### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 9, 2001
BARTON HAWKINS v. TENNESSEE DE PARTMENT OF

CORRECTION Appeal from the Circuit Court for Davidson County No. 00C-3267 Walter C. Kurtz, Judge

No. M2001-00473-COA-R3-CV - Filed July 25, 2002

Petitioner, a state

inmat e, fil ed the under lying pro se petition for writ of certiorari to challenge the result of a prison disciplinary proceeding against him. The trial court dis missed the

suit sua sponte for improper venue. B ecause

the legislature

has loca lized venu e for actions brou ght by inmates to the county where

the prison facility is located, w e affirm the decision of the trial court, but remand for tran sfer to th

e approp riate tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed as Modified and Remanded

P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in whichB EN H. C ANT RELL , P.J., M.S., and W IL LI AM C. K OCH , J R ., J., joined. Barton Hawkins, Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney Gene ral and Repor

ter; Mich ael E. Moo

re, Solic itor Gene

ral; Steph anie R. Re ev er s, As so ci at e D ep ut y At to rn ey General, f or the appellee, Tennessee Depa rtment of Correction.
OPINION Appellant Barton Hawkins is an inmate who seeks revi ew of a ctions taken against him by the Disci plinary Boa

rd at West Tennessee State Penitentiary in Henning (“the Board”) . The disciplinary

actions at issue were imposed after the Board found that Mr. Hawkins had refused a drug
screen.
In his petition, Mr. Hawkins claims that because he was unable to produce a urine sample during a routine screening, he wa s c harged with “refusing a drug screen” in violation of TDOC Policy # 502.01(VI) (F)(2)and found guilty by t he Boar d. Mr. Ha

wkins alleges tha

t h e has “ shy bladder syndrome” whic

h prevented him from

producing a urine sample in front of others and tha t1 TDOC Policies all ow for the use of such a “ dry ro om” unde r certa in circum stance s. TD OC Po licy #

506.21(V I)(B)(9).

2 W hile this acco unt is trou bling, we are aw are the De partm ent has n ot answ ered beca use th e petiti on was dismis sed before the Department responded. In any eve nt, the me rits of his claim have not been heard by the trialcourt and are no t befor e us in this ap pea l.
2 he should have either been given an alter nate test or access to a “dry room” to have the oppor

tunity to produce a sample. 1 Mr. Hawkins appealed the Board’sdecision to the warden and wrote several lette rs to the commissioner of the Tennessee Department of Correction (“the Department” or “TDOC”) seeking

relief f rom the dis ciplinar

y a ctions tak en aga inst him. His appeals were denied. After exhausting these administrative remedies, Mr. Hawkins filed a petition f or writ of certiorari in Davidson County , naming the Depa rtment of Correct ion as the responde nt.
In his petition, Mr. Hawkins also claims that after the Board found him guilty of refusi ng a drug screen, he has since

been subjected to monthly urine tests, during which he

has also b een una

ble to produce a

sample for testing. As a result, he allege s that he has been subjected to write-ups and disc iplinary hearings seven (7) times, with the punishment accumulating to 110 days of punitive segregation, loss of pr

ivilege s and, ironically , three m ore y ears of monthly testing which, he

asserts, he will be incapable o f perfor ming. He allege s he was not allowe d to have m edical p rofessionals testify at his hea

rings, t hat menta

l health p rofessionals trea

ting him r

efused t o su pply a writ ten statement because the appli cable TD OC policy made exce

ptions only

for medical reasons, and

that the Commissione

r’s office advis ed him to g et a writ ten state ment from

the menta

l health profess ionals. He

has atta ched doc uments ve

rify ing some of his cla ims. 2

In his petitio n, Mr. Ha

wkins alleged tha

t the Boa rd violated his due process rights by sentencing him to punitive segregation f or more than 100 days, imposing e xcessive fines, and suspending visitation and package privileg es for one year.
Before the Department responded to the petition, the trial court entered an order dismissing the action sua sponte

for im prope r venu e. Rel ying o n Tenn. Code Ann. § 41-21-803, the court determinedthat venue was not prop er inDavidson County, but that the action should have bee n brought in the county

in which West Tennessee State Penitentiary was located. Mr. Hawkins appealed, and both he and the Department assert the trial court’sdismissal was err oneous. T

he sole issue before us is whether the trial court was corr ect in dismissing the petition for improper venue.
I. Ve nue, Jurisd

iction, a nd Suits Ag ainst the S tate
Venue refer s to locali

ty, and in the legal sense it signifies the proper locality in whic

h a court of competent jurisdiction may adjudica te an actio n. It i s within the power of the legislature

to fix the venue of actions according to its judgment. Tennessee’s venue rules are largely

statutory and are intendedto provide the criter ia for determining where a law suit may or should be filed. Metropolitan Dev. &Hous. Agency v. Brown Stove W orks, Inc. , 637 S.W .2d 876, 88 0 (Tenn. Ct. App. 1982).3 In Five Star E xp. In c. v. D avis , the Tennes see Su preme Court s tat ed:

There are two types o f actions for pu rpo ses of ve nue. A transitor y action is one in which the i njury occurred to a sub ject no t having an immovable location; theref ore a transit ory action could have occurred anywh ere. T ypical e xam ples o f transitory a ctions a re actio ns sou nding in tort and contra ct. On the other hand, a l ocal action is an act ion in which t

he injury occurred to an immovable ob ject; t he classic example i s an action in volvi ng inj ury t o real pro perty. Local actions must be brought in t he county i n whi ch t he prope rty is loca ted.

Five Star E xp., In c. v. D avis , 866 S.W .2d 944, 945 at n.1 (Tenn. 1993) (citations omitted). 3 Venue is either local or transitory , depending on the subjec t matt er of the cause of action. State v. Graper , 155 Tenn. 565, 569, 4 S.W.2d 955, 956 (1927 ). A cau se of action that ma y a rise anywher e is transi tory, but one that could ar ise in only one place is loca l. Burger v. Parker , 154 Ten n. 279, 290 S.W. 22 (1927). 3 Otherwi se trans itory actions a re consi dered to

be local w hen a statute prescribes a particular county in which they must be broug ht. State ex rel. Huskey

v. Hatler , 606 S.W.2d 534 (Tenn. 1980). In fac t, venue statutes evince legislative purpose to localize transitory actions. White v. Garner, 192 Tenn. 429, 241 S.W.2d 518 (1951).
Even though venue is considered a personal privilege of the defendant that can be waived if notraised in a timely manne r, Metropolitan Dev. &Hous. Agency , 637 S.W.2d a t 880, wai ver is not availab le when a transitory action has been localized by sta tute. In that situation, venue has become part of the court’s au

thority to hear a particular acti on and is, t herefo re, juris dictional. C urtis v. Garrison , 211 Tenn. 339, 344, 364 S.W.2d 93 3, 935 (19 63); Terminix Int’l Co. v. Tapley , No. 02A01-9701-CH-00028, 1997 Tenn. App. LEXIS 546, at *13-*15 (Te nn. Ct. App. Aug. 4, 1997) (no Tenn. R. App. P. 11 application filed).
Jurisdiction in vo lv es a c ou rt ’s la wf ul au th or it y t o adjudic ate a controversy brought before it. Northland

