Does a Tennessee non-violent expungement under the 2012 law cost $350 or $450 in court fees?

Subject

Opinion No. 12-89, Court Fees for Expungements, September 20, 2012

Plain-English summary

Representative Karen Camper asked the AG whether a court clerk could charge both the $100 general expungement fee under Tenn. Code Ann. § 8-21-401 and the new $350 fee created by 2012 Tenn. Pub. Acts ch. 1103 (effective July 1, 2012, codified at Tenn. Code Ann. § 40-32-101(g)), which allowed certain nonviolent offenders to petition for expungement.

The AG said no, the fee is just $350. Three reasons:

1. § 8-21-106(a)'s rule of construction. Tenn. Code Ann. § 8-21-106(a) says when there are conflicts or apparent conflicts between fees in Chapter 21 of Title 8 and fees set elsewhere in the Code, "the fees shall be those named in other sections dealing with the particular subject matters." Chapter 1103 is an "other section dealing with the particular subject matter" (nonviolent-offender expungement) and so its $350 fee controls over the $100 in § 8-21-401.
2. Compare to § 40-32-101(d)(2). When the legislature wanted to layer fees, it knew how. For pretrial-diversion expungement under Tenn. Code Ann. § 40-32-101, the legislature explicitly required both the § 8-21-401 court clerk's fee and a $350 TBI-purpose fee (2012 Tenn. Pub. Acts ch. 1041). Chapter 1103 contains no such layering language.
3. Legislative history. The fiscal memo for HB 2865/SB 3520 (the bill enacted as Chapter 1103) projected revenue based on the $350 fee alone. Floor and committee discussions consistently referenced "$350 to petition the court" and "the application fee is $350 regardless." The $100 § 8-21-401 fee was never mentioned.

The clerk retains $10 of the $350 (with the remainder distributed per statute). $50 goes to the Tennessee Bureau of Investigation to defray costs from added expungements.

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.

Background and statutory framework

The general expungement fee

Tenn. Code Ann. § 8-21-401(d)(2) sets a $100 fee for criminal-court "proceedings related to a violation of probation, any post-judgment actions, or expungements." § 8-21-401(g) parallels for general sessions courts.

The Chapter 1103 fee

2012 Tenn. Pub. Acts ch. 1103 amended Tenn. Code Ann. § 40-32-101 to allow certain nonviolent offenders to petition for expungement. The new subsection (g) requires:

The petitioner shall pay to the clerk of the court a fee of three hundred fifty dollars ($350) upon the filing of the petition. Fifty dollars ($50.00) of the fee shall be transmitted to the Tennessee Bureau of Investigation for the purpose of defraying the costs incurred from the additional expungement petitions filed and granted as the result of this subsection. The clerk shall retain ten dollars ($10.00) of the fee and shall remit the remainder to the trustee to be allocated in the following manner . . . .

The rule of construction in § 8-21-106(a)

Tenn. Code Ann. § 8-21-106(a) provides that Chapter 21 of Title 8 is not exhaustive: when there are conflicts or apparent conflicts, the more-specific fee provisions in other Code sections govern. The Tennessee Supreme Court in Rogers v. Louisville Land Co. and the Court of Appeals in Steppach v. Thomas both confirm that specific provisions override general ones.

Comparison to dual-fee provisions

Where the legislature wants to layer fees, it does so explicitly. Tenn. Code Ann. § 40-32-101(a)(1)(B) (covering pretrial-diversion expungement) instructs the petitioner to be "charged the appropriate court clerk's fee pursuant to § 8-21-401" and additionally imposes a $350 fee for the TBI under § 40-32-101(d)(2) (2012 Tenn. Pub. Acts ch. 1041). Chapter 1103 contains no parallel "in addition to § 8-21-401" language. The omission was deliberate.

Legislative history

The fiscal memo prepared for HB 2865/SB 3520 estimated that 47,928 expungement requests would be filed and that the court clerks would retain $10 each, producing about $479,280 in local revenue. The math assumed the $350 fee, not $450. Floor statements by Rep. Matheny and Sen. Tate confirmed $350. There was no mention of an additional $100 fee.

Common questions

Why does the $10 clerk retention rate matter?
Because Chapter 1103 changes the usual revenue model. Court clerks normally retain the § 8-21-401 fee in full. Under Chapter 1103, the clerk retains only $10 out of $350; the rest is distributed per the statute, mostly back to the State (TBI) and trustee. That contrast is part of why the AG concluded Chapter 1103 was meant to be the exclusive fee.

Where does the $350 actually go?
$50 to TBI for defraying expungement-processing costs; $10 retained by the clerk; the remainder to the trustee per the formula in Chapter 1103, § 1(g)(10).

