Tennessee Adopts Seven New Expungement Reforms in 2021

By Nashville Expungement Attorney Daniel A. Horwitz:

*Note: This is a free informational resource about expungement law in Tennessee.  If you are looking to hire an attorney to expunge your record for you, please click here instead.*

During the 2021 legislative session, the Tennessee General Assembly enacted a host of new expungement laws. These amendments to Tennessee’s expungement statutes largely expanded expungement access, enabling many people to expunge their criminal records who could not do so previously. A summary of the most important changes—all of which are now in effect—is detailed below.

1. Clerks’ Discretion Not to Charge $100 Expungement Fee for Convictions and Diversions

An amendment to Tenn. Code Ann. § 8-21-401, which governs clerk fees, modifies the provision relevant to expungement to state that “the clerk may charge a fee of up to one hundred dollars ($100) for expunctions.” Even before the amendment was enacted, though, the referenced fee only concerned charges that were convictions or diversions, because Tenn. Code Ann. § 40-32-101(e) has long provided that “[i]t is the intent of the general assembly that no fee ever be charged a person who is petitioning a court for expunction of records” whose charges were dismissed.

The ultimate effect of this reform is that the $100 fee to expunge a conviction or diversion charge is no longer mandatory. And although the fiscal note for the bill “assumed that no clerks will forsake or reduce the fee, as doing so would be a loss of local revenue,” this (cynical) assumption has already proven to be unwarranted. In Davidson County, for instance, the Office of Davidson County Criminal Court Clerk Howard Gentry is no longer assessing a fee to expunge convictions or diversions. Thus, there is no longer an additional, clerk-assessed expungement fee to expunge an eligible conviction or diversion charge in Davidson County.

2. Rebuttable Presumption of Expungement for Eligible Misdemeanor and E Felony Convictions

Arguably the most important of 2021’s expungement reforms, Tenn. Code Ann. § 40-32-101(g)(5)(B)—which establishes the burden of proof that governs petitions to expunge convictions—was amended to create a rebuttable presumption of expungement for eligible misdemeanor and E Felony convictions. In particular, Tenn. Code Ann. § 40-32-101(g)(5)(B) now provides that:

“In making a decision on the petition, the court shall weigh the interest of the petitioner against the best interests of justice and public safety; provided, that if the petitioner is an eligible petitioner pursuant to subdivision (g)(1)(A), (g)(1)(B), (g)(1)(C), (g)(1)(D), or (g)(1)(E) and meets the requirements of subdivision (g)(2), then there is a rebuttable presumption that the petition should be granted.”

The importance of this reform cannot be overstated. Whereas previously, expungement-eligible petitioners were saddled with the burden of proving that they satisfied a largely undefined evidentiary standard, District Attorneys are now required to prove that petitioners do not satisfy that standard when it comes to expunging eligible misdemeanor and E Felony convictions. Thus, if a District Attorney’s Office does not oppose a petition to expunge a qualifying misdemeanor or E Felony conviction or fails to oppose such a petition with admissible evidence demonstrating that “the best interests of justice and public safety” militate against expungement, then as a result of this reform, an expungement petition must be granted.

3. Many More Non-Violent Felony Convictions Are Now Eligible for Expungement

As part of an omnibus expungement reform bill, dozens of new, non-violent C and D felonies were added to the felony expungement eligibility list (in addition to a pair of new E felony convictions). In particular, assuming other eligibility criteria are satisfied, 33 Class D felonies, 24 Class C felonies, and 2 Class E felonies that could not previously be expunged under Tennessee law are now eligible for expungement.  The full list of newly eligible felony conviction offenses is as follows:

Newly Eligible E Felonies (eligible after five years):

(xxxix) Section 39-14-152–Use of a counterfeit mark or logo;

(xl) Section 39-14-903–Money laundering offenses;

Newly Eligible D Felonies (eligible after ten years):

