Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279 v. David B. Rausch, Director of the Tennessee Bureau of Investigation, and Tennessee Bureau of Investigation

05/27/2022

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

January 26, 2022 Session1

RECIPIENT OF FINAL EXPUNCTION ORDER IN MCNAIRY COUNTY

CIRCUIT COURT CASE NO. 3279 v. DAVID B. RAUSCH, DIRECTOR OF

THE TENNESSEE BUREAU OF INVESTIGATION, AND TENNESSEE

BUREAU OF INVESTIGATION

Appeal by Permission from the Court of Appeals

Chancery Court for Davidson County

No. 20-967-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2021-00438-SC-R11-CV

___________________________________

In this interlocutory appeal, we address whether the Tennessee Bureau of Investigation

(“the TBI”) may refuse to comply with a final expungement order issued by a trial court.

We conclude that the TBI lacks authority to refuse to comply with a final expungement

order. Thus, we reverse the trial court’s judgment, grant the Plaintiff’s motion for partial

judgment on the pleadings, and remand this matter to the trial court for any further

proceedings consistent with this opinion.

Tenn. R. App. P. 11 Appeal by Permission; Reversed and Remanded to the Trial

Court

SHARON G. LEE, J., delivered the opinion of the Court, in which ROGER A. PAGE, C.J., and

JEFFREY S. BIVINS and HOLLY KIRBY, JJ., joined.

Daniel A. Horwitz and Lindsay B. Smith, Nashville, Tennessee, for the appellant,

Recipient of Final Expunction Order in McNairy County Circuit Court Case No. 3279.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor

General; and Robert W. Mitchell, Miranda H. Jones, and Mallory K. Schiller, Assistant

Attorneys General, Law Enforcement and Special Prosecutions Division, for the appellees,

David B. Rausch, Director of the Tennessee Bureau of Investigation, and the Tennessee

Bureau of Investigation.

1

Oral argument was heard by videoconference as a part of the January 26, 2022 Knoxville docket.

OPINION

I.

This appeal arises from the trial court’s denial of cross-motions for partial judgment

on the pleadings. The parties do not dispute the relevant facts, and the following summary

derives from the allegations of the complaint, which are taken as true, and from admissions

in the record.2

In February 2015, the Plaintiff, an unnamed citizen of McNairy County, Tennessee,

negotiated a judicial diversion agreement3 in McNairy County Circuit Court Case Number

3279. Tenn. Code Ann. § 40-35-313(a) (2019 & Supp. 2021).4 This agreement resolved

two criminal charges. The State agreed to dismiss one criminal charge, and the Plaintiff

consented to complete four years of probation in exchange for the dismissal of the

remaining charge and expungement of both charges.

By February 2019, the Plaintiff had successfully completed four years of probation.

He petitioned for expungement of his records and paid the then-applicable $350

expungement fee.5 The State of Tennessee, through an assistant district attorney general,

consented to expungement and submitted an agreed, joint, proposed expungement order to

2

See Franks v. Sykes, 600 S.W.3d 908, 911 (Tenn. 2020) (applying the same standard to review

decisions on motions for judgment on the pleadings and motions to dismiss for failure to state a claim and

noting that this standard requires the reviewing court to take all allegations of fact as true); West v. Schofield,

519 S.W.3d 550, 569 (Tenn. 2017) (same).

3

“Judicial diversion is a form of ‘legislative largess’ available to qualified defendants who have

entered a guilty or nolo contendere plea or have been found guilty of an offense without the entry of a

judgment of guilt.” State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (footnote omitted) (quoting State v.

Schindler, 986 S.W.2d 209, 211 (Tenn. 1999)); accord State v. Dycus, 456 S.W.3d 918, 928–29 (Tenn.

2015).

4

The judicial diversion statute provides in part:

The court may defer further proceedings against a qualified defendant and place

the defendant on probation upon such reasonable conditions as it may require without

entering a judgment of guilty and with the consent of the qualified defendant. The deferral

shall be for a period of time not less than the period of the maximum sentence for the

misdemeanor with which the person is charged or not more than the period of the maximum

sentence of the felony with which the person is charged.

Tenn. Code Ann. § 40-35-313(a)(1)(A). Citations are to current statutes unless otherwise noted. There are

few differences between the current statutes and the applicable statutes in effect in 2015, when the Plaintiff

entered into his judicial diversion agreement, and in 2019, when the expungement order was entered and

became final. To the extent there are differences, none affect the outcome of this appeal.