Ins. Co. v. State , 33 S.W.3d 727, 729 (Te nn. 2000) . “The ju

risdictio n of a cou

rt in its broadsense is its power

to hear a nd deter mine cont roversi es, and in

a more r estricted sense isits power to adjudicate a particular case .” 21 C.J.S. Courts§ 9.
Jurisdiction is implica

ted in the case before us, not only

because of localized venue, but also because it is a lawsuit against a state entity . Art icle I, sec tion 17 of the Tennessee Constitution providesin pertine

nt part:
Suits may be brou gh t against the State in such manner and in such courts as the Legislature

may by l aw direct.
This provision embodie s the conc ept of sov ereign immunity , which me ans that a governmentalentity cannot be sued in its own courts without giving consent. Northland Ins. Co. , 33 S.W.3d at 729. Thus, as a sovereign, the State is immunefrom suit except as it consents to be sued. Brewington v. Brewington , 215 Tenn. 475, 387 S.W.2d 777 (1965). Legislat ion authorizing suits agains t the state

must be so p lain, cle ar, and u nmistakab le as to leave no doubt of theintention of the legislature that it should be done. Northland I ns. Co. , 33 S.W.3d at 729; Daley v . State , 8694

S.W.2d 338 (Ten

n. Ct. App. 1993); Sweeney v. St ate Dep ’t of Trans ., 744 S.W.2d 905 (Ten n. Ct. App. 1987). Only the legislature has constitutional authority to determine how, or eve n if, lawsuits ag ainst the State may be broug

ht. Lynn v. City of Jackson , 63 S.W.3d 332, 337 (Tenn. 2001). Even where authoriza tion for su

it against the sta

te exists, “suits may only

be brought in those courts and under those conditions specifiedby the legislature . . . .” Crowe v. Harton , 579 S.W.2d 888, 890 (Tenn. Ct. App. 1979). As the Constitution of Tennessee clearly states, the legislature may direct the
manner and the c ourts in wh

ich a law su it against the State may be broug ht. When it makes such direction, the requ

irementsare jur

isdictio nal. Sout hwest Williamson County Cmty. Ass’n v. Saltsman , 66 S.W.3d 872, 882 (Tenn. Ct. App. 2001).

II . Venue f

or Civil Actions by

State I nmates
The trial court based its dismissal of Mr. Hawkins’s claim on Tenn. Code Ann. § 41-21-803, which states, “Except as otherwise provided by law, an action that accrued while the plaintiff inmate
was house d i n a fa ci li ty operated by the department shall be brought in the county in which the facility is located.” I

n its final order di smissing t

he case , the tria

l court sta

ted, “Ve nue is not in Davidson County , but rather in the count y in which West Tennessee State Penitentiary is located.”
The statute relied upon by the tria l court was adopted in 1996 as part of a statutory scheme governingcivil litigation by state prison inmates. The set of statutes was intended to reduce frivolous claims filed by

inmates a nd clear ly c ounte nanced cla

ims arising from an inmate’s treatment during incarceration. See Tenn. Code Ann. §§ 41-21-801 to -818. This court has recently interpreted the venue statute, Tenn. Code Ann. § 41-21-803, in Howse v. Campbe ll , No. M1999-01580-COAR3-CV, 2001 Tenn. App. LEXIS 311, at *13 (Tenn. Ct. App. May 2, 2001) ( no Tenn. R. App. P. 11 application fi le d) , w he re in we he ld th at Te nn . C od e A nn . § 41 -2 1- 80 3 e ff ec ti ve ly l ocal

ize d transitory actions f iled by state pri soners.
Mr. Howse, a state prisoner, filed a civi l rights claim to challenge the conditions of confinement

and treatment

by T DO C e mp lo yee s a t a TD OC fa ci li ty i n La ke Co un ty. He filed the suit in Davidson County aga

inst the commissioner and various T DOC employ

ees. The defenda nts, state officials or employees, moved to dismiss, and the trial court granted the motion citing improper
venue as the basis. On appeal, this court agreed, stating that the conduct complained of occurred at the facility in L

ake County and that Te

nn. Code Ann. § 41- 21-803 “ require s inmates t

o file their suit s in the county wher

e their alleged cause of a

ction accrued.” Howse , 2001 Tenn. App. LEXIS 311, at *13-*14.
The holding and the reasoning of Howse are a ppli cable herein. The only difference in the action brought by Mr . Howse and the action brought

herein i s that the f

irst was pursuant t

o 42 U.S.C. § 1983, and

the claim herein was brought through the procedural vehicle of writ of cer tiorari. Mr. Hawkins’s peti tion and amended petition make it clear that his complaint is with the conduct of employeesat West Te

nnessee State Penitentiary , in particular the proceedings bef ore the Board and the warden’s actions denying his appeals. The alleged cause of action accrued in the county where4 In Davis v . Holl and , 31 S. W.3d 574 (T enn. Ct. App. 2000), thi s court di scus sed Tenn. Code Ann. § 41-21- 803. In Da vis , th e tri al court consider ed venue i n a 42 U.S.C. § 1983 law suit ag ains t nu merous Depart ment of Corr ecti on emplo yees. These st ate defen dants moved t o dis miss the act ion, whi ch was brough t i n Davids on County, on the ba sis that the i nmate was housed in a faci lit y in Lauderdale County, t he acti ons he complai ned of occurr ed whil e he was i n that facility, and, the ref

ore, Tenn. Code Ann. § 41-21- 803 r equired t he con clusion that Lau derd ale C ounty w as the o nly proper venue . The i nmate , Mr. Davi s, argu ed th at v enue w as pr oper i n Davids on County beca use all the defen dan ts resi ded there . The tri al court found that whi le the cause of acti on arose i n Laude rdale County, it would consider Mr. Davis’s assertions if he ame nded his comp laint to indicate the actual residence s of the defenda nts.

On appeal, t

his cour t, ev en though specif

ical ly s tati ng that

the ven ue iss ue need not be c onclusi vely addressed by us becaus e th e in mate h ad notrai sed that iss ue on appe al, obser ved:

However, there was a st rong implication i n the tri al court’s ruling t hat venue for this case would have been proper in Davidson Co unty if Mr. Davis had sup plied it wi th the resi dential addresses of t he indiv idual defen dan ts. W hile that ma y be co nsistent with the resu lt of Sweatt v. Conley , supra, we are not s ure t

hat case appli es he re, si nce i t di d not c onsi der the ef fect of Tenn. Code Ann. § 41-21- 803.