(i) Section 39-14-103–Theft of property;
(ii) Section 39-14-104–Theft of services;
(iii) Section 39-14-112–Extortion;
(iv) Section 39-14-114–Forgery;
(v) Section 39-14-115–Criminal simulation;
(vi) Section 39-14-118–Illegal possession or fraudulent use of credit card or debit card;
(vii) Section 39-14-121–Worthless checks;
(viii) Section 39-14-130–Destruction of valuable papers;
(ix) Section 39-14-133–False or fraudulent insurance claims;
(x) Section 39-14-137–Fraudulent qualifying for set-aside programs;
(xi) Section 39-14-138–Theft of trade secrets;
(xii) Section 39-14-139–Sale of recorded live performances without consent;
(xiii) Section 39-14-147–Fraudulent transfer of motor vehicle valued at twenty thousand dollars ($20,000) or more;
(xiv) Section 39-14-149–Communication theft;
(xv) Section 39-14-150(b)–Identity theft;
(xvi) Section 39-14-152–Use of a counterfeit mark or logo;
(xvii) Section 39-14-154–Home improvement fraud;
(xviii) Section 39-14-402–Burglary–other than habitation or automobile;
(xix) Section 39-14-408–Vandalism;
(xx) Section 39-14-602(a)-(c)–Violation of Tennessee Personal and Commercial Computer Act;
(xxi) Section 39-14-603–Unsolicited bulk electronic mail;
(xxii) Section 39-16-502(a)(1) or (a)(2)–False report to law enforcement not involving bomb, fire, or emergency;
(xxiii) Section 39-17-417(d)–Manufacture, deliver, sale, or possession of Schedule III drug (fine not greater than fifty thousand dollars ($50,000));
(xxiv) Section 39-17-417(e)–Manufacture, deliver, sale, or possession of Schedule IV drug (fine not greater than fifty thousand dollars ($50,000));
(xxv) Section 39-17-417(g)(2)–Manufacture, deliver, sale, or possession of certain Schedule VI drugs (fine not greater than fifty thousand dollars ($50,000));
(xxvi) Section 39-17-430–Prescribing or selling steroid for unlawful purpose;
(xxvii) Section 39-17-433–Promoting manufacture of methamphetamine;
(xxviii) Section 39-17-438–Produce, manufacture, delivery, sale, or possession of hallucinogenic plant salvia divinorum or the synthetic cannabinoids (first violation);
(xxix) Section 39-17-454(c)–Manufacture, deliver, dispense, sell, or possess with intent to manufacture, deliver, dispense, or sell a controlled substance analogue (first violation);
(xxx) Section 39-17-607(a)–Making counterfeit or altering lottery ticket (fine not greater than fifty thousand dollars ($50,000));
(xxxi) Section 39-17-608–Making material false statement on lottery application or record;
(xxxii) Section 39-17-654(c)–Unauthorized person conducting charitable gaming event; and
(xxxiii) Section 53-11-402(a)(3)–Drug fraud;

Newly Eligible C Felonies (eligible after ten years):

(i) Section 39-14-103–Theft of property;
(ii) Section 39-14-104–Theft of services;
(iii) Section 39-14-114–Forgery;
(iv) Section 39-14-115–Criminal simulation;
(v) Section 39-14-118–Illegal possession or fraudulent use of a credit card or debit card;
(vi) Section 39-14-121–Worthless checks;
(vii) Section 39-14-130–Destruction of valuable papers;
(viii) Section 39-14-133–Fraudulent or false insurance claims;
(ix) Section 39-14-137–Fraudulent qualifying for set-aside programs;
(x) Section 39-14-138–Theft of trade secrets;
(xi) Section 39-14-139–Sale of recorded live performances without consent;
(xii) Section 39-14-149–Communication theft;
(xiii) Section 39-14-150(c)–Identity theft trafficking;
(xiv) Section 39-14-152–Use of a counterfeit mark or logo;
(xv) Section 39-14-154–Home improvement fraud;
(xvi) Section 39-14-408–Vandalism;
(xvii) Section 39-14-602(b)(5)–Violation of Tennessee Personal and Commercial Computer Act;
(xviii) Section 39-14-603–Unsolicited bulk electronic mail;
(xix) Section 39-14-804–Theft of animal from or damage to an animal facility;
(xx) Section 39-17-417(c)–Manufacture, deliver, sale, or possession of Schedule II drug, including cocaine or methamphetamine in an amount less than point five (0.5) grams (fine not greater than one hundred thousand dollars ($100,000));
(xxi) Section 39-17-417(e)–Manufacture, deliver, sale, or possession of flunitrazepam (fine not greater than one hundred thousand dollars ($100,000));
(xxii) Section 39-17-417(g)(3)–Manufacture, deliver, sale, or possession of Schedule VI controlled substance (fine not greater than one hundred thousand dollars ($100,000));
(xxiii) Section 39-17-454(c)–Manufacture, delivery, dispense, or sale or possession with the intent to manufacture, deliver, dispense, or sale of a controlled substance analogue (second or subsequent violation); and
(xxiv) Section 39-17-607(b)–Influencing or attempting to influence lottery[.]

Significantly, though, instead of becoming eligible for expungement five years after a person’s sentence concludes, to expunge a now-eligible C or D felony conviction, a person has to wait ten years after their sentence concluded to petition to expunge the charge.

4. Post-2000 Assault (Misdemeanor) Convictions Are Now Eligible

An amendment to Tenn. Code Ann. § 40-32-101(g)(1)(B)(i) modifies misdemeanor conviction expungement eligibility rules to state as follows:

(g)(1) Except as provided in subdivision (g)(15), as used in this subsection (g), “eligible petitioner” means:

. . . .

