After Tennessee's 2014 expansion of the sex-offender 1,000-foot rule, do colleges and universities have to fire a registered offender hired before July 1, 2014?

Plain-English summary

2014 Tenn. Pub. Acts, ch. 992 amended Tenn. Code Ann. § 40-39-211(a)(2) to extend Tennessee's 1,000-foot residence-and-employment restriction (around schools, day-care centers, child-care facilities, parks, playgrounds, recreation centers, and public athletic fields) to sexual offenders whose victims were adults. Before the amendment, only offenders whose victims were minors were covered. The change took effect July 1, 2014.

The question presented was whether Tennessee Board of Regents institutions located within 1,000 feet of one of these protected locations were now required to terminate registered offenders they had hired before July 1, 2014. The AG concluded no.

The statute regulates the conduct of the offender, not the employer. The text prohibits an offender from knowingly "accept[ing] employment" within the prohibited zone. The AG read "accept" in its ordinary sense (to take on the duties of) and concluded that a person already employed when the statute changed is not accepting employment when continuing to do the job. The statute also has an explicit third-party-conduct provision in subsection (h)(2) (forbidding property owners from knowingly housing more than three offenders in a habitation), and the absence of comparable employer-directed language in subsection (a)(2) confirms that employers are not regulated. The AG drew an analogy to Tenn. Att'y Gen. Op. 04-053 (Mar. 25, 2004), which read the parallel "establish a residence" language as not prohibiting returning to a residence one already occupied. The rule of lenity (per State v. Smith, 436 S.W.3d 751 (Tenn. 2014)) further supports the offender-favorable reading.

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: Does this mean offenders hired before the law changed can keep their jobs forever?
A: As long as they continue in that same employment, this opinion concluded the statute does not require termination. If the offender changes jobs after July 1, 2014, and the new job is within a prohibited zone, that would be "accepting employment" within the meaning of the statute.

Q: What if the employer wants to terminate the offender voluntarily?
A: The opinion does not address what employers may do as a matter of their own employment policy or other applicable law (anti-discrimination statutes, contract law, etc.). The opinion addresses only what § 40-39-211(a)(2) requires.

Q: What is the rule of lenity?
A: A canon of statutory interpretation that resolves ambiguity in criminal statutes in favor of the defendant. State v. Smith, 436 S.W.3d 751 (Tenn. 2014), is the Tennessee Supreme Court's recent formulation.

Q: Could the offender be held criminally responsible for an employer's continued employment?
A: The opinion notes that a person can in theory be held criminally responsible for another's conduct, but concludes that an offender continuing in pre-existing employment is not violating subsection (a)(2) at all, so there is no underlying offense to ground a criminal responsibility chain.

Q: Does the same logic apply to the "establish a residence" language?
A: Yes, and the opinion explicitly draws the analogy to Op. 04-053, which read "establish a residence" not to prohibit returning to a residence the person occupied before incarceration. The analytical engine is the same: the verb requires a new act, not the maintenance of an existing situation.

Background and statutory framework

Tennessee's sex-offender registration scheme uses geography-based restrictions (residence and employment) tied to proximity to children-serving facilities and public recreation spaces. The 1,000-foot rule in § 40-39-211(a)(2) is the core spatial constraint. The 2014 amendment widened the class of covered offenders.

The opinion's interpretive approach is conservative. It applies plain-language analysis to identify what the statute prohibits ("accept employment"), reads that verb naturally to require a new acceptance act, and confirms the reading with structural inferences (other subsections impose third-party obligations explicitly) and an earlier AG opinion on parallel language. The rule of lenity functions as a backstop.

