                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                                 June 1998 Session

                  DEWEY SCOTT FRAZIER v. CANDACE WHISMAN

                         Appeal from the Chancery Court for Davidson County
                            No. 97-483-II   Carol L. McCoy, Chancellor


                          No. M1997-00225-COA-R3-CV - Filed July 19, 2000


This appeal arises from the efforts of an inmate of the Tennessee Department of Correction to have
his sentence recalculated. The prisoner initially wrote to an employee of the department requesting
the recalculation. Ten months after receiving the department’s letter denying his request, the
prisoner filed a petition for a declaratory judgment in the Chancery Court for Davidson County. The
trial court dismissed the petition, and the prisoner appeals. We affirm the trial court because the
prisoner did not file his petition within sixty days of the department’s decision.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which HENRY F. TODD , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Dewey Scott Frazier, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and John R. Miles, Nashville, Tennessee, for the
appellee, Candace Whisman.

                                         MEMORANDUM OPINION1

       In 1976 a jury in the Criminal Court for Sullivan County found Dewey Scott Frazier guilty
of bank robbery, using a firearm in the commission of a felony, and assault and battery and
sentenced him to life imprisonment as an habitual criminal. The Tennessee Court of Criminal
Appeals affirmed his conviction, see Frazier v. State, 566 S.W.2d 545 (Tenn. Crim. App. 1977), and
the Tennessee Supreme Court declined to entertain his appeal. He was later convicted of escape by


       1
           Tenn. Ct. App . R. 10(b) provid es:

                The Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would have
       no precedential value. When a case is decided by memorandum opinion, it shall be designated
       "MEMORANDUM OPINIO N," shall not be published, and shall not be cited or relied on for any
       reason in a subsequent unrelated case.
a jury in the Criminal Court for Davidson County and was sentenced to serve an additional three
years to be served consecutively with his other sentences. See State v. Frazier, No. 86-206-III, 1987
WL 16387, at *1 (Sept. 2, 1987), perm. app. denied (Tenn. Nov. 30, 1987). He is currently
incarcerated in the Northeast Correctional Center at Mountain City.

       On August 23, 1995, Mr. Frazier wrote to Candace Whisman, an employee of the Tennessee
Department of Correction’s Sentence Information Services (“Sentence Information Services”),
requesting a recalculation of his sentence that would result in an earlier release eligibility date. On
September 1, 1995, Sentence Information Services sent a memorandum to Mr. Frazier stating that
it did not respond to individual inmate inquiries. Subsequently, Steven Grindstaff, another
department employee, sent Mr. Frazier a letter dated April 18, 1996, stating that Mr. Frazier’s
sentence had been correctly calculated and specifically refuting Mr. Frazier’s arguments to the
contrary.

        On February 10, 1997, Mr. Frazier filed a petition in the Chancery Court for Davidson
County seeking a declaratory judgment concerning the calculation of his sentence. The State moved
to dismiss Mr. Frazier’s petition on the grounds that he failed to exhaust his administrative remedies
by seeking a declaratory order from the Tennessee Department of Correction (“TDOC”) before
petitioning the trial court for a declaratory judgment.2 The trial court granted the motion on
November 3, 1997. Later on the same day, the trial court received Mr. Frazier’s response to the
State’s motion. Mr. Frazier asserted that his August 23, 1995 letter to Ms. Whisman constituted a
petition for a declaratory order from the TDOC.

        The trial court construed Mr. Frazier’s response as a Tenn. R. Civ. P. 60.02 motion for relief
from its November 3, 1997 order. Thereupon, the trial court vacated its November 3, 1997 order
because “an issue of fact [exists] as to whether or not Petitioner filed the petition with the TDOC and
therefore Respondent is not entitled to a dismissal on the grounds of Petitioner’s failure to exhaust
his administrative remedies.” Nevertheless, the trial court dismissed Mr. Frazier’s petition on the
alternative ground of Mr. Frazier’s failure to file his petition for a declaratory judgment within sixty
days of the agency’s final decision. Mr. Frazier appeals the dismissal.

                                                              I.

        The determinative issue in this case is the timeliness of Mr. Frazier’s petition for a
declaratory judgment. Affected persons may petition an agency for a declaratory order on the
validity or applicability of a statute, rule, or order within the primary jurisdiction of the agency. See
Tenn. Code Ann. § 4-5-223(a)(1998). When the agency receives the petition, it may (1) “[c]onvene




         2
           In support of its motion the State submitted an affid avit of Wilmer G. Lutche, a TDOC legal assistant
respons ible for m aintaining records re lating to de claratory o rder requ ests. In the affidavit, Mr. Lutche stated that his
search of the TD OC ind ex of inm ate reque sts for declar atory ord ers reveale d no suc h reque st from M r. Frazier.

                                                             -2-
a contested case hearing . . . and issue a declaratory order,” Tenn. Code Ann. § 4-5-223(a)(1), or (2)
“[r]efuse to issue a declaratory order.”3 Tenn. Code Ann. § 4-5-223(a)(2).

