Do juvenile-court clerks collect the $350 Tennessee expunction fee, can records be expunged by agreed order with no petition or fee, and can a judge waive the fee?

Plain-English summary

Tennessee's principal record-expunction statute, Tenn. Code Ann. § 40-32-101, charges a $350 fee in two main scenarios: pretrial-diversion dismissals under subsection (d)(2) and eligible felony or misdemeanor convictions under subsection (g)(10). The legislature designated portions of that fee to the Tennessee Bureau of Investigation and other entities.

The AG was asked three questions. First, when an expunction petition is filed in juvenile court, does the juvenile-court clerk collect the $350 fee? The AG said yes: juvenile courts have authority to order expunction in the limited situations where their jurisdiction overlaps with an adult offense (for example, contributing to the delinquency of a minor under § 37-1-156(b)), and where the statute imposes the fee, the juvenile-court clerk transmits it as directed.

Second, can a person obtain expunction by submitting an agreed order without filing a petition (and so without paying the fees)? The AG said the statute requires a petition in nearly every case. Only two exceptions skip the petition requirement, and both bypass the fee as well: (a) acquittal at trial under § 40-32-101(a)(1)(F), where the judge must ask the acquitted defendant if expunction is desired and order it without cost; and (b) automatic expunction after the expiration of a bond required under § 38-3-109 (offenses that break the peace), where § 40-32-101(a)(2) and (f)(2) provide for expunction without further process.

Third, can a judge or magistrate waive the $350 fee? The AG said no. The statute's "shall be assessed" and "shall pay to the clerk" language is mandatory, and § 40-32-101(g)(15)(B) ties the lifting of collateral consequences to the petitioner's payment of the fee.

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.

Common questions

Q: When does the $350 fee actually apply?
A: The opinion identifies subsections (d)(2) (pretrial-diversion dismissals), (g)(10) (eligible felony or misdemeanor convictions), and the related judicial-diversion expunction under § 40-35-313(d)(2). Other expunctions, such as those for dismissals, no true bills, acquittals, denied orders of protection, or nolle prosequi dispositions, do not carry the fee.

Q: Was the AG saying every juvenile-court expunction triggers the fee?
A: No. The opinion observes that the fee-triggering situations don't arise frequently in juvenile court, because juvenile-delinquency dispositions are not "convictions" in the same sense. The opinion focuses on the narrow overlap where the juvenile court has concurrent jurisdiction over an adult offense (such as contributing to the delinquency of a minor) and an expunction petition fits within § 40-32-101(d)(2) or (g)(10).

Q: How does the acquittal-at-trial exception work?
A: Under § 40-32-101(a)(1)(F), the trial judge is required to ask an acquitted defendant if he or she wants the public records expunged. If yes, records are expunged at that point without a fee and without a petition. If the defendant defers the choice and later wants expunction, the petition procedure applies.

Q: What is the § 38-3-109 bond-release exception?
A: Under § 40-32-101(a)(2) and (f)(2), records of a person arrested under § 38-3-108 (offenses that break the peace) and required to post bond under § 38-3-109 are expunged automatically upon expiration of the bond, when no surety is required to fulfill obligations of the bond. This is the second route that does not require a petition.

Q: Can a defendant pay the $350 fee on a payment plan?
A: Under § 40-32-101(g)(17), the petitioner can enter into an installment agreement with the clerk. The same provision says expunction is not granted until the full fee is paid, so paying over time delays the order's effective date.

Q: Does this opinion cover the separate court clerk's fee?
A: No. Footnote 3 of the opinion expressly limits the analysis to the $350 fee in § 40-32-101 and does not address the separate court clerk's fee under § 8-21-401(d)(2). The opinion notes that 2014 Tenn. Pub. Acts, ch. 1008 amended § 40-32-101 to require the appropriate clerk's fee in addition to other fees unless the person is entitled to free expunction.

