Winslow Watson,                          )
     Petitioner/Appellant,               )   Appeal Number
v.                                       )   01-A-01-9707-CH-00360
Tennessee Department of Correction,      )
Tennessee Board of Paroles, Correction   )   Rule Number
Corporation of America, and Jody         )   96-1581-II
Benjamin,                                )
     Respondent/Appellee, et al.         )
                                                    FILED
                                                     January 9, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
                   COURT OF APPEALS OF TENNESSEE

                    MIDDLE SECTION AT NASHVILLE

      APPEAL FROM THE DAVIDSON COUNTY CHANCERY COURT

                       AT NASHVILLE, TENNESSEE

           THE HONORABLE CAROL L. McCOY, CHANCELLOR




WINSLOW WATSON, PRO SE
Turney Center Prison
Only, Tennessee 37140

JOHN KNOX WALKUP
Attorney General and Reporter
JOHN R. MILES
Counsel for the State
Cordell Hull Bldg., Second Floor
425 5th Avenue North
Nashville, Tennessee 37243-0488
      ATTORNEY FOR THE TENNESSEE DEPARTMENT OF
      CORRECTION AND THE TENNESSEE BOARD OF PAROLES




                       AFFIRMED AND REMANDED




                                              SAMUEL L. LEWIS, JUDGE
                                       OPINION

      This is an appeal by petitioner/appellant, Winslow Watson, from a decision of
the chancery court dismissing his petition for a declaratory judgment pursuant to the
Declaratory Judgment Act, Tennessee Code Annotated section 29-14-101 to -113.
The facts out of which this matter arose are as follows.


      Petitioner filed an action in the United States District Court, Middle District
of Tennessee, alleging a violation of his due process and Eighth Amendment rights.
Petitioner alleged Jeff Morris, Jody Benjamin, Charles Self, and Richard Anderson
violated his rights during a 16 November 1992 disciplinary proceeding. A jury heard
the case and awarded Petitioner compensatory and punitive damages on 4 April 1996.


      Petitioner then filed a petition for declaratory order pursuant to the Declaratory
Judgment Act on 22 May 1996. He named the Tennessee Department of Correction
(“TDC”), Tennessee Board of Paroles (“TBP”), the Correction Corporation of
America (“CCA”), and Jody Benjamin1 as respondents. Petitioner alleged the
punishment rendered during the disciplinary proceeding had adversely affected his
parole date. He then requested the following relief:
      1.     That the Parole Board be ordered to release Petitioner on parole
             immediately.
      2.     That Petitioner’s conviction be rendered void for the violation of
             his [Eighth and Fourteenth] Amendments [sic] rights.
      3.     That any record of the November 16, 1992 disciplinary
             conviction be removed from my prison record, and the record of
             the I.A.S. placement.
       4.    That T.C.A. 41-24-110, 41-24-109 as it relates to contractors for
             correctional services be declared unconstitutional.


       CCA responded by filing a motion to dismiss for failure to state a claim upon
which relief can be granted. CCA argued Petitioner did not allege “any actions or
inactions on behalf of [CCA] to which relief can be granted” and “[t]he Petition asked
for declaratory relief that is not within the discretion or control of [CCA].” TDC and
TBP filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 12.02
on 20 September 1996. They alleged “petitioner has not met the jurisdictional


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         The chancery court found there had not been a summons issued as to Jody Benjamin.
Therefore, the court dismissed the action against Jody Benjamin for failure to prosecute.

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requirement of Tenn. Code Ann. § 4-5-224 and [TBP] is exempt from the provisions
of the Uniform Administrative Procedures Act, and consequently, from the
declaratory judgment proceedings.” Petitioner filed a motion for summary judgment
and/or judgment on the pleadings on 27 September 1996. The court entered an order
on 18 November 1996.         It granted CCA’s motion to dismiss and overruled
Petitioner’s motion for summary judgment and/or judgment on the pleadings, but did
not address TDC and TBP’s motion.


      Petitioner filed a motion to amend on 19 December 1996. He requested the
court return six months of good time credit revoked as a result of the disciplinary
proceeding. Petitioner filed a second motion for summary judgment on 19 December
1996. The court granted Petitioner’s motion to amend, but noted that the order did not
affect the previous order granting CCA’s motion to dismiss.


      The court filed a memorandum and order on 30 January 1997. The court
granting TDC and TBP’s motion. Thereafter, Petitioner filed a timely notice of
appeal as to the 30 January order. There are three issues before this court. These are:
1) whether a party can bring an action pursuant to the Declaratory Judgment Act
against the State; 2) whether a party can bring a declaratory judgment action against
TBP; and 3) whether a party must comply with Tennessee Code Annotated section
4-5-225(b) before filing an action for a declaratory order.


