(a) A public servant commits an offense who, with intent to obtain a benefit or to harm another, intentionally or knowingly:

Attorney's Note

Under the Tennessee Code, punishments for crimes depend on the classification. In the case of this section:
ClassPrisonFine
class E felony1 to 6 yearsup to $3,000
class A misdemeanorup to 11 monthsup to $2,500
For details, see Tenn. Code § 40-35-111
criminal case

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Terms Used In Tennessee Code 39-16-402

  • Act: means a bodily movement, whether voluntary or involuntary, and includes speech. See Tennessee Code 39-16-401
  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Benefit: means anything reasonably regarded as economic gain, enhancement or advantage, including benefit to any other person in whose welfare the beneficiary is interested. See Tennessee Code 39-11-106
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Conviction: A judgement of guilt against a criminal defendant.
  • Harm: means anything reasonably regarded as loss, disadvantage or injury, including harm to another person in whose welfare the person affected is interested. See Tennessee Code 39-11-106
  • Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
  • Law: means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, or a rule authorized by and lawfully adopted under a statute. See Tennessee Code 39-16-401
  • Obtain: includes , but is not limited to, the taking, carrying away or the sale, conveyance or transfer of title to or interest in or possession of property, and includes, but is not limited to, conduct known as larceny, larceny by trick, larceny by conversion, embezzlement, extortion or obtaining property by false pretenses. See Tennessee Code 39-11-106
  • Person: includes the singular and the plural and means and includes any individual, firm, partnership, copartnership, association, corporation, governmental subdivision or agency, or other organization or other legal entity, or any agent or servant thereof. See Tennessee Code 39-11-106
  • Property: means anything of value, including, but not limited to, money, real estate, tangible or intangible personal property, including anything severed from land, library material, contract rights, choses-in-action, interests in or claims to wealth, credit, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power. See Tennessee Code 39-11-106
  • Public servant: means a person elected, selected, appointed, employed, or otherwise designated as one (1) of the following even if the public servant has not yet qualified for office or assumed the duties:
    (A) An officer, employee, or agent of government. See Tennessee Code 39-16-401
  • Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
  • real property: include lands, tenements and hereditaments, and all rights thereto and interests therein, equitable as well as legal. See Tennessee Code 1-3-105
  • Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
  • State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
(1) Commits an act relating to the public servant’s office or employment that constitutes an unauthorized exercise of official power;
(2) Commits an act under color of office or employment that exceeds the public servant’s official power;
(3) 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;
(4) Violates a law relating to the public servant’s office or employment; or
(5) Receives any benefit not otherwise authorized by law.
(b) 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.
(c)

(1) 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:

(A) 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
(B) 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.
(2) 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.
(d) 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.
(e)

(1) 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.
(2) 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.
(3) 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.
(f) 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.
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