                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                 Assigned on Briefs May 31, 2002

DAN BILL JOHNSON v. TENNESSEE DEPARTMENT OF CORRECTION

                      Appeal from the Chancery Court for Davidson County
                        No. 00-3114-III  Ellen Hobbs Lyle, Chancellor


                    No. M2001-02424-COA-R3-CV - Filed November 25, 2003


This appeal involves a dispute between a prisoner and the Tennessee Department of Correction
regarding historical sentencing information contained in his records. The prisoner filed a petition
for writ of mandamus in the Chancery Court for Davidson County seeking an order directing the
Department to remove an outmoded release eligibility date from his records and to certify him as
eligible for parole. The trial court granted the Department’s motion for summary judgment, and the
prisoner has appealed. We affirm the judgment because the manner in which the Department
maintains its records is not a ministerial function and because the prisoner does not have a legal right
to require the Department to maintain his records in any particular way.

     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 WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Dan Bill Johnson, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn
Jordan, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

                                                  OPINION

                                                       I.

         In June 1988, Dan Bill Johnson received a life sentence as a habitual criminal after a Shelby
County jury convicted him of burglarizing a restaurant in Memphis.1 At that time, persons receiving
a life sentence became eligible for parole after serving thirty years. However, the newly created
Parole Eligibility Review Board declared Mr. Johnson parole-eligible in 1992, and he was paroled
in August 1994. Subsequently, he was arrested for aggravated robbery in Hamilton County in
December 1997 and received a five-year sentence to be served consecutively to his 1988 life
sentence.


        1
          This conviction was later affirmed. State v. Johnson, No. 61, 1989 W L 8657 3 (Tenn. Crim. App. Aug. 2,
198 9), perm. app. denied (Tenn. Dec. 4, 198 9).
         As a result of the robbery conviction, the Tennessee Board of Paroles revoked Mr. Johnson’s
earlier parole, and he resumed serving his 1988 life sentence. Eventually, the Board determined that
Mr. Johnson would be paroled from his life sentence in July 2000 and that he would begin serving
his five-year armed robbery sentence at that time. The Board also determined that Mr. Johnson
would again become eligible for release on parole on September 14, 2000.

         The Board did not consider Mr. Johnson for parole in September 2000. Mr. Johnson
became convinced that this oversight was caused by the fact that his records still contained the date
that he would have been eligible for parole from his 1988 conviction had the Parole Eligibility
Review Board not declared him parole-eligible in 1992.2 Accordingly, on October 6, 2000, Mr.
Johnson filed a petition for writ of mandamus in the Chancery Court for Davidson County seeking
an order directing the Department of Correction to “correct” his release eligibility date and to certify
him as being eligible for parole. In response, the Department conceded that it had “incorrectly
calculated” Mr. Johnson’s release eligibility date and stated that he would be placed on the “first
available parole docket.” The Board provided Mr. Johnson a belated parole hearing in February
2001 and turned him down for parole. The Board also decided to consider Mr. Johnson for parole
again in February 2002.

       The Department and Mr. Johnson filed motions for summary judgment. In its response to
Mr. Johnson’s motion, the Department asserted that

                  the reason for the disparity in the release eligibility dates is that the
                  Parole Eligibility Review Board set a parole eligibility date which is
                  different from the one set by the trial court. TOMIS3 shows both
                  dates for purposes of proper recording and maintenance of files.
                  Respondent submits that this does not violate Petitioner’s rights in
                  any way. He has received the parole eligibility hearing which was
                  due him.

On September 6, 2001, the trial court entered an order granting the Department’s motion for
summary judgment on the ground that “the Tennessee Department of Correction is not violating the
petitioner’s legal rights in the manner in which it maintains its records.” Mr. Johnson has appealed.

                                                          II.

        The sole question before us is whether the Department was entitled to the dismissal of Mr.
Johnson’s petition for writ of mandamus as a matter of law. We are not being called upon to
consider the correctness of the Department’s calculation of Mr. Johnson’s sentencing information
or the clarity of the manner in which the Department has chosen to record and communicate this


         2
           W hen this dispu te arose, M r. Johnson would have b ecome eligible to be considered for parole from his 1988
sentence some time in either 2014 o r 2015 de pending on the number of sentence credits he earned. His records contained
this date as well as the parole eligib ility date later set by the Bo ard.

         3
       TO MIS refers to the Department’s computerized record keeping system called the “Tennessee Offender
Management Inform ation S ystem.”

                                                          -2-
information. We have determined that the trial court reached the correct result in this case – solely
because of the limited purpose of a writ of mandamus.

                                                          A.

        A writ of mandamus is an “extraordinary remedy.” Meighan v. U.S. Sprint Communications
Co., 942 S.W.2d 476, 479 (Tenn. 1997). While it is normally used to compel public officials to
perform their ministerial duties, State ex rel Ledbetter v. Duncan, 702 S.W.2d 163, 165 (Tenn.
1985), it may be used to prevent public officials from “palpably abusing their discretion” by
performing discretionary acts in an arbitrary or oppressive manner. Meighan v. U.S. Sprint
Communications Co., 942 S.W.2d at 479. Mandamus is the proper remedy to enforce specific legal
rights when the person seeking the writ has no other specific or adequate remedy. State ex rel.
Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn. 1988); State ex rel. Witcher v. Bilbrey, 878 S.W.2d
567, 570-71 (Tenn. Ct. App. 1994).