What if a court clerk has already been charging both fees?
Petitioners who paid both could potentially seek refunds; this is a practical matter that the AG opinion identifies but does not resolve.

Are pretrial-diversion expungements different?
Yes. § 40-32-101(d)(2) (Chapter 1041) explicitly stacks fees: the $8-21-401 court clerk's fee plus a $350 TBI fee. The reasoning here applies only to Chapter 1103 nonviolent expungements.

Citations

Statutes:
- Tenn. Code Ann. §§ 8-21-101 to -1301 (clerks' fees, Chapter 21 of Title 8)
- Tenn. Code Ann. § 8-21-106(a) (rule of construction; specific fee elsewhere controls)
- Tenn. Code Ann. § 8-21-401(d)(2), (g) ($100 general expungement fee)
- Tenn. Code Ann. § 40-32-101 (expungement statute)
- 2012 Tenn. Pub. Acts ch. 1041 (pretrial diversion fee structure)
- 2012 Tenn. Pub. Acts ch. 1103 (nonviolent-offender expungement; $350 fee)

Cases:
- Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012)
- In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007)
- Bell South Telecomms., Inc. v. Greer, 972 S.W.2d 663 (Tenn. Ct. App. 1997)
- Steppach v. Thomas, 346 S.W.3d 488 (Tenn. Ct. App. 2011)

Legislative history sources:
- Tenn. Gen. Assembly Fiscal Rev. Comm., Fiscal Memo. HB 2865 – SB 3520 (Apr. 25, 2012)
- Hearing on H.B. 2865 Before the House Comm. on Finance, Ways and Means, 107 Gen. Assembly, 2nd Sess. (Tenn. Apr. 30, 2012) (Rep. Matheny)
- Hearing on S.B. 3520 Before the Senate Comm. on Finance, Ways and Means, 107 Gen. Assembly, 2nd Sess. (Tenn. Apr. 26, 2012) (Sen. Tate)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-089.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

September 20, 2012

Opinion No. 12-89

Court Fees for Expungements

QUESTION

May clerks of court charge both the $100 fee set forth in Tenn. Code Ann. § 8-21-401 and the $350 fee set forth in Chapter 1103 of the 2012 Tennessee Public Acts, effective July 1, 2012, for expungement proceedings initiated under Chapter 1103?

OPINION

No. The fee for filing an expungement petition commenced under Chapter 1103 is $350.

ANALYSIS

Tenn. Code Ann. §§ 8-21-101 to -1301 set forth allowable fees for particular services rendered by clerks of court and other public officers. For criminal cases in courts of record, the statute specifies that the clerk of a criminal court "shall charge a fee of one hundred dollars ($100) for proceedings related to a violation of probation, any post-judgment actions, or expungements." Tenn. Code Ann. § 8-21-401(d)(2). The fee for expungements in general sessions court is likewise $100 and is payable to the general sessions court clerk. Tenn. Code Ann. § 8-21-401(g). This chapter of the Code contains a rule of construction which specifically states that "[t]his chapter listing fees of clerks and other officials is not to be construed to be inclusive of all fees" and "[i]n cases of conflicts or apparent conflicts, the fees shall be those named in other sections dealing with the particular subject matters." Tenn. Code Ann. § 8-21-106(a).

On May 1, 2012, the General Assembly passed Chapter 1103 of the 2012 Tennessee Public Acts ("Chapter 1103"), which amends Tenn. Code Ann. § 40-32-101 to allow certain nonviolent offenders to petition to have their criminal records expunged if they are otherwise qualified. 2012 Tenn. Pub. Acts, ch. 1103 (to be codified at Tenn. Code Ann. § 40-32-101(g)). Chapter 1103 is effective July 1, 2012. Id. § 3. For this class of expungements, the statute provides:

The petitioner shall pay to the clerk of the court a fee of three hundred fifty dollars ($350) upon the filing of the petition. Fifty dollars ($50.00) of the fee shall be transmitted to the Tennessee Bureau of Investigation for the purpose of defraying the costs incurred from the additional expungement petitions filed and granted as the result of this subsection. The clerk shall retain ten dollars ($10.00) of the fee and shall remit the remainder to the trustee to be allocated in the following manner . . . .

Id. § 1(g)(10).

Thus, like Tenn. Code Ann. § 8-21-401 which authorizes certain fees to be collected by clerks of courts, Chapter 1103 establishes a fee for certain defined expungements payable to the clerk of the court. The statutes differ in that Chapter 1103 only allows the clerk to retain $10 of the $350 fee paid, whereas generally the fees imposed by Tenn. Code Ann. § 8-21-401 are retained by the clerks as compensation for services rendered. Compare Tenn. Code Ann. § 8-21-101 and -401 with Chapter 1103, § 1(g)(10).

