Does someone who cannot afford a lawyer have a right to a court-appointed attorney at a Tennessee probation revocation hearing?

Subject

Opinion No. 12-16, Right to Appointed Counsel for Probation Revocation, February 17, 2012

Plain-English summary

Representative McCormick asked whether an indigent defendant in Tennessee has a right to appointed counsel when facing probation revocation. The AG's answer was a clean yes, supported by three independent Tennessee sources.

Statute. Tenn. Code Ann. § 40-35-311(b) provides that at an inquiry into a probation violation, 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."

Court rule. Tennessee Supreme Court Rule 13, Section 1(d)(1)(C), requires the court to appoint counsel in proceedings initiated by a petition for "probation revocation" when the defendant is indigent and requests appointment.

Plea-related statute. Tenn. Code Ann. § 8-14-206(a) provides that no person may enter a plea in any criminal prosecution or other proceeding involving possible deprivation of liberty when not represented by counsel, unless the person has waived counsel in writing.

The AG noted that under the U.S. Constitution, indigent probationers do not automatically have a right to appointed counsel at revocation. Gagnon v. Scarpelli (1973) held that the federal constitutional right is decided case by case. But Tennessee law has been more generous than the federal floor. The state statute and the Supreme Court Rule give every Tennessee probationer who cannot afford an attorney the right to a court-appointed one. State v. Merriweather (Tenn. Crim. App. 2000) confirms that Tennessee case law has consistently honored this right.

Currency note

This opinion was issued in 2012. 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.

Tenn. Code Ann. § 40-35-311 and Tennessee Supreme Court Rule 13 have both been amended since 2012. The core conclusion (right to appointed counsel at probation revocation) has been stable, but procedural details like timing of appointment and indigency screening have evolved. Pull current law before relying on a specific procedure.

Background and statutory framework

Federal floor. Gagnon v. Scarpelli, 411 U.S. 778 (1973), held that the Due Process Clause does not require appointed counsel in every probation revocation. The Supreme Court instead set out factors (whether the probationer has a colorable claim that the violation did not occur, or substantial mitigation) for case-by-case appointment.

Tennessee statute. Tenn. Code Ann. § 40-35-311(b) reads:

Whenever any person is arrested 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.

Tennessee Supreme Court Rule 13. Section 1(d)(1)(C) lists "[p]roceedings initiated by a petition for habeas corpus, early release from incarceration, suspended sentence, or probation revocation" among proceedings where the court must advise an unrepresented party of the right to appointed counsel and appoint if the party is indigent and requests it.

Tenn. Code Ann. § 8-14-206(a). Bars taking a plea in any criminal prosecution or proceeding involving possible deprivation of liberty without counsel, unless waived in writing.

State case law. State v. Merriweather, 34 S.W.3d 881, 884-85 (Tenn. Crim. App. 2000), affirms the right to counsel at revocation hearings.

Common questions

Q: I am on probation in Tennessee and got a violation warrant. Will I get a lawyer if I cannot afford one?
A: Per this opinion, yes. Tenn. Code Ann. § 40-35-311(b) and Tennessee Supreme Court Rule 13, Section 1(d)(1)(C) require it for indigent defendants at probation revocation. Tell the court you cannot afford counsel and ask the court to appoint one. Current law and procedures may have changed; consult a Tennessee criminal defense lawyer for any active case.

Q: What is "indigent" in Tennessee for this purpose?
A: Indigency is determined by the court under Supreme Court Rule 13. Typical factors include income, dependents, assets, and the nature of the charges. The opinion did not address financial thresholds; pull current Rule 13 and trial-court guidance for specifics.

Q: Does this right exist if I waive a hearing?
A: A defendant can waive counsel, but the waiver must be voluntary, knowing, and intelligent, and (under § 8-14-206(a) for any plea proceeding) in writing. Courts strictly review such waivers.

Q: How does this compare to the U.S. Constitution?
A: Federal law (Gagnon v. Scarpelli) does not guarantee appointed counsel at every revocation; Tennessee law does. The state is more protective.

