Can Tennessee's Board of Probation and Parole supervise people on pretrial diversion before any conviction?

Plain-English summary

Charles Traughber, then Chairman of the Tennessee Board of Probation and Parole, asked whether the Board could supervise people placed on pretrial diversion under Tenn. Code Ann. § 40-15-101. The answer was no.

Pretrial diversion is a pre-conviction process. The defendant and the prosecutor enter a memorandum of understanding under § 40-15-105: the prosecution is suspended while the defendant goes through rehabilitation conditions, and if the defendant completes them successfully, the criminal charges are dismissed with prejudice under § 40-15-105(e). The whole point, as the Tennessee Supreme Court put it in Pace v. State, is to spare appropriately selected first offenders the stigma and expense of trial and the collateral consequences of a conviction.

The Board of Probation and Parole, in contrast, is a creature of Title 40, Chapter 28. Its statutory mission is supervising people who have been convicted, either parolees (people released from prison before completing their sentence) or persons placed on probation (people convicted by verdict or plea but released without imprisonment). The duties of probation and parole officers in § 40-28-111 cover only those two categories. Without a conviction, a pretrial-diversion participant fits neither.

AG Cooper relied on the rule that administrative agencies have only the power statute gives them. Madison Loan & Thrift v. Neff. The agency cannot create supervisory authority by inference where the statute does not grant it. The only role the Pretrial Diversion Act assigns to the Board is in § 40-15-104: preparing a pretrial investigation report when no local agency is available to do so. That is the limit of the Board's permissible involvement.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is "pretrial diversion" in Tennessee?
A: A pre-conviction agreement, codified in Tenn. Code Ann. § 40-15-101 et seq., between the prosecutor and the defendant where the prosecution is suspended while the defendant complies with conditions (which may include treatment, counseling, training, education). If completed successfully, the charges are dismissed with prejudice. It is designed for first offenders and is distinct from "judicial diversion" under § 40-35-313, which is post-conviction.

Q: Why does it matter whether the defendant has been convicted?
A: Because the Board of Probation and Parole's statutory mission is supervising convicted persons. Tenn. Code Ann. § 40-28-101 created the Board for convicted criminal defendants. The two categories of supervised individuals defined in §§ 40-28-102 and -111 (parolees and persons placed on probation) both presuppose a conviction. A pretrial diversion participant has not been convicted.

Q: So who supervises a pretrial-diversion participant?
A: The Pretrial Diversion Act (§ 40-15-104) anticipates that any required rehabilitation program will be operated by "a county, municipal, or authorized private agency." This is the local social-services side of the criminal justice system, not the state probation board.

Q: Is there any role for the Board in pretrial diversion?
A: One narrow role. Under § 40-15-104, when no local agency is available to prepare the pretrial investigation report, the Board can prepare it. That is investigation, not supervision. Once the diversion agreement is in place, the Board has no continuing role.

Q: Can the Board "volunteer" to supervise diverted defendants if it has spare capacity?
A: No. The opinion is explicit: "Administrative agencies have only such power as is granted them by statute, and any action which is not authorized by the statutes is a nullity." Madison Loan & Thrift Co. v. Neff. The Board cannot expand its own jurisdiction by being helpful.

Q: Does this mean a defendant on pretrial diversion who violates conditions cannot be returned to court?
A: The opinion did not address the violation remedy. It held only that the Board cannot play the supervising-officer role for diverted defendants that it plays for probationers and parolees.

Background and statutory framework

Tennessee's criminal supervision system operates on a strict statutory grant model. The Board of Probation and Parole was created by Tenn. Code Ann. § 40-28-101 to supervise people "convicted of crime." The duties of probation and parole officers, set out in § 40-28-111, are limited to two categories:

1. Parolees: people released from prison by the Board before their sentence expires, subject to conditions (or people released to answer outside warrants). Tenn. Code Ann. § 40-28-102(5).

2. Persons placed on probation: people found guilty of a crime, by verdict or plea, who are released without imprisonment subject to conditions and supervision. Tenn. Code Ann. § 40-28-102(6). Probation under § 40-35-501(a)(3) of the sentencing act is also covered.

Both categories require a conviction. The opinion emphasizes this point: "Clearly, both classes, parolees and persons placed on probation, are comprised of persons who have been convicted of a criminal offense."

