IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 9, 2001

BARTON HAWKINS v. TENNESSEE DEPARTMENT 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 inmate, filed the underlying pro se petition for writ of certiorari to challenge the

result of a prison disciplinary proceeding against him. The trial court dismissed the suit sua sponte

for improper venue. Because the legislature has localized venue for actions brought by inmates to

the county where the prison facility is located, we affirm the decision of the trial court, but remand

for transfer to the appropriate trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed as Modified and Remanded

PATRICIA J.COTTRELL,J., delivered the opinion of the court, in which BEN H.CANTRELL,P.J.,M.S.,

and WILLIAM C. KOCH, JR., J., joined.

Barton Hawkins, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stephanie

R. Reevers, Associate Deputy Attorney General, for the appellee, Tennessee Department of

Correction.

OPINION

Appellant Barton Hawkins is an inmate who seeks review of actions taken against him by

the Disciplinary Board 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 was charged with “refusing a drug screen” in violation of TDOC

Policy # 502.01(VI)(F)(2) and found guilty by the Board. Mr. Hawkins alleges that he has “shy

bladder syndrome” which prevented him from producing a urine sample in front of others and that
1TDOC Policies allow for the use of such a “dry room” unde r certain circumstances. TDOC Policy #

506.21(VI)(B)(9).

2While this account is troubling, we are aware the Department has not answered because the petition was

dismissed before the Department responded. In any event, the merits of his claim have not been heard by the trial court

and are not before us in this appeal.

2

he should have either been given an alternate test or access to a “dry room” to have the opportunity

to produce a sample.1 Mr. Hawkins appealed the Board’s decision to the warden and wrote several

letters to the commissioner of the Tennessee Department of Correction (“the Department” or

“TDOC”) seeking relief from the disciplinary actions taken against him. His appeals were denied.

After exhausting these administrative remedies, Mr. Hawkins filed a petition for writ of certiorari

in Davidson County, naming the Department of Correction as the respondent.

In his petition, Mr. Hawkins also claims that after the Board found him guilty of refusing a

drug screen, he has since been subjected to monthly urine tests, during which he has also been unable

to produce a sample for testing. As a result, he alleges that he has been subjected to write-ups and

disciplinary hearings seven (7) times, with the punishment accumulating to 110 days of punitive

segregation, loss of privileges and, ironically, three more years of monthly testing which, he asserts,

he will be incapable of performing. He alleges he was not allowed to have medical professionals

testify at his hearings, that mental health professionals treating him refused to supply a written

statement because the applicable TDOC policy made exceptions only for medical reasons, and that

the Commissioner’s office advised him to get a written statement from the mental health

professionals. He has attached documents verifying some of his claims.2

In his petition, Mr. Hawkins alleged that the Board violated his due process rights by

sentencing him to punitive segregation for more than 100 days, imposing excessive fines, and

suspending visitation and package privileges for one year. 

Before the Department responded to the petition, the trial court entered an order dismissing

the action sua sponte for improper venue. Relying on Tenn. Code Ann. § 41-21-803, the court

determined that venue was not proper in Davidson County, but that the action should have been

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’s dismissal was erroneous. The sole

issue before us is whether the trial court was correct in dismissing the petition for improper venue.

I. Venue, Jurisdiction, and Suits Against the State

Venue refers to locality, and in the legal sense it signifies the proper locality in which a court

of competent jurisdiction may adjudicate an action. It is 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

intended to provide the criteria for determining where a lawsuit may or should be filed.

Metropolitan Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 880 (Tenn. Ct.

App. 1982). 
3

In Five Star Exp. Inc. v. Davis, the Tennessee Supreme Court stated:

There are two types of actions for purposes of venue. A transitory action is one in which the injury

occurred to a subject not having an immovable location; therefore a transitory action could have

occurred anywhere. Typical examples of transitory actions are actions sounding in tort and contract.

On the other hand, a local action is an action in which the injury occurred to an immovable object; the

classic example is an action involving injury to real property. Local actions must be brought in the

county in which the property is located.

Five Star Exp., Inc. v. Davis, 866 S.W.2d 944, 945 at n.1 (Tenn. 1993) (citations omitted).

3

Venue is either local or transitory, depending on the subject matter of the cause of action.

State v. Graper, 155 Tenn. 565, 569, 4 S.W.2d 955, 956 (1927). A cause of action that may arise

anywhere is transitory, but one that could arise in only one place is local. Burger v. Parker, 154

Tenn. 279, 290 S.W. 22 (1927).3 Otherwise transitory actions are considered to be local when a

statute prescribes a particular county in which they must be brought. State ex rel. Huskey v. Hatler,

606 S.W.2d 534 (Tenn. 1980). In fact, 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

not raised in a timely manner, Metropolitan Dev. & Hous. Agency, 637 S.W.2d at 880, waiver is not

available when a transitory action has been localized by statute. In that situation, venue has become

part of the court’s authority to hear a particular action and is, therefore, jurisdictional. Curtis v.

Garrison, 211 Tenn. 339, 344, 364 S.W.2d 933, 935 (1963); Terminix Int’l Co. v. Tapley, No.

