            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE

FREDERICK WAYNE CAVITT

      Petitioner/Appellant,
                                     )
                                     )
                                     )
                                                      FILED
                                     )   Appeal No.    April 23, 1999
                                     )   01-A-01-9712-CH-00713
VS.                                  )               Cecil Crowson, Jr.
                                                    Appellate Court Clerk
                                     )   Davidson Chancery
                                     )   No. 97-2994-III
TENNESSEE DEPARTMENT OF              )
CORRECTION,                          )
                                     )
      Respondent/Appellee.           )

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

         THE HONORABLE ELLEN HOBBS LYLE PRESIDING


FREDERICK WAYNE CAVITT
#108657
N.W.C.C. 3/B/202
Route 1, Box 660
Tiptonville, TN 38079

PRO SE/PETITIONER/APPELLANT

JOHN KNOX WALKUP
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

PATRICIA C. KUSSMANN, BPR 15506
Assistant Attorney General
Civil Rights and Claims Division
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243-0488

ATTORNEYS FOR RESPONDENT/APPELLEE

                     AFFIRMED AND REMANDED

                                PATRICIA J. COTTRELL, JUDGE
CONCUR:
KOCH, J.
CAIN, J.
                                 OPINION

      In this appeal, a state prisoner challenges the extension of his parole

eligibility date by the Department of Correction which resulted from a

disciplinary proceeding for infraction of department policies. Mr. Cavitt, the

Appellant, contends the 1991 extension increased his 1985 sentence ex post

facto. The trial court dismissed Mr. Cavitt’s complaint for declaratory judgment

for failure to state a claim upon which relief could be granted. We affirm.

                                        I.

      In 1985, Mr. Cavitt plead guilty to second degree murder and was

sentenced to 35 years imprisonment for an offense committed March 23, 1985.

He was to become eligible to be considered for parole after serving 30% of that

sentence. At the time of his offense and his sentencing, Tenn. Code Ann. § 40-

28-301 [enacted 1979, repealed by 1985 Tenn. Pub. Acts (1st E.S.), ch 5 § 7] was

in effect.1 That statute provided:

             (h)(1) The release classification eligibility date
             provided for in this section shall be the earliest date a
             person convicted of a Class X felony shall be eligible
             for release classification status, such date being
             conditioned on the prisoner’s good behavior while in
             prison. For a violation of any of the rules of the
             department of correction or the institution in which the
             person is incarcerated the commissioner of correction
             or his designees, may defer the release classification
             eligibility date so as to increase the total amount of
             time a person must serve before becoming eligible for

      1
         The statutory provisions regarding parole eligibility dates and their
modification are now found at Tenn. Code Ann. § 40-35-501(k) (1998 Supp.)
which has remained in effect since its passage as part of the Criminal Sentencing
Reform Act of 1982. Both Appellant and the Department relied upon Tenn.
Code Ann. § 40-30-501(k) as codified in 1985. That provision deals with
persons convicted of felonies, but the more specific Class X felon provision in
Tenn. Code Ann. § 40-28-301 should be applied in analyzing Mr. Cavitt’s
situation. The two statutes do not differ substantively in any way relevant to the
issues raised in this appeal.
                                        2
             release classification status. This increase may, in the
             discretion of the commissioner, be in any amount of
             time not to exceed the full sentence originally imposed
             by the court and shall be imposed pursuant to
             regulations promulgated by the commissioner of
             correction. [Acts 1979, ch. 318 § 20].

      In 1985, the Department’s written policy outlining punishments which a

disciplinary committee was authorized to impose for violation of Department

policies did not include any extension of a prisoner’s parole eligibility date other

than through loss of sentence reduction credits.

      Appellant states that on February 15, 1989, new Disciplinary Punishment

Guidelines were enacted. In relevant part, Policy 502.02 of these 1989 policies

provided:

             “In all cases in which an inmate is found guilty of a
             disciplinary offense that resulted in physical injury to
             an employee, volunteer or visitor, in addition to any
             other punishment imposed, the offender’s parole or
             release eligibility date shall be extended by adding
             thereto an additional thirty (30) percent (%) of the
             offender’s original maximum sentence, or by
             extending the inmate’s parole or release eligibility
             date to the sentence expiration date, whichever is less.

