Expungement / Record Sealing Petition and Eligibility Memo — Tennessee

Expungement / Record Sealing Petition and Eligibility Memo (TENNESSEE)

Quick-Reference Summary

Part A — Eligibility Memo

MEMORANDUM

TO: [CLIENT NAME]
FROM: [ATTORNEY NAME], [FIRM]
DATE: [__/__/____]
RE: Tennessee Expungement Eligibility — [CLIENT NAME]

I. Question Presented

Whether [CLIENT]'s Tennessee criminal record — [SUMMARIZE: e.g., one Class E felony theft conviction (2018), one Class A misdemeanor (2014), and two dismissed charges (2012)] — is eligible for expungement under (a) T.C.A. § 40-32-106 (dismissals), (b) §§ 40-32-107 / 108 (convictions, including 2021-expanded list), and/or (c) §§ 40-15-106 / 40-35-313 (diversion expungements).

II. Short Answer

[☐ Eligible for § 40-32-106 expungement of dismissed/nolled/no-bill matter(s)]
[☐ Eligible for § 40-32-107 single-conviction expungement]
[☐ Eligible for § 40-32-108 two-offense expungement (2017 expansion)]
[☐ Eligible for § 40-35-313 judicial-diversion expungement]
[☐ Eligible for § 40-15-106 pretrial-diversion expungement]
[☐ INELIGIBLE — [reason]]

III. Statutory Framework

A. Dismissed Charges — § 40-32-106.
Available for any charge that resulted in (i) dismissal, (ii) no true bill, (iii) acquittal, (iv) nolle prosequi, (v) release without charge, or (vi) successfully defended order of protection. No court appearance required; no fee. File petition with criminal court clerk in court of origination.

B. Conviction Expungement — §§ 40-32-107, 40-32-108.

1. Single conviction (§ 40-32-107). Eligible misdemeanors and certain felonies; 5-year waiting period from sentence completion for misdemeanors and Class E felonies; 10-year waiting period for newly eligible Class C and D felonies (2021 list). The 2021 amendments created a rebuttable presumption favoring expungement for eligible misdemeanor and Class E felony convictions — the District Attorney bears the burden of proving expungement is contrary to the best interests of justice and public safety.
2. Two-offense rule (§ 40-32-108 / former § 40-32-101(b)). Petitioner may have two offenses expunged if each is eligible under the conviction-expungement framework and the pair is two misdemeanors or one felony plus one misdemeanor.
3. Permanent Exclusions. DUI (§ 55-10-401), most domestic assaults, sex offenses requiring registration, crimes against vulnerable victims, and a list of violent offenses are categorically excluded.

C. Diversion Expungement.

1. Pretrial diversion (§§ 40-15-105, 40-15-106). On successful completion of a pretrial diversion agreement, the petitioner may petition for expungement; the DA's recommendation and successful completion are typically dispositive.
2. Judicial diversion (§ 40-35-313). Following successful completion of judicial diversion, the petitioner is entitled to expungement on petition.

D. TBI Certification (§ 40-32-102).
For petitions to expunge a conviction (not for dismissed-charge or judicial-diversion expungements), the court must request a certificate from the Tennessee Bureau of Investigation confirming the offense is statutorily eligible. The court retains responsibility for determining the petitioner's individual eligibility.

IV. Application

A. Inventory.

B. Exclusion Screen (per matter).
☐ DUI (§ 55-10-401) — INELIGIBLE for expungement
☐ Domestic assault — generally INELIGIBLE (verify offense subsection)
☐ Sex offense requiring registration — INELIGIBLE
☐ Crime against vulnerable victim — INELIGIBLE
☐ Listed violent offense (former § 40-32-101(a)(1)(E)) — INELIGIBLE
☐ None of the above — proceed

C. Eligible-Offense Confirmation.
☐ Confirm against current § 40-32-107 / § 40-32-108 inclusion list
☐ For newly eligible 2021 offenses, verify the offense was added by the 2021 omnibus reform and confirm the longer 10-year wait if applicable
☐ Request TBI certificate of eligibility prior to court order

D. Waiting Period.

• Most recent sentence completion: [__/__/____]
• Applicable wait: [5 years for misd. / E felony] [10 years for newly eligible C/D felony]
• Today: [__/__/____]
• Conclusion: [☐ Wait satisfied] [☐ Earliest filing date: [__/__/____]]

E. Two-Offense Analysis (§ 40-32-108).
☐ Two misdemeanors, OR
☐ One felony + one misdemeanor
☐ Each individually eligible under § 40-32-107
☐ Not previously expunged under subsection (a), (b), or (c)

F. Outstanding Obligations.

• Court costs / restitution paid: [☐ Yes — date / ☐ No — balance $[____]]
• Note: outstanding court costs in "dismissed with costs" matters must be paid (or waived) before expungement.

