If a Tennessee security guard pleads guilty under judicial diversion, does that trigger the Private Protective Services Act's mandatory notice and automatic license revocation?

Plain-English summary

A licensed security guard or officer in Tennessee gets caught up in a criminal case and ends up accepting "judicial diversion," a sentencing alternative under Tenn. Code Ann. § 40-35-313 where the defendant pleads guilty but the court defers a judgment of guilt, puts them on probation, and dismisses the charges (with eligibility for expungement) if probation is completed. The Tennessee Department of Commerce and Insurance, which licenses private protective services, asked two questions. First, does that diversion plea trigger the notice and automatic-revocation rules in Tenn. Code Ann. § 62-35-130(e), which fire when a licensee "pleads guilty or is convicted" of one of the offenses listed in the Act? Second, does later dismissal and expungement undo any discipline?

The AG's answer on the first question: no. Section 62-35-130(e)'s first clause mentions both guilty pleas and convictions, but the rest of the subsection (notification, certified copies, automatic revocation) refers only to convictions. Under § 40-35-313, a diversion plea is not a conviction. So the automatic-revocation machinery never starts. The Court of Appeals reached the same kind of conclusion in Wright v. Tenn. Peace Officer Standards & Training Comm'n on parallel licensing language.

The AG's answer on the second question, and the practical follow-on for licensees: the diversion plea is not zero-impact. Other parts of the Act, like the duty under Tenn. Code Ann. § 62-35-112 to notify the Commissioner of "[a]ny material change" in license-application information or "[a]ny occurrence that could reasonably be expected to affect the licensee's right to a license," can still reach the guilty plea (or even the pending charge). That triggers discretionary discipline by the Commissioner, not automatic revocation. Whether later dismissal and expungement affect that discipline depends on case-by-case circumstances.

Currency note

This opinion was issued in 2016. 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 Private Protective Services Licensing and Regulatory Act, Tenn. Code Ann. §§ 62-35-101 et seq., makes it generally unlawful to provide security guard services on a contractual basis without a license. Tenn. Code Ann. §§ 62-35-102(6), 62-35-104. The Commissioner of Commerce and Insurance administers the Act. Tenn. Code Ann. § 62-35-102(5).

Section 62-35-130(e) is the disciplinary trigger for criminal conduct. It reads:

Whenever an armed or unarmed security guard/officer pleads guilty or is convicted of any offense enumerated in this chapter, the licensee must within thirty (30) days notify the commissioner of that conviction and provide the commissioner with certified copies of the conviction. The licensee's license shall automatically be revoked thirty (30) days after the licensee's conviction unless the licensee makes a written request to the commissioner for a hearing during the thirty-day period. Following any such hearing held pursuant to this section, the commissioner may impose upon that licensee any sanction or discipline permitted by this chapter.

The opinion's textual move was to take the second and third sentences as the operative trigger: they tie notification, the 30-day clock, automatic revocation, and the hearing-and-sanction loop all to a "conviction." So even though the first clause mentions guilty pleas, only a "conviction" pulls the machinery.

Judicial diversion under § 40-35-313 is a statutory mechanism that suspends the entry of judgment. Per § 40-35-313(a)(1)(A), a trial court may "defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty." The Tennessee Supreme Court confirmed in State v. King, 432 S.W.3d 316, 323 (Tenn. 2014), that "[i]f the trial court chooses to grant judicial diversion, the judgment of guilt is deferred and the defendant is placed on conditional probation." If probation succeeds, charges are dismissed without an adjudication of guilt, and the discharge "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose." Tenn. Code Ann. § 40-35-313(a)(2). Rodriguez v. State, 437 S.W.3d 450, 455 (Tenn. 2014); State v. Kyte, 874 S.W.2d 631, 633 (Tenn. Ct. Crim. App. 1993). The Tennessee Supreme Court has explained the policy: the diversion mechanism exists "to avoid placing the stigma and collateral consequences of a criminal conviction on the defendant." State v. Johnson, 980 S.W.2d 410, 413 (Tenn. 1998).