5

See Tenn. Code Ann. § 40-32-101(d)(2)(A) (enacted as Act of May 21, 2012, ch. 1041, §§ 3–4,

2012 Tenn. Pub. Acts, repealed by Act of April 25, 2019, ch. 200, § 1, 2019 Tenn. Pub. Acts).

2

the trial judge, who approved and entered the order on February 19, 2019. The order

provides:

It is ordered that all PUBLIC RECORDS relating to such offense above

referenced be expunged and immediately destroyed upon payment of all

costs to clerk and that no evidence of such records pertaining to such offense

be retained by any municipal, county or state agency, except non-public

confidential information retained in accordance with T.C.A. § 10-7-504 and

T.C.A. § 38-6-118.

(Emphasis added). Neither the State nor the Plaintiff filed any post-judgment motion or

appeal following entry of the expunction order. The TBI did not seek to intervene in the

expungement proceeding.

Thirty days later, in March 2019, the expunction order became final. State v. Allen,

593 S.W.3d 145, 154 (Tenn. 2020) (“[A] trial court’s order becomes final thirty days after

its entry, unless a timely notice of appeal or appropriate post-trial motion is filed.”). A copy

of the expunction order was sent to the TBI within thirty days of its entry as required by

law.6 The TBI’s receipt of the expunction order triggered another statute, Tennessee Code

Annotated section 40-32-102(b), which provides that “[t]he [TBI] shall remove expunged

records from the person’s criminal history within sixty (60) days from the date of receipt

of the expunction order.”

Later in 2019, however, the Plaintiff learned that the TBI had not removed all

records related to Case No. 3279 from his criminal history and had continued to report the

existence of one of the expunged charged offenses. The Plaintiff, through counsel, notified

the TBI by email that it should abide by the expunction order and that its noncompliance

violated the expunction order and state law. The TBI responded that it had been advised by

an assistant attorney general with the Tennessee Attorney General’s Office that the TBI

did not have to remove the expunged records from the Plaintiff’s criminal history because

Tennessee Code Annotated section 40-32-101(a)(1)(D) makes sexual offenses ineligible

for expunction, even if a person successfully completes a judicial diversion program under

Tennessee Code Annotated section 40-35-313.

The Plaintiff sued the TBI in the Chancery Court for Davidson County,7 and as

relevant to this appeal, sought declaratory and injunctive relief under Tennessee Code

Annotated section 1-3-121.8 The Plaintiff and the TBI filed cross-motions for partial

6

See Tenn. Code Ann. § 40-32-101(d)(1) (2018 & Supp. 2021); id. § 40-35-313(d)(1).

7

The Plaintiff also sued TBI Director David B. Rausch. We refer to the TBI and Director Rausch

collectively as “the TBI.”

8

Notwithstanding any law to the contrary, a cause of action shall exist under this chapter

for any affected person who seeks declaratory or injunctive relief in any action brought

3

judgment on the pleadings. See Tenn. R. Civ. P. 12.03. By its motion, the TBI challenged

the trial court’s subject matter jurisdiction, asserting that Tennessee Code Annotated

section 1-3-121 does not clearly and explicitly waive sovereign immunity. The TBI also

argued that, even if the trial court had jurisdiction, the lawsuit lacked merit. The TBI

maintained that it did not have to comply with the Plaintiff’s expunction order in Case No.

3279 because sexual offenses are statutorily ineligible for expunction. The TBI moved for

permission to file under seal the unredacted criminal record of Case No. 3279 for the trial

court’s review.

The Plaintiff argued that final expunction orders are binding on the TBI and that it

cannot substitute its judgment of an offense’s eligibility for expungement for the

determination of a court. The Plaintiff also asserted that principles of res judicata preclude

the TBI from even contesting the propriety of the Plaintiff’s expunction order. And finally,

the Plaintiff argued that the TBI’s only statutorily assigned duty in expungement

proceedings is to remove expunged records from a person’s criminal history within sixty

days of receiving an expunction order.