Da vis , 31 S .W .3d a t 577

. Sweatt v. Conley , No. 01- A-01- 9706-CH-00246, 1997 Tenn. App. LEXIS 862 (Tenn. Ct. App. Dec. 5, 19 97) , appeal af ter remand sub nom

. Swe att v. Tenn essee D ep’t of Co rr. , 2002 T enn. App. LEX IS 319 (T enn. Ct. App. May 2, 2002), inv olved an i nmate ’s acti on agai nst vari ous empl oyees of t he Depart

ment and a doctor, seeking declaratory and m and amu s relief and also alle ging a v iolation of civil rights. The various defendant s moved to dismiss
on the ba sis of, am ong o ther thing s, impro per v enue . This court determined that venue in Davids on County was improper because a claim for civi l right s violati on is a transi tory acti on and subject, therefore, to Tenn. Code A nn. § 20-4- 101. W e concluded t

hat becaus e ther e exis ted no st atut es specifical ly providing f or venue in § 1983 actions, the provisions of the gen eral tra nsi toryvenue st atut e appl ied. Id. 199 7 T enn. A pp. L EX IS 86 2, at *15 . Ho weve r, this cou rt noted in
a footnote the rece nt pass ag e of t he st atut e th at wa s t o be codi fi ed as Tenn . Code Ann . § 41- 21-803, whi ch was not app licable to Mr. S weat t’ s pet it ion because of the dat e of pass age. This c ourt descr ibed t

hat legi sla ti on as “ a provi sion requiring a plai nti ff inmate to fi le a clai m for an act ion whi ch accrued whi le the plai nti ff was an inm ate in the c ounty in which the facility is loc ated.” 5 the priso n was located, and under Howse , Tenn. Co de Ann. § 4 1-21-803 makes tha t county th e appropr iatevenue. We find no reason to adopt an interpretation of Tenn. Code Ann. § 41-21-803 different from that made in Howse

. 4

The specific

statutory exception

to venue in the county whe re the facility

is located is “except whereotherwise provided by law.” This language implies there mus t exi st anothe r statute specific ally

establishing venue elsewhere. Five Star Exp., Inc. , 866 S.W.2d at 946 (Tenn. 1993) (stating that “ unles s the v enue i s oth erwis e exp ressl y provide d for” l anguage in the general transitory
venu e statute clearly

authorizes the legislature to designate a diffe rent venue). Becau se venu e statutes often re

late tothe type of lawsuit involved, we look first to the proper venue for the ty pe of action brought herein.5 Mr. Hawkins sought relief un der bo th the common law and statutory writ of cert iorari to revi ew the actions taken by the p rison d isciplina ry bo ard a gainst him at West Tennessee State Peniten tiar y. This court ha s determi ned that the com mon law writ, as o ppo sed to the statuto ry writ, is the ap pro priate mec hanism in which to asse rt the claim

. Rhoden
v. State De p’t of C orr., 984 S.W .2d 9 55, 9 56 ( Te nn. Ct. A pp. 1 998 ); Bufo rd v. Tennessee Dep’t of Corr. , No. M1998- 000 157 -C OA- R3- CV, 1999 Tenn. App. LE XIS 755 , at * 12 (Tenn. Ct. App. Nov. 10, 1999) (no Tenn. R. App. P. 11 appli cati on fil ed); see also Perry v. Cold Creek Cor r. Facil it y Disc ipl inary Bd. , No. M1999-01898- COA-R3-CV, 2000 Tenn. App. LEX IS 519, at *9 (Tenn . Ct . App. Aug. 9, 2000) (no Tenn. R. App. P. 11 appl icat ion fil ed) (determining that the common law writ, as opposed to the statutory writ, is the appropriate mechanism).

6 Tenn. Code Ann. § 27-9-101 provi des the authori ty f or judici al rev iew of “anyfin al order or judgment of any board or co mm ission fun ctioning unde r the laws of this state

. . . i n t he ma nne r pr ovi ded by th is cha pte r. ” As this statute states, the procedu re t o be use d is set out i n Tenn. Code Ann. §§ 27-9- 101 through -114

. Fallin v. Knox Count y Bd. of Com m’rs , 656 S.W.2d 338, 341 (Tenn. 1983) ; Fa ir hav en C or

p. v. Te nne ss ee Hea lt

h Fac il it ie s C omm. , 566 S. W.2d 885, 886 (Tenn. Ct. App. 1976 ) (citi ng Fen tress County Beer Bd. v. Cravens , 209 Te nn. 67 9, 35 6 S.W .2d 2 60 ( 196 2); Hoover Motor Exp. Co. v. Railroad & Pu b. Util. Comm’n , 195 Te nn. 59 3, 2 61 S.W.2d 233 (1953)) (explaining that t he procedural framework for review under both the common law and statutory writs appears in Ch. 9 of T itle 27) ; see also Ben H. C antrell, Review of Administrat ive Decis ions by Writ of Cert iorariin Tennessee , 4 M EM

. S T

. U NI V

. L. R EV . 19, 19 (1977) ( sta ti ng that Chapte r 9 of Titl e 27 provi des the proc edural fr amework

forrevi ew unde r boththe common law and statutory writs of

certiorari but does not affect t he availabili ty of ei ther writ ).

7 The residence of Mr. Hawkins is not the pri son in w hich he is incar cerated f or purposes of

determi ning ve nue. In re Jos eph , No. M 1999-02 795-CO A-R3-CV , 2002 T enn. App. LEX IS 302, at *7-*8 (Tenn. Ct. App. Apr. 30, 2002 ), (no Tenn. R. App . P. 11 application fi led).
6 II I. Venue for Common L

aw Writ of Certiorari
We must consi der th e venu e stat ute ap plica ble to petit ions seeki ng j udic ial review of the decision of a board or commission through a common law writ of certiorar i action. 5 Tenn. Code Ann. § 27-9-102 ou tlines the procedural steps an agg rieved party

must take to seek review of an order or judgment of a board or c ommission. 6
Such [a ggrieved ] party shall, within sixty (60)days from the e ntry of the orde

r or judgmen t, file a petition for certiorari in the chancery court of any

county in which any one or more of the pet

ition ers, or a

ny one or mor

e of the material

defenda nts reside, or have their principal office, stating briefly the issues involved in the cause, the substa

nce of the o rder or judgment complained of, the respects in which the petitioner claims the order or judgment is erroneous, and pra ying for an accordant review.
Tenn

. Code Ann. § 27-9-102. The circuit court is given concur rent jurisdiction over such proceedings pursuant to Tenn. Code Ann. § 27-9-103. Thus, under the statute alone, venue would lie in either the county of res idence of the petitioner 7 or the county of r esidence of the material defendant or the county where

the principal office of the material defendant is located. Howeve

r, court s have limi

ted appr opriate venue because of the na ture of a petition f or writ of certior ari.7

The “gran t” of the writ is simply an order to the B oard to send up its record for review. Tenn. Code Ann. § 27-9-109. The purpose of granting the writ is to have the record of the Board or other lower tribunal filed so that

a reviewing court can dete rmine whether

the petitioner is entitled to relief. Puckett v. Broome , 53 Tenn. App. 663, 667, 385 S.W.2d 762, 764-65 (1964). “The writ of certiorari lies at common

law to re view and supervis e th e proceedings of inferior tribunals . . . .” Clark v. Metropolitan Gov’t of N

ashville a nd Davids on County , 827 S.W.2d 312, 316 (Tenn. Ct. App. 1991).