Pretrial diversion under § 40-15-101 et seq. is structurally different. It is a pre-conviction tool. The Tennessee Supreme Court's description in Pace v. State (1978) frames the purpose: to spare first offenders the stigma, embarrassment, and expense of trial and the collateral consequences of a conviction. The defendant and the prosecutor enter a memorandum of understanding, the prosecution is suspended while the defendant completes conditions, and if successful the case is dismissed with prejudice under § 40-15-105(e). No conviction ever enters.

The opinion applies two interpretive rules. First, the rule that administrative agencies have only the powers statute gives them. Madison Loan & Thrift Co. v. Neff (Tenn. Ct. App. 1982); Williams v. American Plan Corp. (1965). Second, the rule that specific statutory provisions govern over general ones. Wade v. Madding (1930). Even if the Board's general supervisory authority could be read broadly enough to encompass pretrial diversion, the Pretrial Diversion Act is the specific statute on point and confines the Board's role to preparing investigation reports when no local agency is available.

This narrow read serves the architecture of pretrial diversion. The Pretrial Diversion Act contemplates locally-operated rehabilitation programs (county, municipal, or authorized private). Plugging a state probation officer into the supervision role would change the character of the program from a community-based diversion to a state-supervised pre-conviction probation, a structure the legislature did not adopt.

Citations and references

Statutes:

• Tenn. Code Ann. § 40-15-101 (pretrial diversion entry)
• Tenn. Code Ann. § 40-15-102 (Pretrial Diversion Act)
• Tenn. Code Ann. § 40-15-104 (rehabilitation program operation; Board investigation reports)
• Tenn. Code Ann. § 40-15-105 (memorandum of understanding; conditions; dismissal on completion)
• Tenn. Code Ann. § 40-28-101 (Board of Probation and Parole created)
• Tenn. Code Ann. § 40-28-102(5) (definition of parole)
• Tenn. Code Ann. § 40-28-102(6) (definition of probation)
• Tenn. Code Ann. § 40-28-111 (duties of probation and parole officers)
• Tenn. Code Ann. § 40-35-501(a)(3) (sentencing-act probation)

Cases:

• Madison Loan & Thrift Co. v. Neff, 648 S.W.2d 655 (Tenn. Ct. App. 1982), Tennessee Court of Appeals (administrative agency limited to statutory authority)
• General Portland, Inc. v. Chattanooga-Hamilton County Air Pollution Control Board, 560 S.W.2d 910 (Tenn. Ct. App. 1976), Tennessee Court of Appeals
• City of Nashville v. Kizer, 194 Tenn. 357, 250 S.W.2d 562 (1952), Tennessee Supreme Court
• Williams v. American Plan Corp., 216 Tenn. 435, 392 S.W.2d 920 (1965), Tennessee Supreme Court
• Pace v. State, 566 S.W.2d 861 (Tenn. 1978), Tennessee Supreme Court (purpose of pretrial diversion)
• Wade v. Madding, 161 Tenn. 88, 28 S.W.2d 642 (1930), Tennessee Supreme Court (specific provisions govern general ones)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-007.pdf

Original opinion text

Authority of Board of Probation and Parole to Supervise Individuals on Pretrial Diversion

QUESTION

Is the Board of Probation and Parole authorized to supervise an individual placed on pretrial diversion pursuant to Tenn. Code Ann. § 40-15-101?

OPINION

No. There is nothing in either the statute creating the Board of Probation and Parole or the statute creating pretrial diversion that authorizes the Board to supervise criminal defendants placed on pretrial diversion.

ANALYSIS

"Administrative agencies have only such power as is granted them by statute, and any action which is not authorized by the statutes is a nullity." Madison Loan & Thrift Co. v. Neff, 648 S.W.2d 655, 657 (Tenn. Ct. App. 1982) (quoting General Portland, Inc. v. Chattanooga-Hamilton County Air Pollution Control Board, 560 S.W.2d 910, 913 (Tenn. Ct. App. 1976)). It is a general rule that no intent may be imputed to the legislature in the enactment of a statute other than such as is supported by the face of the statute itself. City of Nashville v. Kizer, 194 Tenn. 357, 364, 250 S.W.2d 562, 565 (1952). This rule likewise applies in determining the power of an administrative agency. Williams v. American Plan Corp., 216 Tenn. 435, 443, 392 S.W.2d 920, 924 (1965).