In March 2021, the trial court ruled on the motions, rejecting the TBI’s challenge to

subject matter jurisdiction and concluding that Tennessee Code Annotated section 1-3-121

waives sovereign immunity. The trial court also held that as a matter of law, under

Tennessee Code Annotated section 40-32-102(b), the TBI is required to comply with the

expunction order and remove the expunged records from a person’s criminal history if the

TBI does not intervene and object within sixty days of receiving an expunction order. After

sixty days, an expunction order is final, unappealable, and res judicata; and the TBI must

comply with the expunction order. The trial court, however, also found that Tennessee

Code Annotated sections 40-32-101(a)(1)(D), 40-35-313(b), 40-39-207(a)(2) and

40-39-209 create an exception to section 40-32-102(b) related to sexual offenses. Thus,

according to the trial court, if an offender has been convicted of a sexual offense, as

identified in section 40-32-101(a)(1)(D), the TBI need not comply with the expunction

order. Instead, the TBI, under Tennessee Code Annotated sections 40-39-207(a)(2) and

-209, has to determine whether the offense is eligible for expunction under section

40-32-101. If the TBI concludes the offense is not eligible for expunction, the party seeking

expunction is given due process under section 40-39-207(g)(1) to contest the TBI’s

determination.

Applying this ruling, the trial court declined to grant either party’s motion for partial

judgment on the pleadings, explaining that the pleadings did not establish whether Case

No. 3279 involved a sexual offense for purposes of the exception the trial court had

regarding the legality or constitutionality of a governmental action. A cause of action shall

not exist under this chapter to seek damages.

Tenn. Code Ann. § 1-3-121 (Supp. 2021).

4

recognized. The trial court also reserved a ruling on the TBI’s motion to file under seal the

unredacted criminal record in Case No. 3279.

In April 2021, the trial court denied the Plaintiff’s motion to revise the March 2021

order but allowed the Plaintiff to seek an interlocutory appeal under Rule 9 of the

Tennessee Rules of Appellate Procedure. The trial court certified the question for

interlocutory appeal as “under what circumstances, if any, the Tennessee Bureau of

Investigation may refuse to comply with a final expungement order issued by a court of

record.” Order, Recipient of Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No.

3279 v. Rausch, No. 20-967-III (Ch. Ct., Davidson Cnty. Apr. 21, 2021). The Court of

Appeals denied the Plaintiff’s application for interlocutory appeal. Order, Recipient of

Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch, No.

M2021-00438-COA-R9-CV (Tenn. Ct. App. May 11, 2021) (denying application for

permission to appeal). We granted the Plaintiff’s application for permission to appeal to

consider “[u]nder what circumstances, if any, may the Tennessee Bureau of Investigation

refuse to comply with a final expungement order issued by a court of record.” Order,

Recipient of Final Expunction Ord. in McNairy Cnty. Cir. Ct. Case No. 3279 v. Rausch,

No. M2021-00438-SC-R11-CV (Tenn. Aug. 9, 2021) (granting application for permission

to appeal).9

II.

We review de novo with no presumption of correctness the trial court’s ruling on

the cross-motions for judgment on the pleadings under Tennessee Rule of Civil Procedure

12.03. Franks v. Sykes, 600 S.W.3d 908, 911 (Tenn. 2020). Issues of statutory

interpretation, as well as the preclusive effect of a final order, are questions of law which

we also review de novo. See Willeford v. Klepper, 597 S.W.3d 454, 464 (Tenn. 2020);

Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008); Allen, 593 S.W.3d

at 153; In re Taylor B.W., 397 S.W.3d 105, 111 (Tenn. 2013).

Subject Matter Jurisdiction and Sovereign Immunity

The TBI challenges the trial court’s subject matter jurisdiction over the Plaintiff’s

claim based on sovereign immunity. The Plaintiff maintains that the TBI waived this

argument by failing to seek an interlocutory appeal from the trial court’s ruling.

The scope of review in interlocutory appeals is narrower than the scope of review

in appeals as of right. Parties to an appeal as of right have broad latitude about the issues

that may be raised, while review in an interlocutory appeal is limited to the issues certified

by the lower courts and to “those matters clearly embraced within” the issues certified.

Sneed v. City of Red Bank, 459 S.W.3d 17, 22 (Tenn. 2014) (quoting Tenn. Dep’t of Mental

Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975)). But subject

9

Before oral argument, the Plaintiff filed a motion under Tennessee Rule of Appellate Procedure

14(b) to consider post-judgment facts. We deny the motion as the facts in the record are sufficient to resolve

this appeal.