“ Certiorari at common law performed the function of aid to a revie w and supervision of the proceedings of inferior

boards and

tribunals by a superior tr ibunal,” and issuance of the writ is for the limited purpose of determining “whether there ha d beenan absenceor excess of jurisdiction, or
a failure to proceed according to the essential requirements of the law.” Puckett

, 53 Tenn. App. at 667, 385 S.W.2d at 764 (quoting Conners v. City of Kno xville , 136 Tenn. 428, 4 32, 18 9 S.W. 870, 871 (1916)).
Becau se the certiorari procedure is for the purpose of a limited review of a lower tribunal’s decision, venue is determined by the situs of the lower tribunal, boa rd or commission whose decision would be revie wed if the writ is granted, not by

the residence of the parties. DeltaLoan & Fin. Co. of Tenn. v. Long , 206 Tenn . 709, 713- 14, 336 S.W.2 d 5, 6-7 (1 960); McKee v. Board of Elections , 173 Tenn. 269, 272, 117 S.W.2d 752 (1938).
The revisory powe

r of a higher court is limited to the

correction of er

rors of tr ibunals located within the territorial jurisdiction of the appellate body. I t is the situs of the lower tribunal, and not the reside nce of the parties, that points out the proper appella te tribuna l.

McKee , 117 S.W.2d at 754.

In both McKee and Delta Loan & Finance , the cour t found tha

t only the statut ory writ of certiorari was applicabl e and t hat the procedures now appearing in Tenn. Code Ann. §§ 27-9-101 to -114 specifically

did not apply. Thus, neither ca se involved interpretation of Tenn. Code Ann. § 27-9-102. Nonetheless, the reasoning is still applicable and wasapplied t o that stat ute in Tennessee Real Estat

e Comm. v. Potts , 221 Tenn. 585, 428 S.W.2d 794 (1968).

In Potts , the court found that Tenn. Code Ann. § 27-9-102 (then§ 27-902) applied and that the situs of

the lower tribunal, therein the State Real Estate Commission, rather than theresidence of the petitioner, de t ermined venue. In a portion of the opinion, interpreted and applied by later decisions and also relied upon by the Department herein, the court held:

In our opinion, sec. 27-902 [now § 27-9-102 ], quoted su pra, mer ely fixes perm

issible
venue for review of

Boards and Commissions. It does not have the effect of giving the trial court of any

county where

in the party af

fected may

have residence subject matter jurisdiction over the review of a Board or Commission exclusively located elsewhere. That section mere ly s pecifie s the cour

ts where the writ might

be sought if other j urisdicti onal req

uiremen ts are me t.8 Dis cipline in p risons operated by pr ivat e contrac tors, rathe r than TDO C, is diff erent in one f

undamental respe ct. A disciplinary bo ard co mpo sed of em ployees of the p rivate contractor h as no autho rity to impose punishment for disc iplinary o ffenses; ac tual disc ipline is no t impo sed u ntil the T DO C rep resen tative ap pro ves the B oard ’s recommend ation. Ma nde la v. C am pbe ll , 978 S.W .2d 531, 533 (Tenn. 1998 ). Consequently, a writ of cert iorari to revi ew the deci sion to i mpose s anct ions shoul d be addressed, in those si tuations, “to the governmental agency [rather than t he non-gover nmental board] that is r esponsibl e for t

he acti ons of whi ch the pet iti oner complains .” Turn er v. C am pbe ll , 15 S.W.3d 46 6, 46 8 ( Te nn. Ct. App . 1999). This difference has been recognized in Seals v. Bowlen , 2001 Tenn. App. LEX IS 547, at * 12-*14, as sign ifi cant i n determi ning t he proper defendants, and in Brow n v. M ajors , No. W2001-00536- COA- R3- CV, 2001 Tenn. App. LEX IS 948, at *11 (Tenn. Ct. App. Dec. 19, 2001) (no Tenn. R. App. P. 11 appl icat ion fil ed), as sign ifi cant t o the venu e iss ue.

9 In Phill ips v. St

ate Bd. of Re gen ts , 771 S.W .2d 4 10 ( Te nn. 19 89) , a tenure d facu lty member sought judici al review of a de cis ion t o dis miss or suspend her . She f iled h er acti on in Shel by County, the s itu s of t he coll ege at wh ich she had been employed and bro ught it pursuant to Tenn. Code Ann. § 49 -8-304 which stated such acti ons may be brought “in a chancery court having jurisdicti on. ” Th e Stat e defendant s argued t hat t he sui t actuall y chal lenged a f inal determinat

ion of the B oard of Re gents, wh ose situs is in Da vidso n Co unty, not th e dec ision o f the colle ge or its presid ent. In con side rin g th e venu e ques ti on, t he court s tat ed:
Contrary to th e content ion of def

endants that

the re view i s of t

he fi nal act ion of

the Bo ard of R egents, the focus of the judic ial review in the cha ncery c ourt is upon the procedur e foll owed and the evi dence adduced at the administ rative heari ng, conducted at the i nsti tut ion in volved. Any wit nesses that

may testify in the cha ncery c ourt ar e likely to re side in the co unty whe re the institutio n is located. We think (con tinued ...) 8 Potts , 221 Tenn. at 591, 428 S.W.2d at 796-97.
The rule that venue is determined by the situ s of the lower tribunal is consistent with the
venue statu te’s l anguage regarding the materia l defendant’s principal office. McKee , DeltaLoan & Finance , and Pottsinvolved s uits aga inst commis sions or offic ials whose principal office was exclusively

locatedin Davidson County , and all involved a venue dispute betw een the c ounty of the pe ti ti on er ’s re si de nc e a nd Da vi ds on Co un ty.
The Department herein states that the Department ultimately oversees prison discipline and that the Department’s principaloffice is located in Davidson County, thereby

making that county

the only appropriate venue. However, this court has found that both the prison disciplinary boa rd and the warden of a prison were proper respondents or defendants in a common law writ of certi orari action seeking reviewof a prison disciplinary boa rd decision, and refused to adopt the Department’s argument that it was the only proper de fendant in such actions. Seals v. B owl en , M1999-00997- COA-R3-CV, 2001 Tenn. App. LEXIS 547, at *10-*14 (Tenn. Ct. App. July 26, 2001) (rehearing deniedAug. 27, 2001). This deci sion was b ased upo n the purp ose of a p etition fo r writ of certior ari, which is to seek review of a decision by a lower tribunal, that

can include a

board, commission, or officer. Subseque

ntly , reaff

ir ming the holding of Seals , we have found, “depending on the circumst ances, parties other than the Department may properly be

named as defendants.” Robinson v. Clement , 65 S.W.3d 632, 635-36 (Tenn. Ct. App. 2001). 8

Ac co rd in gl y, we are not convinced that an action seeking judicial review of

the decision of
a prison disciplina

ry board is a

n action a gainst t he Depa rtment. 9 To the contrary , in our opinion the9 (.. .cont inu ed) thatthe le gi sl atu re i nt ende d to prov ide for ven ue i n t he c ount

y wh ere th e un iv ers ity or commu nit y college is loca ted. In pr ovidi ng f or jurisdiction in “a chancery court having juris diction,” t

he legisl ature has obviously excluded, “t he chancery court ha ving j uris dicti on.” If , as defendant s conten d, the judici al revi ew of

allact ions of

Bo ard o f Rege nt institutions is excl usi velyin t he cha ncerycourt

of Davi dson County, “a chance ry court” was i nappropriat e.
Phill ips , 771 S. W.2d at 411.

