Can a probation or community corrections officer assign an offender on general community service to graffiti removal without a specific court order?

Subject

Opinion No. 14-02, Performing Graffiti Removal as Community Service, January 7, 2014

Plain-English summary

Rep. Vince Dean asked whether a probation officer, community corrections officer, or sentence-management supervisor can direct an offender who has been ordered to perform general community service to clean up graffiti as part of that service. The AG said no, with a workaround.

Tenn. Code Ann. § 6-54-127 declares graffiti a specific kind of public nuisance and empowers municipalities and counties to remove or repair the defacement using public funds. Subsection (h) lets a municipality or county "use the services of persons ordered to perform those services by a general sessions, criminal or juvenile court." The AG read the underlined language as a narrow grant: only offenders who have been specifically ordered by the sentencing court to perform graffiti-related work are eligible. A general community-service order is not enough; the court must specifically include graffiti removal in the sentence.

The fix is straightforward. The sentencing court keeps jurisdiction over its alternative-sentencing decisions under Tenn. Code Ann. §§ 40-35-212(c) and (d)(1) (probation), 40-35-308(a)(1) (split-confinement community service), and 40-36-106(e)(2) (community corrections). If a probation officer or sentence supervisor thinks graffiti work would be appropriate for a given offender, the right move is to petition the sentencing court to modify the conditions of the sentence. The court can then specifically order the graffiti work, and the offender becomes eligible under § 6-54-127(h).

The AG's reasoning is a basic statutory-construction point: § 6-54-127 sits in the local-government title (Title 6), not the criminal sentencing title (Title 40), and uses the narrow phrase "ordered to perform those services." Read in context, the legislature meant a specific judicial order to do graffiti work, not a generic community-service designation that probation could later fill in.

Currency note

This opinion was issued in 2014. 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

§ 6-54-127. Declares graffiti a public nuisance. Empowers municipalities and counties to spend public funds to remove graffiti from property visible from public places and to repair or replace defaced sections.

§ 6-54-127(h). The labor-source provision. Authorizes municipalities and counties to "use the services of persons ordered to perform those services by a general sessions, criminal or juvenile court."

Statutory construction principles. Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009), and Chapman v. Davita, 380 S.W.3d 710, 714 (Tenn. 2012), instruct courts to give statutory words their natural and ordinary meaning in context, without forcing the statute beyond its intended scope. The AG applied this to read "persons ordered to perform those services" as referring to a specific sentencing order for graffiti work, not a generic community-service order.

Why the placement matters. § 6-54-127 lives in the title governing local governments. It enumerates municipal powers, not sentencing authorities. So subsection (h) reads as a labor-pool authorization for local governments rather than a general expansion of probation-officer discretion.

The court-modification escape valve.

• Tenn. Code Ann. § 40-35-212(c) and (d)(1): A trial court retains jurisdiction over probation cases and can modify probation conditions.
• Tenn. Code Ann. § 40-35-308(a)(1): A court may modify the in-custody portion of a split-confinement sentence and the conditions of release.
• Tenn. Code Ann. § 40-36-106(e)(2): The sentencing court may modify community-corrections conditions, including service requirements.

Through any of these, the sentencing court can add graffiti maintenance to an existing alternative sentence even after the judgment has otherwise become final.

Common questions

Why can't probation officers just slot graffiti into existing community-service hours?

Because § 6-54-127(h) requires that the offender be "ordered" by a court to do graffiti work. A probation officer's assignment is not a court order. The AG read the statute as legislative narrowing: courts pick who does graffiti work, not probation administrators.

Can a court add graffiti work after sentencing?

Yes. Tenn. Code Ann. §§ 40-35-212, 40-35-308, and 40-36-106 give sentencing courts continuing jurisdiction over probationers, split-confinement defendants, and community-corrections participants. The court can modify the conditions to specifically include graffiti maintenance.

Does this apply to juvenile court?

Yes. § 6-54-127(h) explicitly lists "general sessions, criminal or juvenile court." Juvenile courts have the same authority to specifically order graffiti work for the offender it sentences.

What if an offender volunteers to do graffiti work as part of their general community service?

The opinion doesn't squarely answer voluntary assignments. The statute's language addresses the municipal authority to use offenders "ordered" to do graffiti work; voluntary participation outside of a sentencing order would raise different questions about supervision, liability, and credit toward community-service hours.

