Does Tennessee's pretrial-diversion ineligibility for an 'elected or appointed person' bar all public employees, or only those actually elected or appointed?

Plain-English summary

Tennessee allows district attorneys to offer pretrial diversion (also called suspended prosecution) to a "qualified defendant." The statute disqualifies certain categories of defendants up front. One disqualification, in § 40-15-105(a)(1)(B)(iii)(h), excludes "any misdemeanor offense committed by any elected or appointed person in the executive, legislative or judicial branch of the state or any political subdivision . . . committed in the person's official capacity or involved the duties of the person's office."

Sen. Ken Yager asked whether "elected or appointed person" sweeps in every public employee. AG Slatery answered no. Public employees can be elected (the governor, supreme court justices), appointed (the attorney general, department commissioners), or hired (rank and file). Because the statute named only the first two categories, the negative-implication canon (expressio unius est exclusio alterius) excludes the third.

The opinion supports that conclusion two more ways. First, the whole-statute canon: the language has to be read in context, and other parts of § 40-15-105 distinguish among public-employee categories. Second, legislative history: the videotaped 2012 House Judiciary Subcommittee discussion of HB 2763 (the bill that added this exclusion) treated it as aimed at officials who hold a position of public trust through election or appointment, like judges and commissioners, distinct from "hired" employees. The point was to hold high-trust officials to a higher standard, not to deny diversion to clerks or maintenance staff.

The practical takeaway: a hired public employee charged with a misdemeanor connected to their job is not categorically excluded from pretrial diversion under this provision. Other diversion eligibility rules still apply.

Currency note

This opinion was issued in 2017. 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.

The pretrial-diversion eligibility rules in § 40-15-105 have been amended in subsequent legislative sessions. Anyone evaluating diversion eligibility today should consult the current version of the statute and any later AG opinions construing it.

Common questions

Q: What is pretrial diversion in Tennessee?
A: It is a procedure that lets a prosecutor suspend prosecution of a qualified defendant for a defined period under conditions, after which the case is dismissed. It allows a defendant to avoid a conviction record. Eligibility is governed by § 40-15-105.

Q: Who is excluded from pretrial diversion under this provision?
A: Persons who were either elected or appointed to a position in the executive, legislative, or judicial branch of state government, or any political subdivision, when the misdemeanor was committed in their official capacity or involved the duties of their office.

Q: Is a city police officer excluded under this provision?
A: Not under this provision alone. A municipal police officer is typically a hired public employee, not an elected or appointed officeholder. Other diversion-eligibility rules in § 40-15-105 may still apply, and the underlying offense and any prior diversions matter.

Q: What about an elected sheriff?
A: An elected sheriff would fall within "elected or appointed person" because the position is filled by election.

Q: What is the negative-implication canon?
A: It is a tool of statutory interpretation summed up in the Latin phrase expressio unius est exclusio alterius: the expression of one thing implies the exclusion of others. If a statute lists categories X and Y, courts read it as not covering category Z. The opinion gives examples: a statute about "the clerk of any circuit or chancery court" was read to exclude clerks of other courts; a statute immunizing cities for hazards "on public highways, bridges, or sidewalks" was read not to immunize hazards on other public property.

Q: Does legislative history matter when the text is clear?
A: Tennessee courts allow legislative history as a confirming, not overriding, tool. Here the videotaped 2012 House Judiciary Subcommittee discussion confirmed the textual reading: the bill's sponsors described the bar as targeting elected and appointed officials in positions of public trust, not all employees.

Q: What's the practical balance the legislature struck?
A: Allow leniency for ordinary defendants whose offenses qualify, but withhold leniency from officials who hold public trust through election or appointment when their offense connects to that trust. The opinion frames it as deterrence of office-holders abusing their authority, not blanket exclusion of public-sector workers.

Background and statutory framework

Section 40-15-105 lays out who can receive pretrial diversion. The provision at issue, (a)(1)(B)(iii)(h), is one of several categorical exclusions. It withholds eligibility from "any elected or appointed person" in the executive, legislative, or judicial branch of state government or any political subdivision, when the misdemeanor was committed in their official capacity or involved their official duties.

