Did Tennessee's sex offender residency law force someone to move out of a home they had lived in for years, just because the home turned out to be within 1,000 feet of their victim?

Plain-English summary

Representative Leigh Wilburn asked the AG whether Tenn. Code Ann. § 40-39-211(b) prohibits a sexual offender from living within 1,000 feet of a victim even if the offender had owned that residence before committing the offense. The request flagged a real-world concern: in a small town, the offender's longtime home could end up being just down the street from the victim, raising the question of whether the victim's family had to move to avoid contact.

The AG's answer was that the statute's prohibition was absolute. Tennessee Code Ann. § 40-39-211(b)(1) provided: "No sexual offender, violent sexual offender, or violent juvenile sexual offender . . . shall knowingly . . . 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."

The AG read "reside" as covering any continued living in a residence, not just new acquisitions. That conclusion was reinforced by contrast with subsection (a) of the same statute, which uses different language: it bars an offender from "establish[ing]" a primary or secondary residence within 1,000 feet of a public school or place where children are present. "Establish a residence" is a forward-looking term meaning to set up a new residence. Under Tennessee precedent and the AG's prior 2004 opinion, an offender who returned post-incarceration to a pre-existing home within a school zone had not "established" a residence within the meaning of subsection (a).

The legislature used the broader word "reside" in subsection (b)(1) and the narrower phrase "establish a residence" in subsection (a). Because words are presumed to have distinct meanings, the AG concluded the legislature intended different rules. Subsection (a) tolerates a pre-existing home near a school; subsection (b) does not tolerate a pre-existing home near a victim. The footnote in the opinion is also significant: the restriction binds only the offender, the victim and the victim's family do not have any obligation under the statute.

A violation was a Class E felony under § 40-39-211(f).

Currency note

This opinion was issued in 2015. 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: Did the victim's family ever have to move under this opinion?
A: No. The opinion was emphatic on this point, in a footnote. Tenn. Code Ann. § 40-39-211 applies only to offenders. The victim or victim's family had no obligation to move. The burden of the 1,000-foot rule was entirely on the offender.

Q: What did "immediate family member" cover?
A: The statute as quoted reached "former victims or the victims' immediate family members." The opinion did not parse the phrase, but in registry context "immediate family" typically means spouses, parents, children, and siblings residing in the same household. The Tennessee statute and regulations should be consulted for the precise definitional reach.

Q: Why didn't the AG read "reside" the way courts read "establish a residence"?
A: Because the legislature chose different words in different subsections, and courts must give each word effect. "Reside" looks at the present state of having a home in a place; "establish a residence" looks at the act of creating one. The AG previously read "establish" not to apply to a post-incarceration return to a pre-existing home (Tenn. Att'y Gen. Op. 04-053). Carrying that reading into "reside" would have erased the distinction the legislature drew.

Q: What was the penalty for failing to move?
A: A Class E felony under § 40-39-211(f). Tennessee's Class E felony at the time carried a range of one to six years' imprisonment, depending on offender classification.

Background and statutory framework

Tennessee's Sex Offender Registry Act, Tenn. Code Ann. § 40-39-201 et seq., layers several residency restrictions on registered offenders. Subsection (a) of § 40-39-211 deals with proximity to children-related locations and uses the verb "establish." Subsection (b) deals with proximity to victims and uses the verb "reside." The verbal difference is the entire fulcrum of the opinion.

The Tennessee Supreme Court's general approach to statutory interpretation, articulated in Owens v. State and Brown v. Erachem Comilog, is that clear and unambiguous statutory language gets its plain meaning, and that the use of different language in different parts of the same statute implies different meanings.

Citations and references

Statutes:

• Tenn. Code Ann. § 40-39-202 (definitions of registered sexual offender categories)
• Tenn. Code Ann. § 40-39-211(a) ("establish a residence" restriction near children's locations)
• Tenn. Code Ann. § 40-39-211(b)(1) ("reside" restriction near victims and family)
• Tenn. Code Ann. § 40-39-211(f) (Class E felony penalty)

Cases:

• Owens v. State, 908 S.W.2d 923 (Tenn. 1995) (legislative intent from plain meaning)
• Carson Creek Vacation Resorts, Inc. v. State, Dept. of Revenue, 865 S.W.2d 1 (Tenn. 1993)
• Brown v. Erachem Comilog, Inc., 231 S.W.3d 918 (Tenn. 2007)

Related AG opinions:

• Tenn. Att'y Gen. Op. 04-053 (Mar. 25, 2004) (returning to pre-incarceration residence does not "establish" a residence)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-73.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
November 6, 2015

Opinion No. 15-73

Sexual Offender Registry Residence Within 1,000 Feet of Victim

Question

Does Tenn. Code Ann. § 40-39-211(b) prohibit a sexual offender from residing within 1,000 feet of his/her victim even if the offender had established that residence before the sexual offense was committed?

