GARY BERNARD SANDERS,              )
                                   )
      Petitioner/Appellant,        )
                                   )    Davidson Chancery
                                   )    No. 95-3497-III
VS.                                )
                                   )    Appeal No.
                                   )    01-A-01-9608-CH-00363
DON SUNQUIST, GOVERNOR OF          )
STATE OF TENNESSEE, ET AL,         )

      Defendants/Appellees.
                                   )
                                   )                        FILED
                                                            November 8, 1996
                 IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
                      MIDDLE SECTION AT NASHVILLE    Appellate Court Clerk


      APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE


              HONORABLE ROBERT S. BRANDT, CHANCELLOR



PATRICIA C. KUSSMANN #15506
Assistant Attorney General
404 James Robertson Parkway
Suite 2000, Parkway Towers
Nashville, TN 37243-0488
ATTORNEY FOR DEFENDANTS/APPELLEES


GARY BERNARD SANDERS #76973
Cold Creek Correctional Facility
P.O. Box 1000
Henning, TN 38041-1000
PRO SE/PLAINTIFF/APPELLANT


                          AFFIRMED AND REMANDED



                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION



CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
GARY BERNARD SANDERS,                         )
                                              )
       Petitioner/Appellant,                  )
                                              )      Davidson Chancery
                                              )      No. 95-3497-III
VS.                                           )
                                              )      Appeal No.
                                              )      01-A-01-9608-CH-00363
DON SUNQUIST, GOVERNOR OF                     )
STATE OF TENNESSEE, ET AL,                    )
                                              )
       Defendants/Appellees.                  )



                                       OPINION


       The captioned plaintiff, an inmate of the Department of Correction, filed this suit

against the Governor, Commissioner of Correction and Commissioner of Correction, seeking

a declaration of his rights to release from incarceration. The defendants filed a motion to

dismiss supported by affidavit of an official of the Department of Correction. The motion

was therefore a motion for summary judgment. T.R.C.P. Rule 12.02.



       The Trial Court sustained the motion and dismissed the suit. Plaintiff has appealed
and presented the following issues:

               I.     Whether the appellant asserted cognizable constitutional
               claims to survive a motion to dismiss under Rule 12.02(6), of the
               Tennessee Rules of Civil Procedure.

               II.     Whether Williams Tennessee Code Annotated Sections
               10771 and 11771, are applicable to the appellant’s felony-murder
               conviction and sentence as mandated by the Court in Collins vs.
               State, 550 S.W.2d 643 (Tenn. 1977).

               III.   Whether the denial of sentence reduction credits pursuant
               to Tennessee Code Annotated Sections 41-332, 41-334 and 41-
               358, violate the appellant’s due process rights.

               IV.    Whether the retroactive application of the Governor’s
               Executive Directive pursuant to Tennessee Code Annotated
               Section 41-1-504, violate due process and the ex post facto
               prohibition.




                                              -2-
       T.C.A. § 4-5-224 reads in part as follows:

                  Declaratory judgment. - (a) The legal validity or applicability
               of a statute, rule or order of an agency to specified circumstances
               may be determined in a suit for a declaratory judgment in the
               chancery court of Davidson County, unless otherwise specifically
                provided by statute, if the court finds that the statute, rule or
               order, or its threatened application, interferes with or impairs, or
               threatens to interfere with or impair, the legal rights or privileges
               of the complainant. The agency shall be made a party to the suit.

                 (b) A declaratory judgment shall not be rendered concerning
               the validity or applicability of a statute, rule or order unless the
               complainant has petitioned the agency for a declaratory order
               and the agency has refused to issue a declaratory order.



       The complaint does not allege compliance with this statute. Therefore, the complaint

fails to state a claim for which relief can be granted. This disposes of the first issue and

renders unnecessary any discussion of other issues presented by plaintiff.



       The judgment of the Trial Court dismissing this suit is affirmed. Costs of this appeal

are assessed against the plaintiff. The cause is remanded to the Trial Court for any necessary

further proceedings.



                              AFFIRMED AND REMANDED



                                               _______________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________________
SAMUEL L. LEWIS, JUDGE


_____________________________________
BEN H. CANTRELL, JUDGE




                                               -3-