02A01-9701-CH-00028, 1997 Tenn. App. LEXIS 546, at *13-*15 (Tenn. Ct. App. Aug. 4, 1997)

(no Tenn. R. App. P. 11 application filed).

Jurisdiction involves a court’s lawful authority to adjudicate a controversy brought before

it. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). “The jurisdiction of a court in its

broad sense is its power to hear and determine controversies, and in a more restricted sense is its

power to adjudicate a particular case.” 21 C.J.S. Courts § 9.

Jurisdiction is implicated in the case before us, not only because of localized venue, but also

because it is a lawsuit against a state entity. Article I, section 17 of the Tennessee Constitution

provides in pertinent part:

Suits may be brought against the State in such manner and in such courts as the

Legislature may by law direct.

This provision embodies the concept of sovereign immunity, which means that a

governmental entity 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 immune from suit except as it consents to be

sued. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777 (1965). Legislation authorizing

suits against the state must be so plain, clear, and unmistakable as to leave no doubt of the intention

of the legislature that it should be done. Northland Ins. Co., 33 S.W.3d at 729; Daley v. State, 869
4

S.W.2d 338 (Tenn. Ct. App. 1993); Sweeney v. State Dep’t of Trans., 744 S.W.2d 905 (Tenn. Ct.

App. 1987).

Only the legislature has constitutional authority to determine how, or even if,lawsuits against

the State may be brought. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001). Even where

authorization for suit against the state exists, “suits may only be brought in those courts and under

those conditions specified by 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 courts in which a lawsuit against the State may be brought. When it makes such

direction, the requirements are jurisdictional. Southwest Williamson County Cmty. Ass’n v.

Saltsman, 66 S.W.3d 872, 882 (Tenn. Ct. App. 2001).

II. Venue for Civil Actions by State Inmates 

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 housed in a facility operated by the department shall be brought in the county in which the

facility is located.” In its final order dismissing the case, the trial court stated, “Venue is not in

Davidson County, but rather in the county in which West Tennessee State Penitentiary is located.”

The statute relied upon by the trial court was adopted in 1996 as part of a statutory scheme

governing civil litigation by state prison inmates. The set of statutes was intended to reduce

frivolous claims filed by inmates and clearly countenanced claims 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. Campbell, 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 filed), wherein we held that Tenn. Code Ann. § 41-21-803 effectively localized transitory

actions filed by state prisoners.

Mr. Howse, a state prisoner, filed a civil rights claim to challenge the conditions of

confinement and treatment by TDOC employees at a TDOC facility in Lake County. He filed the

suit in Davidson County against the commissioner and various TDOC employees. The defendants,

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 Lake County and that Tenn. Code Ann. § 41-21-803 “requires inmates to file their suits

in the county where their alleged cause of action accrued.” Howse, 2001 Tenn. App. LEXIS 311,

at *13-*14.

The holding and the reasoning of Howse are applicable herein. The only difference in the

action brought by Mr. Howse and the action brought herein is that the first was pursuant to 42 U.S.C.

§ 1983, and the claim herein was brought through the procedural vehicle of writ of certiorari. Mr.

Hawkins’s petition and amended petition make it clear that his complaint is with the conduct of

employees at West Tennessee State Penitentiary, in particular the proceedings before the Board and

the warden’s actions denying his appeals. The alleged cause of action accrued in the county where
4

 In Davis v. Holland, 31 S.W.3d 574 (Tenn. Ct. App. 2000), this court discussed Tenn. Code Ann. § 41-21-803.

In Davis, the trial court considered venue in a 42 U.S.C. § 1983 lawsuit against numerous Department of Correction

employees. These state defendants moved to dismiss the action, which was brought in Davidson County, on the basis

that the inmate was housed in a facility in Lauderdale County, the actions he complained of occurred while he was in that

facility, and, therefore, Tenn. Code Ann. § 41-21-803 required the conclusion that Lauderdale County was the only

proper venue. The inmate, Mr. Davis, argued that venue was proper in Davidson County because all the defendants

resided there. The trial court found that while the cause of action arose in Lauderdale County, it would consider Mr.

Davis’s assertions if he amended his complaint to indicate the actual residences of the defendants.

On appeal, this court, even though specifically stating that the venue issue need not be conclusively addressed

by us because the inmate had not raised that issue on appeal, observed:

However, there was a strong implication in the trial court’s ruling that venue for this case would have

been proper in Davidson County if Mr. Davis had supplied it with the residential addresses of the

individual defendants. While that may be consistent with the result of Sweatt v. Conley, supra, we are

not sure that case applies here, since it did not consider the effect of Tenn. Code Ann. § 41-21-803.

Davis, 31 S.W.3d at 577. Sweatt v. Conley, No. 01-A-01-9706-CH-00246, 1997 Tenn. App. LEXIS 862 (Tenn. Ct. App.

Dec. 5, 1997), appeal after remand sub nom. Sweatt v. Tennessee Dep’t of Corr., 2002 Tenn. App. LEXIS 319 (Tenn.

