                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                          Assigned on Briefs February 22, 2002

   THOMAS DYER v. TENNESSEE DEPARTMENT OF CORRECTION

                    Appeal from the Chancery Court for Davidson County
                     No. 01-885-I    Irvin H. Kilcrease, Jr., Chancellor



                  No. M2001-01446-COA-R3-CV - Filed September 5, 2002


The release eligibility date of a prisoner was extended by 30% after he assaulted a correctional
employee. The prisoner petitioned for judicial review of the extension, arguing that it amounted to
an unconstitutional violation of the ex post facto prohibition, double jeopardy, and separation of
powers. The trial court dismissed his petition. We affirm.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN , J.,
joined. WILLIAM C. KOCH , JR., J., filed a concurring opinion.

Thomas Dyer, Mountain City, Tennessee, Pro Se.

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

                                            OPINION

                                I. A DISCIPLINARY INFRACTION

        Thomas Dyer was convicted of burglary and grand larceny in 1985, smuggling of contraband
in 1986, and felony escape in 1990. He received separate sentences of imprisonment for each
offense. On May 17, 1993, he came before the prison disciplinary board for assault on a staff
member, and was convicted of the violation. As a consequence, the Release Eligibility Date (RED)
on all his offenses was extended 30%.

         On March 21, 2001, Mr. Dyer filed a petition in the Chancery Court of Davidson County,
which he styled as a Petition for Judicial Review/Declaratory Judgment/Petition for Common Law
Writ of Certiorari. He contended that the Department of Correction had exceeded its jurisdiction and
acted illegally by extending the RED for his 1985 and 1986 offenses. He alleged that the policy that
allowed the Department to extend the time he had to serve before becoming eligible for release was
enacted in 1989, and that it therefore was a violation of the ex post facto prohibition to apply it to
offenses committed before that date.

        The Department filed a motion to dismiss on April 17, 2001, for failure to state a claim for
which relief can be granted. See Tenn. R. Civ. P. 12.02(6). Mr. Dyer’s response to the motion added
allegations that the extension of his RED also violated his rights against double jeopardy, and that
Tenn. Code Ann. § 40-35-501 and Tennessee Department of Correction Policy #502.02 (which
authorize extensions to an inmate’s RED) violate the separation of powers doctrine. See Tennessee
Constitution Art. 2, § 2.

        On May 24, 2000, the trial court dismissed the petition in its entirety. The chancellor found
that the petition was not timely filed, and that in any case the Department had acted pursuant to its
authority to defer an inmate’s RED for violation of any of the rules of the Department of Correction.
See Tenn. Code Ann. § 40-35-501(k). This appeal followed.

                                II. TIMELINESS AND JURISDICTION

        As the chancellor correctly observed, Tenn. Code Ann. § 27-9-102 requires that a petition
for writ of certiorari be filed no later than sixty days from the date of the administrative action of
which the petitioner complains. Failure to file within the statutory time limit results in the decision
becoming final, which deprives the court of jurisdiction. See Fairhaven Corporation v. Tennessee
Health Facilities Commission, 566 S.W.2d 885 (Tenn. Ct. App. 1976). The action that was
challenged in this case occurred on May 17, 1993. The petition for certiorari was not filed until
almost seven years later. It was clearly untimely.

        We note also that two types of declaratory judgment actions have been recognized by our
Legislature. The Declaratory Judgment Act, Tenn. Code Ann. § 29-14-102, has been held not to
apply to suits against state entities such as the Tennessee Department of Correction. See Watson v.
Tennessee Dept. Of Correction, 970 S.W.2d 494 (Tenn. Ct. App. 1998). A party may petition the
court for a declaratory judgment against a state agency under the Uniform Administrative Procedures
Act, Tenn. Code Ann. § 4-5-101, et seq., but only if the complainant has first petitioned the agency
for a declaratory order, and the agency has refused to issue such an order. See Tenn. Code Ann. §
4-5-225. There is nothing in the record to indicate that Mr. Dyer petitioned the Department of
Correction for a declaratory order. Thus, whether we consider his petition to be one for a writ of
certiorari or for a declaratory judgment, it is clear that he is not entitled to relief.

