When a Tennessee general sessions court (which handles misdemeanors) revokes someone's probation, can the judge add up to two more years of probation instead of just sending them to jail?

Plain-English summary

Tennessee Code Ann. § 40-35-308(c) lets a "sentencing" court, "at the conclusion of a probation revocation hearing," extend the defendant's probation supervision for up to two additional years, "[n]otwithstanding the actual sentence imposed." Representative Craig Fitzhugh asked the AG whether a general sessions court (the lower trial court that handles most misdemeanor cases by waiver of indictment and jury) is included in that authority. The question matters because § 16-15-401(b) cross-references an older statutory provision that, on its face, seemed to limit sessions courts to reinstating the original judgment on revocation.

The AG concluded yes, general sessions courts can extend probation under § 40-35-308(c). Two paths got to that result.

First, the structure of the modern statutes treats general sessions courts as "sentencing courts" for misdemeanors. Under § 40-1-109 they have jurisdiction to try misdemeanors and "inflict punishment within the limits provided by law." The misdemeanor sentencing statute, § 40-35-302, refers to "the court" and even contains a specific subsection (§ 40-35-302(f)) addressing general sessions courts. Probation revocation statutes (§ 40-35-311(b)) refer to "the trial judge granting the probation," which includes general sessions judges. So § 40-35-308(c)'s grant of authority to "the court" at revocation hearings reaches general sessions courts.

Second, the legacy reference in § 16-15-401(b) to title 40, chapter 29 does not change the result. That older chapter dealt with suspension of sentences and required reinstatement of the original judgment on revocation; it was repealed in 1989 by the Sentencing Reform Act. Whether the cross-reference is read as a "general reference" (which carries forward subsequent changes to the referenced statute, including its repeal) or as a "specific reference" (which would freeze the 1961 text), the result is the same. As specific reference, the older provision was repealed by implication by the comprehensive Sentencing Reform Act of 1989, which "clearly establish[es] a legislative intent to subsume the entire field of criminal law and sentencing in Tennessee" (State v. Palmer).

Limiting sessions courts to reinstating the original sentence would also create perverse incentives: it would treat misdemeanants who consent to general sessions trial worse than identical misdemeanants who go to the court of record, despite the Sentencing Reform Act's mandate for "consistent treatment" and "alternatives to incarceration." The AG concluded that result contradicts the Act and is not what the legislature intended.

Practical upshot: a misdemeanant on probation who violates can, under the AG's reading, get up to two additional years of supervision instead of (or in addition to) jail time on the underlying sentence, even before a general sessions judge.

Currency note

This opinion was issued in 2015. 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: Doesn't a misdemeanor max out at 11 months and 29 days? How can probation extend two years?
A: That is the imprisonment cap. Probation can be longer under § 40-35-303(c)(2)(B)-(C) for certain misdemeanors. More importantly, § 40-35-308(c) lets the court extend probation up to two years at revocation "notwithstanding the actual sentence imposed." The legislature deliberately decoupled the revocation extension from the underlying sentence cap.

Q: Why does Tenn. Code Ann. § 16-15-401(b) still reference the old title 40, chapter 29?
A: That cross-reference dates to 1961, when title 40, chapter 29, was the suspension-of-sentence regime. The 1989 Sentencing Reform Act repealed and replaced the old chapter. The legislature did not clean up the surviving cross-reference, but as the AG explained, that does not preserve the old regime for sessions courts; either the reference carries forward the modern law, or it has been repealed by implication.

Q: Could a general sessions court extend probation past two years?
A: No, two years is the statutory cap in § 40-35-308(c). The court can stack the two-year extension on top of an existing probation term, but the extension itself maxes out at two years.

Q: How did this opinion treat the older AG opinions on probation?
A: The opinion did not cite prior AG opinions on this exact question, instead working through statutory text and the legislative reorganization in 1989. The implication is that the AG saw § 40-35-308(c) as a clear text-and-purpose answer rather than something that needed harmonization with older AG guidance.

Background and statutory framework

Tennessee general sessions courts have misdemeanor jurisdiction when the defendant waives indictment, presentment, grand jury, and jury trial (§ 40-1-109). The Sentencing Reform Act of 1989 (Tenn. Code Ann. tit. 40, ch. 35) created a comprehensive sentencing regime that the Tennessee Supreme Court has held to "subsume the entire field of criminal law and sentencing" (State v. Palmer).