Does this affect graffiti-removal programs that use unpaid volunteers (non-offenders)?

No. The opinion is only about the use of court-sentenced offenders. Volunteer programs run by municipalities or nonprofits are governed by general law and any applicable local ordinances.

Citations

Statutory: Tenn. Code Ann. § 6-54-127, § 6-54-127(c), (e), (g), (h); Tenn. Code Ann. §§ 40-35-212(c), (d)(1), 40-35-308(a)(1), 40-36-106(e)(2). Cases: Carter v. Bell, 279 S.W.3d 560 (Tenn. 2009); Chapman v. Davita, Inc., 380 S.W.3d 710 (Tenn. 2012); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-002.pdf

Original opinion text

Performing Graffiti Removal as Community Service

QUESTION

When an offender is sentenced by a court to perform general community service, may that offender's probation officer, community corrections officer, or sentence management supervisor order the offender to perform graffiti-removal services on public and private property pursuant to Tenn. Code Ann. § 6-54-127(h)?

OPINION

No. Pursuant to Tenn. Code Ann. § 6-54-127(h), the use of offenders to assist in removing graffiti or repairing or replacing that portion of the property that was defaced is limited to offenders who have been specifically ordered by the general sessions, criminal or juvenile court to participate in those services.

ANALYSIS

Recognizing the harm that graffiti can cause to the public's safety, health, welfare, convenience, and enjoyment of public property, the General Assembly enacted Tenn. Code Ann. § 6-54-127 to declare graffiti a specific type of public nuisance. The statute empowers municipalities to use municipal funds to remove graffiti from property in the public's view or to repair or replace that portion of the property that was defaced. Tenn. Code Ann. § 6-54-127(c), (e), and (g). To assist in graffiti removal and in dealing with its after-effects, such as repair or replacement of the property that was defaced, subsection (h) of the statute provides that "the municipality or county may use the services of persons ordered to perform those services by a general sessions, criminal or juvenile court." Id. § 6-54-127(h).

Whether offenders who are under a more general order of a court to perform community service may be required by their probation officer, community correction officer, or sentence management officer to perform graffiti-maintenance work as a community service under subsection (h) is a matter of statutory construction. The paramount rule of statutory construction "is to ascertain and give effect to legislative intent without broadening the statute beyond its intended scope." Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009). Legislative intent is to be discerned from the precise wording of the statute, giving those words their natural and ordinary meaning within the context of the legislation as a whole, and not utilizing any forced construction that would extend the statute's meaning. Chapman v. Davita, Inc., 380 S.W.3d 710, 714 (Tenn. 2012); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). The words of the statute, furthermore, should be construed "in the context in which they appear in the statute and in light of the statute's general purpose." Lee Medical, Inc., 312 S.W.3d at 526.

As noted previously, Tenn. Code Ann. § 6-54-127, as a whole, is tailored to address the problem of graffiti as a public nuisance. The statute is found in the portion of the code that deals with local governments and sets out the specific powers possessed by local governing agencies. Since subsection (h) appears in this particular section and not in the general criminal portions of the code, and since it only authorizes, for graffiti-maintenance purposes, "persons ordered to perform those services by a general sessions, criminal or juvenile court," we conclude that, unless an offender is specifically ordered by the sentencing judge to perform such work, this provision does not authorize the offender's service supervisor to include graffiti-maintenance work as part of the offender's general community service. However, for those offenders who were not specifically ordered as contemplated by Tenn. Code Ann. § 6-54-127(h) to perform graffiti-maintenance work but who are under a general order of a court to perform community service and who are probationers, those sentenced to split confinement who serve the in-custody portions of their sentences in a local jail or workhouse, or those sentenced to community corrections, the sentencing court retains jurisdiction to modify the alternative-sentencing conditions and could add graffiti-maintenance work to an offender's public-service requirements even after the sentencing judgment has otherwise become final. Tenn. Code Ann. §§ 40-35-212(c), and (d)(1); 40-35-308(a)(1); and 40-36-106(e)(2).

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

AMY L. TARKINGTON
Deputy Attorney General

Requested by:

The Honorable Vince Dean
State Representative
107 War Memorial Building
Nashville, TN 37243