The Court of Appeals had already worked through a closely analogous problem in Wright v. Tenn. Peace Officer Standards & Training Comm'n, 277 S.W.3d 1 (Tenn. Ct. App. 2008). The Peace Officer Standards & Training (POST) statute, Tenn. Code Ann. § 38-8-106(4), barred police officer certification of anyone who "has been convicted of or pleaded guilty to or entered a plea of nolo contendere to any felony charge." The Commission tried to use an expunged diversion plea to disqualify an officer. The court refused, reasoning that the specific language of § 40-35-313 controls over general licensing language about guilty pleas, and that the diversion statute bars reliance on expunged offenses for almost all purposes. The AG applied the same logic to § 62-35-130(e): even though the section lists "pleads guilty," it cannot be read to override § 40-35-313's clear "not a conviction" rule.

That answered the first question. But it did not answer the bigger question of whether the Department was helpless against a licensee who took diversion for a serious offense. The AG identified other parts of the Act that pick up the slack:

• Application disclosure. Tenn. Code Ann. § 62-35-105 requires applicants to disclose "all convictions and pending charges of commission of a felony or misdemeanor." Pending charges are reportable even before any plea.

• Continuing duty to update. Tenn. Code Ann. § 62-35-112 requires the licensee to notify the Commissioner in writing within 30 days of "[a]ny material change in the information previously furnished or required to be furnished to the commissioner" or "[a]ny occurrence that could reasonably be expected to affect the licensee's right to a license."

A guilty plea entered as part of diversion, or even the underlying pending charge, can be a "material change" or an "occurrence" affecting the licensee's right to a license. Notification under § 62-35-112 does not trigger automatic revocation, but it does open the door to discretionary discipline by the Commissioner. The effect of a later dismissal or expungement on that discretionary discipline is, the AG said, case-specific. Wright suggests expunged offenses cannot be used against the licensee in many contexts, but the particular procedural posture and the offense involved matter.

Common questions

Q: If I'm a security guard taking diversion, do I have to tell the Commissioner?
A: You don't have to send the certified copies-and-30-day-revocation notice under § 62-35-130(e). But under § 62-35-112, you may still need to notify the Commissioner within 30 days because the guilty plea (or even the underlying pending charge) is likely a "material change" or an "occurrence that could reasonably be expected to affect" your right to a license. Failing to do that has its own consequences.

Q: Will my license be revoked automatically if I take diversion?
A: No. The automatic-revocation provision applies only to convictions. A diversion plea is not a conviction.

Q: Can the Commissioner still discipline me?
A: Yes, potentially. Discipline under other parts of the Act is discretionary rather than automatic. The Commissioner may consider the underlying facts, the nature of the offense, your duties as a security guard, and whether the conduct affects your fitness to hold the license.

Q: If my diversion ends in dismissal and expungement, what happens to any pending discipline?
A: That depends on the facts. Wright v. POST Commission read § 40-35-313 to bar reliance on expunged diversion offenses for licensing-disqualification purposes in most cases. But the AG declined to give a blanket answer for the Private Protective Services Act, noting it depends on "the particular circumstances involved in any given case."

Q: Does the same analysis apply to other Tennessee professional licenses?
A: Each licensing statute has its own text. The general principle from Wright and § 40-35-313 ("a diversion plea is not a conviction; expunged offenses generally cannot be used against you") is broadly applicable, but specific licensing statutes can include their own treatment of pleas or pending charges. Read the relevant statute carefully.

Citations and references

Statutes (as cited in the opinion):

• Tenn. Code Ann. §§ 62-35-101 et seq. (Private Protective Services Licensing and Regulatory Act)
• Tenn. Code Ann. § 62-35-102(5), (6)
• Tenn. Code Ann. § 62-35-104
• Tenn. Code Ann. § 62-35-105
• Tenn. Code Ann. § 62-35-112
• Tenn. Code Ann. § 62-35-130(e)
• Tenn. Code Ann. § 40-35-313(a)(1)(A), (a)(2), (b)
• Tenn. Code Ann. § 38-8-106(4)

Cases:

• State v. King, 432 S.W.3d 316 (Tenn. 2014)
• Rodriguez v. State, 437 S.W.3d 450 (Tenn. 2014)
• State v. Kyte, 874 S.W.2d 631 (Tenn. Ct. Crim. App. 1993)
• Wright v. Tenn. Peace Officer Standards & Training Comm'n, 277 S.W.3d 1 (Tenn. Ct. App. 2008)
• State v. Johnson, 980 S.W.2d 410 (Tenn. 1998)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-017.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 6, 2016
Opinion No. 16-17
Effects of Judicial Diversion on Licensed Armed or Unarmed Security Guards

Question 1
Do the requirements for notification and potential disciplinary action apply to a person
licensed pursuant to the Private Protective Services Licensing and Regulatory Act, Tenn. Code
Ann. §§ 62-35-101 et seq., (the "Act") who has entered a guilty plea as part of a judicial diversion
under Tenn. Code Ann. § 40-35-313?

