STEVEN RAY COLEMAN,             )
                                )
     Plaintiff/Appellant,       )
                                )
                                     Appeal No.    FILED
                                     01-A-01-9805-BC-00239
v.                              )                   March 17, 1999
                                )    Claims Commission
STATE OF TENNESSEE,             )    No. 301091   Cecil Crowson, Jr.
                                )                Appellate Court Clerk
     Defendant/Appellee.        )
                                )

                 COURT OF APPEALS OF TENNESSEE


     APPEAL FROM THE TENNESSEE CLAIMS COMMISSION OF
                   DAVIDSON COUNTY,
                AT NASHVILLE, TENNESSEE


          THE HONORABLE W. R. BAKER, COMMISSIONER



RAYMOND W. FRALEY, JR.
JOHNNY D. HILL, JR.
205 East Market Street
Post Office Box 572
Fayetteville, Tennessee 37334
      ATTORNEYS FOR PLAINTIFF/APPELLANT



JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

MARY M. BERS
Assistant Attorney General
Civil Rights and Claims Division
Cordell Hull Building, Second Floor
426 Fifth Avenue North
Nashville, Tennessee 37243
      ATTORNEYS FOR DEFENDANT/APPELLEE



                     AFFIRMED AND REMANDED


                                      WILLIAM B. CAIN, JUDGE
                               OPINION
          This appeal involves the jurisdiction of the Tennessee Claims
Commission. Plaintiff appeals the dismissal by the Claims Commission of his
claim filed under Tennessee Code Annotated section 9-8-307(a)(1)(M) on the
basis that the Claims Commission lacks subject matter jurisdiction. For the
reasons stated in this opinion, we affirm the decision of the Claims Commission
to dismiss this claim.


          On October 20, 1992, Tennessee Alcoholic Beverage Commission
(ABC) Special Agent, Mark Hutchens, acting on information he received,
contacted Bedford County Sheriff Don Edwards. Agent Hutchens sought the
assistance of Sheriff Edwards and members of his department in the investigation
of a suspected drug transaction believed to be scheduled to take place that
evening at the Rattlesnake Lodge in rural Bedford County, Tennessee. Sheriff
Edwards agreed to assist and brought with him sheriff's deputies McCullough,
Brown and Owens. ABC agents Jim Ray and Jim Richardson accompanied
Agent Hutchens.


          Agent Hutchens and Sheriff Edwards arrived first at Rattlesnake Lodge
in an unmarked car driven by Agent Hutchens. They were followed by other
vehicles occupied by the ABC officers and sheriff's deputies. Upon arrival at the
lodge, Hutchens and Edwards observed two individuals standing beside a car
outside of the lodge. These individuals were later identified as the claimant
Steven Ray Coleman and Billy White.


          Agent Hutchens and Sheriff Edwards emerged from their vehicle and
shouted their identity as police officers. Coleman and White ran from the scene
into heavy grass area and toward the nearby river. Agent Hutchens raced in
pursuit. He later testified that someone fired shots at him from the area to which
Coleman and White had fled. Hutchens returned fire with two shots from his
weapon. Neither Coleman nor White were hit by this gunfire and Hutchens did
not fire again. White leaped up from the grass and raced to his left disappearing
from sight and was not apprehended by any of the officers. Claimant Coleman

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ran to his right toward the river, jumped in the river and started to swim across
to the opposite side. Gunshots were fired at him by persons never identified.
One of these gunshots struck him while he was in the water and seriously injured
him. He reached the opposite bank of the river and yelled to the officers for help
asserting that he had been hit. Officers and paramedics attended him at the scene
and he was dispatched first to the Bedford County Hospital and from there
transferred to Vanderbilt University Medical Center.


          According to claimant Coleman, he had been invited by Billy White to
participate in a high stakes dice game at Rattlesnake Lodge. In route to the
lodge, his automobile overheated and he stopped at the home of his friend, Ricky
Mencer, to borrow an automobile and continue his journey to the lodge. He
borrowed the automobile belonging to Mencer's girlfriend, Deborah Cooper, and
drove on to the lodge where he and Billy White were awaiting the arrival of a
"high fader." When they saw the unmarked car of Hutchens and Edwards arrive,
they thought they were going to be robbed and thereupon ran from the scene.
Subsequently a search warrant was issued for search of the Deborah Cooper
automobile, and a suitcase containing approximately ninety pounds of marijuana
was taken from the trunk of the car.


          Suit was brought by the claimant in the United States District Court for
the Eastern District of Tennessee against Bedford County and the county
personnel involved. The federal suit was resolved before trial.