In Phill ips , the Board of Regents relied on Tenn. Code A nn. § 16-11-114(1), not § 4-4- 104, and the c ourt pl aced importance on the de novo judici al rev iew ap pli cable to s uch ten ure-r elat ed cases, notin g that such procedur e all ows suppl ement ati on of ev idenc e in the admin ist rat ive recor d. W e are aware of the distinction between de novo review and the limited re view un der c erti or ari ; non ethe les s, additional evi dence, not r elated to t he mer it s of

the matt er, may be present ed in certio rari pr oce eding s on issue s not fou nd in the reco rd o r upo n issues re lating to w hether the writ sho uld be granted. In any event, the Court’ s reasoning in Phill ips to determine which of two venue stat

utes s hould apply provides guidance in the case before us.

10 Th is choice of respondent is understandable si nce the Department has regularl y fil ed motions to dismiss any other defen dan t/respo nde nt (or the entire law suit if the D epa rtmen t itself

was not named) arguing that t he Department is the on ly prop er resp ond ent in pe titions for w rit of certio rari to re view p rison d isciplina ry dec isions. See Sea ls , 2001 Tenn. App. LEXIS 547, at *8- *14. 9 material respondent is the board which conducted the hearing and rend ered the decision being challenged. Because the situs of that lower tribunal determinesvenue under the common law writ of certiorari venue statute, venue would lie in the county where the prison is located.
Our courts ha

ve addre ssed th e issue of proper venue for common law writ of ce rtiorari petitions brought

by inmates to challenge disciplinary actions. In two of these ca ses, both decided without consideration of Tenn. Code Ann. § 41-21-8 03, the co urts have consider ed the ar guments made by the Depa

rtment herein. In b oth Willia ms v. Tenn essee D ep’t of Cor r. , No. 02A01-9503- CV-00046, 199 5 Te nn. App . LEX IS 640, at *2 (Tenn. Ct. App. Oct. 2, 1995)(no Tenn . R. App. P. 11 application filed) and Cobb v. Vinson , No. 02A01-9707-CV-0014, 1998 Tenn. App. LEXI S 229, at *5 (Tenn . Ct. App. Apr. 1, 1998) (no Tenn. R. App. P. 11 application filed), state inmates filed pro se petitions for writ of certiorari against TDOC, the Boa rd, or individual board members in the Circuit Court of th

e county where th e facili ty in which they wer

e incarcerated was located to seek review of actions taken by prison disciplinary

boar ds. In both Williams and Cobb , the trial court dismissed the actions due to im proper v enue. On

appeal, however , this court reversed the decision of the trial court in each case. Cobb , 1998 Ten n. App. L EXIS 229, at *1 3; Willia

ms , 1 995 Tenn. App. LEXI S 640, at *12-*13.

In Williams , as in the case before us, the petitioner inmate named as the only respondent the TennesseeDepartment of Correction. 10 Relying on Potts and McKee , this cour t held in Williamsthat it is the situs of the lower tribunal whose decision would be reviewed if the wr it were granted that determines the proper venue. According ly, the court held:

In the case before us, petitioner seeks re view of actions taken by the prison disciplinary

board, the prison warden, and the commissioner of the D epartment of11 Th is langua ge obviousl y ref ers t o the statement i n Po tts , 221 Tenn. at 591, 428 S.W.2d at 796-97, quoted earli er, whi ch invol ved a Stat e board with only one princi pal off ice.

12 At least two memorandum opini ons by this cour t reachthe s ame conclus ion as Bishop , but were decide d on differi ng principles. Other cases have involved prisons operated by a private pri son contractor, and the ven ue deter minatio n was b ased upo n that distin ction. See, e .g. , Brown, 2001 Tenn. App. LEXIS 948, at *11. 10 Correction. Petitioner is not seeki ng review of a decision of a state board “exclusiv ely

located elsewhere.” 11 Thesitus of the disciplina

ry board inv olved her

ein is at WTHSF, in Lau derdale County . Furthe

rmore, p etitioner i s an inmate at the
sameinstitution. The warden and members of the disciplinary boar d, employees of the prison, have their principal off ice in La uderdale County , and likely h ave thei r residences thereas wel l. The incid ent fr om whi ch the charge agains t petitione r stems occurred in Lauderdale County

as did the disciplinary boar d’s hearing on the matter andthe warden’s affirmance of the Board’s decision. Only the commissioner of the De pa rt me nt of

Co rr ec ti on is lo ca te d i n D av id so n C ou nt y.
Williams , 1995 Tenn. App. LEXIS 640, at *10.
Si mi la rl y, in Cobb , this court rejected the argument of the r espondents, the warden

and the chair of the disciplinary boar

d at Lake County

Regional Correctional Facility and the commissioner of TDOC, that under Tenn. Code Ann. § 27-9-102, a petition for writ of certiorari to review a prison disciplinary

board decision can only

be filed in the county where TDOC’s principal office is located. This court adopted the reasoning and holding of Williams , noting that a pr ison discip linary

board is not“ex cl usively located else where” than the county

where the prison is located. Because the petitioner sought review of actions taken by the prison di sciplinary board, the prison warden, and the commissioner, bec ause the disciplina

ry board and warde

n have the

ir princi p al offic e in Lake Co un ty, because the incidents complained of took place while the petitioner was an inmate at the facility in Lake County , and because the Board’s hea ring and the warden’s affirmance took place in Lake County, this court held Lake County was not an imprope r venue. Cob b , 1 998 Tenn. App. LEXI S 229, at *11-*13.

In other ca ses involving ven ue for w rit of ce rtiorar i petitionsseekin g review of prison disciplinary

actions, the results havebeen contrary to thatreached in Williams and Cobb

. See, e.g. , Bishop v. Conley , 894 S. W.2d 29 4, 296 (Tenn. Crim. App. 1994) (stating that “because a ppellant
s eeks relief

agains t an age

ncy of state g overnme

nt, the wr it should ha

ve been filed in th

e county which is the official situs of the agency ’s head office”). 12
Alth ough we recognize the differing conclusions reached by

our courts on the issue of venue for a common l aw writ

of certiorari action

seeking review of a prison disciplinary board decision,
we are persuaded

the Willia ms and Cobb result is the more correct one. That is because the “material defenda nt” in a writ of certiorariaction is the Board, officer, or lower tribunal that made the decision which would

be reviewed, and the situs of the Board deter mines venue. Applying

those principles11

to prison disciplinary

boards leads to the necessary conclusion that venue is in the county whe re the prison is located. Therefore, we conclude that the statute governing venue of petitions for certiorarito review decisions of boards and commissions does not meet the “otherwise provided by l aw” exce

ption to Tenn. Code Ann. § 41-21-803 because it does not provide for venue other than in the county where the prison is located. IV. The Depar tment’s Position
The Department

asserts that Tenn. Code Ann. § 41-21-803 has no application to a petition for writ of certiorari seeking revie w of prison disciplinary actions bec ause (1) jurisdiction for actions agains tstate agencies lies exclusively in Davidson County pursuant to Tenn. Code Ann. § 4-4- 104; and(2) actions against state officials are local, not transitory , and can only be brought in the cou

nty of the situ s of the of

ficial. A s set out in i

ts brief, the gist

of the De partmen t’s arg ument is:

In Morris v. Snodgrass , 871 S.W.2d 484 (Tenn. Ct. App. 1993), the Court recognized that Tenn. Code Ann. § 20-4-101(a) pertaining to venue in transitory actions was not applica ble to suits ag ainst

state officials since such actions were not transitory . The Courtalso noted that because Tenn. Code Ann. § 4-4-101 was a sta tute of sp ecific nature which had been

interpreted by

the Supre

me Court a s placing

venue fo r suits agains tcertain

state officia ls inDavidson County, it prevailed over a statute of more general application. Id . at 484. Sim ilarly , while

Tenn. Code Ann. § 41-21-803 has the general effect of

localizing transitory actions brought by inmates, it does not alter the effect of Tenn. Code Ann. § 4-4-101, requiring that actions naming state agencies
or he ad s o f a ge nc ie s b e b ro ug ht in Da vi ds on Co un ty.
In addition, Tenn. Code Ann. § 41-21-803 makes the statute applicabl e only to the extentthat there are no preexisting provisions of law to the contrary . The localizing
e ffec tof Tenn. Code Ann. § 4-4-104 on suits ag ainst stat

e offic ials is cle arly “otherwise provided by law”andsuits naming state agencies are the refore excepted from the effect of Tenn. Code Ann. § 41-21-803 by the statute itself.

Morrisv. Snodgr

ass , 871 S.W.2d 484 (Tenn. Ct. App. 1993), was a declaratory judgment action seeking to have two statutes declared unc onstitutiona l and nam ing the Comptroller, the Attorney General, and the Commissioner of the Department of Correc tion as defenda

nts. This court held that venue for

the lawsu it was excl

usively Davidson

County because venue fo r lawsuit s again st state officia ls “such as these defendants” is established in Davidson County by virtue of Tenn. Code13 Ten n. Cod e Ann. § 4 -4-104 states:
(a) Eac h dep artme nt shall ma intain a centr al offi ce at t he capit ol, whi ch shal l be th e offi cial resi dence of eac h com mission er, or h ead of de partm ent. (b) The commissioner

of each department may, i n the commis sioner ’s di scret ion and wi th the approval of the governor, es tabli sh and main tain at pla ces othe r tha n th e sea t of gover nment , bra nch of fi ces f or any on e (1) o r mo re func tions o f the com mission er’s de partm ent.

14 We note that, unlike t he divisions of

the department in Ch am berla in , there are st atutes re lating to the establishment

and lo cation of the va rious sta te priso ns and facilities. See Tenn. Cod e Ann. §§ 41-1-101 , -201, -702. In addition, the warden is giv en charge a nd cus tody of the pri son, as well as responsi bili ty f or the cu stody, welf

are, conduc t (con tinued ...) 12 Ann. § 4-4-104 13 and by

court inte rpreta tions of tha

t statute “placing venue

for suits a

gainst c ertain state officials in Davidson County.” Id . at 485-87.
The Morriscourt

traced these principles to Delta Loan & Finance , supra , wherein a petition for review of a

decision of the Commissioner of the Department of I nsurance and Banking wa s filed in Shelby County . In determining that only Davidson County

had jurisdiction to hear the action, the Supreme Court in Delta Loan & Finance relied first upon older cases holdingthat “since the situs of a municipal corporationis local, it cannot be sued in another county in a transitory action . . . the court of such other county

has no jurisdiction of such a suit.” Delta Loan & Fin. , 336 S.W.2d at 7. Becau se Tenn. Code Ann. § 4-4-104 establishes the official residence of each

commissioner or head of department at the capitol, the co urt rea so ned that “the situs of such department and official residence is, therefore, local like that of a municipal corporation.” Id . at 6.
The Morriscourt quoted from Delta Loan & Finance , to the ef fect tha t: Though the statut

es make s ome exceptions not he re mater ial, th e ru le is that a commissioner

or head of

a depar tment of st

ate gov ernment

may be sued a s such only in the county of his official residence; and a number of cases ha ve held that such a
su it ma y no t b e m ai nt ai ne d a s a tr an si to ry a ct io n i n a no th er co un ty.
Morris , 871 S .W.2 d at 48 6 (quo ting Delta Loan & Fin. , 336 S.W.2d at 6).
The Morriscourt al so relied on and quoted the Te

nnessee Supreme C ourt’s decision in Chamberla in v. State

ex rel Br own , 215 Tenn. 565, 387 S.W.2d 816 (1965): T.C.A. § 23-2003 makes a writ of mandamus agains t a public officia l returna ble in the county where

the office is kept. The situ s and office of the Department of Insurance and Ban king is in Davidson

County . This would be true of each division th er eo f, th er e b ei ng no st at ut e t o t he co nt ra ry.
Morris , 871 S .W.2 d at 48 6 (quo ting Chamberla in , 215 Tenn. at 568, 387 S.W.2d at 817). 1414 (.. .cont inu ed) and safek eeping of

the pri soners t

herein . Tenn. Code Ann. §§ 41- 1-104 an d 41-21- 201. Thi s i nclu des the di scre ti on to award sentence redu ction c redits. T enn. C ode Ann. § 41-2 1-23 6. Re cord s of the affa irs of eac h priso n are to be kept at t he pri son, Tenn. Code Ann. § 41-1- 111.

15 W e note t

he auth or of the Wi ll ia ms opinion was also the aut hor of the opinion in Mo rris

.

16 Th is quot ati on i s f

rom Norton v. Everh art , 895 S. W.2d 317, 320 (Tenn. 1995 ), and the Department al so reli es on N orto n in the case before us. That case involved the propriety of a transfer by a court without j urisdicti on to one having jurisdic tion in the abse nce o f statutory a uthor ity. Id . at 319-20. The case was a challenge to a decisi on by the Board of Paroles to revoke Mr. No rton’s parole, and t he action was fi led in Morgan Co unty. The iss ue in the case before
us was n ot di scus sed s ince, as t he Court stated, “i t is undi sputed that only the courts of Davidson County have the necessary subject matter jurisdicti on to review the actions of a st ate agency,” cit ing Po tts , 221 Tenn. at 591, 428 S.W.2d at 7 97. In Norton , th e defendant lower t ribunalwas th e Board of Paroles, which i s excl usive ly l ocated in Davidso n Co unty.