                                III. CONSTITUTIONAL QUESTIONS

        Mr. Dyer argues that a constitutional question can be raised at any time. That is not quite
correct. It would be more accurate to say that normal procedural rules may sometimes be relaxed
when a complaining party demonstrates that a challenged statute or rule is facially unconstitutional.
See Caldwell v. State, 917 S.W.2d 662 (Tenn. 1996); Richardson v. Tenn. Board of Dentistry, 913


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S.W.2d 446 (Tenn. 1995). Even though neither Tenn. Code Ann. § 40-35-501 nor Tennessee
Department of Correction Policy #502.02 appear to be facially unconstitutional, we will briefly
address the constitutional issues raised by the petitioner.1

                                        A. EX POST FACTO CONCERNS

         Mr. Dyer contends that he is entitled to serve each of his sentences in accordance with the
laws in effect at the time of sentencing, and that because of the constitutional prohibition against ex
post facto laws, his 1985 and 1986 sentences could not be altered by a Department of Correction
regulation that was enacted in 1989. It is beyond dispute that a law that inflicts a greater punishment
than the law attached to the crime when it was committed would be an ex post facto violation. See
State v. Wyrick, 62 S.W.3d 751 (Tenn. Crim. App. 2001); Wheeler v. Tennessee Dept. of Correction,
36 S.W.3d 824 (Tenn. Ct. App. 2000); State v. Rogers 992 S.W.2d 393 (Tenn. 1999); Kaylor v.
Bradley, 912 S.W.2d 728 (Tenn. Ct. App. 1995).

        We note, however, that as part of the Criminal Sentencing Reform Act of 1982, the
Tennessee Legislature provided that a prisoner’s release eligibility date may be deferred at the
discretion of the Commissioner, for a violation of any of the rules of the Department of Correction,
with two limitations: The extension must not exceed the full sentence originally imposed by the
court, and it must be imposed pursuant to regulations which give notice of the length of discretionary
increases that may be imposed for a violation of each of the rules of the Department. See Tenn. Code
Ann. § 40-35-501(k).

        The ex post facto prohibition is based on considerations of basic fairness. It was established
to ensure that individuals receive fair notice that certain behavior is unlawful, as well as the
consequences of engaging in such behavior. Tenn. Code Ann. § 40-35-501 was enacted three years
before Mr. Dyer’s first offense. Thus, he should have been aware that his RED could be extended,
depending on his conduct in prison. He acknowledges that Rule 502.02 was first promulgated in
1989, four years before his 1993 assault, and he does not dispute that it authorizes the Department
to extend an inmate’s RED up to 30% of his maximum sentence for the violation of certain rules.
There is clearly no ex post facto violation here.

                                             B. DOUBLE JEOPARDY

        Mr. Dyer argues that Tenn. Code Ann. § 40-35-501 authorizes multiple punishments for the
same offense, and that this constitutes double jeopardy. He notes that escape and assault may be
prosecuted in the criminal courts, and be the subject of disciplinary proceedings as well. The
petitioner appears to lack standing to raise this issue, since his prior conviction for escape is not at



         1
          W e note tha t this court has previously upheld bo th Te nn. Co de A nn. § 40-35-501 and Tennessee De partment
of Correction Po licy #502.0 2 aga inst constitutional challenge. See Sm ith v. Cam pbell, 995 S.W.2d 116 (Tenn. Ct. App.
199 9); Ogburn v. Tennessee Dept. of Correction, 983 S.W .2d 677 (T enn. Ct. App. 1998).

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issue in this case, and he does not allege that attempts were made to prosecute him criminally for his
1993 assault.

        In any event, this issue has been litigated many times, and our courts have always reached
the same conclusion. Disciplinary proceedings that do not lengthen the sentence a prisoner was
serving at the time he breached the prison’s rules are essentially administrative in nature. They are
not in conflict with proceedings in the criminal courts which can result in a new conviction and new
sentence for the defendant, even when the same conduct is the subject of both proceedings. See
Ogburn v. Tennessee Dept. of Correction, 983 S.W.2d 677 (Tenn. Ct. App. 1998); Ray v. State, 577
S.W.2d 681 (Tenn. Crim. App. 1978); State ex rel. Turner v. Gore, 175 S.W.2d 317 (Tenn. 1943).

                                   C. SEPARATION OF POWERS

       Mr. Dyer’s separation of powers argument is based entirely upon a case from the Ohio
Supreme Court, State ex rel Bary v. Russell, 729 N.E.2d 359 (Ohio 2000). In that case, the court
found that an Ohio statute would allow that state’s parole board to extend the length of an inmate’s
incarceration beyond the original judicially-imposed sentence. The court found this to be an
encroachment upon the judicial power by the executive, and thus a violation of the separation of
powers mandated by the Ohio constitution.

        Even if we put aside the fact that in this case we are not dealing with Ohio statutes or the
Ohio constitution, we find Mr. Dyer’s situation to be quite different. The disciplinary board
extended the amount of time he had to remain incarcerated within his original sentence before
becoming eligible for release. It did not extend the length of his sentence, but changed one of the
conditions under which it was to be served. The change was within both the parameters of a statute
in effect at the time of his conviction, and the executive power to regulate discipline within the
state’s prisons. The separation of powers argument is without merit.

                                                 IV.

       The order 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, Thomas Dyer.




                                               _________________________________________
                                               BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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