5

matter jurisdiction is “a threshold inquiry, which may be raised at any time in any court.”

Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013). This is true because “[s]ubject

matter jurisdiction refers to a court’s lawful authority to adjudicate a legal matter.” New v.

Dumitrache, 604 S.W.3d 1, 14 (Tenn. 2020) (citing Chapman v. DaVita, Inc., 380 S.W.3d

710, 712 (Tenn. 2012)). It is the legal concept that “confines judicial power to the

boundaries drawn in constitutional and statutory provisions,” Turner v. Turner, 473 S.W.3d

257, 270 (Tenn. 2015) (first citing Ins. Corp. of Ireland v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982); and then citing Northland Ins. Co. v. State, 33 S.W.3d

727, 729 (Tenn. 2000)), and subject matter jurisdiction cannot be conferred by consent or

waiver. New, 604 S.W.3d at 15 (citing Tennessean v. Metro. Gov’t of Nashville, 485

S.W.3d 857, 863 (Tenn. 2016)). Thus, the TBI did not waive its challenge to subject matter

jurisdiction by failing to seek an interlocutory appeal on the issue. We will address the

merits of the TBI’s challenge to the trial court’s subject matter jurisdiction.

Sovereign immunity—the common law doctrine that the State cannot be sued

without consent in its own courts—is embodied in the constitutional provision that permits

suits against the State only “in such manner and in such courts as the Legislature may by

law direct.” Smith v. Tenn. Nat’l Guard, 551 S.W.3d 702, 708 (Tenn. 2018) (quoting Tenn.

Const. art. I, § 17). Sovereign immunity is a subject matter jurisdictional bar. See Colonial

Pipeline, 263 S.W.3d at 851. It precludes not only claims against the State, but also claims

against state agencies and state officers acting in their official capacities. See Tenn. Code

Ann. § 20-13-102 (2021) (“No court in the state shall have any power, jurisdiction, or

authority to entertain any suit against the state, or against any officer of the state acting by

authority of the state, with a view to reach the state, its treasury, funds, or property . . . .”);

Colonial Pipeline, 263 S.W.3d at 849 (citing 81A Am. Jur. States § 533 (2004)). Thus, the

TBI, as a separate department of state government, see Tenn. Code Ann. § 38-6-101(a)(1)

(2014), and Director Rausch, as a state officer, id. § 38-6-101(b)(1), may rely on sovereign

immunity to challenge the trial court’s subject matter jurisdiction.

Courts will construe a statute as a waiver of sovereign immunity only if the statute

“‘clearly and unmistakably’ express[es] the General Assembly’s intent to permit claims

against the State.” Smith, 551 S.W.3d at 709 (quoting Davidson v. Lewis Bros. Bakery, 227

S.W.3d 17, 19 (Tenn. 2007)). In determining whether a statute satisfies this standard, we

focus “on the actual words chosen and enacted by the legislature.” Id. (quoting Mullins v.

State, 320 S.W.3d 273, 283 (Tenn. 2010)). We give effect to the legislature’s intent by

applying the text without broadening or narrowing its intended scope; if the statute is clear,

we apply the plain meaning without further complication. See Colonial Pipeline, 263

S.W.3d at 836; Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 159

(Tenn. 2021). These principles ensure that courts do not encroach upon the General

Assembly’s “exclusive power to waive Tennessee’s sovereign immunity.” Smith, 551

S.W.3d at 708–09 (citing Sneed, 459 S.W.3d at 23).

The General Assembly clearly and unmistakably waived sovereign immunity by

enacting Tennessee Code Annotated section 1-3-121. The statute broadly declares:

6

“Notwithstanding any law to the contrary, a cause of action shall exist . . . for any affected

person who seeks declaratory or injunctive relief in any action brought regarding the

legality or constitutionality of a governmental action. A cause of action shall not exist

under this chapter to seek damages.” Tenn. Code Ann. § 1-3-121 (Supp. 2021) (emphases

added). The plain meaning of this text expressly recognizes the existence of causes of

action “regarding the legality or constitutionality of a governmental action” that seek

declaratory or injunctive relief. Causes of action “regarding the legality or constitutionality

of governmental action” must of necessity be brought against governmental entities, and

no statutory text excludes the State from the broad term “governmental entities.” The use

of this language distinguishes section 1-3-121 from general statutes that this Court has held

are not sufficiently clear waivers of sovereign immunity. See Colonial Pipeline, 263

S.W.3d at 853. Here, the waiver of sovereign immunity is limited to specific types of claims

and specific types of remedies. Sovereign immunity is expressly retained for claims

seeking damages. Simply stated, section 1-3-121 is an unmistakably clear and carefully

worded statutory waiver of sovereign immunity.