Ct. App. May 2, 2002), involved an inmate’s action against various employees of the Department and a doctor, seeking

declaratory and mandamus relief and also alleging a violation of civil rights. The various defendants moved to dismiss

on the basis of, among other things, improper venue. This court determined that venue in Davidson County was improper

because a claim for civil rights violation is a transitory action and subject, therefore, to Tenn. Code Ann. § 20-4-101.

We concluded that because there existed no statutes specifically providing for venue in § 1983 actions, the provisions

of the general transitory venue statute applied. Id. 1997 Tenn. App. LEXIS 862, at *15. However, this court noted in

a footnote the recent passage of the statute that was to be codified as Tenn. Code Ann. § 41-21-803, which was not

applicable to Mr. Sweatt’s petition because of the date of passage. This court described that legislation as “a provision

requiring a plaintiff inmate to file a claim for an action which accrued while the plaintiff was an inmate in the county in

which the facility is located.”

5

the prison was located, and under Howse, Tenn. Code Ann. § 41-21-803 makes that county the

appropriate venue. 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 where the facility is located is “except

where otherwise provided by law.” This language implies there must exist another statute

specifically establishing venue elsewhere. Five Star Exp., Inc., 866 S.W.2d at 946 (Tenn. 1993)

(stating that “unless the venue is otherwise expressly provided for” language in the general transitory

venue statute clearly authorizes the legislature to designate a different venue). Because venue

statutes often relate to the type of lawsuit involved, we look first to the proper venue for the type of

action brought herein.
5Mr. Hawkins sought relief under both the common law and statutory writ of certiorari to review the actions

taken by the prison disciplinary board against him at West Tennessee State Penitentiary. This court has determined that

the common law writ, as opposed to the statutory writ, is the appropriate mechanism in which to assert the claim. Rhoden

v. State Dep’t of Corr., 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998); Buford v. Tennessee Dep’t of Corr., No. M1998-

000157-COA-R3-CV, 1999 Tenn. App. LEXIS 755, at *12 (Tenn. Ct. App. Nov. 10, 1999) (no Tenn. R. App. P. 11

application filed); see also Perry v. Cold Creek Corr. Facility Disciplinary Bd., No. M1999-01898-COA-R3-CV, 2000

Tenn. App. LEXIS 519, at *9 (Tenn. Ct. App. Aug. 9, 2000) (no Tenn. R. App. P. 11 application filed) (determining that

the common law writ, as opposed to the statutory writ, is the appropriate mechanism).

6Tenn. Code Ann. § 27-9-101 provides the authority for judicial review of “any final order or judgment of any

board or commission functioning under the laws of this state . . . in the manner provided by this chapter.” As this statute

states, the procedure to be used is set out in Tenn. Code Ann. §§ 27-9-101 through -114. Fallin v. Knox County Bd. of

Comm’rs, 656 S.W.2d 338, 341 (Tenn. 1983); Fairhaven Corp. v. Tennessee Health Facilities Comm., 566 S.W.2d 885,

886 (Tenn. Ct. App. 1976) (citing Fentress County Beer Bd. v. Cravens, 209 Tenn. 679, 356 S.W.2d 260 (1962); Hoover

Motor Exp. Co. v. Railroad & Pub. Util. Comm’n, 195 Tenn. 593, 261 S.W.2d 233 (1953)) (explaining that the

procedural framework for review under both the common law and statutory writs appears in Ch. 9 of Title 27); see also

Ben H. Cantrell, Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 MEM. ST. UNIV. L. REV. 19,

19 (1977) (stating that Chapter 9 of Title 27 provides the procedural framework for review under both the common law

and statutory writs of certiorari but does not affect the availability of either writ).

7The residence of Mr. Hawkins is not the prison in which he is incarcerated for purposes of determining venue.

In re Joseph, No. M1999-02795-COA-R3-CV, 2002 Tenn. App. LEXIS 302, at *7-*8 (Tenn. Ct. App. Apr. 30, 2002),

(no Tenn. R. App. P. 11 application filed).

6

III. Venue for Common Law Writ of Certiorari

We must consider the venue statute applicable to petitions seeking judicial review of the

decision of a board or commission through a common law writ of certiorari action.5 Tenn. Code

Ann. § 27-9-102 outlines the procedural steps an aggrieved party must take to seek review of an

order or judgment of a board or commission.6

 

Such [aggrieved] party shall, within sixty (60) days from the entry of the order or

judgment, file a petition for certiorari in the chancery court of any county in which

any one or more of the petitioners, or any one or more of the material defendants

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

the substance of the order or judgment complained of, the respects in which the

petitioner claims the order or judgment is erroneous, and praying for an accordant

review.

Tenn. Code Ann. § 27-9-102. The circuit court is given concurrent 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 residence of the

petitioner7 or the county of residence of the material defendant or the county where the principal

office of the material defendant is located. However, courts have limited appropriate venue because

of the nature of a petition for writ of certiorari.
7

The “grant” of the writ is simply an order to the Board 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 determine 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 review and supervise the proceedings of inferior tribunals . . . .” Clark v.

Metropolitan Gov’t of Nashville and Davidson County, 827 S.W.2d 312, 316 (Tenn. Ct. App. 1991).