Opinion

Yes.

ANALYSIS

Tennessee Code Annotated § 40-39-211(b)(1) provides:

No sexual offender, violent sexual offender, or violent juvenile sexual offender, as those terms are defined in § 40-39-202, shall knowingly . . . [r]eside within one thousand feet (1,000') of the property line on which the offender's former victims or the victims' immediate family members reside.

The opinion request states the concern that the answer to this question "may well mean the difference in whether or not the family of a minor victim must move from their long-time residence in order to avoid contact with the perpetrator of the offense." It is important to note that the requirements of Tenn. Code Ann. § 40-39-211 only apply to offenders. Victims and family members of victims do not have to comply with any restrictions under this section.

A basic principle of statutory construction is to ascertain and give effect to legislative intent, derived whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); Carson Creek Vacation Resorts, Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). If a statute is clear and unambiguous, courts will find the intent in the plain and ordinary meaning of its language. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007).

The language of § 40-39-211(b)(1) is clear and unambiguous: a sexual offender as defined in § 40-39-202 is prohibited from living within 1,000 feet of the residence of his/her former victims or the victims' immediate family members. The plain and ordinary meaning of "reside" is to live or to have a home in a particular place. See New Oxford American Dictionary, 3rd ed. Thus, the statute prohibits a sexual offender from having a home or living within 1,000 feet of his/her victims and their family members. Except for the scienter requirement, the prohibition is unqualified and it is absolute. It makes no difference when the residence was acquired or established; if it is within 1,000 feet of a victim, the offender is prohibited from living in it.

This reading of Tenn. Code Ann. § 40-39-211(b)(1) is supported and reinforced when its language is read in the context of § 40-39-211 as a whole, which shows that the Legislature clearly intended to distinguish between "residing" in a particular place and "establishing a residence" in a particular place. For example, Tenn. Code Ann. § 40-39-211(a) makes it a crime for a qualifying offender to "knowingly establish a primary or secondary residence . . . within (1,000') of the property line of any public school . . ." or other places where children are present. By contrast, Tenn. Code Ann. § 40-39-211(b)(1) makes it a crime to "reside" within 1,000 feet of a victim's residence. "Reside" and "establish a residence" are not synonyms; each expresses a different concept. Whereas "reside" means to live or have a home in a particular place without reference to when that residence was first created, "establish a residence" is a forward-looking term meaning to "set up" or "organize." New Oxford American Dictionary, 3rd ed. Thus, statutory language prohibiting an offender from "establishing a residence" in a specified zone only prohibits the offender from taking up residence at a new location within the specified zone. See Op. Tenn. Atty. Gen. 04-053 (March 25, 2004). But "a sex offender who on release from incarceration returns to his pre-incarceration residence within the prohibited zone does not 'establish' residence within the meaning of [the statute]." Id. Had the Legislature intended the same result when it comes to living near the offender's actual victims as opposed to children in general, the Legislature would have used the term "establish a residence" instead of "reside."

In sum, while an offender may remain in or return to a residence that he/she had established before the crime even if it is within 1,000 feet of a location where children are present, Tenn. Code Ann. § 40-39-211(a), an offender may not under any circumstances live within 1,000 feet of his/her victim or the victim's immediate family members even if the offender had established that place of residence before the crime was committed, Tenn. Code Ann. § 40-39-211(b)(1). If an offender's residence is within 1,000 feet of his/her victim or the victim's immediate family members, the offender must change residences to comply with the requirements of Tenn. Code Ann. § 40-39-211, regardless of whether the offender lived at that location before the offense. Failure to change residence would subject the offender to a Class E felony pursuant to Tenn. Code Ann. § 40-39-211(f).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SARA BETH MYERS
Assistant Attorney General

Requested by:
The Honorable Leigh Wilburn
State Representative
212 War Memorial Building
Nashville, TN 37243