Section 40-35-308(c) authorizes any sentencing court to extend probation up to two years at revocation. Section 16-15-401(b) is a legacy provision granting sessions courts the same suspension-and-revocation authority as title 40, chapter 29 (now repealed) gave trial judges. The doctrine of incorporation by reference (general vs. specific, Roddy Mfg.) determines how the cross-reference operates after the underlying statute is repealed.

Citations and references

Statutes:

• Tenn. Code Ann. § 16-15-401(b) (sessions courts' suspension/revocation authority)
• Tenn. Code Ann. § 40-1-109 (sessions courts' misdemeanor jurisdiction)
• Tenn. Code Ann. §§ 40-35-102, -103, -104(a) (Sentencing Reform Act purposes)
• Tenn. Code Ann. § 40-35-111(e) (11 months 29 days misdemeanor max)
• Tenn. Code Ann. §§ 40-35-302, -303 (misdemeanor sentencing, probation)
• Tenn. Code Ann. § 40-35-308(c) (two-year extension at revocation)
• Tenn. Code Ann. § 40-35-311 (probation revocation procedure)

Cases:

• Roddy Mfg. Co. v. Olsen, 661 S.W.2d 868 (Tenn. 1983) (specific incorporation by reference)
• State v. Palmer, 902 S.W.2d 391 (Tenn. 1995) (Sentencing Reform Act preemption of older sentencing provisions)
• State v. Martin, 146 S.W.3d 64 (Tenn. Crim. App. 2003) (implied repeal by Sentencing Reform Act)
• Sharp v. Richardson, 937 S.W.2d 846 (Tenn. 1996) (implied repeals disfavored)
• Still v. First Tenn. Bank, 900 S.W.2d 282 (Tenn. 1995) (legislative intent controls)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-79.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 15, 2015

Opinion No. 15-79

Extension of Probationary Periods by General Sessions Courts

Question

Does Tenn. Code Ann. § 40-35-308(c) apply to allow a general sessions court that revokes a defendant's probation to then extend the probationary period for up to two years?

Opinion

Yes. A general sessions court that revokes a defendant's probation has authority under Tenn. Code Ann. § 40-35-308(c) to extend the probationary period for up to two years.

ANALYSIS

Tennessee Code Annotated § 40-35-308(c) provides:

Notwithstanding the actual sentence imposed, at the conclusion of a probation revocation hearing, the [sentencing] court shall have the authority to extend the defendant's period of probation supervision for any period not in excess of two (2) years.

Thus, by its plain terms § 40-35-308(c) allows a "sentencing" court that conducts a probation revocation hearing to extend the probationary period for up to two years.

The legislation that establishes general sessions courts, endows general sessions judges with "the same jurisdiction relative to the suspension and revocation of sentences imposed by them as that conferred upon all trial judges by title 40, chapter 29." Tenn. Code Ann. § 16-15-401(b). But the current title 40, chapter 29, confers no jurisdiction on judges relative to probation; it deals only with the restoration of citizenship rights. When Tenn. Code Ann. § 16-15-401(b) was enacted, chapter 29 did authorize judges to revoke probation for misdemeanor sentences within one year of granting probation, but the only option upon that revocation was to reinstate the original judgment, to be served in confinement. 1961 Tenn. Pub. Acts 326-27 (codified at Tenn. Code Ann. § 40-2906 (1961) (repealed 1989)).

These provisions raise two questions. The first is whether a general sessions court counts as a "court" for purposes of § 40-35-308(c). If yes, the second question becomes whether § 40-35-308(c) controls over the earlier requirement that the judgment be reinstated upon revocation of probation. We answer both questions in the affirmative.

I. Tennessee Code Annotated § 40-35-308(c)

Several statutory provisions lead to the conclusion that § 40-35-308(c) applies to general sessions courts. In general, the sessions courts have jurisdiction to try misdemeanor cases so long as the defendant waives an indictment, presentment, grand jury investigation, and jury trial. Tenn. Code Ann. § 40-1-109. The statute conferring that jurisdiction specifies that the general sessions court "may inflict punishment within the limits provided by law for the particular offense as the court may determine proper under the peculiar circumstances of the case." Id.

Probation is one such punishment. The misdemeanor sentencing statute, Tenn. Code Ann. § 40-35-302, provides that the "court has authority to place the defendant on probation . . . ." Id. § 40-35-302(e); see also id. § 40-35-303(b) ("A court shall have authority to impose probation as part of its sentencing determination at the conclusion of the sentencing hearing."). One subsection of this statute contains a specific reference to the general sessions courts. Id. § 40-35-302(f).

