         IN THE COURT OF APPEALS OF TENNESSEE
                     AT NASHVILLE
                                                       FILED
                                                        October 14, 1998
MONTY TURNER,                         )
                                      )
                                                       Cecil W. Crowson
       Petitioner/Appellant,          )
                                                      Appellate Court Clerk
                                      )   Appeal No.
                                      )   01-A-01-9802-CH-00089
VS.                                   )
                                      )   Davidson Chancery
                                      )   No. 97-2665-III
DONAL CAMPBELL,                       )
COMMISSIONER TENNESSEE                )
DEPARTMENT OF CORRECTION,             )
                                      )
       Respondent/Appellee.           )


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

            THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR




MONTY TURNER
#89388
P. O. Box 1000
Henning, Tennessee 38041-1000
       Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

MARK A. HUDSON
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
       Attorney for Respondent/Appellee



                           AFFIRMED AND REMANDED



                                          BEN H. CANTRELL, JUDGE

CONCUR:
KOCH, J.
CAIN, J.
                          MEMORANDUM OPINION                                   1




                  Monty Turner, an inmate in the custody of the Tennessee Department

of Correction, sought a declaratory judgment that he was entitled to mandatory parole

under Tenn. Code Ann. § 40-28-117(b)(1). The trial court dismissed the Petition for

Declaratory Judgment, holding that the mandatory parole provisions found in the

above-mentioned statute are not applicable to felons convicted after the effective date

of the Tennessee Criminal Sentencing Reform Act of 1982. We affirm the trial court.



                                                   I.



                  The Tennessee Legislature created mandatory parole in 1974 by an Act

which added the following language to Tenn. Code Ann. § 40-3614:

                  Every prisoner not otherwise paroled shall be mandatorily
                  released to and under the supervision of the Division of
                  Probation and Paroles subject to the following restrictions:

                          1. Prisoners serving sentences with maximum terms
                  of ten (10) years or less shall be released ninety (90) days
                  prior to the completion of the maximum term of sentence less
                  all credits granted by law.

                         2. Prisoners serving sentences with maximum terms
                  of over ten (10) years shall be released six (6) months prior
                  to the completion of the maximum term of sentence less all
                  credits granted by law.

1974 Tenn. Public Acts, ch. 624, § 5.



                  A further amendment to Tenn. Code Ann. § 40-3614 in 1975 altered the

qualifying language for mandatory parole from “every prisoner not otherwise paroled”



       1
           Rule 10(b) of the Rules of the Court of Appeals reads as follows:

                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 form al opin ion w ould h ave n o pre ced entia l value . W hen a cas e is de cided by
       memorandum opinion it shall be designated “MEMORAN DUM OPINION,” shall not be
       published, and s hall not be cited or relied on for any reason in a subsequent unrelated
       case.

                                                  -2-
to “every prisoner who has never been granted a parole by the Board on a particular

sentence of imprisonment.” 1975 Tenn. Public Acts, ch. 99, § 1. Tenn. Code Ann.

§ 40-3614 was later renumbered, and the mandatory parole statute is now found at

Tenn. Code Ann. § 40-28-117(b).



              In 1982, the Legislature almost totally revised the laws involving

sentencing and eligibility for release and parole. Although the Tennessee Criminal

Reform Sentencing Act of 1982, Tenn. Code Ann. § 40-35-101, et seq., did not

explicitly repeal the mandatory parole statute, a 1983 amendment to Tenn. Code Ann.

§ 40-35-503 of the Act, appears to be inconsistent with the concept of mandatory

parole:

              (a)     The determination of whether a defendant convicted
              of a felony and sentenced to one (1) year or more who has
              not previously been granted release classification status
              under this section should be granted such status, shall be
              made by the administrative authority vested by law with
              authority over pardons and paroles.

1983 Tenn. Public Acts, ch. 406, § 12.



                                          II.



              In 1989, Mr. Turner was convicted of three felonies, and received a nine

year sentence and two concurrent six year sentences. As the end of his sentence

approached, he filed a Petition for a Declaratory Order with the Department, asking

it to rule that he was entitled to be released on mandatory parole ninety days before

his sentence expired. The Department denied his petition. He then filed a Petition

for Declaratory Judgment in the Chancery Court of Davidson County.



              The State filed a Motion to Dismiss the Petition, arguing that Tenn. Code

Ann. § 40-28-117(b) had been repealed by implication, upon the enactment of the

Tennessee Criminal Reform Sentencing Act of 1982. The chancery court granted the

motion, but ruled that Tenn. Code Ann. § 40-28-117(b) was still effective, but was only

                                         -3-
applicable to those individuals convicted prior to May 26, 1983, the effective date of

the 1982 Reform Act.



              Since Mr. Turner was convicted in 1989, the court ruled that he was not

entitled to mandatory parole. The court recited that it had relied both upon a review

of the applicable statutes, and a statement by the Legislature in Tenn. Code Ann. §

40-28-117(a) that parole is a privilege, and not a right.



              Mr. Turner argues on appeal that the trial court erred in ruling that Tenn.

Code Ann. § 40-35-503 was meant to apply to anything other than the traditional type

of discretionary parole. We note, however, that the statute apparently refers to the

same class of prisoners as were dealt with under the old mandatory parole statute,

namely those who had never previously been granted parole. We are therefore

persuaded that the chancellor is correct.



                                          III.



              The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.




                                                  ____________________________
                                                  BEN H. CANTRELL, JUDGE


CONCUR:




_____________________________
WILLIAM C. KOCH, JUDGE




                                         -4-
_____________________________
WILLIAM B. CAIN, JUDGE




                                -5-