The opinion's reading follows three layered moves:

1. Public-employee taxonomy. The Tennessee Constitution and statutes recognize three categories: elected (governor under art. III, § 2; supreme court justices under art. IV, § 3), appointed (attorney general under art. VI, § 5; commissioners under § 4-3-112), and hired (everyone else). The first two are positions of office; the third is employment.

2. Statutory-construction canons. Tennessee courts read statutes to give effect to legislative intent without expanding or restricting the language beyond its scope (State v. Smith). The whole-statute canon ties words to context (Eagle, Silliman). The negative-implication canon (Rich; Penley) treats lists as exclusive: if the legislature names two categories, the third is excluded.

3. Legislative history. HB 2763 (2012), which added this exclusion, was discussed at the House Judiciary Subcommittee on February 29, 2012. The discussion treated "elected" and "appointed" as the contrast with "hired," with the policy goal of holding office-holders to a higher standard. Earlier AG Op. 12-76 (July 25, 2012) reflected that purpose.

The result is a narrow construction: the statute excludes categorical office-holders, not the broader workforce of public employees.

Citations

• Tenn. Code Ann. § 40-15-105 (pretrial diversion); subsection (a)(1)(B)(iii)(h)
• Tenn. Const. art. III, § 2; art. IV, § 3; art. VI, § 5
• Tenn. Code Ann. § 4-3-112 (appointment of department commissioners)
• State v. Smith, 436 S.W.3d 751 (Tenn. 2014)
• State ex rel. Comm'r of Transp. v. Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001)
• Silliman v. City of Memphis, 449 S.W.3d 440 (Tenn. Ct. App. 2014)
• Rich v. Tennessee Bd. of Med. Examiners, 350 S.W.3d 919 (Tenn. 2011)
• Penley v. Honda Motor Co., 1999 Tenn. App. LEXIS 550 (Tenn. Ct. App. 1999)
• Hussey v. Woods, 2015 Tenn. App. LEXIS 763 (Tenn. Ct. App. 2015)
• Johnson v. City of Laconia, 684 A.2d 500 (N.H. 1996)
• Tenn. Att'y Gen. Op. 12-76 (July 25, 2012)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-005.pdf

Original opinion text

January 19, 2017
Opinion No. 17-05

The Scope of the Phrase "Elected or Appointed Person" in Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(h)

Question
Does the phrase "elected or appointed person" as used in Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(h) include all public employees?

Opinion
No. "Elected or appointed person" as used in Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(h) includes only public employees who have been elected or appointed to their respective positions in the executive, legislative, or judicial branch of state government.

ANALYSIS

Under Tennessee law, a district attorney general has discretion to offer suspended prosecution, also known as pretrial diversion, to a "qualified defendant." Tenn. Code Ann. § 40-15-105. But pretrial diversion is not available for

[a]ny misdemeanor offense committed by any elected or appointed person in the executive, legislative or judicial branch of the state or any political subdivision of the state, which offense was committed in the person's official capacity or involved the duties of the person's office.

Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(h). In other words, an "elected or appointed person" in any of the three branches of state government is not a "qualified defendant" for purposes of pretrial diversion for an offense committed in his or her official capacity.

Persons holding positions in state government by election or appointment are public employees, but there are also public employees who were neither elected nor appointed to their positions. For example, the governor is elected, Tenn. Const. art. III, § 2, supreme court justices are elected, Tenn. Const. art. IV, § 3, the attorney general is appointed by the judges of the supreme court, Tenn. Const. art. VI, § 5, and commissioners of certain departments of the executive branch are appointed by the governor, Tenn. Code Ann. § 4-3-112. These elected and appointed persons may then hire others, who will be public employees, although they are not elected or necessarily appointed to those positions.