Whenever a defendant is arrested for violating the conditions of probation, "the trial judge granting the probation and suspension of sentence" must inquire into the charges to determine whether a violation has occurred. Id. § 40-35-311(b). Since general sessions judges can grant probation, they also conduct revocation proceedings. It follows that the authority granted by § 40-35-308(c) to extend the probationary period for up to two years "at the conclusion of a probation revocation hearing" applies to general sessions courts.

Misdemeanor sentences are limited to 11 months, 29 days of imprisonment. Id. § 40-35-111(e). At first blush, this limitation may seem inconsistent with two-year extensions of probation because probationary terms themselves are generally limited to "the statutory maximum time for the class of the conviction offense." Id. § 40-35-311(c)(1). Certain misdemeanors, however, carry potential probationary terms of up to two years. See id. § 40-35-303(c)(2)(B)-(C). From the perspective of a defendant who violates his or her probation near the end of the term, moreover, two additional years of supervision may be preferable to incarceration for a shorter time. See id. § 40-35-308 sentencing comm'n cmt. (stating that subsection (c) addresses this situation). And, at any rate, § 40-35-308(c) expressly authorizes two-year extensions of probation "[n]otwithstanding the actual sentence imposed." We therefore conclude that general sessions courts may extend a misdemeanant's period of probation for up to two years.

II. Tennessee Code Annotated § 16-15-401(b)

Section 16-15-401(b)'s incorporation by reference of title 40, chapter 29, does not alter this conclusion, even though the current version of title 40, chapter 29, is no longer relevant to the purpose of the reference. Incorporations by reference come in two varieties, specific and general, and they differ in effect according to their type. See 2A Norman J. Singer, Sutherland on Statutes and Statutory Construction § 51.07 (6th ed. 2000). A specific incorporation adopts only limited and particularized provisions of the incorporated legislation as it existed at the time of adoption; it does not include subsequent additions or modifications to the incorporated legislation unless the legislature expressly signifies that intent. Roddy Mfg. Co. v. Olsen, 661 S.W.2d 868, 871 (Tenn. 1983). Incorporation by general reference, by contrast, occurs when the legislature incorporates the general law on a particular subject into the incorporating legislation. Union Cemetery v. City of Milwaukee, 108 N.W.2d 180, 182 (Wis. 1961). Incorporation by general reference adopts not only the provisions of the incorporated legislation as it existed at the time the incorporating legislation was passed, but it also carries with the incorporating statute any future alterations to the incorporated statute, up to and including repeal of the incorporated statute. Id.

Section 16-15-401(b) took effect on February 27, 1961. 1961 Tenn. Pub. Acts 455. Nine days earlier, the Governor had signed amendments to title 40, chapter 29, which, as relevant here, authorized trial judges in probation violation cases to "revoke and annul such suspension, and in such cases the original judgment so rendered by such Trial Judge shall be in full force and effect from the date of the revocation of such suspension, and shall be executed accordingly." Id. at 326-27; see id. at 328 (authorizing trial judge "to revoke the probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered"). In 1982, this provision was renumbered, with the approval of the Code Commission, as Tenn. Code Ann. § 40-21-106. Parallel Reference Table, Tenn. Code Ann., Vol. 7A (1982). Then, in 1989, all of former title 40, chapter 29, was repealed as a part of the Criminal Sentencing Reform Act of 1989. See Compiler's Notes, Tenn. Code Ann., Vol. 7A, §§ 40-21-101 to -110 (1997).

The 1961 version of title 40, chapter 29, contained substantially all of the law governing the suspension of sentences at the time. Its incorporation in § 16-15-401(b) immediately follows a grant of authority to general sessions courts parallel with that of other trial courts to issue "fiats for writs of injunction, attachments and other extraordinary process", clearly a general reference. These features suggest that the General Assembly intended the reference to title 40, chapter 29, to be a general one. See, e.g., Dir., Office of Workers' Comp. Programs v. Peabody Coal Co., 554 F.2d 310, 329 (7th Cir. 1977); Hawaii Providers Network, Inc. v. AIG Hawaii Ins. Co., 98 P.3d 233, 243 (Haw. 2004). Because the Sentencing Reform Act of 1989 repealed and replaced title 40, chapter 29, the modern provisions governing revocation of probation would control on this construction. See, e.g., Dane County Hosp. v. Labor & Indus. Rev. Comm'n, 371 N.W.2d 815, 824 (Wis. Ct. App. 1985).

