Can a Tennessee general sessions judge expunge old dismissed or retired charges, and is there a deadline?

Plain-English summary

A Lewisburg city judge asked whether a general sessions judge (or a municipal judge sitting in general sessions jurisdiction) could expunge a defendant's records on a charge that had been dismissed, retired, or retired upon payment of costs, particularly when a year or more had passed.

AG Robert E. Cooper, Jr. drew a hard line on disposition type. If the charge was dismissed, the court that had jurisdiction over the original action had authority, on petition by the defendant, to expunge the public records, and the statute imposed no deadline. If the charge was retired (or retired upon payment of costs), the court had no authority to expunge, regardless of how much time had passed. A retired case is not dismissed; under Tennessee precedent, it can still be reopened for prosecution, so it falls outside the categories that Tenn. Code Ann. § 40-32-101 makes eligible for expungement.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Tennessee's expungement statute has been amended substantially since 2010 (including the addition of the diversion-expungement and conviction-expungement provisions). Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did the AG say about timing?
A: For dismissed charges, no timing limit applied. The court could expunge a dismissal whether the case had closed last week or a decade ago. The statute as it stood in 2010 imposed no deadline on either filing the petition or the court's order.

Q: Why couldn't a retired charge be expunged?
A: Under State ex rel. Underwood v. Brown, retiring a case from the docket is not the same as dismissing it; the case "may be subject to further prosecution." The expungement statute in 2010 listed only specific dispositions, dismissal, no true bill, not guilty verdict, arrest without charge, and the related diversion contexts, and a retired case wasn't on that list.

Q: What about retired upon payment of costs? That seems like the case is over.
A: Practically, yes. But the AG followed Mauldin v. State, holding that the formal disposition still counts as "retired," not "dismissed," and a retired case can theoretically be reactivated. The statute didn't list retirement as a ground for expungement, so the court had no authority to grant it.

Q: Which courts had this expungement authority in 2010?
A: Any court that had jurisdiction in the previous action. So a general sessions court could expunge its own dismissed misdemeanor; a municipal court exercising general sessions jurisdiction could expunge cases it heard in that capacity; a criminal court could expunge its own dismissed felonies.

Q: Were there other ways to get a retired charge cleared in 2010?
A: The opinion's footnote pointed to specific narrow exceptions: judicial diversion under Tenn. Code Ann. § 40-15-105(e), post-trial diversion under § 40-35-313(b), and a few other contexts (expired bail bonds, nolle prosequi, civil rights protests). None of those was a general route to clearing a retired non-diversion charge.

Background and statutory framework

The general expungement statute in 2010, Tenn. Code Ann. § 40-32-101 (Supp. 2009), provided four standard grounds for mandatory expungement on petition: dismissal, no true bill from a grand jury, not-guilty verdict, and arrest-without-charge. The key statutory verb was "shall ... be removed and destroyed without cost to the person." Once the petitioner showed the charge fit one of those categories, expungement was a ministerial duty of the court that had heard the case.

The trick the opinion turned on was the difference between dismissal and retirement. Under Tennessee criminal procedure, a judge can take a misdemeanor case off the active docket without dismissing it on the merits. That is "retiring" the case, often conditioned on completion of community service, payment of costs, or a clean record for some period. The case sits inactive but is not technically resolved. Older Tennessee Supreme Court and Court of Criminal Appeals cases (Underwood, Lewis) had treated a retired case as still pending, and the Mauldin decision applied that distinction in the expungement context: because retirement isn't dismissal, the statute didn't reach it.

The opinion's distinction was that retiring a case is not the same disposition as a dismissal: a retired charge remained ineligible for expungement under the statute as it stood in 2010. The Legislature has revisited expungement multiple times since 2010, expanding the categories of eligible dispositions, but the dismissal-versus-retirement distinction this opinion drew was the controlling rule at the time it issued.

Citations and references

Statutes (as of 2010):

• Tenn. Code Ann. § 40-32-101 (general expungement)
• Tenn. Code Ann. § 40-15-105(e) (pre-trial diversion expungement)
• Tenn. Code Ann. § 40-35-313(b) (post-trial diversion expungement)

Cases:

• State ex rel. Underwood v. Brown, 244 S.W.2d 168 (Tenn. 1951) (Tennessee Supreme Court): retiring case is not dismissal
• State ex rel. Lewis v. State, 447 S.W.2d 42 (Tenn. Crim. App. 1969) (Tennessee Court of Criminal Appeals): retired cases remain subject to prosecution
• Mauldin v. State, No. M1999-00532-CCA-R3-CD, 2000 WL 284179 (Tenn. Crim. App. Mar. 17, 2000) (Tennessee Court of Criminal Appeals): retired cases not eligible for expungement under § 40-32-101

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-018.pdf

Original opinion text

February 19, 2010

Opinion No. 10-18

Authority of Judge Exercising General Sessions Court Jurisdiction to Expunge Defendant's Criminal Record

QUESTION

Is a general sessions judge or a municipal court judge exercising general sessions court jurisdiction authorized, upon petition by a defendant, to order the expungement of the defendant's public records in connection with a charge that has been retired, retired upon payment of costs, or dismissed, when a year or more has passed since the disposition of the case?

OPINION

A general sessions judge or a municipal court judge exercising general sessions court jurisdiction is authorized, upon petition of a defendant, to order the expungement of the defendant's public records in connection with a charge that has been dismissed if the court had jurisdiction in the previous action. The court's authority to order the expungement is not limited by the passage of any period of time. However, the court is without authority to order the expungement if the charge has been only retired or retired upon payment of costs.

ANALYSIS

The general expungement statute, Tenn. Code Ann. § 40-32-101 (Supp. 2009), provides, in pertinent part:

(a)(1)(A) All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
(i) The charge has been dismissed;
(ii) A no true bill was returned by a grand jury;
(iii) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
(iv) The person was arrested and released without being charged.

Thus, if a general sessions court or a municipal court exercising general sessions court jurisdiction had jurisdiction in an action in which the defendant was charged with a misdemeanor or a felony, and the charge has been dismissed, that court is not only authorized, but is required, upon petition of the defendant, to remove and destroy, i.e., expunge, all public records in connection with the charged offense. The statute imposes no time limitation on either the filing of the petition or the court's action ordering expungement.

However, the public records of a charge that has been only retired or retired upon payment of costs are not a proper subject for expungement.

When a trial court retires a case from the docket, the case is not dismissed and may be subject to further prosecution. State ex rel. Underwood v. Brown, 244 S.W.2d 168, 171 (Tenn. 1951); State ex rel. Lewis v. State, 447 S.W.2d 42, 43 (Tenn. Crim. App. 1969). A retired case, which has not been dismissed, is not listed as subject to expungement under Tenn. Code Ann. § 40-32-101.

Mauldin v. State, No. M1999-00532-CCA-R3-CD, 2000 WL 284179, at *1 (Tenn. Crim. App. Mar. 17, 2000) (no app. filed) (construing Tenn. Code Ann. § 40-32-101(a) (Supp. 1999)). Thus, a general sessions court or a municipal court exercising general sessions court jurisdiction is not authorized to order the expungement of the public records in connection with a charge that has been only retired or retired upon payment of costs.

ROBERT E. COOPER, JR.
Attorney General & Reporter

GORDON W. SMITH
Associate Solicitor General

Requested by:
The Honorable Roger E. Brandon
City Judge
Lewisburg City Court
101 Water Street
Lewisburg, Tennessee 37091