“Certiorari at common law performed the function of aid to a review and supervision of the

proceedings of inferior boards and tribunals by a superior tribunal,” and issuance of the writ is for

the limited purpose of determining “whether there had been an absence or 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 Knoxville, 136 Tenn. 428, 432, 189 S.W. 870,

871 (1916)).

Because 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, board or commission whose decision

would be reviewed if the writ is granted, not by the residence of the parties. Delta Loan & Fin. Co.

of Tenn. v. Long, 206 Tenn. 709, 713-14, 336 S.W.2d 5, 6-7 (1960); McKee v. Board of Elections,

173 Tenn. 269, 272, 117 S.W.2d 752 (1938). 

The revisory power of a higher court is limited to the correction of errors of tribunals

located within the territorial jurisdiction of the appellate body. It is the situs of the

lower tribunal, and not the residence of the parties, that points out the proper

appellate tribunal.

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

In both McKee and Delta Loan & Finance, the court found that only the statutory writ of

certiorari was applicable and that the procedures now appearing in Tenn. Code Ann. §§ 27-9-101

to -114 specifically did not apply. Thus, neither case involved interpretation of Tenn. Code Ann. §

27-9-102. Nonetheless, the reasoning is still applicable and was applied to that statute in Tennessee

Real Estate 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 the residence

of the petitioner, determined 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 supra, merely fixes permissible

venue for review of Boards and Commissions. It does not have the effect of giving

the trial court of any county wherein the party affected may have residence subject

matter jurisdiction over the review of a Board or Commission exclusively located

elsewhere. That section merely specifies the courts where the writ might be sought

if other jurisdictional requirements are met.
8Discipline in prisons operated by private contractors, rather than TDOC, is different in one fundamental

respect. A disciplinary board composed of employees of the private contractor has no authority to impose punishment

for disciplinary offenses; actual discipline is not imposed until the TDOC representative approves the Board’s

recommendation. Mandela v. Campbell, 978 S.W.2d 531, 533 (Tenn. 1998). Consequently, a writ of certiorari to review

the decision to impose sanctions should be addressed, in those situations, “to the governmental agency [rather than the

non-governmental board] that is responsible for the actions of which the petitioner complains.” Turner v. Campbell, 15

S.W.3d 466, 468 (Tenn. Ct. App. 1999). This difference has been recognized in Seals v. Bowlen, 2001 Tenn. App.

LEXIS 547, at *12-*14, as significant in determining the proper defendants, and in Brown v. Majors, No. W2001-00536-

COA-R3-CV, 2001 Tenn. App. LEXIS 948, at *11 (Tenn. Ct. App. Dec. 19, 2001) (no Tenn. R. App. P. 11 application

filed), as significant to the venue issue.

9

In Phillips v. State Bd. of Regents, 771 S.W.2d 410 (Tenn. 1989), a tenured faculty member sought judicial

review of a decision to dismiss or suspend her. She filed her action in Shelby County, the situs of the college at which

she had been employed and brought it pursuant to Tenn. Code Ann. § 49-8-304 which stated such actions may be brought

“in a chancery court having jurisdiction.” The State defendants argued that the suit actually challenged a final

determination of the Board of Regents, whose situs is in Davidson County, not the decision of the college or its president.

In considering the venue question, the court stated:

Contrary to the contention of defendants that the review is of the final action of the Board of Regents,

the focus of the judicial review in the chancery court is upon the procedure followed and the evidence

adduced at the administrative hearing, conducted at the institution involved. Any witnesses that may

testify in the chancery court are likely to reside in the county where the institution is located. We think

(continued...)

8

Potts, 221 Tenn. at 591, 428 S.W.2d at 796-97. 

The rule that venue is determined by the situs of the lower tribunal is consistent with the

venue statute’s language regarding the material defendant’s principal office. McKee, Delta Loan &

Finance, and Potts involved suits against commissions or officials whose principal office was

exclusively located in Davidson County, and all involved a venue dispute between the county of the

petitioner’s residence and Davidson County.

The Department herein states that the Department ultimately oversees prison discipline and

that the Department’s principal office is located in Davidson County, thereby making that county the

only appropriate venue. However, this court has found that both the prison disciplinary board and

the warden of a prison were proper respondents or defendants in a common law writ of certiorari

action seeking review of a prison disciplinary board decision, and refused to adopt the Department’s

argument that it was the only proper defendant in such actions. Seals v. Bowlen, M1999-00997-

COA-R3-CV, 2001 Tenn. App. LEXIS 547, at *10-*14 (Tenn. Ct. App. July 26, 2001) (rehearing

denied Aug. 27, 2001). This decision was based upon the purpose of a petition for writ of certiorari,

which is to seek review of a decision by a lower tribunal, that can include a board, commission, or

officer. Subsequently, reaffirming the holding of Seals, we have found, “depending on the

circumstances, 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

Accordingly, we are not convinced that an action seeking judicial review of the decision of

a prison disciplinary board is an action against the Department.9 To the contrary, in our opinion the
9

(...continued)

that the legislature intended to provide for venue in the county where the university or community

college is located. In providing for jurisdiction in “a chancery court having jurisdiction,” the legislature

has obviously excluded, “the chancery court having jurisdiction.” If, as defendants contend, the judicial

review of all actions of Board of Regent institutions is exclusively in the chancery court of Davidson

County, “a chancery court” was inappropriate.

