How does Tennessee's expunction statute for pre-1989 nonviolent offenses actually work? Which offenses qualify, and can someone with more than one conviction apply?

Subject

Opinion No. 13-86, Expunction of Criminal Records Under Tenn. Code Ann. § 40-32-101(g), November 6, 2013

Plain-English summary

Sen. Mae Beavers asked six questions about Tennessee's 2012 expunction statute for nonviolent offenders. The statute (Tenn. Code Ann. § 40-32-101(g), effective July 1, 2012) lets some people petition to clear their criminal records if they meet specific eligibility requirements. The AG worked through each question:

Q1: Which offenses involve a "substantial risk of physical force" disqualifying expunction for pre-1989 convictions? The answer is fact-specific. § 40-32-101(g)(1)(C)(iv)(B) requires the trial court to look at the actual facts and circumstances of the offense, not just statutory elements. (By contrast, subsection (iv)(A) does focus on statutory elements.) No general list could be provided.

Q2: Does an attempt to commit a qualifying offense also count? Same answer. Whether an attempt involved a substantial risk of physical force depends on facts of the attempt. Case-by-case.

Q3: Does the felony class affect eligibility under § 40-32-101(g)(1)(C)? No. § 40-32-101(g)(1)(C) only covers pre-November 1, 1989 offenses. The current felony classification (Class A through E) didn't exist before the 1989 Sentencing Reform Act. There's no Class-based exclusion in the statute.

Q4: Does it matter that the actual sentence served was less than the statutorily mandated minimum? No. For determinate sentences (§ (g)(1)(C)(i)), eligibility turns on whether the sentence imposed was three years or less. For indeterminate sentences (§ (g)(1)(C)(ii)), it turns on whether the person actually served three years or less. Either way, the relationship between actual time served and the statutory minimum is irrelevant.

Q5: Does § 40-32-101(g)(2)(A) require that the offense for expunction be the person's only conviction? Yes. The statute's language is clear: at the time of filing, the person can have "never been convicted of any criminal offense, including federal offenses and offenses in other states, other than the offense committed for which the petition for expunction is filed." A person with any other conviction is not "eligible."

Q6: Is the statute unconstitutionally vague? No. The statute gives "a person of ordinary intelligence a reasonable opportunity to know what is prohibited" and provides explicit enough standards to prevent arbitrary enforcement (the State v. Lakatos test). The definitions of "eligible petitioner" and the qualification requirements are clear.

Currency note

This opinion was issued in 2013. 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.

Tennessee has substantially expanded expunction eligibility since 2013, including for some single eligible felonies committed after the pre-1989 cutoff and for multiple-conviction relief in some scenarios. Anyone considering expunction today must consult current statute text, not this 2013 opinion's analysis of pre-1989 eligibility.

Background and statutory framework

The expunction statute. Tenn. Code Ann. § 40-32-101(g), enacted by 2012 Tenn. Pub. Acts ch. 1103, § 3, effective July 1, 2012. Allowed nonviolent offenders to petition for expunction if otherwise eligible.

Pre-1989 offense eligibility. § 40-32-101(g)(1)(C)(iv)(B): the offense must not have "involve[d], by its nature, a substantial risk that physical force against the person of another would be used in the course of committing the offense." This contrasts with § 40-32-101(g)(1)(C)(iv)(A), which focuses on whether the offense "[d]id not have as an element the use, attempted use, or threatened use of physical force." Subsection (B) requires factual inquiry; subsection (A) requires statutory-elements inquiry.

Sentence-length requirements. § 40-32-101(g)(1)(C)(i): person sentenced to determinate sentence of three years or less. § 40-32-101(g)(1)(C)(ii): person sentenced to indeterminate sentence for which the person served three years or less.

Eligible petitioner. § 40-32-101(g)(2)(A): at the time of filing, person has never been convicted of any criminal offense (including federal and other states) other than the petition offense.

Felony classification history. The current Class A-E felony / Class A-C misdemeanor framework dates to the 1989 Tennessee Criminal Sentencing Reform Act (Tenn. Code Ann. §§ 40-35-101 to -505). The prior framework (1982 Act, repealed by 1989 Tenn. Pub. Acts ch. 591, § 1) used different classifications.

Pre-1989 attempt elements. State v. Staggs, 554 S.W.2d 620, 623 (Tenn. 1977): intent to commit a specific crime, an overt act, and failure to consummate the crime.

Statutory construction. State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013), and Chapman v. DaVita, Inc., 380 S.W.3d 710, 714 (Tenn. 2012): look no further if the language is clear; don't unduly expand a statute's coverage.

Vagueness test. State v. Lakatos, 900 S.W.2d 699, 701 (Tenn. Crim. App. 1994): the statute must give a person of ordinary intelligence reasonable opportunity to know what is prohibited and must provide explicit standards to prevent arbitrary enforcement.