          The State of Tennessee and its employees acting within the scope of
their employment are protected by the doctrine of governmental immunity and
thus can only be sued under statutory exceptions to this doctrine and only before
the Tennessee Claims Commission which has exclusive jurisdiction to adjudicate
the merits of claims under statutory exceptions to governmental immunity.
Coleman first filed his claim alleging several of the exceptions to governmental
immunity provided by Tennessee Code Annotated section 9-8-307. However,
by agreed order the case was subsequently entered for trial limited to section 9-8-
307(a)(1)(M). The applicable statutory provision as it existed in 1992 states:
               The commission or each commissioner sitting

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          individually has exclusive jurisdiction to determine all
          monetary claims against the state falling within one (1) or
          more of the following categories: . . .
          (M) Negligent operation of machinery or equipment.

Tenn. Code Ann. § 9-8-307(a)(1)(M)(1992).



          The claim was tried on oral evidence before W. R. Baker, Claims
Commissioner, on January 23, 1996. The Claims Commission dismissed the
claim on the basis that it had no jurisdiction because Tennessee Code Annotated
section 9-8-307(d) prohibits judgment against the State for "any willful,
malicious or criminal acts by state employees." The Claims Commission made
a specific finding that the shooting of Claimant was willful rather than negligent
and that governmental immunity had not been waived as to such willful acts
under the specific provisions of section 9-8-307(d).


          On appeal the State asserts that the Claims Commission had no subject
matter jurisdiction but on a different basis than asserted by the Claims
Commission. The State asserts that the preponderance of the evidence at the trial
showed that no state employee fired a shot at Claimant while he was in the water
and that the definition of "state employee" in Tennessee Code Annotated section
8-42-101(3) does not include a deputy of the Bedford County Sheriff's Office.
We agree with the State in its position that the firing of the offending shot cannot
be determined as a matter of law to have been willful within the meaning of
section 9-8-307(d) rather than negligent within the meaning of section 9-8-
307(a)(1)(M). Therefore, the basis on which the Claims Commission found that
it lacked subject matter jurisdiction is erroneous.


          Two questions remain for disposition, to wit:
          1. Did Claimant carry his burden of proof by a preponderance of the
evidence to establish that the offending shot was fired by an ABC agent?
          2. If not, can the State be held liable for the actions of a Bedford
County Deputy Sheriff?


          As to the first question, it is conclusively established that the two shots


                                        -4-
originally fired by Agent Hutchens could not have caused the injuries to
Claimant as they were fired long before Coleman reached the river and all of the
testimony, including the testimony of claimant Coleman, establishes that he was
actually shot while swimming the river. There is no evidence that Hutchens fired
any other shots. Agent Richardson was carrying a shotgun and there is no
evidence that a shotgun was ever fired. Agent Ray never fired his weapon and
never saw Coleman until after he had reached the opposite bank of the river.
Bedford County Deputy Jesse Owens fired a shot into the air while Coleman was
wading across the river up to his armpits. He saw bullets hit the water close to
Coleman but did not see who was firing. Owens fired again but claimed it was
"way over" Coleman's head. Taken as a whole, the evidence fails to establish
that the shot fired into the body of claimant Coleman while he was swimming the
river was fired by any ABC agent.


         This brings us to the status of Bedford County deputies as far as the
responsibility of the State for their conduct is concerned. It is first well to
reiterate that for good or ill, sovereign immunity is still alive and well in
Tennessee, and neither the State nor its employees, acting within the scope of
their authority, can be liable in tort except to the extent that governmental
immunity has been specifically waived by legislative enactment. Hill v. United
States, 453 F.2d 839, 15 ALR Fed. 658 (6th Cir.1972). The very language of
Tennessee Code Annotated subsections 9-8-307(d),(e),(f),(g) and (h)
reemphasize the reservation of sovereign immunity except to the specific degree
the same is removed by this statute.
          The State, as sovereign, is immune from suit except as it consents
     to be sued.
          The rule of sovereign immunity in Tennessee is both
     constitutional and statutory. It is not within the power of the courts to
     amend it.
          A statute permitting suit against the State must be strictly
     construed, and jurisdiction cannot be enlarged by implication.

Brown v. State, 783 S.W.2d 567, 571 (Tenn.App.1989)(citations omitted).