G. Diversion Status.

• Pretrial diversion: [☐ N/A] [☐ Successfully completed [__/__/____]]
• Judicial diversion: [☐ N/A] [☐ Successfully completed [__/__/____]]

V. Recommendation

[☐ File § 40-32-106 petition immediately for dismissed/nolled/no-bill matter(s) — no fee]
[☐ File § 40-32-107 single-conviction petition for eligible misd. / Class E felony — invoke rebuttable presumption]
[☐ File § 40-32-108 two-offense petition]
[☐ File § 40-15-106 pretrial-diversion expungement]
[☐ File § 40-35-313 judicial-diversion expungement]
[☐ Defer until [__/__/____] when waiting period elapses]
[☐ Client ineligible — counsel on pardon process or future legislative reform]

Part B — Petition Template

PETITION FOR EXPUNGEMENT OF CRIMINAL RECORDS

Petitioner [PETITIONER FULL LEGAL NAME], by and through counsel, respectfully petitions this Honorable Court, pursuant to T.C.A. § [40-32-106 / 40-32-107 / 40-32-108 / 40-15-106 / 40-35-313], to enter an Order expunging the records identified herein, and in support states:

1. Petitioner

1.1 Full legal name: [PETITIONER FULL LEGAL NAME].
1.2 Other names used: [______________].
1.3 Date of birth: [__/__/____].
1.4 Social Security Number (last 4): xxx-xx-[____].
1.5 Current residence: [ADDRESS].

2. Charges Sought to Be Expunged

For each matter:

3. Statutory Basis

3.1 [☐ § 40-32-106 — dismissed / nolle / no-bill / acquittal:] The above charge(s) [were dismissed / resulted in a no true bill / were nolle prossed / resulted in an acquittal]; Petitioner is entitled to expungement.

3.2 [☐ § 40-32-107 single-conviction:] The above offense is an eligible offense under § 40-32-107(a); the statutory waiting period of [5 / 10] years has elapsed since sentence completion; Petitioner has no permanently excluded offenses on record; and as an eligible misdemeanor / Class E felony, a rebuttable presumption in favor of expungement applies.

3.3 [☐ § 40-32-108 two-offense:] The above two offenses are individually eligible under § 40-32-107; the combination is [two misdemeanors / one felony plus one misdemeanor]; the applicable waiting period has elapsed; Petitioner has no prior expungement under (a), (b), or (c).

3.4 [☐ § 40-15-106 pretrial diversion:] Petitioner successfully completed pretrial diversion on [__/__/____] and is entitled to expungement.

3.5 [☐ § 40-35-313 judicial diversion:] Petitioner successfully completed judicial diversion on [__/__/____] and is entitled to expungement.

4. TBI Certification (conviction expungements only)

Petitioner respectfully requests that the Court, prior to entering the proposed Order, request a Certificate of Eligibility from the Tennessee Bureau of Investigation pursuant to T.C.A. § 40-32-102, confirming the offense's statutory eligibility for expungement.

5. Statement in Support (for petitions requiring discretionary analysis)

[NARRATIVE — time since conviction, age at offense, conduct since conviction (employment, education, family, treatment, community service), specific need for expungement (employment, housing, professional licensing). For § 40-32-107(g)(5)(B) rebuttable-presumption petitions, emphasize that the State carries the burden to overcome the presumption.]

6. Compliance with Statutory Conditions

6.1 All court costs and restitution have been paid: [☐ Yes — date [__/__/____]] [☐ Not applicable (dismissal without costs)].
6.2 Petitioner has no other pending charges in any jurisdiction.
6.3 Petitioner has not been convicted of any offense during the waiting period.
6.4 Petitioner has not previously had an expungement under § 40-32-107(a), (b), or (c) (or, if so, the previous expungement was under a different subsection and the present petition is permitted).

7. Relief Requested

WHEREFORE, Petitioner respectfully requests:

(a) That this Court request a Certificate of Eligibility from the TBI under § 40-32-102 (where applicable);
(b) That this Court enter an Order expunging all public records of the offense(s) identified above;
(c) That the Order direct the Clerk to send a copy to the TBI within 30 days of entry for database update;
(d) That the Order direct the destruction or sealing of arrest, court, and disposition records by all custodian agencies, including the arresting agency, the Clerk, and the TBI;
(e) That the Court confirm Petitioner's right to deny the existence of the expunged matter(s) in all but the narrow statutory exceptions; and
(f) Such other relief as the Court deems just.