Citations and references

Statutes:

• Tenn. Code Ann. § 40-39-202 (definitions)
• Tenn. Code Ann. § 40-39-211 (residence and employment restrictions)
• 2014 Tenn. Pub. Acts, ch. 992

Cases:

• Dixon v. Holland, 70 S.W.3d 33 (Tenn. 2002) (Tennessee Supreme Court; plain-language interpretation)
• State v. Smith, 436 S.W.3d 751 (Tenn. 2014) (Tennessee Supreme Court; rule of lenity)

Earlier AG opinion:

• Tenn. Att'y Gen. Op. 04-053 (Mar. 25, 2004)

Subject

Opinion No. 14-94, Work Restrictions on Sexual Offenders, October 27, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-094.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 27, 2014
Opinion No. 14-94
Work Restrictions on Sexual Offenders

QUESTION

Are institutions in the State University and Community College System of Tennessee that are within 1,000 feet of any school, licensed day-care center, or public athletic field required, pursuant to Tenn. Code Ann. § 40-39-211(a)(2), to terminate the employment of a registered sexual offender who was hired before July 1, 2014?

OPINION

No. Tenn. Code Ann. § 40-39-211(a)(2) does not regulate the conduct of employers and does not prohibit a sexual offender hired before July 1, 2014, from maintaining employment within a prohibited zone.

ANALYSIS

In 2014 Tenn. Pub. Acts, ch. 992, § 1, the General Assembly amended the provisions of Tenn. Code Ann. § 40-39-211 relative to the restrictions on sexual offenders. Subdivision (a)(2) now provides:

While mandated to comply with the requirements of this chapter, no sexual offender, as defined in § 40-39-202, or violent sexual offender, as defined in § 40-39-202, whose victim was an adult, shall knowingly establish a primary or secondary residence or any other living accommodation or knowingly accept employment within one thousand feet (1,000') of the property line of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public.

Under prior law, this prohibition extended only to sexual offenders whose victims were minors. See Tenn. Code Ann. § 40-39-211(a) (2010). The change took effect on July 1, 2014. 2014 Tenn. Pub. Acts, ch. 992, § 2.

By its plain terms, Tenn. Code Ann. § 40-39-211(a)(2) regulates the conduct of sexual offenders, not employers. This reading is supported by subdivision (h)(2) of the statute, which forbids property owners from knowingly permitting more than three sexual offenders to take up residence in a habitation. This provision suggests that when the General Assembly desires to impose burdens on third parties with respect to sexual-offender registration and monitoring, it does so explicitly. Section 40-39-211 does not explicitly create duties for employers.

A person can be held criminally liable for the conduct of another under certain circumstances, but a sexual offender hired before July 1, 2014, would not violate § 40-39-211(a)(2) by maintaining employment within a prohibited zone. This conclusion flows from construction of the phrase "accept employment" in subdivision (a)(2). Legislative intent is derived from the plain and ordinary meaning of the statutory language. Dixon v. Holland, 70 S.W.3d 33, 37 (Tenn. 2002). In this context, the plain and ordinary meaning of "accept" is "to take upon oneself the duties or responsibilities of." The American Heritage Dictionary 71 (2d college ed. 1985). Offenders who were hired before July 1, 2014, undertook the duties of their employment before § 40-39-211(a)(2) existed to proscribe that conduct. The statute does not prohibit maintaining employment already accepted; that is to say, a person is not "accepting employment" when the person is already employed.

This interpretation is consistent with Tenn. Att'y Gen. Op. 04-053 (Mar. 25, 2004), in which this Office concluded that the language "establish a residence" in § 40-39-211(a) does not prohibit a sexual offender from returning to a residence that he or she occupied before incarceration, but "only prohibits such an offender from taking up residence at a new location within a prohibited zone." Op. 04-053, at 2. "[A] person cannot establish a residence if he or she has previously lived at that location." Id. n.2. Likewise, a person cannot "accept employment" if he or she has already been carrying out the duties of the job for some time. To the extent that the terminology is susceptible to more than one interpretation, moreover, the rule of lenity would require any ambiguity to be resolved in favor of the defendant. See State v. Smith, 436 S.W.3d 751, 768 (Tenn. 2014).

HERBERT H. SLATERY III
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JAMES E. GAYLORD
Senior Counsel

Requested by:
The Honorable John G. Morgan
Chancellor, Tennessee Board of Regents
1415 Murfreesboro Road, Suite 340
Nashville, Tennessee 37217-2833