                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON


RAY DARRIS THOMPSON,                   )
                                       )                             FILED
             Claimant/Appellant,       ) Claims Commission No. 305139
                                       )                          February 23, 1998
VS.                                    ) Appeal No. 02A01-9705-BC-00102
                                       )                          Cecil Crowson, Jr.
STATE OF TENNESSEE,                    )                          Appellate C ourt Clerk
                                       )
             Respondent/Appellee.      )


             APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
                       FOR THE WESTERN SECTION
            THE HONORABLE MARTHA BRASFIELD, COMMISSIONER




RAY DARRIS THOMPSON, pro se
Mountain City, Tennessee


JOHN KNOX WALKUP
Attorney General and Reporter
SOHNIA W. HONG
Assistant Attorney General
Attorneys for Appellee, State of Tennessee




AFFIRMED




                                                          ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
       Ray Darris Thompson appeals a final order of the Claims Commission dismissing

his claim for lack of subject matter jurisdiction. We affirm.



       Thompson, a prison inmate, filed this claim against the State of Tennessee after he

was punished by employees and officials of the Tennessee Department of

Correction (DOC) for possessing a deadly weapon. In essence, Thompson’s claim alleged

that DOC employees and officials negligently deprived him of “state law rights” because,

in punishing Thompson, they failed to follow certain DOC policies and procedures.



       The State of Tennessee, through its Attorney General, filed a motion to dismiss for

lack of subject matter jurisdiction and failure to state a claim upon which relief can be

granted. In its motion, the State argued, inter alia, that the Claims Commission lacked

subject matter jurisdiction to determine Thompson’s claim because the claim failed to

allege that DOC employees and officials negligently deprived Thompson of statutorily

granted rights as required by the Tennessee Claims Commission Act. The Commissioner

of Claims agreed and entered an order dismissing Thompson’s claim. This appeal

followed.



       The Tennessee Claims Commission Act grants the Claims Commission exclusive

jurisdiction to determine all monetary claims against the State for the “[n]egligent

deprivation of statutory rights.” T.C.A. § 9-8-307(a)(1)(N) (1992). This court previously has

rejected the argument that the term “statutory rights” as used in the Act is broad enough

to include administrative regulations adopted by a state agency. In Daley v. State, 869

S.W.2d 338 (Tenn. App. 1993), we explained:

                      Our research has unearthed only two cases involving
              actions against the state for alleged negligent deprivation of
              statutory rights. Both involved alleged deprivation of rights
              created by statutes enacted by the legislature. See Bryson v.
              State, 793 S.W.2d 252 (Tenn. 1990) and Computer Shoppe,
              Inc. v. State, 780 S.W.2d 729 (Tenn. App. 1989).

                     Under the rule of strict construction adopted by the
              appellate courts of this state, we cannot presume that the
              legislature, by enacting § 9-8-307(a)(1)(N) intended to waive
              the sovereign immunity of the state any more than expressly
              stated. If the General Assembly had intended to remove


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              sovereign immunity of the state to allow claims for negligent
              deprivation of rights created by a state agency regulation, it
              could just as well [have] have included the term “regulatory
              rights” as it had at one point included the provision
              “constitutional rights.”


Daley, 869 S.W.2d at 340. In accordance with Daley, we hold that the Commissioner

properly dismissed Thompson’s claim based on lack of subject matter jurisdiction.

Thompson’s claim alleged no deprivation of “statutory rights” as required by section

9-8-307(a)(1)(N). Instead, his claim alleged only a deprivation of rights arising from DOC’s

policies and procedures.



       On appeal, Thompson insists that his claim, as later amended, states a claim under

section 9-8-307(a)(1)(N) because it alleges that DOC employees and officials deprived him

of the “right to be free from unauthorized means of punishment as provided by T.C.A.

§ 41-21-404.” Contrary to Thompson’s contention, however, section 41-21-404 does not

appear to grant inmates a broad statutory right to be free from unauthorized punishment

pursuant to DOC’s policies and procedures. The statute merely provides that “[n]o convict

shall be punished in any other way than is provided in this title, except by the authority of

the commissioner of correction.” T.C.A. § 41-21-404 (1990). On appeal and before the

Claims Commission, Thompson has cited no provision of Title 41 (Correctional Institutions

and Inmates) which was violated when he was punished by DOC employees and officials,

nor has he alleged that his punishment was not authorized by the commissioner of

correction.



       We also reject Thompson’s contention that the State was estopped from raising lack

of subject matter jurisdiction before the Claims Commission. Thompson raised this

estoppel argument because, in a related proceeding against individual DOC employees

and officials in the Thirtieth Judicial Circuit, the State moved to dismiss Thompson’s

complaint on the ground that the Claims Commission had exclusive jurisdiction over

monetary claims arising from the negligent deprivation of statutory rights. It is well

established, however, that jurisdiction over the subject matter can be conferred only by the

Tennessee Constitution or the Legislature; subject matter jurisdiction “cannot be conferred


                                             3
or enlarged by waiver, consent or estoppel.” Brown v. Brown, 281 S.W.2d 492, 501 (Tenn.

1955); accord Riden v. Snider, 832 S.W.2d 341, 343 (Tenn. App. 1991); Computer

Shoppe, Inc. v. State, 780 S.W.2d 729, 734 (Tenn. App. 1989). Moreover, we do not view

the State’s argument before the circuit court in Shelby County to be a concession that

Thompson’s complaint successfully stated a cause of action pursuant to section

9-8-307(a)(1)(N).



      The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Thompson, for which execution may issue if necessary.




                                                            HIGHERS, J.



CONCUR:




FARMER, J.




LILLARD, J.




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