Common questions

Why does the statute treat pre-1989 offenses specially?

Pre-1989 offenses don't fit the current sentencing framework. The General Assembly created a special expunction track for these older offenses to address what would otherwise be unequal treatment of people convicted under earlier law.

What's the difference between (g)(1)(C)(iv)(A) and (B)?

Subsection (A) is a categorical look at the offense's statutory elements. If the elements include use, attempted use, or threatened use of physical force, the offense disqualifies. Subsection (B) is a fact-based inquiry into whether the actual conduct, by its nature, posed substantial risk of physical force. The two work together: an offense that doesn't fail (A) might still fail (B) on the facts.

What happens if a court tries to interpret "substantial risk of physical force" generally?

The AG declined to give a generally applicable list precisely because the inquiry must be fact-based. Each trial court must look at the particular case. The AG's reluctance to list offenses categorically was both because the statute requires it and because incorrect categorization could foreclose legitimate expunctions or improperly grant expunctions to actually risky offenses.

What does it mean to be the "only" conviction?

Federal, out-of-state, and Tennessee convictions all count for the "any other conviction" disqualifier. Even a single prior misdemeanor anywhere disqualifies. The statute draws a hard line: this expunction track is only for people with one and only one conviction.

Was the constitutional vagueness challenge serious?

The opinion treated it briefly because the statute's language is reasonably clear. The fact-specific nature of subsection (iv)(B) doesn't make it vague; courts regularly apply such standards. The legislative intent (to create a narrow expunction track for genuinely nonviolent pre-1989 offenses) provides additional interpretive guidance.

Citations

Tenn. Code Ann. §§ 40-32-101(g), 40-32-101(g)(1)(C), 40-32-101(g)(1)(C)(i), 40-32-101(g)(1)(C)(ii), 40-32-101(g)(1)(C)(iv)(A), 40-32-101(g)(1)(C)(iv)(B), 40-32-101(g)(2)(A), 40-35-101 to -505. 2012 Tenn. Pub. Acts ch. 1103. Cases: State v. Staggs, 554 S.W.2d 620 (Tenn. 1977); State v. Hawkins, 406 S.W.3d 121 (Tenn. 2013); Chapman v. DaVita, Inc., 380 S.W.3d 710 (Tenn. 2012); State v. Lakatos, 900 S.W.2d 699 (Tenn. Crim. App. 1994).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-086.pdf

Original opinion text

November 6, 2013

Opinion No. 13-86

Expunction of Criminal Records Under Tenn. Code Ann. § 40-32-101(g)

QUESTIONS

1. Under Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(B), what type of felony or misdemeanor offense committed prior to November 1, 1989, involved "by its nature, a substantial risk that physical force against the person of another would be used in the course of committing the offense"?

2. If an offense meets the criteria under Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(B), would an attempt to commit that offense also meet the criteria?

3. Does the classification of a felony affect a person's ability to obtain an expunction of a criminal record pursuant to Tenn. Code Ann. § 40-32-101(g)(1)(C)?

4. Under Tenn. Code Ann. § 40-32-101(g)(1)(C)(i) and (ii), is a person's ability to obtain an expunction affected when the person's actual sentence served was less than the amount of time mandated by the statute for the conviction offense for which expunction is sought?

5. Does the language of Tenn. Code Ann. § 40-32-101(g)(2)(A), which states that "the person has never been convicted of any criminal offense, including federal offenses and offenses in other states, other than the offense committed for which the petition for expunction is filed," mean that the person can only apply for expunction if the offense that the person is seeking to expunge is the only offense for which the person was convicted?

6. Is Tenn. Code Ann. § 40-32-101(g) unconstitutionally vague?

OPINIONS

1. Because the determination of whether a particular offense would satisfy the criteria under Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(B) is necessarily factual on a case-by-case basis, it is not possible to provide a specific list of the offenses that would render a person ineligible under that statute for expunction of a record of conviction.

2. Because the determination of whether an attempt to commit a particular offense would satisfy the criteria under Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(B) is necessarily factual on a case-by-case basis, it is not possible to provide an opinion in response to the question.

3. No.

4. No.

5. Yes.

6. No.

ANALYSIS

1. On July 1, 2012, Tenn. Code Ann. § 40-32-101(g) became effective. 2012 Tenn. Pub. Acts ch. 1103, § 3. This statute allows certain nonviolent offenders to petition for expunction of their criminal records if they are otherwise eligible. Tenn. Code Ann. § 40-32-101(g). One of the requirements for eligibility to petition for expunction of a person's felony or misdemeanor conviction is that the offense, committed prior to November 1, 1989, "[d]id 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." Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(B). In order to determine whether an offense satisfies this criterion, a trial court must examine the facts and circumstances surrounding the commission of the offense, rather than merely examining the statutory elements of the offense. Compare Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(B) ("[d]id 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") with Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(A) ("[d]id not have as an element the use, attempted use, or threatened use of physical force against the person of another"). Because the determination is factual on a case-by-case basis, it is not possible to provide a specific list of the offenses that would render a person ineligible to petition for expunction under Tenn. Code Ann. § 40-32-101(g)(1)(C)(iv)(B).