The Board of Probation and Parole was created to provide a system of probation and parole for criminal defendants who were "convicted of crime." Tenn. Code Ann. § 40-28-101. The duties of probation and parole officers are specified in Tenn. Code Ann. § 40-28-111:

(a) The duties of probation and parole officers shall be to supervise, investigate and check on the conduct, behavior and progress of parolees assigned to them for supervision and shall make to the board a report of the investigations, and shall perform other duties and functions as the regulations of the board may direct.

(b) The duties of probation and parole officers shall be to supervise and investigate the conduct and behavior of persons placed on probation by the courts or pursuant to § 40-35-501(a)(3) and to perform other duties and functions as the regulations of the board may direct.

(emphasis added). Thus, there are only two classes of individuals subject to the statutory duties of probation and parole officers: "parolees" and "persons placed on probation." Although "parolee" is not defined for purposes of Title 40, Chapter 28, the term "parole" is:

"Parole" means the release of a prisoner to the community by the board prior to the expiration of the prisoner's term subject to the conditions imposed by the board and to its supervision, or where 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.

Tenn. Code Ann. § 40-28-102(5). Likewise, "persons placed on probation" is not defined, but the term "probation" is:

"Probation" means the release by a court of a person found guilty of a crime, upon verdict or plea, without imprisonment subject to conditions imposed by the court and subject to the supervision of the probation service[.]

Tenn. Code Ann. § 40-28-102(6). Clearly, both classes, parolees and persons placed on probation, are comprised of persons who have been convicted of a criminal offense.

In contrast, the Pretrial Diversion Act provides a means of avoiding a trial on criminal charges in favor of pretrial rehabilitation. Tenn. Code Ann. §§ 40-15-102, -105. "The self-evident purpose of pretrial diversion is to spare appropriately selected first offenders the stigma, embarrassment and expense of trial and the collateral consequences of a criminal conviction." Pace v. State, 566 S.W.2d 861, 868 (Tenn. 1978). During the process, the defendant and the prosecution enter into a memorandum of understanding whereby the prosecution is suspended while the defendant pursues rehabilitation and abides by conditions imposed by the memorandum. Tenn. Code Ann. § 40-15-105(a). One of the conditions that may be required is that "the defendant participate in a supervised rehabilitation program which may include treatment, counseling, training, and education." Tenn. Code Ann. § 40-15-105(a)(2)(C). Although the statute does not state so specifically, it appears to anticipate the rehabilitation program's being operated by a "county, municipal, or authorized private agency." Tenn. Code Ann. § 40-15-104. If the defendant successfully completes pretrial diversion, the trial court shall dismiss the criminal charges with prejudice. Tenn. Code Ann. § 40-15-105(e).

There is nothing in the general statute that establishes the Board of Probation and Parole to indicate that the General Assembly intended to authorize it to supervise criminal defendants who are placed on pretrial diversion. Moreover, the Board's participation in pretrial diversion, which occurs without entry of a judgment of conviction, would be directly contrary to the duties specified in Tenn. Code Ann. § 40-28-111. Furthermore, there is nothing in the Pretrial Diversion Act to indicate that the General Assembly intended to create a specific exception from the general rule for that particular purpose. Wade v. Madding, 161 Tenn. 88, 28 S.W.2d 642, 649 (1930) ("Specific provisions relating to a particular subject must govern in respect to that subject, as against general provisions in other parts of the law which otherwise might be broad enough to include it."). Indeed, the only participation of the Board authorized in pretrial diversion is the preparation of a pretrial investigation report when there is no local agency available to do so. See Tenn. Code Ann. § 40-15-104. Therefore, it is the opinion of this office that the Board of Probation and Parole is not authorized to supervise an individual placed on pretrial diversion pursuant to Tenn. Code Ann. § 40-15-105.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

MARK A. FULKS
Senior Counsel

Requested by:
Charles M. Traughber
Chairman
Board of Probation and Parole
404 James Robertson Parkway, Suite 1300
Nashville, TN 37243-0850