17 As discussed earli er, the Wi ll ia ms and Cobb courts found the lower tribunal was t

he pri son di sci pli nary board, the board was not e xclu siv ely loca ted i n Davids on County, and ven ue was in t he coun ty wher e th e pri son i s l ocate d. 13 We do not interp

ret Morrisquite as b

roadly as the De partmen t. While in th at case

this court held that Tenn. Code Ann. § 4- 4-104 localizes venue of actions against some state officials, the opinion inherently recognized there m ay exist except

ions to the

gener al rule, whether

those exceptions are based on the proper defendant, theauthority of a de partment to have offices located elsewhere(whi ch re

late s to the “exc lusivel y located e lsewhere” languag e of Potts ), or another specific statute.
The argument made

by the Department herein was addressed in both Williams 15 and Cobb , wherein this court stated that “blanket stat ement s to the effect that ‘only the courts of Davidson County have the necessary

subject matter jurisdiction to review the actions of a state ag en cy’ ” 16 resultedfrom an overbroad interpretation of Potts because they overlooked the “exclusively loc ated elsewhere” language and the Pottscourt’s reliance on the earlier h olding in McKee that venu e in certiorari cases is determined by the situs of the lower tribunal. Williams , 1995 Tenn. App. LEXIS 640, at *8 -*9; see also Cobb , 1998 Tenn. App. LEXIS 229, at *9-*11. 17

We conclude that

prior judicial interpretation of Tenn. Co de An n. § 4 -4 -1 04 do es no t a lw ays precludethe bring

ing of la wsuits against state entities in a county other tha n Davidso n. Rega

rdless of our opinion as to the

scope an

d applica tion of Te

nn. Co de Ann . § 4-4-104, however, the dispositive issue herein is the effect of Tenn. Code Ann. § 41-21-803.
It is no t d eb at ab le th at th e l eg is la tu re ha s a ut ho ri ty t o direct t hat suits a

gainst s tate departm ents or other state entities, commissioners, officers, or employ ees be filed

in a county other than Davidson. The legislature has exercised that authority in a number of situations. S e e, e.g. , Tenn. Code Ann. § 67-1-18 03 (provi ding tha t suits todispute taxes filed against the commissioner of revenue are allowed in either Da vidson County, the

taxpay er’s co unty of resid ence, o r the cou nty wherethe taxpay

er’s pr incipal place of business is located); Tenn. Code Ann. § 4-5-322(b)( 1) (stating that under the UAPA, petitions for judicial review of a final decision of the department of18 Th is incl udes count ies other than Davidson. Au stin v. Sta te , 831 S.W .2d 789, 789 n.1 (Tenn. Ct. App. 1991 ).

19 Tenn. Co de A nn. § 2 0-4-1 01( a) co ntains the gener ally app licable venue prin ciple s for all tran sitory civil actions, “ unless venue is otherwis e provided for.” In analyzi ng whethe r Te nn. Co de A nn § 2 0-4-1 01 o r ano ther statute det ermi nes venue , cou rts have appli ed th e “ot herwi se pr ovided for” except ion a long wit

h th e wel l- est abli shed r ule of statutory c onstru ction tha t a spec ific statute o r pro vision g ove rns ov er a ge neral sta tute or p rovisio n. 14 human services in a

contested case are filed in either the c ounty which is the official residence of the commissioner or the county of r esidence of any

of the petitione

rs; petitions to review decisions of the TRA are f

iled in the

court of appeals ); Tenn. C o de Ann. § 36-5-1003 (providing that judicial review of administrative decisions relative to Title IV-D child support services lies with the court having jurisdiction of the s upport order or the court in the county of the person’s residence or the county where a n entity was served with a s ubpoena or reque st

for in formation); Tenn. Code Ann. § 9-8-404 (stating that claims against the state filed in the Claims Commission may be removed or transferred to the appropriate cour t with venue). 18

When the legislature

directs a venue fo r specif ic action s again st state e

ntities, c ourts cannot ignorethat directive. Ra

ther, our task is to de

termine l egisla

tiv e i ntent. As discussed earlier, the legislaturehas, in Tenn. Code Ann. § 41-21-803, localized ve nue for a

ctions by inmates in

state custody for complaints arising during their stay in prison. Therefore, even if Tenn. Code Ann. § 4-4- 104 operates to localize actions against state departments and some state

officia ls, the ap propria te question is which “localizing” statute should prevail. The analy sis is the same whether the question is viewed as one of venue or one of jurisdiction to hear a ctions against the state. V. The More Specific Statute Governs
The TennesseeSupreme Court has provided guidance on how to rec oncile two venue statutes andha s held that the more specific statute governs over the more general. Five Star Exp. , 866 S.W.2d at 9 46. In that cas e, the Cou rt dete rm ined that

the appr opriate venue fo

r worke rs’ compensation actions was established by the specific statute applicab le to such law suits, des pite prior authority holding that the general venue statute for transitor y a ctions, Tenn. Code Ann. § 20-4- 101, had to be taken into account in such cases. The court he ld: Therefore, it would seem that the workers’ compensation ve n ue statute would fit squarel y into this exception

[“unless v enue is ot

herwise expressly provided for”] to the general rule [in Tenn. Code Ann. § 20-4-101(a) ] regarding venue of transitory actions. This conc lusion is bu ttressed by t he basic rule of s tatutory

constructi o n which provides that a general statute co nc erning a subject must defer to a more specific statute concerning the same subject. See W atts v. Put

nam County , 525 S.W.2d 488 (Ten

n. 1975); Koella v. State ex rel. Moffe tt , 218 Tenn. 629, 405 S.W.2d 184 (1966).
Id

. at 946 ; 19 see also Ferguson v. Ram Enter., Inc ., 900 S.W.2d 19 (Tenn. 1995) (reaffirming the Five Star Exp. holding where the worker s’ compe

nsation ve nue statu te provid es a Ten nessee f orum,15

butapply ing the general

venue sta tutewhen a Tennessee forum is not availab le under

the work ers’ compensation venue statute).
A similar result was reached in Valley Fid. Bank & Trust Co. v. Ayers , 861 S.W.2d 366, 369 (Tenn. Ct. App. 1993), wherein this court hel d that the specific venue statute relating to chanc ery court controlled over the general statute on ve nue in transitory

actions. In Frye v. Memphis S tate Univ. , 671 S.W.2d 467, 468-69 (1984), the Tennessee S upreme Co urt held that the legislature inten dedthat the more specific procedures found in the statutes g overning tenure of un iversit y faculty apply to administrative

actions, and judicial review of those actions, aga inst tenuredfaculty rather than the more general procedur al provision s of the Un

iform Adm

inistrative Proced

ures Ac t. That action was brough

t in Shelby County . Similarly, in Phillips , the Court found that the legislature intendedto provide for venue to contest suspension or dismissal of a tenured faculty member in the county where t he col lege or university holding the a dministrative hearing was located. Phillips , 771 S.W.2d at 411.
Before we apply the “mor e specif ic gove rns” rul e, we mus t first de te rm ine whether Tenn. Code Ann. § 41-21-803 applies to lawsuits by prisoners agains tthe State or its entities or em

ployees, i.e. , whether

the two sta

tutes concern the

same subj ect. I

n constru ing a sta tute, we m

ust attempt to ascert ainand eff

ectuate the legislative intent and purp ose
. State v. W alls , 62 S.W.3d 119 (Tenn. 2001). Legislative intent

is deriv ed from the pl ain an d ordi nary meani ng of th e stat utory lan guage when the statute is unambiguous, Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000), and whenthe language is ambiguous we examine the entire statutory scheme to dete rmine legislative intent and purpose. State v. Levandowski , 955 S.W.2d 603, 604 (Tenn. 1997).
It is clear to us thatthe set of statutes found at Tenn. Code Ann. §§ 41-21-801 to -818 were intendedto addre ss lawsuit s arisin g from the conditions of an inmate’s incarceration, his or her treatment during that incarceration, and conduct by thos e responsible for the custody and care of inmates. The definitional sect ion defines “cla