        Courts will not issue a writ of mandamus against a public official unless the proof shows that
the official is clearly refusing to perform some nondiscretionary, ministerial act. State ex rel. Cole
v. Francisco, 643 S.W.2d 105, 106 (Tenn. 1982). Conversely, where the party seeking mandamus
has a clear, vested legal right, he or she is normally entitled to the writ. State ex rel. Nashville Pure
Milk Co. v. Town of Shelbyville, 192 Tenn. 194, 207, 240 S.W.2d 239, 244 (1951). Such a right
must be clearly established; mandamus will not lie where the right is doubtful. State ex rel. Weaver
v. Ayers, 756 S.W.2d at 221; Tusant v. City of Memphis, 56 S.W.3d 10, 18 (Tenn. Ct. App. 2001).

         An act is considered “ministerial” when the law prescribes and defines the duties to be
performed “with such precision and certainty as to leave nothing to the exercise of [the official’s]
judgment.” Lamb v. State, 207 Tenn. 159, 163, 338 S.W.2d 584, 586 (1960). Conversely, a
“discretionary” act is one performed by an official who has the authority to decide not only how the
act will be performed but also whether or not the act will be performed at all. Bradley v. State ex rel.
Haggard, 222 Tenn. 535, 540, 438 S.W.2d 738, 740 (1969); Lamb v. State, 207 Tenn. at 163, 338
S.W.2d at 586; Tusant v. City of Memphis, 56 S.W.3d at 18.

                                                          B.

        The Department has a statutory duty to maintain prisoner records4 and to calculate each
prisoner’s earliest release date.5 However, the statutes do not prescribe how these records should
be kept or how the Department should calculate a prisoner’s earliest release date. The Department
has discretion regarding how and in what form it will maintain its records and how it will calculate
and communicate a prisoner’s release eligibility date. Accordingly, a prisoner in the Department’s
custody does not have a clearly established legal right to have his or her records kept or displayed
in any particular way or to require the Department to calculate his or her release eligibility date in
any particular manner. Prisoners who believe that the Department has incorrectly calculated their
release eligibility dates may, after exhausting their administrative remedies, file a petition for

        4
            Tenn. Cod e Ann. § 4-6-140 (199 8) and Tenn. Co de Ann. §§ 41 -21-104, 107(a)(3) (200 3).

        5
            Tenn. Cod e Ann. § 40-28-109 (2003).

                                                          -3-
declaratory order pursuant to Tenn. Code Ann. § 4-5-225 (1998) to obtain judicial review of these
calculations.6

         Why the Department needs to continue including outmoded release eligibility dates in its
prisoner records is far from clear.7 It is clear, however, that the Department has the discretion to do
so if it chooses, and therefore, prisoners do not have a vested legal right to have their records
maintained in any particular form. Accordingly, Mr. Johnson has not established that he has a clear
legal right to require the Department to remove from his records the entry showing what the release
eligibility date for his 1988 life sentence would have been had the Parole Eligibility Review Board
not designated him as parole eligible in 1992. Because he has failed to establish a clear legal right
and because he has other adequate legal remedies should the Department fail to calculate his release
eligibility date properly, the trial court correctly denied his petition for writ of mandamus.

                                                           III.

        Mr. Johnson also asserts that the trial court erred by declining to award him discretionary
costs pursuant to Tenn. R. Civ. P. 54.04(2) because he is the prevailing party in this litigation. This
argument fails for two fundamental reasons. First, Mr. Johnson is not a prevailing party. Second,
Tenn. R. Civ. P. 54.04(2) does not permit the award of discretionary costs against the State or any
of its departments or agencies. Phillips v. Tennessee Tech. Univ., 984 S.W.2d 217, 218 (Tenn.
1998); Tennessee Small Sch. Sys. v. McWherter, No. 01A01-9211-CH-00447, 1993 WL 295006, at
*2-3 (Tenn. Ct. App. Aug. 4, 1993) perm. app. denied (Tenn. Mar. 7, 1994); State ex rel. Comm’r,
Dep’t of Transp. v. Parsons, No. 01A01-9206-CV-00238, 1992 WL 389166, at *3 (Tenn. Ct. App.
Dec. 31, 1992) (No Tenn. R. App. P. 11 application filed).

                                                           IV.

        We affirm the dismissal of the petition for writ of mandamus and remand the case to the trial
court for whatever further proceedings may be required. We tax the costs of this appeal to Dan Bill
Johnson for which execution, if necessary, may issue. We also find that Mr. Johnson’s petition for
writ of mandamus and subsequent appeal are frivolous in accordance with Tenn. Code Ann. §§ 41-
21-807(c), -816(a)(1) (2003).


                                                         ______________________________
                                                         WILLIAM C. KOCH, JR., J.




         6
             E.g., Bo nner v. Tennessee Dep’t of Corr., 84 S.W .3d 576, 583 (Tenn. Ct. App. 2001 ).

         7
           There is some indication in the record that the Department’s practice may confuse the Board of Paroles. The
board member who declined to parole Mr. Johnson in March 2002 recommended that the record should be referred back
to the D epartment “to clarify [M r. Johnson’s] sentence; do cket states life; inmate states five years.”

                                                           -4-