         If the agency chooses the latter option, petitioners may seek a declaratory judgment from the
Chancery Court for Davidson County. See Tenn. Code Ann. §§ 4-5-223(a)(2), -225(a) (1998).
Unfortunately, unlike with petitions for judicial review, the Uniform Administrative Procedures Act
is silent on the time period within which petitions for declaratory judgment must be filed.4

        If the agency follows the former course of action, the declaratory order is subject to review
as a contested case in the Chancery Court for Davidson County, see Tenn. Code Ann. §
4-5-223(a)(1), but the chancery court has no jurisdiction to hear a petition for review not filed within
sixty days from the agency’s final decision. See Tenn. Code Ann. § 4-5-322(b)(1); Rienholtz v.
Bradley, No. 01A01-9409-CH-00433, 1995 WL 33736, at *2 (Tenn. Ct. App. Jan. 27, 1995) (No
Tenn. R. App. P. 11 application filed); Bishop v. Tennessee Dep’t of Correction, 896 S.W.2d 557,
558 (Tenn. Ct. App. 1994). The time for filing the petition runs from the date of entry of the
agency’s final order, rather than from the petitioner’s receipt of the order. See Cheairs v. Lawson,
815 S.W.2d 533, 534 (Tenn. Ct. App. 1991); Houseal v. Roberts, 709 S.W.2d at 581.

         For the purposes of determining whether the sixty day period applies to a petition for review
of an agency’s decision, this court recently held that convening “a contested case hearing and
issu[ing] a declaratory order” pursuant to Tenn. Code Ann. § 4-5-223(a)(1) includes sending a letter
to the petitioner responding substantively to the merits of the petition. See Copeland v. Bradley, No.
01A01-9409-CH-00435, 1995 WL 70602, at * 2 (Tenn. Ct. App. Feb. 22, 1995) (No Tenn. R. App.
P. 11 application filed); Rienholtz v. Bradley, 1995 WL 33736, at *3. Thus, a petition for review of
an agency decision rendered through such a letter must be filed within sixty days from the date of
the letter. Conversely, a letter informing the petitioner that the agency will not consider the petition
on its merits is not a contested case hearing, and failure to file a petition for a declaratory judgment
with the trial court within sixty days is not fatal to the petition. See Rienholtz v. Bradley, 1995 WL
33736, at *4.




         3
           An agency’s refusal to issue a declarato ry order includes fa ilure to set a co ntested cas e hearing within sixty
days after the agen cy receiv es a petition fo r a declarato ry order . See Tenn. Code An n. § 4-5-223(c); Davis v. Sund quist,
947 S.W.2d 15 5, 156 (Tenn. Ct. App. 199 7).

         4
           Pursuant to Tenn. Code Ann § 4-5-322(b)(1)(1998), courts are without jurisdiction to hear petitions for
judicial review not filed w ithin sixty days a fter the agency enters its final o rder. See Schering -Plough H ealthcare
Prods., Inc. v. State Bd. of Equalization, 999 S.W .2d 773 , 776 (T enn. 19 99); House al v. Rob erts, 709 S.W.2d 580, 581
(Tenn . Ct. App . 1984). However, Tenn. Code Ann § 4-5-322(b)(1) does not apply to a declaratory judgment petition
where the agency has refused to convene a contested case hearing an d issue a de claratory o rder. See Rienholtz v.
Bradley, 945 S.W .2d 727 , 729 (T enn. Ct. A pp. 199 6).

                                                             -3-
        On August 23, 1995, Mr. Frazier wrote to the TDOC requesting a recalculation of his
sentence.5 The TDOC responded in a letter dated April 18, 1996 that specifically addresses Mr.
Frazier’s arguments concerning the calculation of his sentence, and concludes that they are without
merit. For the purposes of determining whether Mr. Frazier timely filed his petition for a declaratory
judgment, this letter constituted convening a contested case hearing and issuing a declaratory order.
Accordingly, Mr. Frazier had a window of sixty days within which to file his petition in the trial
court. He missed this deadline by filing his declaratory judgment petition on February 10, 1997, ten
months after the agency entered its final order. Therefore, the trial court correctly dismissed Mr.
Frazier’s petition on jurisdictional grounds.

                                                           II.

         We affirm the dismissal of Mr. Frazier’s petition for a declaratory judgment, and remand the
case to the trial court for whatever further proceedings may be required. We also tax the costs of this
appeal to Dewey Scott Frazier for which execution, if necessary, may issue.



                                                                 __________________________________
                                                                 WILLIAM C. KOCH, JR., JUDGE




         5
           W e assume without deciding that this letter constituted a petition for a declaratory order. However, the State
contends that, by writing to Ms. Whisman, Mr. Frazier did not follow the approp riate chan nels for filing a petition for
a declarato ry order . If so, Mr. F razier failed to exhaus t his adm inistrative rem edies in an y event.

                                                           -4-