im,” as us ed in those

statutes, to include

“any lawsuit
or appeal filed by

an inmate except a petition for post-conviction relief.” Tenn. Code Ann. § 41-21- 801(1). The statutes specifically refer to a sy stem for resolving inmate grievanc es, requiring that the department

maintain s uch a sy stem, Ten n. Code An

n. § 41-21 -817, and requir ing that an inmate utilize such griev ance sy stem, whe re appli cable, a s a prer

equisite t o a lawsuit, Tenn. Code Ann. § 41-21-80 6. In

addition, Tenn. Cod

e Ann. § 41 -21-815 p

rovides:
This part does not authorize a claim for preventive relief a gainst the department, an employee of the d epartment, or of any other agency , agent, employee or officer of thi s state if the claim is brought by a person housed in a facility operated by t

h e de pa rt me nt an d t he cl ai m a cc ru ed wh il e t he pe rs on wa s h ou se d i n t he fa ci li ty.
This section evidences an implicit understanding that other ty pes of actions may be

brought
or reli ef sought

and g rant ed ag ainst the depar tment or sta te ag enci es, o ffic ials, or em ploy ees. We think the legislature clearly

envisionedthat the ty

pes of actions which might a ccrue d uring a state inmate’s incarceration would include actions involving the condition s of his or her confine ment,20 For the s ame reasons, we fi nd that the “locali zing effect ” of Tenn. Code Ann. § 4-4-104 does not quali fy as an “ot herwi se pr ovided by l aw” ex cepti on to Tenn . Code Ann . § 41- 21-803. 16 including sanction s r e sulting f rom enfo rcemen t of prison

rules. Suc

h actionswould nec essarily involve st ate entit ies, off icials, or employ ees as de fendant s.
The clear language

of Tenn. Code Ann. § 41-21-803 is that a civil action accruing while the inmate is incarc erated

is to be br

ought in the count y where the

facility in which he or she i s housed is loca ted. We also note that Tenn. Code Ann. § 41-21-809 authorizes the court to hold a hearing at the departm

ent’s fa cilit y wherein t he plaintiff inmate is housed. While the purpose of the venue provision is not explicitly stated, it furthers a number of g oals. The most obvious one is that venue in the locality of the fa

cility is more conv enient be cause the parties, any

witnesses who might be allowed to testify, and re

levant records are located there

. Co ns eq ue nt ly, we are unpersuaded by the Department’s argument that Tenn. Code Ann. § 41- 21-803 does not apply to actions ag ainst the Department. In Howse and Davis , the state defenda nts apparently took the position that Tenn. Code Ann. § 41-21-803 established the exclusive venue for civilrights la

wsuits brough

t by prisoner s and obta

ined dismis sal of tho se actions because they were brought in Davidson Cou nty. We a re awa re that 4 2 U.S.C. § 19 83 action s are br ought a gainst defenda nts in their individual c apacitie s, as oppo sed to their official capacities and as opposed to the department

or gove rnmenta l entit y . We must presume this distinction provides the basis for the Departm ent’s se emingly

opposite p osition in th

e case b efore u s. However, the statute makes no such distinction. The language of Tenn. Code Ann. §§ 41- 21- 801 to -818 provides us with no indication that the legislature intended for venue to depe nd upon which cause of

action an inmate asserts, which defendants are named, or

which pr ocedura l vehicle is used. We do not believe the legislature intended to crea te such potential inconsistencies subject to pro se litigants’ understanding of legal pr ocedure. To th e c on tr ar y, we find th e legis lature c learly intendedthat lawsuits by state inmates ag ainst state entities, o fficial s and employee s, arising from conditions or other incidents of incarceration are to be broug ht in the county where

the correctional facility is located.
We also find that Tenn. Code Ann. § 41-21-803 is more specific than an interpre tation localizing actions against state departments or the statute upon which that interpr etation is based, Tenn. Code Ann. § 4-4-104. Civil actions by state pri soners a

re a subc ategor

y of actions w hich coul d be brought against a state depa rtment or commissioner. The

categ ories ar

e not mutua

lly exclusive. As explained above, to hold otherwise would be to presume the legislature did not envision that state inmates complain

ing about treatm

ent in state prisons would not sue the state departm ent or of ficials
re sp on si bl e for th ei r c us to dy. 20

Ac co rd in gl y, we agr

ee with th

e decisi on of the D avidson County Circuit Cou

rt t h at it was withoutjurisdict

ion to hea r this matte

r becau se the action was filed in the wrong court. However, the consequ ence of

that holding is not necessar ily d ismissal.21 M r. Ha wkins filed his petitio n on N ove mbe r 8, 20 00. 17 VI. Transfer
The general rule is that “a court lacking subject matter jurisdiction over a cas e has no authority to transfer it, unless that

authority is specif ically conferred by statute, rule, or constitutional provision.” Norton , 895 S.W.2d at 319. The Tennessee Supreme Court has clearly stated that trial courts possess no

“inhere nt author ity to transfer cases in the absence of statutory a uthority.” Id . at 320; Coleman v. Coleman , 190 Tenn. 2 86, 293- 94, 229 S.W.2d 341, 344-45 (Tenn. 1950). In Norton , the Court inv ited t he legi slature to enact a broad transfer statute. Norton , 895 S.W.2d at 320. The legislature

has since done so in

Tenn. Code Ann. § 16-1-116, which became eff ective on May 23, 2000. 21 It sta

tes:
Transfer of

actions or

appeals .-Notwith standing any other pr ovision of law or rule of court to the contrary , when an original civil action, an appeal from the judgment of a court of general sessions, or a petition f or review of a final decision in a contestedcase und

er the Un iform Adm

inistrative Proced

ures Ac t, compiled in title 4, chapter 5, is filed in a state or cou nty court of r ecord or a genera

l sessions court andsuch court determine s t hat it lacks jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any

other such court

in which the action or appeal could have been broug ht at the ti me it was originally filed. Upon such a transfer, the action or appeal shall proc eed as if it had bee

n origin ally

filed in the court to which it is transferred on the date upon which it was actually f iled in the court from which it was transferred.
We find Mr. H awkins isentitled to the benefit of this statute and that it is in the interest of justice that

th is ac ti on be tr an sfer re d t o t he ap pr op ri at e t ri al co ur t. Ac co rd in gl y, we remand to the trial court fo

r entry of an ord er tran sferring this action to the appropriate court in the county where West Tennessee State Penitentiary is located.
VII . Conclusion
Pursuant to Tenn. Code Ann. § 41-21-803, Mr. Hawkins’s petition for writ of certiorar i seeking judicial review of decisions of the Board m ust be bro ught in th e county where th e prison i s located. Accordingly , the trial court herein correctly determined it had no authority to hear the case. We remand to the trial court for transfer to a court with jurisdiction pursuant to Tenn. Code Ann. § 16-1-116.18

Costs of this appeal are taxed to the Department of Correction, for

which execution may issue if ne ce ss ar y.

___________________________________ PATRICIA J. COTTRELL, JUDGE