     The effect of sovereign immunity prevailing in Tennessee, both by
constitutional provision and legislative enactment, has long been settled:


                                       -5-
          The State of Tennessee, as a sovereign, is immune from suit
     except as it consents to be sued. Article I, Sec. 17, Constitution of
     Tennessee; Code Section 8634; Scates v. Board of Commissioners of
     Union City, 196 Tenn. 274, 265 S.W.2d 563; Phillips v. Marion
     County, 166 Tenn. 83, 59 S.W.2d 507; Quinton v. Board of Claims,
     165 Tenn. 201, 54 S.W.2d 953; Insurance Co. v. Craig, 106 Tenn.
     621, 62 S.W. 155; Moore v. Tate, 87 Tenn. 725, 11 S.W. 935, 10
     Am.St.Rep. 712. This being true it necessarily follows that except as
     the Legislature of the State consents there is no jurisdiction in this
     Board of Claims to entertain suits against the State.
          Legislative Acts conferring jurisdiction upon this Board of
     Claims to adjudicate claims against the State of Tennessee are and
     must of necessity be strictly construed. This Board's jurisdiction is
     limited to the cases specified in the Act, and this limitation cannot be
     enlarged by implication.

Hill v. Beeler, 199 Tenn. 325, 328-29, 286 S.W.2d 868, 869 (Tenn.1956). The
eloquent, passionate and persuasive condemnation of sovereign immunity by
Justice Henry remains a dissent. See Cooper v. Rutherford County, 531 S.W.2d
783, 785-792 (Tenn.1975)(Henry J., dissenting).


     The shooting of Coleman occurred on August 20, 1992. As stated, the
controlling statute at that time read, in pertinent part:
          The Commission or each Commissioner sitting individually has
     exclusive jurisdiction to determine all monetary claims against the
     state falling within one (1) or more of the following categories: . . .
          (M) Negligent operation of machinery or equipment.

Tenn. Code Ann.§ 9-8-307 (a)(1)(M)(1992).              Another subsection of the
same code section provided as follows:
          State officers and employees are absolutely immune from liability
     for acts or omissions within the scope of the officers' or employees'
     office or employment, except for willful, malicious, or criminal acts
     or omissions or for acts or omissions done for personal gain. For the
     purposes of this chapter, "state officer" or "employee" has the meaning
     set forth in § 8-42-101(a)(3).

Tenn. Code Ann. § 9-8-307 (h)(1992).


     The extensive definition of "state employee" set forth in Tennessee Code
Annotated section 8-42-101(3) does not include county sheriffs and deputy
sheriffs. A specific provision was added to the statute by chapter 63 of the
Public Acts of 1989, effective March 20, 1989, which provides:


                                        -6-
     (C) "State employee" under this chapter and under title 9, chapter 8,
     also includes, as a volunteer, a person designated by the district
     attorney general of each judicial district as a member of a judicial
     district task force relating to the investigation and prosecution of drug
     cases. The district attorney general of each judicial district shall
     register only the names of properly qualified and designated task force
     members with the board of claims. Any member of such a task force
     designated by the district attorney general shall meet the criteria for
     qualifying as such a member as set forth in rules and regulations
     promulgated by the commissioner of finance and administration. The
     commissioner, after consultation with the department of safety and the
     Tennessee bureau of investigation, is authorized to promulgate rules
     and regulations to determine who shall qualify to be designated as a
     member of such judicial district task forces. Such rules and
     regulations may set criteria for qualifications of members and may set
     limits on the numbers of task force members from each district who
     may be registered. All such rules and regulations shall be
     promulgated in accordance with the provisions of the Uniform
     Administrative Procedures Act, compiled in title 4, chapter 5. Task
     force members are not eligible for workers' compensation benefits
     from the state of Tennessee;

Tenn. Code Ann. § 8-42-101(3)(C)(Supp.1988). Thus, a deputy sheriff or any
other persons specifically designated as a member of a judicial district drug task
force becomes a "state employee" within the meaning of Tennessee Code
Annotated section 9-8-307.


     The record in this case does not disclose that either Sheriff Edwards or any
of his deputies involved in the August 20, 1992 events at or around Rattlesnake
Lodge in Bedford County, Tennessee were members of the Judicial District Drug
Task Force. Since the Bedford County Sheriff and deputy sheriffs were not
"state employees," the Claims Commission lacks subject matter jurisdiction
under the strict construction rule that we are mandated to apply to Tennessee
Code Annotated section 9-8-307. The enabling statute does not waive sovereign
immunity so as to establish a basis for vicarious liability of the state for the acts
or omissions of persons who are not "state employees."


     The judgment of the Claims Commission is affirmed for reasons herein set
forth. Costs are assessed against the appellant.




                                         -7-
                          ______________________________________
                          WILLIAM B. CAIN, JUDGE




CONCUR:



___________________________________
BEN H. CANTRELL, P.J., M.S.


___________________________________
WILLIAM C. KOCH, JR., JUDGE




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