Whether the phrase "elected or appointed person" includes every "public employee", i.e., every person working in state government, is a question of statutory construction. When construing a statute, the goal is to "ascertain and give full effect to the General Assembly's intent without unduly expanding or restricting the language of the statute beyond the legislature's intended scope." State v. Smith, 436 S.W.3d 751, 762 (Tenn. 2014). To assist in achieving that goal, courts have developed various principles of statutory interpretation, also referred to as canons of construction. Context is key. The whole-statute canon developed "because words are known by the company they keep," and so the language of a statute must be construed in the context of the entire statute and in light of the statute's general purpose. State ex rel. Comm'r of Transp. v. Eagle, 63 S.W.3d 734, 754-5 (Tenn. Ct. App. 2001) (citations omitted); accord Silliman v. City of Memphis, 449 S.W.3d 440, 460 (Tenn. Ct. App. 2014).

The negative-implication canon, best known as "expressio unius est exclusio alterius," "holds that the expression of one thing implies the exclusion of others." Rich v. Tennessee Bd. of Med. Examiners, 350 S.W.3d 919, 927 (Tenn. 2011). "When certain persons or things are specified in a law . . . an intention to exclude all others from its operation may be inferred. Under this maxim, if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded." Penley v. Honda Motor Co., 1999 Tenn. App. LEXIS 550, *13, 1999 WL 605657 (Tenn. Ct. App. Aug. 11, 1999) (citation omitted, emphasis in original).

For example, when the legislature specifies that "the clerk of any circuit or chancery court of" Tennessee has authority to enroll a foreign judgment, the negative-implication doctrine leads to the conclusion that the legislature "intended to exclude courts other than chancery and circuit from enrolling foreign judgments." Hussey v. Woods, 2015 Tenn. App. LEXIS 763, *27, 2015 WL 5601777 (Tenn. Ct. App. Sept. 23, 2015). Because the statute specifies certain courts, it cannot be read to include all courts. Similarly, if a statute immunizes cities from damages arising from hazards "on public highways, bridges, or sidewalks," the immunity does not extend to hazards on all public property since the law specifies three types of public property but omits others. See Johnson v. City of Laconia, 684 A.2d 500, 501-02 (N.H. 1996). Put another way, all public property is excluded by the negative implication of referring to three specific kinds of property only. Had the legislature intended the immunity to apply to all public property it would have used that term, or it might have said "on any public property, including highways, bridges, and sidewalks."

The Tennessee legislature used two very specific terms when it excluded certain defendants from pretrial diversion: persons either "appointed" or "elected" to a position in state government. By expressly including only elected and appointed persons, the legislature impliedly excluded all other public employees. That is, since the statute specifies two exceptions to the general category of "qualified defendants," other exceptions are excluded by negative implication. Thus, public employees who are neither elected nor appointed to their government positions may, if otherwise qualified, be eligible for pretrial diversion. Had the legislature intended to exclude all public employees from pretrial diversion it could have and would have worded Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(h) to say, for example, that pretrial diversion is not available for "[a]ny misdemeanor offense committed by any employee in the executive, legislative or judicial branch of the state or any political subdivision of the state, which offense was committed in the person's official capacity or involved the duties of the person's office."

This reading is consistent with relevant legislative history. Video-taped discussion of House Bill 2763 in the House Judiciary Subcommittee on February 29, 2012, indicates that the exclusion from eligibility for pretrial diversion was aimed specifically at elected officials, such as judges, and appointed officials, such as commissioners, as distinguished from public employees who are "hired," because the legislation was intended "to show the voting public" that public officials in positions of trust would "be held to higher standard."

Moreover, construing "elected or appointed person" in Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(h) as not encompassing all "public employees" is consistent with the underlying purpose of the statute. It was the intent of the legislature in excluding elected and appointed officials from pretrial diversion for crimes committed in their official capacities to deter public officials from abusing their public offices and to hold public officials to a higher standard of conduct. See AG Op. 12-76 (July 25, 2012) at 3. In doing so, the legislature struck a balance between the general intent of allowing leniency for certain offenses and yet holding high-ranking government officials in positions of trust to account, even for misdemeanors, committed in their official capacities.

In sum, "elected or appointed person" as used in Tenn. Code Ann. § 40-15-105(a)(1)(B)(iii)(h) does not include all public employees. It includes only public employees who have been elected or appointed to their respective positions in the executive, legislative, or judicial branch of state government.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Ken Yager
State Senator
G19 War Memorial Building
Nashville, TN 37243-0212