Background and statutory framework

Tennessee's expunction scheme runs along two main rails. The first rail is the "no record at all" set of dispositions where records are expunged on petition without a fee, such as dismissals, no true bills, arrests without charges, nolle prosequi dispositions, and acquittals. The second rail is the "earned through completion" set, including pretrial diversion (Tenn. Code Ann. § 40-32-101(d)) and judicial diversion (Tenn. Code Ann. § 40-35-313), and a limited list of convictions eligible under § 40-32-101(g). The $350 fee attaches to this second rail.

The statute uses petition-based language throughout. The AG read the repeated "upon petition" formulations as a baseline rule, with only two textual exceptions: the acquittal-at-trial offer under (a)(1)(F) and the bond-release automatic expunction under (a)(2) and (f)(2). Outside those exceptions, an agreed order does not substitute for a petition, and the fee remains mandatory.

The fee's mandatory character is reinforced by § 40-32-101(g)(15)(B), which ties the lifting of collateral consequences to the petitioner's payment of the fee. The AG concluded a judge has no statutory authority to waive a fee that the statute conditions the entire benefit of expunction on.

Citations and references

Statutes:

• Tenn. Code Ann. § 40-32-101 (expunction of records)
• Tenn. Code Ann. § 37-1-104(b); § 37-1-156(b) (juvenile-court jurisdiction over contributing to delinquency)
• Tenn. Code Ann. § 38-3-108; § 38-3-109 (offenses that break the peace; bond)
• Tenn. Code Ann. § 40-35-313 (judicial diversion)
• Tenn. Code Ann. § 8-21-401(d)(2) (court clerk's fee, separate from $350 fee)
• 2014 Tenn. Pub. Acts, ch. 1008, § 1 (clerk's-fee amendment)

Subject

Opinion No. 14-77, Expunction of Records, August 25, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-077.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 25, 2014
Opinion No. 14-77
Expunction of Records

QUESTIONS

1. Are juvenile-court clerks responsible for collecting the $350 fee designated for the Tennessee Bureau of Investigation and other entities as outlined in Tenn. Code Ann. § 40-32-101 for the expunction of records?

2. Is it possible for a party to have a record expunged by submitting an agreed order without filing a petition for expunction? If so, does this mean the party does not have to pay all of the fees associated with Tenn. Code Ann. § 40-32-101?

3. Does a judge or a magistrate have the authority to waive the expunction fee?

OPINIONS

1. Yes.

2. The filing of a petition is mandatory under the statute except in two limited circumstances, neither of which requires the imposition of a fee.

3. No.

ANALYSIS

1. Juvenile courts have authority to expunge records under Tenn. Code Ann. § 40-32-101. See id. § 40-32-101(a)(4), (f)(4) (providing that "court" includes any court exercising juvenile jurisdiction"). The circumstances under which the expunction of records will trigger imposition of the $350 fee required by the statute are not likely to arise frequently in a juvenile court. See Tenn. Code Ann. § 40-32-101(d)(2) (requiring assessment of the fee for expunction where the charge was dismissed upon successful completion of a pretrial-diversion program); id. § 40-32-101(g)(10) (requiring assessment of the fee for expunction of certain felony and misdemeanor convictions); id. § 40-32-101(h)(2) (requirement assessment of the fee for expunction of conviction for pardoned nonviolent crime).[1] Nevertheless, it is possible for a court with juvenile jurisdiction to order expunction under such a circumstance. See, e.g., Tenn. Code Ann. §§ 37-1-104(b); 37-1-156(b) (providing for concurrent jurisdiction in the juvenile court for the adult offense of contributing to the delinquency of a minor, a Class A misdemeanor). Where the petition for expunction has been filed in a juvenile court and the fee must be assessed under § 40-32-101, the juvenile-court clerk would be responsible for transmitting the fee as directed by the statute. See id. § 40-32-101(d)(2), (g)(10).