2. The provisions of Tenn. Code Ann. § 40-32-101(g)(1)(C) apply only to convictions for felonies and misdemeanors committed prior to November 1, 1989. Prior to that date, an attempt to commit a criminal offense required three elements: (1) an intent to commit a specific crime, (2) an overt act, and (3) failure to consummate the crime. State v. Staggs, 554 S.W.2d 620, 623 (Tenn. 1977). For the same reasons expressed in the analysis of Question 1, the determination of whether an attempt would involve, by its nature, a substantial risk that physical force against the person of another would be used in committing the offense is a factual one to be made on a case-by-case basis. Therefore, it is not possible to provide a categorical response to the question posed.

3. Nothing in the language of Tenn. Code Ann. § 40-32-101(g)(1)(C) can be read to suggest that the class of the felony affects a person's ability to obtain under that provision the expunction of the record of a prior felony. Indeed, as noted above, Tenn. Code Ann. § 40-32-101(g)(1)(C) contemplates only offenses committed prior to November 1, 1989, and prior to that date, the classification of offenses as Class A, B, C, D, and E felonies and Class A, B, and C misdemeanors, as prescribed by current law, did not exist. Compare Tenn. Code Ann. §§ 40-35-101 to -505 (codifying Tennessee Criminal Sentencing Reform Act of 1989 as amended, which classified felonies and misdemeanors) with Tenn. Code Ann. §§ 40-35-101 to -504 (1982) (codifying Tennessee Criminal Sentencing Reform Act of 1982), repealed by 1989 Tenn. Pub. Acts ch. 591, § 1.

4. The requirements for eligibility for expunction of a person's convictions for a felony or misdemeanor committed prior to November 1, 1989 are set forth by Tenn. Code Ann. § 40-32-101(g)(1)(c). Section 40-32-101(g)(1)(C)(i) requires that "[t]he person was sentenced to a determinate sentence of three (3) years or less." The plain language of this provision provides that this requirement is met if the sentence imposed was a determinate sentence of three years or less, regardless of how much time the person actually served. Section 40-32-101(g)(1)(C)(ii) requires that "[t]he person was sentenced to an indeterminate sentence for which the person served three (3) years or less." Again, this requirement is met if the sentence imposed was an indeterminate sentence and the person actually served three years or less, irrespective of whether the actual sentence served was less than the amount of time mandated by the statute for the offense. Therefore, under either Tenn. Code Ann. § 40-32-101(g)(1)(C)(i) or (ii), whether the actual sentence served was less than the amount of time mandated by the statute for the offense is irrelevant. See State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013) (stating rule of statutory construction that courts will look no further if the language of the statute is "clear and unambiguous" and will not unduly expand a statute's coverage beyond its intended scope).

5. A person may be an "eligible petitioner" for expunction of his or her public records involving a criminal offense if, "[a]t the time of filing [of the petition for expunction], the person has never been convicted of any criminal offense, including federal offenses and offenses in other states, other than the offense committed for which the petition for expunction is filed[.]" Tenn. Code Ann. § 40-32-101(g)(2)(A). Again, a standard rule of statutory construction is that a statute's language should be given its natural and ordinary meaning within the context of the statute as a whole without any forced or subtle construction that would limit or extend the statute's meaning. State v. Hawkins, 406 S.W.3d at 131; Chapman v. DaVita, Inc., 380 S.W.3d 710, 714 (Tenn. 2012). The natural and ordinary meaning of the language of Tenn. Code Ann. § 40-32-101(g)(2)(A) reveals the intention of the General Assembly to limit the application of expunction to a small category of offenders and to directly provide that a person with a criminal conviction in addition to the conviction at issue in the expunction petition cannot be an "eligible petitioner" for expunction purposes.

6. To determine whether a statute is unconstitutionally vague, courts must consider two criteria: first, the statute must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," and, second, the statute "must provide explicit standards" to prevent "arbitrary and discriminatory enforcement." State v. Lakatos, 900 S.W.2d 699, 701 (Tenn. Crim. App. 1994) (internal quotations and citation omitted). The provisions of Tenn. Code Ann. § 40-32-101(g) explicitly define the meaning of "eligible petitioner" and detail the requirements to qualify for expunction of one's criminal record. The meaning of the statute's words is plain enough to be understood by "any person of ordinary intelligence." The statute, therefore, is not unconstitutionally vague.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MICHELLE L. CONSIGLIO-YOUNG
Assistant Attorney General

Requested by:

The Honorable Mae Beavers
State Senator
7 Legislative Plaza
Nashville, Tennessee 37243-0223