The TBI, though, insists that section 1-3-121 is not a sufficiently explicit and

unmistakably clear waiver of sovereign immunity because it does not include the phrase

“[i]mmunity from suit of any governmental entity . . . is removed,” which appears in other

statutes waiving sovereign immunity for particular claims. But this textual distinction is

not determinative. It shows only that the General Assembly used distinct language in

section 1-3-121 to adopt a unique, claim-specific and remedy-specific waiver of sovereign

immunity. This distinctive, yet plain, language does not defeat or lessen the clarity of the

waiver of sovereign immunity.10

We hold that section 1-3-121 waives sovereign immunity for causes of action

seeking “declaratory or injunctive relief . . . regarding the legality or constitutionality of a

governmental action.” Tenn. Code Ann. § 1-3-121. The Plaintiff’s claim seeking

declaratory or injunctive relief regarding the legality of the TBI’s action in refusing to

comply with the Plaintiff’s final expunction order falls squarely within this statutory waiver

of sovereign immunity.11 The trial court correctly rejected the TBI’s challenge to subject

matter jurisdiction.

10

Indeed, the remedy-specific waiver of sovereign immunity in section 1-3-121 is consistent with

our reasoning in Colonial Pipeline. In that case, we held that “sovereign immunity does not bar a declaratory

judgment or injunctive relief against state officers to prevent the enforcement of an unconstitutional statute,

so long as the plaintiff does not seek monetary damages.” Colonial Pipeline, 263 S.W.3d at 854.

11

Based on our holding that section 1-3-121 waives sovereign immunity, we need not address the

separate question of whether sovereign immunity would bar a lawsuit alleging that a state official failed to

fulfill a ministerial statutory duty.

7

TBI Authority to Refuse to Comply with Final Expunction Orders

We turn next to the certified question—under what circumstances, if any, may the

TBI refuse to comply with a final expungement order issued by a trial court. The TBI

claims that statutes obligate it to disregard final expunction orders encompassing offenses

that are statutorily ineligible for expungement. The Plaintiff responds that statutes simply

obligate the TBI to remove expunged records from a person’s criminal history within sixty

days of receipt of an expunction order and entrust courts with adjudicating whether an

offense is eligible for expungement. We agree with the Plaintiff.

The general expungement statute requires persons seeking expungement to “petition

the court in which the petitioner was convicted of the offense” for which expungement is

sought. Tenn. Code Ann. § 40-32-101(g)(3). When the petition is filed, the clerk of the

court serves the district attorney general for the judicial district. Id. After service, the

district attorney general has sixty days to submit recommendations to the court and to

provide a copy of the recommendations to the petitioner. Id. The district attorney general

and the petitioner may file evidence relating to the petition. Id. § -101(g)(4)(A). The district

attorney general may file evidence under seal for the court’s review, and such evidence is

confidential and not a public record. Id. § -101(g)(4)(B). The court is tasked with deciding

the merits of the petition, after considering all evidence and weighing the interest of the

petitioner against the best interests of justice and public safety. Id. § -101(g)(5). A

rebuttable presumption that the petition should be granted arises in certain statutorily

specified circumstances. Id. § -101(g)(5)(B). If the court denies the petition, the petitioner

must wait two years before filing another petition. Id. § -101(g)(6). If the court grants the

petition, the petitioner “shall be entitled to a copy of the order of expunction and such copy

shall be sufficient proof that the person named in the order is no longer under any disability,

disqualification or other adverse consequence resulting from the expunged conviction.” Id.

§ -101(g)(8). Section 40-32-101(d)(1) provides:

Any court ordering the expunction of a person’s public records of a

criminal offense, including orders issued as a result of the successful

completion of a . . . judicial diversion program, shall send or cause to be sent

a copy of the expunction order to the [TBI] within thirty (30) days from the

date of the expunction order for entry into its expunged offender and pretrial

diversion database.