The question posed is what fees can be collected by the clerk for expungements filed under Chapter 1103—the $350 fee assessed by Chapter 1103, the $100 fee assessed for expungements by Tenn. Code Ann. § 8-12-401, or both. Based upon the unambiguous terms of these statutes and established rules of statutory construction, the only fee to be paid for expungements initiated under Chapter 1103 is the $350 fee assessed under Chapter 1103.

Tenn. Code Ann. § 8-21-106(a) states that, in the case of conflicts or apparent conflicts between the fees imposed by Chapter 21 of Title 8 (including fees collected by clerks under Tenn. Code Ann. § 8-21-401) and fees collected by public officials in other sections of the Tennessee Code, "the fees shall be those named in other sections dealing with the particular subject matters." Accordingly, the specific $350 fee required for expungements filed under Chapter 1103, which is paid to the clerk of the court, takes precedence over the $100 fee for expungements provided for in Tenn. Code Ann. § 8-21-401. See Rogers v. Louisville Land Co., 367 S.W.3d 196, 214 (Tenn. 2012) (quoting In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007) and Bell South Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)) (stating the general rule of statutory construction that if the statutory language is unambiguous "the plain and ordinary meaning of the statute must be given effect" and the courts will "presume that the legislature says in a statute what it means and means in a statute what it says there"). See also Steppach v. Thomas, 346 S.W.3d 488, 506-507 (Tenn. Ct. App. 2011) (stating that "specific statutory language will control over general conflicting statutory language").

Furthermore, a review of other provisions of the Tennessee Code reveals that the General Assembly, when it wishes to do so, has specifically required payment of both the general fee listed in Chapter 21 of Title 8 and a more specific fee established elsewhere in the Tennessee Code. For example, for expungement of records relating to charges dismissed as a result of the successful completion of a pretrial diversion program, Tenn. Code Ann. § 40-32-101 specifies that the petitioner "shall be charged the appropriate court clerk's fee pursuant to § 8-21-401." Tenn. Code Ann. § 40-32-101(a)(1)(B). The statute goes on to impose a $350 fee for such diversions to be used by the Tennessee Bureau of Investigation for certain enumerated purposes. 2012 Tenn. Pub. Acts, ch. 1041 (to be codified at Tenn. Code Ann. § 40-32-101(d)(2)). Thus, when the General Assembly wishes to incorporate the $100 fee from § 8-21-401 and also to assess fees for special purposes, it does so explicitly. Public Chapter 1103 does not contain such a feature.

The legislative history of Chapter 1103 bolsters the conclusion that the fee for filing an expungement petition pursuant to Chapter 1103 is only $350. A fiscal memorandum prepared in connection with the successful amendment 017468 to House Bill 2865/Senate Bill 3520 of the 107th General Assembly of Tennessee (which was enacted as Chapter 1103) estimated a net increase in revenue at both the state and local levels in the event of passage of the bill. Tenn. Gen. Assembly Fiscal Rev. Comm., Fiscal Memo. HB 2865 – SB 3520, at 4 (Apr. 25, 2012), available at http://www.legislature.state.tn.us/. Those revenue projections appear to rest on the assumption that eligible offenders will pay only "the $350 to have his or her record expunged resulting in an increase in revenue for state and local government." Id. at 5 (further stating that "[t]he court clerk will retain $10 of each fee resulting in an increase in local revenue of at least $479,280 ($10 x 47,928 expungement requests)"). The same assumption appears in the statements of individual legislators during committee hearings. Although debate on the fee to be charged for expungements is sparse, it contains such statements as "[t]he petitioner will pay a one-time fee of $350 to petition the court" and "the application fee is $350 regardless." Hearing on H.B. 2865 Before the House Comm. on Finance, Ways and Means, 107 Gen. Assembly, 2nd Sess. (Tenn. Apr. 30, 2012) (statement of Rep. Matheny); Hearing on S.B. 3520 Before the Senate Comm. on Finance, Ways and Means, 107 Gen. Assembly, 2nd Sess. (Tenn. Apr. 26, 2012) (statement of Sen. Tate). The hearings contain no mention of the $100 fee set forth in Tenn. Code Ann. § 8-21-401.

On balance, the plain language of the rule of construction set forth in Tenn. Code Ann. § 8-21-106, the structure of Tenn. Code Ann. § 40-32-101, and the legislative history of Chapter 1103 confirm that the General Assembly intended that petitioners pay only a $350 fee for initiating expungement proceedings pursuant to the new Tenn. Code Ann. § 40-32-101(g). Accordingly, court clerks may not charge an additional $100 fee for such expungements under Tenn. Code Ann. § 8-21-401.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
Representative Karen D. Camper
Legislative District 87
24 Legislative Plaza
Nashville, TN 37243-0192