Phillips, 771 S.W.2d at 411.

In Phillips, the Board of Regents relied on Tenn. Code Ann. § 16-11-114(1), not § 4-4-104, and the court placed

importance on the de novo judicial review applicable to such tenure-related cases, noting that such procedure allows

supplementation of evidence in the administrative record. We are aware of the distinction between de novo review and

the limited review under certiorari; nonetheless, additional evidence, not related to the merits of the matter, may be

presented in certiorari proceedings on issues not found in the record or upon issues relating to whether the writ should

be granted. In any event, the Court’s reasoning in Phillips to determine which of two venue statutes should apply provides

guidance in the case before us.

10This choice of respondent is understandable since the Department has regularly filed motions to dismiss any

other defendant/respondent (or the entire lawsuit if the Department itself was not named) arguing that the Department

is the only proper respondent in petitions for writ of certiorari to review prison disciplinary decisions. See Seals, 2001

Tenn. App. LEXIS 547, at *8-*14.

9

material respondent is the board which conducted the hearing and rendered the decision being

challenged. Because the situs of that lower tribunal determines venue under the common law writ

of certiorari venue statute, venue would lie in the county where the prison is located.

Our courts have addressed the issue of proper venue for common law writ of certiorari

petitions brought by inmates to challenge disciplinary actions. In two of these cases, both decided

without consideration of Tenn. Code Ann. § 41-21-803, the courts have considered the arguments

made by the Department herein. In both Williams v. Tennessee Dep’t of Corr., No. 02A01-9503-

CV-00046, 1995 Tenn. App. LEXIS 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. LEXIS 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 Board, or individual board members in the

Circuit Court of the county where the facility in which they were incarcerated was located to seek

review of actions taken by prison disciplinary boards. In both Williams and Cobb, the trial court

dismissed the actions due to improper venue. On appeal, however, this court reversed the decision

of the trial court in each case. Cobb, 1998 Tenn. App. LEXIS 229, at *13; Williams, 1995 Tenn.

App. LEXIS 640, at *12-*13.

In Williams, as in the case before us, the petitioner inmate named as the only respondent the

Tennessee Department of Correction.10 Relying on Potts and McKee, this court held in Williams that

it is the situs of the lower tribunal whose decision would be reviewed if the writ were granted that

determines the proper venue. Accordingly, the court held:

In the case before us, petitioner seeks review of actions taken by the prison

disciplinary board, the prison warden, and the commissioner of the Department of
11This language obviously refers to the statement in Potts, 221 Tenn. at 591, 428 S.W.2d at 796-97, quoted

earlier, which involved a State board with only one principal office.

12At least two memorandum opinions by this court reach the same conclusion as Bishop, but were decided on

differing principles. Other cases have involved prisons operated by a private prison contractor, and the venue

determination was based upon that distinction. See, e.g., Brown, 2001 Tenn. App. LEXIS 948, at *11.

10

Correction. Petitioner is not seeking review of a decision of a state board

“exclusively located elsewhere.”11

 The situs of the disciplinary board involved herein

is at WTHSF, in Lauderdale County. Furthermore, petitioner is an inmate at the

same institution. The warden and members of the disciplinary board, employees of

the prison, have their principal office in Lauderdale County, and likely have their

residences there as well. The incident from which the charge against petitioner stems

occurred in Lauderdale County as did the disciplinary board’s hearing on the matter

and the warden’s affirmance of the Board’s decision. Only the commissioner of the

Department of Correction is located in Davidson County.

Williams, 1995 Tenn. App. LEXIS 640, at *10.

Similarly, in Cobb, this court rejected the argument of the respondents, the warden and the

chair of the disciplinary board 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 prison disciplinary board is

not “exclusively located elsewhere” than the county where the prison is located. Because the

petitioner sought review of actions taken by the prison disciplinary board, the prison warden, and

the commissioner, because the disciplinary board and warden have their principal office in Lake

County, because the incidents complained of took place while the petitioner was an inmate at the

facility in Lake County, and because the Board’s hearing and the warden’s affirmance took place in

Lake County, this court held Lake County was not an improper venue. Cobb, 1998 Tenn. App.

LEXIS 229, at *11-*13.

In other cases involving venue for writ of certiorari petitions seeking review of prison

disciplinary actions, the results have been contrary to that reached in Williams and Cobb. See, e.g.,

Bishop v. Conley, 894 S.W.2d 294, 296 (Tenn. Crim. App. 1994) (stating that “because appellant

seeks relief against an agency of state government, the writ should have been filed in the county

which is the official situs of the agency’s head office”).12

 

Although we recognize the differing conclusions reached by our courts on the issue of venue

for a common law writ of certiorari action seeking review of a prison disciplinary board decision,

we are persuaded the Williams andCobb result is the more correct one. That is because the “material

defendant” in a writ of certiorari action is the Board, officer, or lower tribunal that made the decision

which would be reviewed, and the situs of the Board determines venue. Applying those principles
11

to prison disciplinary boards leads to the necessary conclusion that venue is in the county where the

prison is located.