Id. § -101(d)(1) (emphasis added). “The [TBI] shall remove expunged records from the

person’s criminal history within sixty (60) days from the date of receipt of the expunction

order.” Id. § -102(b) (emphasis added).

No provision of the foregoing detailed general expungement statute assigns the TBI

a role in the way a court determines whether an expungement petition should be granted.

The TBI’s only obligations under this general expungement statute are to enter information

from the expunction order into its expunged offender and pretrial diversion database and

8

to remove expunged records from the person’s criminal history within sixty days from the

date of receipt of the expunction order.

Similarly, the provisions of the judicial diversion statute relating to expungement,

which apply specifically to the Plaintiff, also do not assign the TBI any responsibility in

the process by which a court adjudicates an expungement petition.12 Instead, when charges

are dismissed and a person is discharged in judicial diversion proceedings, the person

may apply to the court for an order to expunge from all official records, other

than the nonpublic records to be retained by the court under subsection (a)

and the public records that are defined in § 40-32-101(b), all recordation

relating to the person’s arrest, indictment or information, trial, finding of

guilty and dismissal and discharge pursuant to this section; provided, that no

records of a person who is dismissed from probation and whose proceedings

are discharged pursuant to this section shall be expunged if the offense for

which deferral and probation was granted was a sexual offense as defined by

§ 40-39-202.

Id. § 40-35-313(b) (emphasis added).

If the court determines, after hearing, that the person was dismissed and the

proceedings against the person discharged, it shall enter the order. The effect

of the order is to restore the person, in the contemplation of the law, to the

status the person occupied before the arrest or indictment or information.

12

Interestingly, a statute expressly assigns the TBI a role in the judicial diversion process by

providing:

No order deferring further proceedings and placing the defendant on probation as

authorized by this subsection (a) may be entered by the court on or after July 1, 1998,

unless there is attached to it a certificate from the Tennessee bureau of investigation stating

that the defendant does not have a prior felony or Class A misdemeanor conviction.

Tenn. Code Ann. § 40-35-313(a)(3)(A). The required TBI certificate:

is only a certification that according to its expunged criminal offender and pretrial diversion

database the defendant is not disqualified from deferral and probation under this section by

virtue of a prior felony or Class A misdemeanor conviction. The certificate is not a

certification that the defendant is eligible for the deferral and probation, and it shall

continue to be the duty of the district attorney general, and judge to make sufficient inquiry

into the defendant’s background to determine eligibility.

Id. § -313(a)(3)(B) (emphasis added). This statute reflects that, when the General Assembly intends to

assign a responsibility to the TBI or other actors, it will do so by explicit language.

9

Id. (emphasis added). Any court dismissing charges and ordering expunction after judicial

diversion “shall send or cause to be sent a copy of the dismissal and expunction order to

the [TBI] for entry into its expunged criminal offender and pretrial diversion database.” Id.

§ -313(d)(1).

Like the general expungement statute, the judicial diversion statute assigns to the

court the task of adjudicating the expungement petition and requires the TBI to enter

information from expunction orders into its expunged criminal offender and pretrial

diversion database, id., and to remove expunged records from the person’s criminal history

within sixty days of receipt of the expunction order, id. § 40-32-102(b).

The TBI is correct that certain offenses are statutorily ineligible for expungement.

Id. § -101(a)(1)(D) (stating that “the records of a person who successfully completes . . . a

judicial diversion program . . . shall not be expunged pursuant to this section, if the offense

for which the person was diverted was a sexual offense,” as defined by the relevant section

of the code); see also id. § 40-35-313(b) (providing that “no records . . . shall be expunged

if the offense for which deferral and probation was granted was a sexual offense” under the

relevant section).13 But no statute vests the TBI with authority to enforce these statutory

ineligibility provisions by disregarding final expunction orders. As already explained, the

relevant expungement statutes assign to courts the responsibility of adjudicating

expungement petitions. The State’s interests in such proceedings are represented by the

district attorney general, not the TBI. See id. § 40-32-101(g)(3); id. § 8-7-103(1) (2016)

(stating that district attorneys general “[s]hall prosecute in the courts of the district all

violations of the state criminal statutes and perform all prosecutorial functions attendant

thereto”).