Q: Does this apply to parole as well as probation?
A: This opinion addressed probation specifically. Tennessee parole revocation procedure is set out elsewhere; consult current statute and Tennessee Supreme Court Rule 13 for the current scope of appointed-counsel rights.

Citations and references

Statutes and rules:

• Tenn. Code Ann. § 40-35-311(b)
• Tenn. Code Ann. § 8-14-206(a)
• Tenn. Sup. Ct. R. 13, Section 1(d)(1)(C)

Cases:

• Gagnon v. Scarpelli, 411 U.S. 778 (1973)
• State v. Merriweather, 34 S.W.3d 881 (Tenn. Crim. App. 2000)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-016.pdf

Original opinion text

February 17, 2012
Opinion No. 12-16
Right to Appointed Counsel for Probation Revocation
QUESTION
Does an indigent defendant have a right to appointed counsel during a proceeding for
revocation of his probation?
OPINION
Yes. Tenn. Code Ann. § 40-35-311(b) provides that a defendant is entitled to be
represented by counsel at a hearing on a revocation of his probation. If that defendant is indigent,
Tennessee Supreme Court Rule 13, Section 1(d)(1)(C), requires the court to appoint counsel to
the defendant.
ANALYSIS
In Tennessee, probationers have a right, conferred by law, to counsel in revocation
proceedings.¹ Tenn. Code Ann. § 40-35-311 provides:
Whenever any person is arrested 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.
Tenn. Code Ann. § 40-35-311(b).
Tennessee Supreme Court Rule 13 requires the court to appoint counsel if the defendant
is indigent, stating in relevant part:
1 In Gagnon v. Scarpelli, 411 U.S. 778, 789-90 (1967), the United States Supreme Court held that probationers do
not have a constitutional right to counsel in revocation proceedings. In Tennessee, therefore, the right to be
represented in such matters is conferred by statute and rule.
Tenn. Sup. Ct. R. 13, Section 1(d)(1)(C) (emphasis added).² Tennessee case law has also
affirmed a probationer's right to counsel in revocation hearings. See State v. Merriweather, 34
S.W.3d 881, 884-85 (Tenn. Crim. App. 2000).
Nashville, TN 37243-0126
2 The entitlement to counsel at a probation revocation hearing is also required by Tenn. Code Ann. § 8-14-206,
which states:
No person in this state shall be allowed to enter a plea in any criminal prosecution or other
proceeding involving a possible deprivation of liberty when not represented by counsel, unless
such person has in writing waived the right to the assistance of counsel.
Tenn. Code Ann. § 8-14-206(a).
Page 2
(d)(1) In the following cases, and in all other cases required by law, the court or
appointing authority shall advise any party without counsel of the right to be
represented throughout the case by counsel and that counsel will be appointed if
the party is indigent and requests appointment of counsel:

(C) Proceedings initiated by a petition for habeas corpus, early release from
incarceration, suspended sentence, or probation revocation;
Tenn. Sup. Ct. R. 13, Section 1(d)(1)(C) (emphasis added).2
Tennessee case law has also
affirmed a probationer’s right to counsel in revocation hearings. See State v. Merriweather, 34
S.W.3d 881, 884-85 (Tenn. Crim. App. 2000).
ROBERT E. COOPER, JR.
Attorney General and Reporter
WILLIAM E. YOUNG
Solicitor General
LYNDSAY F. SANDERS
Senior Counsel
Requested by:
The Honorable Gerald McCormick
State Representative
18A Legislative Plaza
Nashville, TN 37243-0126
2
The entitlement to counsel at a probation revocation hearing is also required by Tenn. Code Ann. § 8-14-206,
which states:
No person in this state shall be allowed to enter a plea in any criminal prosecution or other
proceeding involving a possible deprivation of liberty when not represented by counsel, unless
such person has in writing waived the right to the assistance of counsel.
Tenn. Code Ann. § 8-14-206(a).