      The most recent case to address the issue of whether a party can bring an action
pursuant to the Declaratory Judgment Act against the State is Spencer v. Cardwell,
937 S.W.2d 422 (Tenn. App. 1996). In Spencer, the Western Section of this court
affirmed a trial court’s order dismissing a complaint for lack of subject matter
jurisdiction. The plainitff in Spencer had brought an action pursuant to the
Declaratory Judgment Act against the Department of Mental Health and Mental
Retardation and its Commissioner. The appellate court began its analysis by
discussing sovereign immunity. The court held: “no suit against the State may be
sustained absent express authorization from the Legislature.” Spencer v. Cardwell,
937 S.W.2d 422, 423 (Tenn. App. 1996) (citing Coffman v. City of Pulaski, 220
Tenn. 642, 422 S.W.2d 429 (1967)). The court then continued by explaining that
Tennessee Code Annotated section 20-13-102(a) prohibits a court from entertaining
a suit “against the state, or against any officer of the state acting by authority of the

                                           3
state, with a view to reach the state, its treasury, funds, or property.” TENN. CODE
ANN. § 20-13-102(a) (1994). Next, the court held that the doctrine of sovereign
immunity and Tennessee Code Annotated section 20-13-102(a) apply to actions
brought pursuant to the Declaratory Judgment Act. Fianlly, the court held that the
limitation in Tennessee Code Annotated section 20-13-102(a) “bars not only suits
with a view to reach state funds, but also suits ‘with a view to reach the state’ itself.
Spencer, 937 S.W.2d at 424 (quoting Greenhill v. Carpenter, 718 S.W.2d 268, 272
(Tenn. App. 1986)); see also Hill v. Beeler, 199 Tenn. 325, 331-32, 286 S.W.2d 868,
870-71 (Tenn. 1956) (recognizing the general lack of legislative authority within the
Decalaratory Judgment Act to bring an action against the State). But see Campbell
v. Sundquist, 926 S.W.2d 250, 256-57 (Tenn. App. 1996) (holding that a party may
bring an action under the Declaratory Judgment Act to challenge the constitutionality
of a state statute and distinquishing Hill v. Beeleer).


      It is the opinion of this court that the court’s analysis in Spencer applies to
Petitioner’s case as well. There is no evidence the General Assembly affirmatively
authorized suits against the State when it enacted the Declaratory Judgment Act. See
Hill, 286 S.W.2d at 871. Therefore, it follows that the chancery court lacked subject
matter jurisdiction.


      Having found that Petitioner can not proceed under the Declaratory Judgment
Act, we now determine whether he can proceed under the Uniform Administrative
Procedures Act (“UAPA”), Tennessee Code Annotated section 4-5-101 through -325.
This leads us to the second and third issues. The UAPA explicitly provides that TBP
is not subject to the declartory order and judgment sections of the UAPA. TENN.
CODE ANN. § 4-5-106(c). Thus, Peititoner can not bring a declaratory judgment
action against TBP under either the UAPA or the Declaratory Judgment Act.
Therefore, the chancery court lacked subject matter jurisdiction as to TBP.


      This leaves us with the issue of whether Petitioner could rely on the UAPA to
support his claim against TDC. A petitioner must comply with Tennessee Code
Annotated section 4-5-225(b) before filing an action for a declaratory judgment. That
section provides: “A declaratory judgment shall not be rendered concerning the
validity or applicability of a statute, rule or order unless the complainant has
petitioned the agency for a declaratory order and the agency has refused to issue a
                                           4
declaratory order.” TENN. CODE ANN. § 4-5-225(b) (Supp. 1997). The plain language
of this subsection requires a petitioner to request a declaratory order from the agency
prior to filing a petition for declaratory judgment. There is no evidence Petitioner
ever filed a petition for declaratory order. Therefore, the chancery court lacked
subject matter jurisdiction as to TDC.


      Therefore, it follows that the decision of the chancery court is affirmed and the
case is remanded to the chancery court for any furhter necessary proceedings. Costs
on appeal are taxed against petitioner/appellant, Winslow Watson.




                                              ____________________________
                                              SAMUEL L. LEWIS, JUDGE


CONCUR:


____________________________
BEN H. CANTRELL, JUDGE



____________________________
WILLIAM C. KOCH, JR. JUDGE




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