Expungement

Expungement is an ever-important aspect in the criminal justice system. For many, expungement can

be the start of a new life. So, it is vitally important to understand the expungement process, whether as a

client or an attorney. 40-32-101 of the Tennessee Code Annotated governs expungement, which can be

a daunting reading for anyone, attorneys included. The article intends to give the average Joe a look at

the expungement process and make it clear and understandable for anyone.

Anyone charged with a felony or misdemeanor is entitled to have those records removed and destroyed

for free if that charge was dismissed, a “no true bill” was returned, or if that person was arrested and

released without being charged. 1 For reference, “no true bill” means that the grand jury did not see

enough evidence to find that there was probable cause. 2 If they apply for expungement after completing

a diversion program, that person will be required to pay a clerk’s fee: $100 for expungements in criminal

cases. 3

Someone who completes a diversion program or probation and wants a sexual offense or violent sexual

offense expunged will not be allowed. 4 Someone charged and convicted of a crime relating to the same

criminal conduct or episode as the charged offense, including a lesser included offense is not entitled to

expungement. 5 Expungement is off-limits for someone charged with multiple offenses or counts in one

indictment and then convicted on one or more of them or convicted on an offense relating to the same

conduct or episode as one charged in an indictment including a lesser included. 6 However, they are

entitled to ask the court to have jurisdiction over the previous action to remove public records related to

that person’s “arrest, indictment, charging instrument, and disposition relating to the charges” from

relevant electronic databases. 7 The Tennessee Bureau of Investigation (TBI) enters the records into

expunged criminal offender and pretrial diversion database. 8 Clerks are not required to expunge records

relating to someone’s conviction. 9

Public records do not include arrest histories, investigative reports, intelligence information of law

enforcement agencies, or district attorneys general that are confidential records for law enforcement

and are not open for inspection from the public. 10 Courts ordering records expunged after diversion or

probation can send or cause to be sent a copy of the order to the TBI within 30 days of its entry into the

TBI’s database. 11 The order must have the petitioner’s name, birth date, social security number, the

dismissed offense, the date and cause of the dismissal, and the date the order was entered. 12

Some Class E felonies eligible for expunction are found in 40-32-101(g)(1)(A)(i)-(xxxviii) and include but

are not limited to: theft, forgery, accessory after the fact, etc. 13 An eligible could also be someone

1 Tenn. Code Annotated § 40-32-101(a)(1)(A)

2 https://www.lawserver.com/law/legal-dictionary/no-true-bill-definition

3 Tenn. Code Annotated § 8-21-401

4 Tenn. Code Annotated § 40-32-101(a)(1)(D)

5 Tenn. Code Annotated § 40-32-101(a)(1)(E)(i)-(ii)

6 Id.

7 Tenn. Code Annotated § 40-32-101(j)

8 Id.

9 Tenn. Code Annotated § 40-32-101(j)

10 Tenn. Code Annotated § 40-32-101(b)(1)

11 Id.

12 Tenn. Code Annotated § 40-32-101(b)(1)

convicted of a misdemeanor on or after 11/1/1989, but some excluded misdemeanors include but are

not limited to: violating a protective or restraining order, stalking, and child abuse (where child is

between ages 7-17). 14

(h) classifies an eligible petitioner as someone who was convicted of a nonviolent crime after 1/1/1980

if: the court where the petitioner was sentenced finds it was for a nonviolent crime, there was a petition

for a pardon and it received a favorable vote, and they received a pardon by the governor. 15 If someone

is eligible under (h), they can file a petition to have their public records involving the crime expunged;

the procedure for expunction under (h) and (k) follows the same path as (g)(3)-(6), (8), (12), and (13). 16

Subsection (k) states, regardless of subsection (g), an eligible petitioner is someone convicted of “no

more than two offenses,” and each offense must be eligible for expunction under (g); the offenses were

either two misdemeanors or one felony and one misdemeanor, and it has been at least five years since

the person has completed the sentence for the most recent offense. 17 The person also has to pay all

fines, restitution, court costs, and other assessments, complete their prison time or probation, meet the

conditions for release, and stay free from the dependency or abuse of a controlled substance for no less

than one year, if required. 18 It is important to note that someone can petition for expunction of only two

offenses under subsection (k), and they can do it only once. 19

In (g)(3), an eligible petitioner files a petition with the court where they were convicted, and the clerk

serves the petition on the district attorney general (AG) for that district. The AG can make

recommendations to the court no later than 60 days after getting served with that petition. 20 When

deciding on the petition, the court weighs public interest against the petitioner’s interest. 21 If denied, the

petitioner cannot file another petition until at least two years after being rejected. 22 Under (g)(7), the

petitioner has a simple form to file for expungement. 23 The district AG preps the petition and proposed

order that is filed with the clerk, and the petitioner is entitled to the copy of the order, which is proof

the petitioner is no longer “under any disability, disqualification or other adverse consequence resulting

from the expunged conviction.” 24

A granted expunction order under section (g), (k), or (h) entitles the petitioner to have their public

records destroyed and has the legal effect of restoring the petitioner to the status they had before the

“arrest, indictment, information, trial and conviction.” 25 Once expunction is granted, there will be no

indirect or collateral consequences on the petitioner stemming from any law, so it is as if the conviction

13 Tenn. Code Annotated § 40-32-101(g)(1)(A)(i); Tenn. Code Annotated § 40-32-101(g)(1)(A)(iv); Tenn. Code

Annotated § 40-32-101(g)(1)(A)(v)

14 Tenn. Code Annotated § 40-32-101(g)(1)(B)(iv); Tenn. Code Annotated § 40-32-101(g)(1)(B)(xvi); Tenn. Code

Annotated § 40-32-101(g)(1)(B)(xxi)

15 Tenn. Code Annotated § 40-32-101(h)(1)(A)-(C)

16 Tenn. Code Annotated § 40-32-101(h)(2)

17 Tenn. Code Annotated § 40-32-101(k)(1)(A)-(C)(i)

18 Tenn. Code Annotated § 40-32-101(k)(1)(D)(i)-(iv)

19 Tenn. Code Annotated § 40-32-101(k)(2)

20 Tenn. Code Annotated § 40-32-101(g)(3)

21 Tenn. Code Annotated § 40-32-101(g)(4); Tenn. Code Annotated § 40-32-101(g)(5)

22 Id.

23 Tenn. Code Annotated § 40-32-101(g)(7)

24 Tenn. Code Annotated § 40-32-101(g)(8)

25 Tenn. Code Annotated § 40-32-101(g)(12)(A)-(B); Tenn. Code Annotated § 40-32-101(k)(4)

for the offense never happened. 26 The clerk responsible for maintaining records for an expungement

pursuant to subsection (g) or (h) must keep them confidential, and the record can only be used to

enhance a sentence if the petitioner is charged and convicted of another crime; the record is only

accessible to the district AG, the defendant, the defendant’s attorney, and the circuit or criminal court

judge. 27