Therefore, we conclude that the statute governing venue of petitions for certiorari to review

decisions of boards and commissions does not meet the “otherwise provided by law” exception 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 Department’s Position

The Department asserts that Tenn. Code Ann. § 41-21-803 has no application to a petition

for writ of certiorari seeking review of prison disciplinary actions because (1) jurisdiction for actions

against state 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 county

of the situs of the official. As set out in its brief, the gist of the Department’s argument 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

applicable to suits against state officials since such actions were not transitory. The

Court also noted that because Tenn. Code Ann. § 4-4-101 was a statute of specific

nature which had been interpreted by the Supreme Court as placing venue for suits

against certain state officials in Davidson County, it prevailed over a statute of more

general application. Id. at 484. Similarly, 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 heads of agencies be brought in Davidson County.

In addition, Tenn. Code Ann. § 41-21-803 makes the statute applicable only to the

extent that there are no preexisting provisions of law to the contrary. The localizing

effect of Tenn. Code Ann. § 4-4-104 on suits against state officials is clearly

“otherwise provided by law” and suits naming state agencies are therefore excepted

from the effect of Tenn. Code Ann. § 41-21-803 by the statute itself.

Morris v. Snodgrass, 871 S.W.2d 484 (Tenn. Ct. App. 1993), was a declaratory judgment

action seeking to have two statutes declared unconstitutional and naming the Comptroller, the

Attorney General, and the Commissioner of the Department of Correction as defendants. This court

held that venue for the lawsuit was exclusively Davidson County because venue for lawsuits against

state officials “such as these defendants” is established in Davidson County by virtue of Tenn. Code
13Tenn. Code Ann. § 4-4-104 states:

(a) Each department shall maintain a central office at the capitol, which shall be the official residence

of each commissioner, or head of department.

(b) The commissioner of each department may, in the commissioner’s discretion and with the approval

of the governor, establish and maintain at places other than the seat of government, branch offices for

any one (1) or more functions of the commissioner’s department.

14We note that, unlike the divisions of the department in Chamberlain, there are statutes relating to the

establishment and location of the various state prisons and facilities. See Tenn. Code Ann. §§ 41-1-101, -201, -702. In

addition, the warden is given charge and custody of the prison, as well as responsibility for the custody, welfare, conduct

(continued...)

12

Ann. § 4-4-10413 and by court interpretations of that statute “placing venue for suits against certain

state officials in Davidson County.” Id. at 485-87.

The Morris court traced these principles to Delta Loan & Finance, supra, wherein a petition

for review of a decision of the Commissioner of the Department of Insurance and Banking was 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 holding that “since the situs

of a municipal corporation is 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.

Because Tenn. Code Ann. § 4-4-104 establishes the official residence of each commissioner or head

of department at the capitol, the court reasoned that “the situs of such department and official

residence is, therefore, local like that of a municipal corporation.” Id. at 6.

The Morris court quoted from Delta Loan & Finance, to the effect that: 

Though the statutes make some exceptions not here material, the rule is that a

commissioner or head of a department of state government may be sued as such only

in the county of his official residence; and a number of cases have held that such a

suit may not be maintained as a transitory action in another county.

Morris, 871 S.W.2d at 486 (quoting Delta Loan & Fin., 336 S.W.2d at 6).

The Morris court also relied on and quoted the Tennessee Supreme Court’s decision in

Chamberlain v. State ex rel Brown, 215 Tenn. 565, 387 S.W.2d 816 (1965):

T.C.A. § 23-2003 makes a writ of mandamus against a public official returnable in

the county where the office is kept. The situs and office of the Department of

Insurance and Banking is in Davidson County. This would be true of each division

thereof, there being no statute to the contrary.

Morris, 871 S.W.2d at 486 (quoting Chamberlain, 215 Tenn. at 568, 387 S.W.2d at 817).14
14(...continued)

and safekeeping of the prisoners therein. Tenn. Code Ann. §§ 41-1-104 and 41-21-201. This includes the discretion

to award sentence reduction credits. Tenn. Code Ann. § 41-21-236. Records of the affairs of each prison are to be kept

at the prison, Tenn. Code Ann. § 41-1-111.

15We note the author of the Williams opinion was also the author of the opinion in Morris.

16This quotation is from Norton v. Everhart, 895 S.W.2d 317, 320 (Tenn. 1995), and the Department also relies

on Norton in the case before us. That case involved the propriety of a transfer by a court without jurisdiction to one

having jurisdiction in the absence of statutory authority. Id. at 319-20. The case was a challenge to a decision by the

Board of Paroles to revoke Mr. Norton’s parole, and the action was filed in Morgan County. The issue in the case before

us was not discussed since, as the Court stated, “it is undisputed that only the courts of Davidson County have the

necessary subject matter jurisdiction to review the actions of a state agency,” citing Potts, 221 Tenn. at 591, 428 S.W.2d

at 797. In Norton, the defendant lower tribunal was the Board of Paroles, which is exclusively located in Davidson

County.

