Tennessee § 39-16-402 - Official misconduct.

§ 39-16-402. Official misconduct.

A public servant commits an offense who, with intent to obtain a benefit or to harm another, intentionally or knowingly: Commits an act relating to the public servant's office or employment that constitutes an unauthorized exercise of official power; Commits an act under color of office or employment that exceeds the public servant's official power; Refrains from performing a duty that is imposed by law or that is clearly inherent in the nature of the public servant's office or employment; Violates a law relating to the public servant's office or employment; or Receives any benefit not otherwise authorized by law. For purposes of subdivision (a)(2), a public servant commits an act under color of office or employment who acts or purports to act in an official capacity or takes advantage of the actual or purported capacity. For purposes of subdivision (a)(5), the ways in which a public servant receives a benefit not otherwise authorized by law include, but are not limited to, a public servant who: Purchases real property or otherwise obtains an option to purchase real property with intent to make a profit if the public servant knows that such real property may be purchased by a governmental entity and such information is not public knowledge; or Acquires nonpublic information derived from such person's position as a public servant or gained from the performance of such person's official duties as a public servant and knowingly acts on such nonpublic information to acquire, or obtain an option to acquire, or liquidate, tangible or intangible personal property with intent to make a profit. Ouster provisions shall be instituted upon a conviction under subsection (a) in which the conduct described in subsection (c) is the basis of the violation. In addition any person convicted of such offense shall forever afterward be disqualified from holding any office under the laws or constitution of this state. It is a defense to prosecution for this offense that the benefit involved was a trivial benefit incidental to personal, professional or business contact, and involved no substantial risk of undermining official impartiality. An offense under subsection (a) in which the conduct described in subsection (c) is not the basis of the violation is a Class E felony. An offense under subsection (a) in which the conduct described in subsection (c) is the basis of the violation is a Class A misdemeanor and the court shall order appropriate restitution to the governmental entity harmed by the offense. If the defendant's conduct violates this section and other criminal statutes, nothing in this subsection (e) shall be construed as prohibiting prosecution and conviction for theft or any other such applicable offense in addition to or in lieu of prosecution and conviction for a violation of this section. Charges for official misconduct may be brought only by indictment, presentment or criminal information; provided, that nothing in this section shall deny a person from pursuing other criminal charges by affidavit of complaint. Acts 1989, ch. 591, § 1; 1990, ch. 980, § 10; 2012, ch. 966, §§ 1, 2. Sentencing Commission Comments. This section provides a generic offense for public servants who abuse their offices for improper purposes. It consolidates prior code §§ 39-5-406 , 39-5-407 , 39-5-417 , 39-5-418 , 39-5-421 , 39-5-424 — 39-5-427 and 39-5-434 . The defendant must act intentionally or knowingly, so the offense is not completed by reckless or negligent conduct. Subsection (e) provides that charges may be brought only by indictment, presentment or criminal information. This provision ensures that the prosecutor had an opportunity to review charges of official misconduct prior to formal charge. If the prosecutor refuses to proceed, citizens may go directly to the grand jury pursuant to § 40-12-104 . Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Cross-References. Bribery of public servant, § 39-16-102 . Civil liability for receiving extra fees, § 8-21-103 . Disobedience of command of court by sheriff, § 8-8-207 . Duty of jailer to receive convicts en route to penitentiary, § 41-4-104 . Duty of warden to escort convict to and from court, § 41-21-306 . Failure to return process, penalty, § 25-3-105 . Forcible entry and detainer, refusal to execute process, penalty, § 29-18-116 . Penalty for Class A misdemeanor, § 40-35-111 . Penalty for Class E felony, § 40-35-111 . Preservation of evidence in death penalty cases, § 40-35-322 . Rights of person arrested for extradition, § 40-9-119 . Sale of office, § 39-16-105 . Suspension, removal and discharge from office, § 39-16-406 . Law Reviews. “Official” Explanation: Defining “Official Capacity” and Related “Color of Office” Phrases in Bribery and Extortion Law (Steven J. Mulroy), 38 U. Mem. L. Rev. 587 (2008). The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319 (1978). Attorney General Opinions. Legality of rewards to deputy sheriffs, OAG 91-76 (8/20/91). Constables as collections agents, OAG 97-043 (4/7/97). Unauthorized use of city funds, OAG 99-196 (9/28/99). A grand jury foreperson is a public servant who is subject to prosecution for official misconduct, official oppression, and misuse of official information, OAG 05-129 (8/24/05).