2. Expunction of criminal records under Tenn. Code Ann. § 40-32-101 is available only in a limited set of circumstances. See id. § 40-32-101(a)(6). In all of these circumstances, except two, the statute specifically requires the filing of a petition to initiate the expunction process. The first exception occurs where a defendant is acquitted on all charges of which he or she was accused, in which case the trial judge is required to ask the defendant if he or she wishes to have all public records associated with the charges expunged without cost "and without the requirement that the person petition for destruction of such records." Id. § 40-32-101(a)(1)(F). If the defendant does not wish to have the records destroyed at that time but later desires to have them expunged, he or she is then "required to follow the petition procedure set out in this section." Id.

The second exception involves the expunction of public records of a person required to post bond under Tenn. Code Ann. § 38-3-109 after such person has been arrested pursuant to § 38-3-108 (offenses that break the peace). See id. § 40-32-101(a)(2), (f)(2). This expunction is automatic and thus not subject to the petition procedures set forth in the statute. See id. (providing for the expunction of records "upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond").

In all other instances, § 40-32-101 requires the person seeking expunction to file a petition in order to initiate the expunction proceedings. A person may therefore not have a record expunged under this statute by submitting an agreed order without filing a petition for expunction. See id. § 40-32-101(a)(1)(A) (public records of dismissals, no true bills, and arrests without charges expunged "upon petition"); § 40-32-101(a)(3), (f)(3) (public records where a court entered a nolle prosequi expunged "[u]pon petition"); § 40-32-101(a)(5) (public records of denied orders of protection expunged "upon petition"); § 40-32-101(f)(1) (public records of charges and convictions for challenging racially discriminatory laws expunged "upon petition"); § 40-32-101(g)(3) (person seeking expunction of one of the enumerated convictions "shall petition the court," and court clerk initiates the process "[u]pon the filing of the petition"); § 40-32-101(h) (person convicted of a nonviolent crime and pardoned by the governor may "file a petition for expunction").[2]

3. The $350 statutory fee required by § 40-32-101 is mandatory and cannot be waived.[3] See id. § 40-32-101(d)(2) (defendant petitioning a court for expunction "shall be assessed" a $350 fee); § 40-32-101(g)(10) (except as provided by subdivision (g)(17), petitioner "shall pay to the clerk of the court" a fee of $350).[4] Indeed, the expunction of a conviction under subsections (g) and (h) of the statute will restore the petitioner to the same status occupied before the arrest, indictment, trial, and conviction only after the petitioner pays the fee. See id. § 40-32-101(g)(15)(B) ("Once the expunction order is granted and the petitioner pays the fee required by this subsection (g) or subsection (h), no direct or indirect collateral consequences . . . shall be imposed or continued.") (emphasis added).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JONATHAN WARDLE
Assistant Attorney General

Requested by:
The Honorable Mike Stewart
State Representative
24 Legislative Plaza
Nashville, Tennessee 37243-0152

[1] The statute recognizes that expunction is also available where the charge was dismissed upon successful completion of a judicial-diversion program under Tenn. Code Ann. § 40-35-313, id. § 40-32-101(a)(6), (e)(2), which likewise requires imposition of a $350 fee, id. § 40-35-313(d)(2).

[2] The judicial-diversion statute, § 40-35-313, similarly requires the filing of an application. See id. § 40-35-313(b) (upon dismissal and discharge of the proceedings, "the person may apply to the court for an order to expunge").

[3] This opinion addresses only the $350 fee assessed under § 40-32-101(d)(2) and (g)(10), and not the court clerk's fee charged pursuant to § 8-21-401(d)(2). But see 2014 Tenn. Pub. Acts, ch. 1008, § 1 (amending § 40-32-101 to provide that a person applying for expunction of records "shall be charged the appropriate court clerk's fee pursuant to § 8-21-401, in addition to any other fees required by this section, unless the person is entitled to have such records removed and destroyed without cost to the person").

[4] § 40-32-101(g)(17) permits a petitioner to enter into a payment plan with the clerk in order to pay the $350 fee in installments; however, it also expressly provides that "no order of expunction shall be granted . . . until the total amount of the fee is paid."