17As discussed earlier, the Williams and Cobb courts found the lower tribunal was the prison disciplinary board,

the board was not exclusively located in Davidson County, and venue was in the county where the prison is located.

13

We do not interpret Morris quite as broadly as the Department. While in that case this court

held that Tenn. Code Ann. § 4-4-104 localizes venue of actions against some state officials, the

opinion inherently recognized there may exist exceptions to the general rule, whether those

exceptions are based on the proper defendant, the authority of a department to have offices located

elsewhere (which relates to the “exclusively located elsewhere” language of Potts), or another

specific statute.

The argument made by the Department herein was addressed in both Williams15 and Cobb,

wherein this court stated that “blanket statements to the effect that ‘only the courts of Davidson

County have the necessary subject matter jurisdiction to review the actions of a state agency’”

16

resulted from an overbroad interpretation of Potts because they overlooked the “exclusively located

elsewhere” language and the Potts court’s reliance on the earlier holding in McKee that venue 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. Code Ann. § 4-4-104 does not always

preclude the bringing of lawsuits against state entities in a county other than Davidson. Regardless

of our opinion as to the scope and application of Tenn. Code Ann. § 4-4-104, however, the

dispositive issue herein is the effect of Tenn. Code Ann. § 41-21-803. 

It is not debatable that the legislature has authority to direct that suits against state

departments or other state entities, commissioners, officers, or employees be filed in a county other

than Davidson. The legislature has exercised that authority in a number of situations. See, e.g.,

Tenn. Code Ann. § 67-1-1803 (providing that suits to dispute taxes filed against the commissioner

of revenue are allowed in either Davidson County, the taxpayer’s county of residence, or the county

where the taxpayer’s principal 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 of
18This includes counties other than Davidson. Austin v. State, 831 S.W.2d 789, 789 n.1 (Tenn. Ct. App. 1991).

19Tenn. Code Ann. § 20-4-101(a) contains the generally applicable venue principles for all transitory civil

actions, “ unless venue is otherwise provided for.” In analyzing whether Tenn. Code Ann § 20-4-101 or another statute

determines venue, courts have applied the “otherwise provided for” exception along with the well-established rule of

statutory construction that a specific statute or provision governs over a general statute or provision. 

14

human services in a contested case are filed in either the county which is the official residence of the

commissioner or the county of residence of any of the petitioners; petitions to review decisions of

the TRA are filed in the court of appeals); Tenn. Code 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 support order or the court in the county of the person’s residence or the

county where an entity was served with a subpoena or request for information); 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 court with venue).18

When the legislature directs a venue for specific actions against state entities, courts cannot

ignore that directive. Rather, our task is to determine legislative intent. As discussed earlier, the

legislature has, in Tenn. Code Ann. § 41-21-803, localized venue for actions 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 officials, the appropriate

question is which “localizing” statute should prevail. The analysis is the same whether the question

is viewed as one of venue or one of jurisdiction to hear actions against the state. 

V. The More Specific Statute Governs

The Tennessee Supreme Court has provided guidance on how to reconcile two venue statutes

and has held that the more specific statute governs over the more general. Five Star Exp., 866

S.W.2d at 946. In that case, the Court determined that the appropriate venue for workers’

compensation actions was established by the specific statute applicable to such lawsuits, despite

prior authority holding that the general venue statute for transitory actions, Tenn. Code Ann. § 20-4-

101, had to be taken into account in such cases. The court held:

Therefore, it would seem that the workers’ compensation venue statute would fit

squarely into this exception [“unless venue is otherwise expressly provided for”] to

the general rule [in Tenn. Code Ann. § 20-4-101(a)] regarding venue of transitory

actions. This conclusion is buttressed by the basic rule of statutory construction

which provides that a general statute concerning a subject must defer to a more

specific statute concerning the same subject. See Watts v. Putnam County, 525

S.W.2d 488 (Tenn. 1975); Koella v. State ex rel. Moffett, 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 workers’ compensation venue statute provides a Tennessee forum,
15

but applying the general venue statute when a Tennessee forum is not available under the workers’

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 held that the specific venue statute relating to chancery

court controlled over the general statute on venue in transitory actions. In Frye v. Memphis State

Univ., 671 S.W.2d 467, 468-69 (1984), the Tennessee Supreme Court held that the legislature

intended that the more specific procedures found in the statutes governing tenure of university

faculty apply to administrative actions, and judicial review of those actions, against tenured faculty

rather than the more general procedural provisions of the Uniform Administrative Procedures Act.

That action was brought in Shelby County. Similarly, in Phillips, the Court found that the legislature

intended to provide for venue to contest suspension or dismissal of a tenured faculty member in the

county where the college or university holding the administrative hearing was located. Phillips, 771

S.W.2d at 411.

Before we apply the “more specific governs” rule, we must first determine whether Tenn.

Code Ann. § 41-21-803 applies to lawsuits by prisoners against the State or its entities or employees,

i.e., whether the two statutes concern the same subject. In construing a statute, we must attempt to

ascertain and effectuate the legislative intent and purpose. State v. Walls, 62 S.W.3d 119 (Tenn.