No statute precludes district attorneys general from consulting the TBI on

expungement petitions. Indeed, the expungement statute may well contemplate that such

consultations will occur, as it provides sixty days for district attorneys general to submit

recommendations to the court on expungement petitions. Id. § 40-32-101(g)(3). And

nothing prevents a district attorney general from opposing expungement based on offense

ineligibility without consulting the TBI. Finally, the State also may appeal any

expungement order it considers erroneous or contrary to state law. See Tenn. R. App. P.

3(c), 4(a). But no statute grants the TBI authority to independently review and decline to

13

Current statutes define “sexual offense” to include four offenses that were not listed in the statute

that was in effect in February 2015, when the Plaintiff entered into the judicial diversion agreement with

the State. See Tenn. Code Ann. §§ 40-35-313(a)(1)(B)(ii)(l)–(o) (listing the additional offenses as incest,

patronizing prostitution from a person who is younger than eighteen years of age or has an intellectual

disability under section 39-13-514(b)(3), promoting the prostitution of a minor under section 39-13-

515(c)(1), and continuous sexual abuse of a child under section 39-13-518).

10

comply with a final expunction order it considers erroneous.14 State agencies “may not alter

the judgment of a court, even if that judgment is illegal.” State v. Wooden, 478 S.W.3d 585,

591 (Tenn. 2015) (quoting State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978),

superseded by rule on other grounds, Tenn. R. Crim. Pro. 36.1, as recognized in Wooden,

478 S.W.3d at 591–92); see also Cantrell v. Easterling, 346 S.W.3d 445, 457 (Tenn. 2011),

superseded by rule on other grounds, Tenn. R. Crim. Pro. 36.1.

To hold that the TBI possesses such authority would eviscerate principles of res

judicata, which serve the core judicial function of settling disputes between contending

parties. Regions Bank v. Prager, 625 S.W.3d 842, 847 (Tenn. 2021) (quoting Childress v.

Bennett, 816 S.W.2d 314, 316 (Tenn. 1991)). Res judicata, or claim preclusion, “bars a

second suit between the same parties or their privies on the same claim with respect to all

issues which were, or could have been, litigated in the former suit.” Id. (quoting Elvis

Presley Enters., Inc. v. City of Memphis, 620 S.W.3d 318, 323–24 (Tenn. 2021)). As a

“rule of rest,” res judicata promotes finality, consistency, and economy in our justice

system. Elvis Presley Enters., 620 S.W.3d at 324 (quoting Jackson v. Smith, 387 S.W.3d

486, 491 (Tenn. 2012)).

Res judicata “is not based on any presumption that the final judgment was right or

just. Rather, it is justifiable on the broad grounds of public policy which requires an

eventual end to litigation.” Regions Bank, 625 S.W.3d at 847 (quoting Moulton v. Ford

Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976)); Restatement (Second) of Judgments, § 17

cmt. d (Am. L. Inst. 1982). To paraphrase Justice Robert Jackson, a final judgment is not

final because it is infallible; it is infallible only because it is final. Brown v. Allen, 344 U.S.

443, 540 (1953) (Jackson, J., concurring) (describing the authority of the Supreme Court

of the United States), superseded by statute on other grounds, Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, as recognized in Schriro

v. Landrigan, 550 U.S. 465, 473 (2007). Recourse for judicial error may be sought by an

appeal or a proper request for relief from a final judgment—not by an attempt to relitigate

14

In so holding, we reject the trial court’s decision recognizing an exception to the preclusive effect

of a final expungement order. The trial court based its decision on Tennessee Code Annotated sections

40-39-207 and -209 of the sexual offender registry statute. These statutes merely reiterate that only certain

offenses are eligible for expungement. See id. § 40-39-207(a)(2) (2019 & Supp. 2021) (“Notwithstanding

subdivision (a)(1), if a court of competent jurisdiction orders that an offender’s records be expunged

pursuant to § 40-32-101, and the offense being expunged is an offense eligible for expunction

under § 40-32-101, the TBI shall immediately remove the offender from the SOR and the offender’s records

shall be removed as provided in § 40-39-209.” (emphasis added)); id. § 40-39-209 (2019) (“Except as

otherwise provided in § 40-39-207(a)-(d), no record shall be removed from the SOR, unless ordered by a

court of competent jurisdiction as part of an expunction order pursuant to § 40-32-101, so long as the offense

is eligible for expunction under § 40-32-101.”). Neither statute authorizes the TBI to disregard or revise a

final expunction order, and no such authority exists. See State v. Wooden, 478 S.W.3d 585, 591 (Tenn.