Opinion 1
No. Under Tenn. Code Ann. § 62-35-130(e) licensed armed and unarmed security
guards/officers are required to notify the Commissioner only of "conviction[s]," and a guilty plea
entered as a condition of judicial diversion is not a "conviction" under Tenn. Code Ann. § 40-35-
313.

Question 2
Would any discipline imposed as a result of a guilty plea entered as part of an agreement
for judicial diversion be affected if, after successful completion of the diversion requirement(s),
the underlying charges are dismissed and expunged?

Opinion 2
Although a licensee's guilty plea as part of an agreement for judicial diversion will not
trigger notification requirements under Tenn. Code Ann. § 62-35-130(e) and will not, therefore,
result in disciplinary action pursuant to that subsection, the guilty plea may trigger notification
requirements pursuant to other sections of the Act, which may then lead to disciplinary action by
the Commissioner against the licensee as otherwise authorized by the Act. The effect of later
dismissal or expungement of the underlying charges on any such disciplinary action would depend
on the particular circumstances involved in any given case.

ANALYSIS

The Private Protective Services Licensing and Regulatory Act makes it generally unlawful
for any person to provide security guard services to another person on a contractual basis without
being licensed. Tenn. Code Ann. § 62-35-104, § 62-35-102(6). The Act is administered by the
Commissioner of Commerce and Insurance. Tenn. Code Ann. § 62-35-102(5).

Tennessee Code Ann. § 62-35-130(e) provides:

Whenever an armed or unarmed security guard/officer pleads guilty or is convicted
of any offense enumerated in this chapter, the licensee must within thirty (30) days
notify the commissioner of that conviction and provide the commissioner with
certified copies of the conviction. The licensee's license shall automatically be
revoked thirty (30) days after the licensee's conviction unless the licensee makes a
written request to the commissioner for a hearing during the thirty-day period.
Following any such hearing held pursuant to this section, the commissioner may
impose upon that licensee any sanction or discipline permitted by this chapter.

(emphasis added).

The first clause of the first sentence of section 62-35-130(e) mentions both guilty pleas and
convictions, but the remainder of the subsection refers only to convictions, requiring security
guards or officers to "notify the commissioner of that conviction and provide the commissioner
with certified copies of the conviction." The second sentence of section 62-35-130(e) then
provides for the automatic revocation of the security guard's or officer's license 30 days "after the
licensee's conviction." Thus, the guard/officer need notify the Commissioner of only a
"conviction" and provide the Commissioner with certified copies of only a "conviction," and the
guard/officer's license is automatically revoked only "after the licensee's conviction."

Commonly referred to as "judicial diversion," Tenn. Code Ann. § 40-35-313 permits a trial
court to "defer further proceedings against a qualified defendant and place the defendant on
probation upon such reasonable conditions as it may require without entering a judgment of guilty
and with the consent of the qualified defendant." Tenn. Code Ann. § 40-35-313(a)(1)(A); State v.
King, 432 S.W.3d 316, 323 (Tenn. 2014). The judicial diversion statute further provides:

Upon violation of a condition of the probation, the court may enter an adjudication
of guilt and proceed as otherwise provided. If, during the period of probation, the
person does not violate any of the conditions of the probation, then upon expiration
of the period, the court shall discharge the person and dismiss the proceedings
against the person. Discharge and dismissal under [Tenn. Code Ann. § 40-35-
313(a)(1)(A)] is without court adjudication of guilt . . . . The discharge and
dismissal shall not be deemed a conviction for purposes of disqualifications or
disabilities imposed by law upon conviction of a crime or for any other purpose,
[except for limited enumerated purposes not at issue here.]

Tenn. Code Ann. § 40-35-313(a)(2) (emphasis added).

Judicial diversion therefore avoids an adjudication of guilt, and so long as the person does
not violate the terms of probation, the charges will be dropped and proceedings dismissed, never
resulting in a "conviction." Rodriguez v. State, 437 S.W.3d 450, 455 (Tenn. 2014); State v. Kyte,
874 S.W.2d 631, 633 (Tenn. Ct. Crim. App. 1993).

