# FILED September 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk WALTER K. JOHNSON, ) Davidson Chancery ) No. 96-3153-III Plaintiff/Appellant, ) ) VS. ) ) TENNESSE E DEPARTMEN T OF ) CORRECTIONS, ) Appeal No. ) 01A01-9710-CH-00586 Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM

THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE ELLEN HOBBS LYLE, C HANCELLOR
Walter K. Johnson, #94955 R.M.S.I., Unit 6, A-123 7475 Cockrill Bend Road Nashville, Tennessee 37209-1010 PRO SE/ PLAINTIFF/APPEL LANT John R. Miles, #13346 Counsel for the Sta

te Civil Rights & Claims Division Cordell Hull Bldg., Second Floor 425 Fifth Avenue

North Nashville, Tennessee 37243-0488 ATTORNEY FOR DEFENDANT/APPELLEE, AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: WILLIA M C. KOCH, JR., JUDGE CONCURS IN SEPARATE OPINION: BEN H. CANTRELL, JUDGE-2-

WALTER K. JOHNSON, ) Davidson Chancery ) No. 96-3153-III Plaintiff/Appellant, ) ) VS. ) ) TENNESSE E DEPARTMEN T OF ) CORRECTIONS, ) Appeal No. ) 01A01-9710-CH-00586 Defendant/Appellee. )



## O P I N I O N The captioned petitioner, a prisoner in the custody of the Tennessee Depar tmen t of correction, has appealed fr om the judgment of

the Trial Court dism

is sing his “Petition for a Declaratory

Judgment”, which is, in reality an action seeking review of an a dministrative decision of the Department regarding sen tence credit

s. The grounds of the dismissal were twofold:
1. Application for judicial review was not filed within 60 days after final action of the administrative agency as required by T.C.A. § 4-5-322(b)(1), and
2. Failureto state a claim for which relief can be granted because the “sentence credits” sought by pe

titioner are not ma

tt ers of right but of discretion by the administrative authorities. T.C.A. § 41-21-236(a)(2) and (3).
The petition was filed in the Trial Court on October 7, 1996. It does not spe cify the da

te on which the Department made a declaratory ruling or refused to do so.
The petition exhibits two letters from the department which arerelevant to the timeliness of the petition to the Trial Court. T he first is dated A

pril3, 1996, denying a declaratory order. The second, dated Au

gust 5, 1996, resp

onds toa second request for declaratory order by referring to the April 3, 1996 letter.-3- It is clear that more than 60 days elapsed fr om April 3, 1996 to October 7, 1996.
The Trial Court has no jurisdiction to consider any application for re lief from an administrative decision unless the application for r

elief is filed with

the Tria l Court wit

hin 60 days after the date of the administrative action from which relief is soug ht. T.C.A. § 4-5-322.

In the absence of

a motion for re-consideration, the administrative agency has no power to extend the time for application for judicial review by reiterating its former ac tion.
Absent jurisdiction of the Trial Court, to address the merits of the application, this Court has no j uri sdi cti on t o rev iew the rul ings of t he T ria l Co urt upo n th e me rit s ofthe con tro vers y.
The judgmen t of the Trial Court is affirmed. Costs of this appeal are taxed to th e appellant. The Trial Court deferred the payment of Trial Courts costs and tax until disposition of the appeal. The cause is remanded to the Trial Court f or entry an

d enforcement of

its judgment against t he petitio ner for tr ial court costs and litigatio n tax.


### AFFIRMED AND REMAND ED
.

__________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION CONCUR:

____________________________ WILLIA M C. KOCH, JR., JUDGE
CONCURS IN SEPARATE OPINION: BEN H. CANTRELL, JUDGE-4-