      On May 16, 1991, in an administrative proceeding before the disciplinary

committee, Mr. Cavitt was found guilty of assault which resulted in injury to a

correctional officer. In reliance on TDOC Policy 502.02, quoted above, the

disciplinary committee recommended that Mr. Cavitt be required to serve 60%

of his 35-year sentence, rather than the 30% previously required, before

becoming eligible for release on parole. That recommendation was approved by

the commissioner of correction on May 21, 1991.

      Mr. Cavitt argues that by extending his parole eligibility date, the

Department imposed a greater or more severe punishment in 1991 than was

prescribed by law at the time of his original offense, conviction, and sentence in

1985. This action, he asserts, violates the ex post facto clause of Article I,

                                         3
Section 10 of the U.S. Constitution and Article I, Section 11 of the Tennessee

Constitution. Specifically, Mr. Cavitt argues that the 1989 Department policy

authorizing extension of parole eligibility for specified disciplinary offenses was

not in effect at the time of his offense, conviction and sentencing and, therefore,

cannot be applied to him to alter his punishment to his disadvantage.

      Mr. Cavitt filed a petition for declaratory judgment in the Chancery Court

for Davidson County pursuant to the Administrative Procedures Act, having

requested a declaratory order from the Department of Correction and having

been denied relief by the Department. See Tenn. Code Ann. § 4-5-224 (1998).

The Department filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6),

which the trial court granted. The trial court held that the policy authorizing

extension of parole eligibility is not an ex post facto law since it does not

increase the quantum of punishment. The court further held that the extension

of Mr. Cavitt’s parole eligibility date was the result of his violation of

Department policies, after notice that such extension was a potential punishment

for such violation, and not an enhancement of the punishment for his underlying

conviction.

                                        II.

      The United States Constitution, Article I, Section 10 forbids the states

from passing any ex post facto laws. The Constitution of Tennessee, Article I,

Section 11 contains a similar prohibition. Mr. Cavitt has brought claims under

both. The interpretations by the United States Supreme Court of the federal

constitutional provision and those of the Tennessee Supreme Court of the state

constitutional provision are complementary and consistent. Kaylor v. Bradley,

912 S.W.2d 728, 731 (Tenn. App. 1995).

      The ex post facto prohibition is “aimed at laws that `retroactively alter the


                                        4
definition of crimes or increase the punishment for criminal acts.’” California

Department of Corrections v. Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 1601,

131 L.Ed.2d 588 (1995). An ex post facto law “changes the punishment, and

inflicts a greater punishment than the law annexed to the crime when

committed.” Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17

(1981). The critical question in an ex post facto claim such as Mr. Cavitt’s is

“whether the law changes the punishment to the defendant’s disadvantage, or

inflicts a greater punishment than the law allowed when the offense occurred.”

State v. Pearson, 858 S.W.2d 879, 883 (Tenn. 1993).

      Under both state and federal constitutions and cases interpreting them, two

factors must be present to establish a violation of the ex post facto prohibition:

(1) the law must apply retrospectively to events occurring before its enactment,

and (2) it must disadvantage the offender affected by it. State v. Ricci, 914

S.W.2d 475, 480 (Tenn. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 732 (Tenn.

App. 1995); State v. Pearson 858 S.W.2d 879, 882 (Tenn. 1993) (quoting Miller

v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987).

                                       III.

      Actions which extend parole eligibility can implicate the ex post facto

clause. “The State cannot, and indeed does not, argue that retroactive alterations

of the criteria for parole eligibility cannot implicate ex post facto concerns.

Eligibility for parole consideration is part of the law annexed to the crime when

committed.” Kaylor v. Bradley, 912 S.W.2d at 732, citing Weaver v. Graham,

450 U.S. at 32-33, 101 S.Ct. at 966 (other citations omitted.). As the U.S.

Supreme Court recently stated:

             As we recognized in Weaver, retroactive alteration of
             parole or early release provisions, like the retroactive
             application of provisions that govern initial
             sentencing, implicates the Ex Post Facto Clause

                                        5
             because such credits are “one determinant of
             petitioner’s prison term ... and ... [the petitioner’s]
             effective sentence is altered once this determinant is
             changed.” Ibid. We explained in Weaver that the
             removal of such provisions can constitute an increase
             in punishment, because a “prisoner’s eligibility for
             reduced imprisonment is a significant factor entering
             into both the defendant’s decision to plea bargain and
             the judge’s calculation of the sentence to be imposed.”

Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997).

      In the instant case, the analysis of any ex post facto implication of Mr.

Cavitt’s claims must begin with Tenn. Code Ann. § 40-28-301(h)(1), quoted

above, which was part of “the law annexed to the crime” which Mr. Cavitt

committed in 1985.2 By its plain words, that statute put offenders on notice that

their release classification or parole consideration eligibility date was

“conditioned on the prisoner’s good behavior while in prison” and that the

commissioner of correction could defer an inmate’s release eligibility date for

a violation of department rules “so as to increase the total amount of time a

person must serve before becoming eligible for release classification status.”

Tenn. Code Ann. § 40-28-301.

      Thus, at the time of Mr. Cavitt’s offense, the law clearly allowed deferral

of parole eligibility on the basis of an inmate’s conduct while incarcerated. The

Department’s adoption of Policy 502.02 did not retroactively increase the

punishment for offenses committed after the adoption of Tenn. Code Ann. § 40-

28-301 in 1979. From the moment he was sentenced in 1985, Mr. Cavitt’s

release eligibility was contingent upon his good behavior in prison.




      2
         Tenn Code Ann. § 40-35-501(k), applying to all felons, was also in
effect at the time Appellant committed his offense and was codified then as
Tenn. Code Ann. § 40-35-501(h).
                                       6
                                        IV.

         The principle on which ex post facto prohibitions are based is one of

fairness. Individuals have a right to fair warning of the conduct which will give

rise to criminal penalties. Marks v. United States, 430 U.S. 188, 87 S.Ct. 990,

51 L.Ed.2d 260 (1977). This includes the right to fair warning of the nature and

severity of the possible penalties involved. As the U.S. Supreme Court has

noted:

               Critical to relief under the Ex Post Facto Clause is not
               an individual’s right to less punishment, but the lack
               of fair notice and governmental restraint when the
               legislature increases punishment beyond what was
               prescribed when the crime was consummated.

Weaver v. Graham, 450 U.S. at 30-31, 101 S.Ct. At 965, 67 L.Ed.2d 17.

         Mr. Cavitt’s parole eligibility date was deferred because he was found to

have assaulted a correctional officer, causing him injuries. Thus, the extension

of his parole eligibility date was not the result of a legislative or administrative

enactment which increased his punishment for his original 1985 criminal

offense. Rather, it was the result of his 1991 conduct while incarcerated. At the

time he committed his assault, TDOC Policy 502.02 had been in effect for two

years. Mr. Cavitt clearly had fair warning of the consequences of an assault

before he committed the assault.

         In Reinholtz v. Bradley, 945 S.W.2d 727 (Tenn. App. 1996), an inmate

challenged the extension of his release eligibility date based upon another

provision of Policy 502.02 which authorized such extension when an inmate is

found guilty of the disciplinary offense of escape. This Court upheld the

extension of his release eligibility date against an ex post facto challenge. This

opinion is consistent with Reinholtz.

         We hold that the extension of Appellant’s parole eligibility date on the


                                          7
basis of his 1991 injurious assault on a correctional officer as authorized by

policy 502.02 did not violate the ex post facto prohibition of federal and state

constitutions because: 1) T.C.A. § 40-28-301(h)(1) was part of the law annexed

to the crime he committed in 1985 and clearly notified offenders that their parole

eligibility could be negatively impacted by their conduct while incarcerated; 2)

Policy 502.02 was effective prior to the assault, thereby giving Appellant fair

warning of the potential consequences of his actions; and 3) the extension was

the result of Appellant’s 1991 conduct and not the result of a retrospective

application of increased punishment to his 1985 criminal offense.

                                       V.

      The order of the trial court dismissing Appellant’s action is affirmed. This

matter is remanded to the Chancery Court of Davidson County for any further

proceedings consistent with this opinion. Costs of this appeal are taxed to

Appellant.



                                        _______________________________
                                        PATRICIA J. COTTRELL, JUDGE

CONCUR:



____________________________
WILLIAM C. KOCH, JUDGE



____________________________
WILLIAM B. CAIN, JUDGE




                                        8
