravated sexual exploitation of a minor, under § 39-17-1004;
    8. (viii) Especially aggravated sexual exploitation of a minor, under § 39-17-1005;
    9. (ix) Incest, under § 39-15-302;
    10. (x) Rape of a child, under § 39-13-522;
    11. (xi) Sexual battery by an authority figure, under § 39-13-527;
    12. (xii) Solicitation of a minor, under § 39-13-528;
  2. (B) Criminal attempt, under § 39-12-101, solicitation, under § 39-12-102, or conspiracy, under § 39-12-103, to commit any of the offenses enumerated within subdivision (2)(A); or
  3. (C) Criminal responsibility under § 39-11-402(2) for facilitating the commission under § 39-11-403 of, or being an accessory after the fact under, § 39-11-411 to any of the offenses enumerated in subdivision (2)(A); and
3. (3) “Violent sexual offender” means any person who is convicted in the state, on or after July 1, 2004, of any sexual offense, as defined in subdivision (2) or § 40-39-202; or any person who is convicted in any other jurisdiction of any offense that would constitute a sexual offense in Tennessee. “Violent sexual offender” also includes any person who has been released on probation or parole following a conviction for any sexual offense, as defined in subdivision (2), to the extent that the person continues to be subject to active supervision by the department of correction as defined in law. For the purposes of this section, “violent sexual offender” may include offenders whose sexual offense was reduced by virtue of a plea agreement.

Backlinks (1)

40-39-303(a)

History (3)

Acts 2004, ch. 899, § 5
2006, ch. 890, § 21
2012, ch. 727, § 50.

§ 40-39-302. Establishment of program — Promulgation of guidelines — Duties.

(a) The department of correction is authorized to establish a serious offender and violent sexual offender monitoring program and to promulgate guidelines governing it, consistent with this part.
(b) The department of correction shall carry out the following duties:
1. (1) By December 31, 2004, in consultation with all participating state and local law enforcement, the department of correction shall develop implementing guidelines for the continuous satellite-based monitoring of serious offenders and violent sexual offenders. The system may provide:
  1. (A) Time-correlated and continuous tracking of the geographic location of the subject using a global positioning system based on satellite and other location tracking technology;
  2. (B) Reporting of subject's violations of prescriptive and proscriptive schedule or location requirements. Frequency of reporting may range from once-a-day (passive) to near real-time (active); and
  3. (C) An automated system that provides local and state law enforcement with alerts to compare the geographic positions of monitored subjects with reported crime incidents and whether the subject was at or near the reported crime incidents. These alerts will enable authorities to include or exclude monitored subjects from an ongoing investigation;
2. (2)
  1. (A) Prior to June 30, 2005, the department of correction shall contract with a single vendor for the hardware services needed to monitor subject offenders and correlate their movements to reported crime incidents using a system meeting the requirements described in subdivision (b)(1)(C);
    Backlinks (1)
    
    40-39-305(a)
  2. (B) The department of correction's contract with this vendor may provide for services necessary to implement or facilitate any of this part including the collection and disposition of the charges and fees provided for in this part and § 40-28-201(a)(2) and to allow for the reasonable cost of collection of the proceeds.
Backlinks (1)
- 40-39-306

Backlinks (7)

History (3)

Acts 2004, ch. 899, § 5
2005, ch. 179, §§ 1, 2
2012, ch. 727, § 51.

§ 40-39-303. Enrollment in satellite-based monitoring programs as mandatory condition of release.

(a) Notwithstanding any other law, the board of parole may require, as a mandatory condition of release for any person convicted of a sexual offense as defined in § 40-39-301, that any person so released be enrolled in a satellite-based monitoring program for the full extent of the person's term of parole, consistent with the requirements of § 40-39-302.
Backlinks (1)
- 40-39-304(a)
(b) The board of parole may require, as a mandatory condition of release for any person convicted of a serious offense as defined in this chapter or for other offenders as the board deems appropriate, that the person be enrolled in a satellite-based monitoring program for the full extent of the person's term of parole, consistent with the requirements of § 40-39-302.
(c) Offender participation in a location tracking and crime correlation based monitoring and supervision program under this section shall be at the discretion of the department or as mandated by the board of parole and shall conform to the participant payment requirements stated in § 40-39-305 and be based upon the person's ability to pay.
(d) Notwithstanding any other law, the court shall require any person who is, on or after July 1, 2017, placed on probation for an offense that would qualify the person as a child rapist or a child sexual predator under § 39-13-523(a) and who does not maintain either a primary or secondary residence, to enroll in a satellite-based monitoring and supervision program for the full extent of the person's term of probation.

History (3)

Acts 2004, ch. 899, § 5
2012, ch. 727, § 52
2017, ch. 311, § 1.

§ 40-39-304. Offense of intentional tampering with, removal of, or vandalism to device — Aiding, abetting or assisting.

(a) Intentional tampering with, removal of, or vandalism to a device issued pursuant to a location tracking and crime correlation based monitoring and supervision program described in § 40-39-302 by a person duly enrolled in the program is a Class A misdemeanor for the first offense, punishable by confinement in the county jail for not less than one hundred eighty (180) days. The minimum one hundred eighty-day sentence provided for this Class A misdemeanor offense is mandatory, and no person committing the offense shall be eligible for suspension of sentence, diversion, or probation until the minimum sentence is served in its entirety. A second or subsequent violation under this section is a Class E felony. Additionally, if the person violating this section is on probation, parole or any other alternative to incarceration, then the violation shall also constitute sufficient grounds for immediate revocation of probation, parole or other alternative to incarceration. Any violation of this section shall result in the imposition of the mandatory release condition specified in § 40-39-303(a) and (b).
(b) Any person who knowingly aids, abets, or assists a person duly enrolled in a location tracking and crime correlation based monitoring and supervision program described in § 40-39-302 in tampering with, removing or vandalizing a device issued pursuant to the program commits a Class A misdemeanor.

History (1)

Acts 2004, ch. 899, § 5.

§ 40-39-305. Fees — Waiver of fees.

(a) The department of correction is authorized to assess a daily or monthly fee, as the department deems reasonable and necessary to effectuate the purposes of this program, from serious offenders and violent sexual offenders who are required by the board or the department to participate in the sexual offender monitoring program described in § 40-39-302. This fee is intended to offset only the costs associated with the time-correlated tracking of the geographic location of subjects using the location tracking crime correlation system. Fees assessed by the department pursuant to this program may be collected in accordance with § 40-39-302(b)(2)(A).
(b) The department may waive all or any portion of the fees required by this section if it determines that an offender is indigent or financially unable to pay all or any portion of the fee. The department shall waive only that portion of the surcharge which the offender is financially unable to pay.

Backlinks (2)

History (2)

Acts 2004, ch. 899, § 5
2012, ch. 727, § 53.

§ 40-39-306. Sharing of criminal incident information across state agencies and with vendor — Correlation reports.

Notwithstanding any other provision of law, the department of correction, the board of parole, the Tennessee bureau of investigation and all local law enforcement agencies are specifically authorized to share criminal incident information, limited to the time, place and nature of the crime, with each other and the vendor selected by the department to carry out the purposes of this part, and the department is authorized to direct the vendor so chosen to use data collected pursuant to § 40-39-302(b) in preparing correlation reports as described in that subsection for distribution to and use by state and local law enforcement agencies.

History (1)

Acts 2004, ch. 899, § 5.