Moreover, in Wright v. Tenn. Peace Officer Standards & Training Comm'n, 277 S.W.3d 1
(Tenn. Ct. App. 2008), the court reviewed whether the Peace Officer Standards and Training
Commission could consider an expunged guilty plea, which had been subject to judicial diversion,
in determining whether a person was qualified to be an officer. The statute at issue, Tenn. Code
Ann. § 38-8-106(4), stated that a police officer may "not have been convicted of or pleaded guilty
to or entered a plea of nolo contendere to any felony charge . . . ." The Wright court reasoned that
"[t]he legislature's inclusion of the term 'pleaded guilty' does not necessarily imply an intention to
include expunged guilty pleas under the ambit of the statute," and that the specific language of
§ 40-35-313 controls over general licensing language. Id. at 16-17.

Here, as in Wright, it is unclear what the legislature intended when it chose to include
"pleads guilty" in the first clause of Tenn. Code Ann. § 62-35-130(e), but the plain language of
Tenn. Code Ann. § 40-35-313 is clear in prohibiting the consideration of expunged offenses that
were subject to judicial diversion. It is furthermore clear that a guilty plea under Tenn. Code Ann.
§ 40-35-313, even before eventual expungement, is not an adjudication of guilt and not a
conviction. See Kyte, 874 S.W.2d at 633.

Because a guilty plea that is subject to judicial diversion is not a conviction, the notice,
automatic license revocation, and disciplinary provisions that would apply to a "conviction" under
Tenn. Code Ann. § 62-35-130(e) are not triggered when a licensee's criminal charges and
proceedings are deferred through judicial diversion. This conclusion is consistent with the purpose
of judicial diversion, which is "to avoid placing the stigma and collateral consequences of a
criminal conviction on the defendant, in addition to providing the defendant a means to be restored
fully and to useful and productive citizenship." State v. Johnson, 980 S.W.2d 410, 413 (Tenn.
1998); see Tenn. Code Ann. § 40-35-313(b).

Although a guilty plea alone would not trigger the need to comply with the notice
requirements of Tenn. Code Ann. § 62-35-130(e) or the automatic license revocation that must
follow notification under that section, a licensee who pleads guilty to a crime must nevertheless
comply with other notice requirements of the Act, as may be applicable in a given situation. For
example, the applicant for a security guard license has to disclose to the Commissioner "all
convictions and pending charges of commission of a felony or misdemeanor in any jurisdiction."
Tenn. Code Ann. § 62-35-105 (emphasis added). Once licensed, the licensee is under a continuing
duty to "notify the commissioner in writing within thirty (30) days of . . . [a]ny material change in
the information previously furnished or required to be furnished to the commissioner; or . . . [a]ny
occurrence that could reasonably be expected to affect the licensee's right to a license" under the
Act. Tenn. Code Ann. § 62-35-112. Thus, even though Tenn. Code Ann. § 62-35-130(e) may not
require a licensee to report a "guilty plea" made in pre-trial diversion, the licensee would still have
to notify the Commissioner of that guilty plea, or even just the underlying "pending charge," to
the extent that it is a "material change" in the information supplied on the license application or an
"occurrence" that could reasonably be expected to affect the licensee's right to a license. That
notification would not result in mandatory, automatic revocation of the license, but it may lead to
disciplinary action by the Commissioner against the licensee as otherwise authorized by Tenn.
Code Ann. § 62-35-130. This is consistent with the overall policy of the Act of ensuring that
persons licensed and entrusted to provide security and guard services are and remain properly
qualified.

In sum, even though a licensee's guilty plea as part of an agreement for judicial diversion
will not trigger notification requirements under Tenn. Code Ann. § 62-35-130(e) and will not,
therefore, result in disciplinary action pursuant to that subsection, the guilty plea may trigger
notification requirements pursuant to other sections of the Act, which may then lead to disciplinary
action by the Commissioner against the licensee as otherwise authorized by the Act. The effect of
later dismissal or expungement of the underlying charges on any such disciplinary action would
depend on the particular circumstances involved in any given case.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAMES P. URBAN
Assistant Attorney General

Requested by:
Brian McCormack
Assistant Commissioner for Regulatory Boards
Tennessee Department of Commerce and Insurance
500 James Robertson Parkway
Davy Crockett Tower
Nashville, Tennessee 37243