Tennessee § 41-2-128 - Prisoners who may apply for release — Procedure.

§ 41-2-128. Prisoners who may apply for release — Procedure.

Whenever any person has been sentenced to undergo imprisonment in a county workhouse, referred to as the “workhouse” in this chapter, for the commission of a crime defined as a misdemeanor by the laws of the state of Tennessee, the county board of commissioners, if there is one, or, otherwise, the judge of the circuit court, criminal court or general sessions court having jurisdiction in the county where the person is imprisoned, upon application made therefore by the warden, superintendent, prison keeper or other administrative head of a workhouse, may, by order, direct the warden, superintendent, prison keeper or other administrative head of a workhouse to permit the prisoner to leave the workhouse during necessary and reasonable hours for the purpose of working at the prisoner's employment, conducting the prisoner's own business or other self-employed occupation, including, in the case of a woman, housekeeping and attending to the needs of the woman's family, seeking employment, attendance at an educational institution or securing medical treatment. Similarly, the judge of the circuit court, criminal court or general sessions court having jurisdiction in the county where the person is imprisoned may, upon application of the sheriff, enter a like order for the same purpose for jail prisoners. The order may be rescinded or modified at any time with or without notice to the prisoner. Whenever any person has been sentenced to undergo imprisonment in a county workhouse due to the violation of a criminal statute that is a felony under the laws of the state of Tennessee, then the individual may be allowed to leave the county workhouse during necessary and reasonable hours for occupational, scholastic or medical purposes. Any individual serving a felony sentence based on a crime against person or property who has a previous sentence defined as a felony against person or property, as defined by the laws of the state of Tennessee or any other state of the United States or by the criminal statutes of the government of the United States, shall not be eligible to apply for release from the county workhouse during reasonable and necessary hours for occupational, scholastic or medical purposes as provided in §§ 41-2-127 — 41-2-132. Notwithstanding this section, § 55-10-402 or § 55-50-504(a)(2) to the contrary, the judge may sentence persons convicted of a second violation of § 55-10-401 or § 55-50-504(a)(2), to the work release program established pursuant to this section if, prior to doing so, the following conditions have been met: An investigative report is completed and considered by the judge, with the report confirming the defendant's employment and the employer's willingness to participate in the work release program, including, but not limited to, reports to monitor the defendant's attendance, performance and response to treatment; A plan acceptable to the judge is established to provide for the monitoring of the defendant's whereabouts while at or on the defendant's job; and The defendant agrees to defray, to the best of the defendant's ability, the cost of incarceration and treatment. No person convicted of a second violation of § 55-10-401 that results in personal injury to, or the death of, another shall be sentenced to the work release program. As a condition to participation in the work release program, the defendant must agree to be screened, at least daily, for the purpose of determining whether the defendant has consumed alcohol or illegal drugs. A defendant permitted to participate in a work release program pursuant to this section shall not be permitted to operate a motor vehicle while participating in the program and shall at all times, when not actually at the place of employment or while being transported to or from the place of employment, remain in actual incarceration as provided by law. The judge shall, at the time of sentencing, cause the sentencing order to reflect the defendant's cost of incarceration and treatment and shall affix to the order, taking into consideration the defendant's ability to pay, the time and manner in which the costs are to be paid. The court shall enter the necessary orders requiring that the costs of incarceration and treatment be paid or secured, including, but not limited to, orders of probation that include, as a condition thereof, the payment of costs covered by this subdivision (c)(5). When a defendant alleges inability to pay pursuant to the terms set out by the order, the defendant may petition the court for modification as to the terms of payment. When it is determined that the defendant is unable to pay the entirety of the costs covered by this subdivision (c)(5) in the time and manner imposed by the court, any costs imposed against the defendant shall be pursuant to a schedule promulgated by the chief administrative officer of the county, or the officer's designee, with the schedule to be based upon the defendant's ability to pay the same. In promulgating the schedule governing costs and the amount thereof to be paid by the defendant, the chief administrative officer of the county, or the officer's designee, shall consider the defendant's ability to pay and the disbursement schedule set forth in § 41-2-129 and shall incorporate payments ordered in this subsection (c) into the schedule. In no event shall a person be denied access to this program or be denied discharge from incarceration as a result of that person's inability to pay. A county that permits a person convicted of a second offense violation of § 55-10-401 to be sentenced to a work release program shall maintain records sufficient to allow an annual determination of whether participation in any way diminishes the effectiveness of § 55-10-402. On an annual basis, the county legislative body shall conduct a public hearing to examine, monitor and evaluate the work release program operating under the authority of this subsection (c) to ensure that all requirements of this subsection (c) are being complied with and that the program is being operated in accordance with this subsection (c). As part of the public hearing, the county legislative body shall discuss the program's effectiveness and compliance and hear the opinions of the public concerning the program. The county legislative body shall give notice of the public hearing at least thirty (30) days prior to the meeting. If the county legislative body finds through its public hearing or any other information the body may obtain that the work release program is being operated in compliance with this subsection (c), it shall so certify the program. The certification shall be transmitted to all judges having jurisdiction over the offense of driving under the influence of an intoxicant in the county. If the board finds that a work release program is not being operated in compliance with this subsection (c), it shall not certify the program. The failure of certification shall be transmitted to all judges having jurisdiction over the offense of driving under the influence of an intoxicant in the county. Acts 1967, ch. 259, § 2; 1972, ch. 626, § 2; impl. am. Acts 1978, ch. 934, § 36; 1980, ch. 692, §§ 1, 2; T.C.A., § 41-1238; Acts 1990, ch. 1065, § 1; 1991, ch. 269, § 1; 1991, ch. 472, §§ 1, 2; 1992, ch. 902, §§ 1-3; 1995, ch. 187, § 1; 2002, ch. 628, § 1; 2013, ch. 154, §§ 39, 40. Attorney General Opinions. Constitutionality of work release for those convicted twice of driving under the influence, OAG 90-42, 1990 Tenn. AG LEXIS 46 (3/28/90). Work release for DUI second offenders, OAG 97-021, 1997 Tenn. AG LEXIS 12 (3/5/97). County may charge work release participants for board despite state housing compensation, OAG 99-081, 1999 Tenn. AG LEXIS 81 (4/5/99).