2015); Cantrell v. Easterling, 346 S.W.3d 445, 457 (Tenn. 2011) superseded by rule on other grounds,

Tenn. R. Crim. Pro. 36.1; State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978) superseded by rule on other

grounds, Tenn. R. Crim. Pro. 36.1.

11

a final order in a second lawsuit. See Restatement (Second) of Judgments, § 17 cmt. d,

reporter’s note.

The TBI has established no basis for disregarding the res judicata effect of the

Plaintiff’s final expunction order. The doctrine of res judicata bars the government, just

like any other person within its jurisdiction, from relitigating its claims and defenses

against the same parties. See Alaska Dep’t of Env’t Conservation v. E.P.A., 540 U.S. 461,

490 n.14 (2004) (“Preclusion principles . . . unquestionably do apply against the United

States, its agencies and officers.”); United States v. Mendoza, 464 U.S. 154, 162–63 (1984)

(holding that there is an exception for nonmutual collateral estoppel against the United

States but not, “of course,” for res judicata).

A party relying on res judicata must establish four elements: “(1) that the underlying

judgment was rendered by a court of competent jurisdiction; (2) that the same parties or

their privies were involved in both suits; (3) that the same claim or cause of action was

asserted in both suits; and (4) that the underlying judgment was final and on the merits.”

Regions Bank, 625 S.W.3d at 848. The Plaintiff has established these four elements in this

proceeding. The Circuit Court of McNairy County unquestionably had jurisdiction over

the expungement petition. Tenn. Code Ann. § 40-32-101(g)(3); id. § 40-35-313(b). The

test for privity is whether the parties to the second suit stand in the same relationship to the

subject matter of the initial claim. Johnson v. Gen. Motors Corp., 574 S.W.3d 347, 353

(Tenn. Ct. App. 2018); In re Est. of Goza, 397 S.W.3d 564, 571 (Tenn. Ct. App. 2012).

Officers of the same government are in privity with each other so long as the government’s

representative in the first action could bind the government to a final judgment. See First

Mortg. Corp. v. United States, 961 F.3d 1331, 1339 (Fed. Cir. 2020) (finding claim

preclusion and “privity between officers of the same government” where “in the earlier

litigation the representative of the United States had authority to represent its interests in a

final adjudication of the issue in controversy” (quoting Sunshine Anthracite Coal Co. v.

Adkins, 310 U.S. 381, 402–03 (1940))). The district attorney general had authority to bind

the State to a final judgment both in the criminal judicial diversion matter, see Tenn. Code

Ann. § 8-7-103(1), and in the expungement proceeding, id. § 40-32-101(g)(3). The Plaintiff

has established privity for purposes of the res judicata effect of the expunction order. See

First Mortg. Corp., 961 F.3d at 1339. The expunction order became final thirty days after

its entry, as neither party appealed or filed a motion that would have tolled the time for

appeal. Allen, 593 S.W.3d at 154.

The Plaintiff’s expunction order is res judicata and binding on the State and the

persons and entities in privity with the State, including the TBI. As the Supreme Court of

the United States has recently stated, if citizens “must turn square corners when they deal

with the government, it cannot be too much to expect the government to turn square corners

when it deals with them.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021). For all

these reasons, we conclude that the TBI lacked authority to refuse to comply with the

Plaintiff’s expunction order. The determination of whether an offense is eligible for

expunction is an obligation entrusted to courts, not the TBI.

12

The Plaintiff successfully completed judicial diversion, the charges against him

were dismissed, and he petitioned to expunge those charges. The State, acting through its

representative, the District Attorney General, consented to the expungement order. The

circuit court entered the expungement order. After thirty days, the expungement order

became final. The TBI received a copy of the expungement order. The TBI’s only

responsibilities at that point were to enter information about the Plaintiff into its expunged

criminal offender and pretrial diversion database and remove the expunged records from

the Plaintiff’s criminal history within sixty days of receipt of the expunction order.

III.

The judgment of the trial court is reversed, and the Plaintiff’s motion for partial

judgment on the pleadings is granted. This matter is remanded to the trial court for any

further proceedings consistent with this opinion. Costs of this appeal are taxed to David B.

Rausch, Director of the Tennessee Bureau of Investigation, and the Tennessee Bureau of

Investigation.

___________________________

SHARON G. LEE, JUSTICE

13