2001). Legislative intent is derived from the plain and ordinary meaning of the statutory language

when the statute is unambiguous, Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000), and when the

language is ambiguous we examine the entire statutory scheme to determine legislative intent and

purpose. State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997).

It is clear to us that the set of statutes found at Tenn. Code Ann. §§ 41-21-801 to -818 were

intended to address lawsuits arising from the conditions of an inmate’s incarceration, his or her

treatment during that incarceration, and conduct by those responsible for the custody and care of

inmates. The definitional section defines “claim,” as used 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 system for resolving inmate grievances, requiring that the

department maintain such a system, Tenn. Code Ann. § 41-21-817, and requiring that an inmate

utilize such grievance system, where applicable, as a prerequisite to a lawsuit, Tenn. Code Ann. §

41-21-806. In addition, Tenn. Code Ann. § 41-21-815 provides:

This part does not authorize a claim for preventive relief against the department, an

employee of the department, or of any other agency, agent, employee or officer of

this state if the claim is brought by a person housed in a facility operated by the

department and the claim accrued while the person was housed in the facility.

This section evidences an implicit understanding that other types of actions may be brought

or relief sought and granted against the department or state agencies, officials, or employees. We

think the legislature clearly envisioned that the types of actions which might accrue during a state

inmate’s incarceration would include actions involving the conditions of his or her confinement,
20For the same reasons, we find that the “localizing effect” of Tenn. Code Ann. § 4-4-104 does not qualify as

an “otherwise provided by law” exception to Tenn. Code Ann. § 41-21-803.

16

including sanctions resulting from enforcement of prison rules. Such actions would necessarily

involve state entities, officials, or employees as defendants.

The clear language of Tenn. Code Ann. § 41-21-803 is that a civil action accruing while the

inmate is incarcerated is to be brought in the county where the facility in which he or she is housed

is located. We also note that Tenn. Code Ann. § 41-21-809 authorizes the court to hold a hearing at

the department’s facility wherein the plaintiff inmate is housed. While the purpose of the venue

provision is not explicitly stated, it furthers a number of goals. The most obvious one is that venue

in the locality of the facility is more convenient because the parties, any witnesses who might be

allowed to testify, and relevant records are located there. 

Consequently, we are unpersuaded by the Department’s argument that Tenn. Code Ann. § 41-

21-803 does not apply to actions against the Department. In Howse and Davis, the state defendants

apparently took the position that Tenn. Code Ann. § 41-21-803 established the exclusive venue for

civil rights lawsuits brought by prisoners and obtained dismissal of those actions because they were

brought in Davidson County. We are aware that 42 U.S.C. § 1983 actions are brought against

defendants in their individual capacities, as opposed to their official capacities and as opposed to the

department or governmental entity. We must presume this distinction provides the basis for the

Department’s seemingly opposite position in the case before us.

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 depend upon

which cause of action an inmate asserts, which defendants are named, or which procedural vehicle

is used. We do not believe the legislature intended to create such potential inconsistencies subject

to pro se litigants’ understanding of legal procedure. To the contrary, we find the legislature clearly

intended that lawsuits by state inmates against state entities, officials and employees, arising from

conditions or other incidents of incarceration are to be brought in the county where the correctional

facility is located.

We also find that Tenn. Code Ann. § 41-21-803 is more specific than an interpretation

localizing actions against state departments or the statute upon which that interpretation is based,

Tenn. Code Ann. § 4-4-104. Civil actions by state prisoners are a subcategory of actions which could

be brought against a state department or commissioner. The categories are not mutually exclusive.

As explained above, to hold otherwise would be to presume the legislature did not envision that state

inmates complaining about treatment in state prisons would not sue the state department or officials

responsible for their custody.20

Accordingly, we agree with the decision of the Davidson County Circuit Court that it was

without jurisdiction to hear this matter because the action was filed in the wrong court. However, the

consequence of that holding is not necessarily dismissal.
21Mr. Hawkins filed his petition on November 8, 2000. 

17

VI. Transfer

The general rule is that “a court lacking subject matter jurisdiction over a case has no

authority to transfer it, unless that authority is specifically 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 “inherent authority to transfer cases in the absence of statutory authority.” Id. at

320; Coleman v. Coleman, 190 Tenn. 286, 293-94, 229 S.W.2d 341, 344-45 (Tenn. 1950). In

Norton, the Court invited the legislature 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 effective on

May 23, 2000.21 It states:

Transfer of actions or appeals.-Notwithstanding any other provision 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 for review of a final decision in a

contested case under the Uniform Administrative Procedures Act, compiled in title

4, chapter 5, is filed in a state or county court of record or a general sessions court

and such court determines that 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 brought at the time it was originally filed. Upon

such a transfer, the action or appeal shall proceed as if it had been originally filed in

the court to which it is transferred on the date upon which it was actually filed in the

court from which it was transferred.

We find Mr. Hawkins is entitled to the benefit of this statute and that it is in the interest of

justice that this action be transferred to the appropriate trial court. Accordingly, we remand to the

trial court for entry of an order transferring 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 certiorari

seeking judicial review of decisions of the Board must be brought in the county where the prison is

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 necessary.

___________________________________ 

PATRICIA J. COTTRELL, JUDGE