(B) Except as provided in this subdivision (g)(1)(B), a person who was convicted of a misdemeanor offense committed on or after November 1, 1989. Misdemeanors excluded from consideration are:

(i) Section 39-13-101(a)(1) and (2)–Assault, if the offense was committed prior to July 1, 2000[.]

The ultimate effect of this reform is to modify the exclusion for misdemeanor assault convictions by making assaults that took place after July 1, 2000 eligible for expungement. In other words: misdemeanor assault convictions arising from offenses that occurred on or after July 1, 2000 are now eligible to be expunged.

Significantly, although no appellate court has settled the issue to date, there are also strong arguments that assault convictions that occurred before 1989 can be expunged under existing law, too, as one division of the Davidson County Criminal Court recently held. As a result, where eligibility of misdemeanor assault convictions is concerned, the only clearly excluded time period is between 1989 and 2000.

5. Expungement Eligibility for Pardon Recipients

An amendment to Tenn. Code Ann. § 40-32-101(h)(1), governing pardon recipients, modestly amended the statute by repealing a restriction that a qualifying charge be committed “after January 1, 1980.” Thus, Tenn. Code Ann. § 40-32-101(h)(1) now provides, in full, that:

(h)(1) For purposes of this subsection (h), “eligible petitioner” means a person who was convicted of a nonviolent crime if the person:

(A) Petitioned the court in which the petitioner was convicted of the offense and the judge finds that the offense was a nonviolent crime;

(B) Petitioned for and received a positive vote from the board of parole to receive a pardon; and

(C) Received a pardon by the governor.

The ultimate effect of this reform is that anyone who has previously committed a non-violent offense—regardless of when it occurred—is now eligible to seek expungement of the record upon receiving a positive vote from the Board of Parole and receiving a pardon from the Governor. Given the short shrift that clemency has received in Tennessee—even in light of some recent grants—only a handful of people are likely to benefit from this reform.

6. Notice to Defendants Concerning Expunction Eligibility

A new section of the Tennessee Code—Tenn. Code Ann. § 40-35-324—aims to improve notice of expungement-eligible offenses at the time of sentencing. The new section provides, in full, as follows:

(a) If practicable, a judge shall, at the time of sentencing, notify a person convicted of an offense that is eligible for expunction of:

(1) The person’s eligibility to have all public records of the conviction destroyed in the manner set forth in § 40-32-101; and

(2) The time period after which the person can petition for expunction of the offense.

(b) The administrative office of the courts shall provide judges handling criminal matters with a reference document listing:

(1) Each criminal offense eligible for expunction pursuant to § 40-32-101; and

(2) The time period after which each offense is eligible for expunction.

In theory, this reform means that at the time of sentencing, if a charge is expungement-eligible, judges will notify a defendant that their charge may be expunged and let them know when they may petition the court to expunge it. This reform may ultimately end up working better in theory than in practice, though, because there are several additional criteria that affect a person’s eligibility to expunge a conviction beyond the time period involved, and in many instances, that information will not be available to a judge at the time of sentencing. Nonetheless, some number of defendants will benefit from this reform, which serves a worthy goal.

7. Timing of Rulings on Petitions to Expunge Convictions

Unfortunately, all of 2021’s expungement changes were not positive. In particular, one modification to Tenn. Code Ann. § 40-32-101(g)(5)(A) amends the provision to provide that: “The court shall enter an order granting or denying the petition no sooner than sixty-one (61) days after service of the petition upon the district attorney general.”

The likely purpose of this reform was to afford District Attorneys a full sixty days to oppose a petition to expunge a conviction, which Tennessee’s expungement statute was already supposed to afford them.  See Tenn. Code Ann. § 40-32-101(g)(3) (“Not later than sixty (60) days after service of the petition, the district attorney may submit recommendations to the court and provide a copy of such recommendations to the petitioner.”). The practical effect of the reform, however, will be to prevent even agreed expungement petitions from being expunged any faster than 61 days regardless of the fact that a District Attorney has indicated it does not oppose an expungement petition. This delay will seriously harm petitioners, many of whom petition for expungement in connection with a new employment opportunity or some pressing need to pass an upcoming background check. Accordingly, this provision should be modified in the future to state that District Attorneys who do not oppose expungement petitions may waive their 60-day response period and allow a court to rule on an expungement petition immediately.

This article is not legal advice.  If you have a criminal record that you want expunged, there is no substitute for consulting a lawyer to review your own individual circumstances.  If you think you may be eligible to have your record expunged and want to hire an attorney to evaluate your eligibility or file your paperwork for you, please click here for an individualized case review.