8. Verification

I, [PETITIONER FULL LEGAL NAME], under penalty of perjury, declare that the statements made in this Petition are true and correct to the best of my knowledge.

Dated: [__/__/____]
______________________________
[PETITIONER SIGNATURE]

Sworn to and subscribed before me this [____] day of [_______], 20[___].
______________________________
Notary Public — My commission expires [__/__/____]

Submitted by:

______________________________
[ATTORNEY NAME], BPR No. [_______]
[FIRM]
[ADDRESS]
[PHONE] | [EMAIL]
Counsel for Petitioner

Part C — Filing Checklist

Pre-Filing

☐ Pull TBI Tennessee criminal history (Tennessee Open Records Information Services portal)
☐ Pull FBI Identity History Summary if any out-of-state activity
☐ Obtain certified disposition from criminal court clerk for each matter
☐ For each conviction, confirm against current § 40-32-107 / § 40-32-108 eligibility list
☐ Confirm none of the matters is permanently excluded (DUI, DV, sex offense, vulnerable victim, listed violent offense)
☐ Calculate the applicable waiting period (5 years for misd./Class E felony; 10 years for newly eligible Class C/D felony)
☐ Confirm all court costs and restitution paid; if matter was "dismissed with costs," resolve costs before filing
☐ For "retired" cases, file motion to convert to "dismissed" before filing expungement petition
☐ For diversion: confirm successful completion documentation
☐ For two-offense petition: confirm pair eligibility (two misdemeanors OR one felony + one misdemeanor)

Filing

☐ Use local pattern form where required (Davidson, Knox, Shelby, Hamilton, etc.)
☐ Attach narrative Petition (Part B) as supporting memorandum if county allows
☐ File with criminal court clerk in court of origination
☐ Pay clerk fee per § 8-21-401: NO fee for dismissed/nolled charges; up to $100 (discretionary) for convictions/diversions — check local practice
☐ Serve the District Attorney General's office
☐ For conviction petitions: request TBI Certificate of Eligibility under § 40-32-102
☐ If you want a copy of the expungement order, provide self-addressed stamped envelope(s) — one per charge

Post-Filing

☐ Monitor for DA objection (rebuttable presumption shifts burden for eligible misd. / Class E felony)
☐ If contested, prepare hearing brief addressing best-interests-of-justice and public-safety factors
☐ Upon entry:
• Obtain certified copies of the Expungement Order and certified copies of the charging document
• Confirm Clerk transmits Order to TBI within 30 days of entry (§ 40-32-102)
• Transmit certified copies to arresting agency and any other holding agencies
• Transmit to private background-check vendors with cover letter
☐ Verify TBI database update via follow-up criminal history check
☐ Counsel client:
• On the right to deny the expunged matter on most employment and housing applications
• On the narrow exceptions (law enforcement employment, judicial office, certain regulated licensure)
• That clerk records and TBI database should reflect destruction or sealing
• That a private background-check vendor may still report the matter until updated — provide order to dispute

Sources and References

• T.C.A. § 40-32-101 (Destruction or release of records — current text): https://law.justia.com/codes/tennessee/title-40/chapter-32/section-40-32-101/
• Tennessee Courts — Expungements (Self-Help Center): https://www.tncourts.gov/programs/self-help-center/expungements
• Davidson County DA — Expungements: https://da.nashville.gov/expungements/
• Tennessee Adopts Seven New Expungement Reforms in 2021 (Horwitz): https://expungementnashville.com/2022/01/tennessee-adopts-seven-new-expungement-reforms-in-2021/
• UT County Technical Assistance Service — Expunging Court Records (2025 reorganization): https://www.ctas.tennessee.edu/eli/expunging-court-records
• T.C.A. § 40-15-105 (Pretrial diversion): https://law.justia.com/codes/tennessee/title-40/chapter-15/section-40-15-105/
• T.C.A. § 40-35-313 (Judicial diversion): https://law.justia.com/codes/tennessee/title-40/chapter-35/section-40-35-313/
• T.C.A. § 8-21-401 (Clerk fees): https://law.justia.com/codes/tennessee/title-8/chapter-21/section-8-21-401/
• TBI Background Check Information: https://www.tn.gov/tbi/general-information/background-checks.html
• State v. Adler, 92 S.W.3d 397 (Tenn. 2002)