Even if § 16-15-401(b) were viewed as a specific incorporation, the result would be the same. Section 16-15-401(b) is relatively specific, referring to a particular chapter (though not a section number). See id.; cf. Union Cemetery, 108 N.W.2d at 182 ("A specific reference refers specifically to a particular statute by its title or section number and incorporates only a part of the law on a subject."). Further, the adopted chapter consisted of only eight sections, making the point at least debatable. See Tenn. Code Ann. §§ 40-2901 to -2908 (1961 Supp.). Taking the reference as specific, one might argue that the 1961 provisions of title 40, chapter 29, would control, since they would be deemed "incorporated bodily into the adopting statute," and the subsequent changes to the chapter would be of no effect. Roddy, 661 S.W.2d at 871 (internal quotation marks omitted).

Nevertheless, a reviewing court would be unlikely to find the 1961 probation revocation provisions controlling for either of two reasons. First, there are situations in which a provision that reads as a specific incorporation may, in context, be construed instead as a general incorporation. 2A Singer, supra, § 51.08. Thus, for example, in George Williams College v. Village of Williams Bay, the Wisconsin Supreme Court concluded that a statute synthesizing city and village sewer provisions was a general incorporation of all laws relating to city sewers into the village sewer provisions even though the legislation itself referred to specific sections of the city sewer provisions. 7 N.W.2d 891, 894 (Wis. 1943).

Second, a statute of specific reference can be repealed by implication with the repeal of the referenced statute. See, e.g., Curtis Ambulance of Fla., Inc. v. Bd. of County Comm'rs, 811 F.2d 1371, 1378 (10th Cir. 1987); Hawaii Providers Network, 98 P.3d at 242. Repeals by implication are disfavored in Tennessee, Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn. 1996), but the question is ultimately one of legislative intent, Still v. First Tenn. Bank, 900 S.W.2d 282, 284 (Tenn. 1995). To the extent that the second sentence of § 16-15-401(b) can be viewed as a specific incorporation, the Sentencing Reform Act of 1989 repealed it, just as it did the then-existing provisions of title 40, chapter 29.

As the Tennessee Supreme Court has put it, the Sentencing Reform Act "clearly establish[es] a legislative intent to subsume the entire field of criminal law and sentencing in Tennessee." State v. Palmer, 902 S.W.2d 391, 392 (Tenn. 1995). In State v. Palmer, the Court surveyed many of the terms of the Act, including that misdemeanants "shall be sentenced in accordance with this chapter" and that misdemeanor sentences "'shall be consistent with the purposes and principles' of the Act", and concluded that it repealed by implication a sentencing provision in Tenn. Code Ann. § 40-21-236(f)(4). Id. at 392-93 (emphasis added) (citing Tenn. Code Ann. §§ 40-35-104(a), -302(b)). The Court of Criminal Appeals has likewise ruled that the Sentencing Reform Act repealed by implication the Motor Vehicle Habitual Offenders Act's general prohibition of probation. State v. Martin, 146 S.W.3d 64, 76 (Tenn. Crim. App. 2003).

These considerations hold good with respect to probation revocation proceedings conducted by general sessions courts. At the outset, a revocation ordered under the auspices of the former title 40, chapter 29, would result in the imposition, at least, of a sentence not under chapter 35 as contemplated by the Act, but one under § 16-15-401(b). Limiting sessions courts to reinstating the original judgment, moreover, would run counter to the purposes and principles of the Sentencing Reform Act. Significant among these is uniformity; the Act seeks to assure "consistent treatment of all defendants by eliminating unjustified disparity in sentencing" and to avoid "[i]nequalities in sentences that are unrelated to a purpose of this chapter." Tenn. Code Ann. §§ 40-35-102(2), -103(3). Too, the Act encourages "alternatives to incarceration" and calls for "the least severe measure necessary to achieve the purposes for which the sentence is imposed." Id. §§ 40-35-102(3)(C), -103(2), (4), (6). A regime under which a probation violator in a court of record could get an extension of the probationary term if circumstances warranted it, but one who consented to trial before a general sessions judge could not, would not further these ends, and is not what the General Assembly intended. Accordingly, we are of the opinion that a general sessions court that conducts a revocation hearing may extend a defendant's period of probation supervision for up to two years pursuant to Tenn. Code Ann. § 40-35-308(c).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAMES E. GAYLORD
Senior Counsel

Requested by:
Representative Craig Fitzhugh
State Representative
33 Legislative Plaza
Nashville, TN 37243-0223