IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 3, 2019

REX A. FERGUSON v. TENNESSEE BOARD OF PAROLE

Appeal from the Chancery Court for Davidson County

No. 17-548-III Ellen H. Lyle, Chancellor

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No. M2018-01784-COA-R3-CV

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This is an appeal from the judgment of the trial court denying an inmate’s petition for 

writ of certiorari challenging the Tennessee Board of Parole’s denial of parole. The 

inmate contends the Board’s decision to deny parole based solely on the seriousness of 

the offense was arbitrary and capricious, and the trial court abused its discretion in 

denying his petition. More specifically, he contends that denying parole on the basis of 

one factor, the seriousness of the offenses, “in the face of so many positive factors, 

without an explanation of how these positive factors do not outweigh the seriousness of 

the offense, constitutes an arbitrary and capricious decision contrary to the weight of the 

evidence in the record.” Having determined that “‘seriousness of the offense’ is a proper, 

independent basis to deny parole release,” the trial court denied the petition for writ of 

certiorari. Because the seriousness of the offense is a proper, independent basis for 

denying parole under Tenn. Code Ann. § 40-35-503(b)(2), and the trial court did not 

abuse its discretion in denying the petition, we affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS 

R. FRIERSON II and KENNY W. ARMSTRONG, JJ., joined.

Randall Eugene Reagan and Douglas A. Trant, Knoxville, Tennessee, for the appellant, 

Rex A. Ferguson.

Pamela S. Lorch, Nashville, Tennessee, for the appellee, Tennessee Board of Parole.

OPINION

Rex A. Ferguson (“Petitioner”), who has been incarcerated since 1993, is serving a 

96-year sentence on two counts of especially aggravated kidnapping and three counts of 

aggravated rape of two women.

07/09/2019
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The Tennessee Board of Parole (the “Board”) held its initial parole-release hearing 

concerning Petitioner on August 1, 2016. In support of his request for parole, Petitioner 

presented certificates of completion regarding several vocational training courses, as well 

as courses in anger management, alcohol and substance abuse, and the pro-life social 

class. In addition, he presented several letters of support from correctional staff and 

Petitioner’s family. It was also recognized that he received his General Equivalency 

Diploma in 1993 from the Tennessee Department of Corrections. Additionally, Petitioner 

presented a Parole Offender Release Plan establishing that he had obtained employment 

upon his release and detailing where he would be living. No one appeared in opposition 

to Petitioner being granted parole, no written statements in opposition to parole were 

presented, and it was undisputed that Petitioner had no disciplinary “write-ups” since 

2013.

During the August 1, 2016 hearing, the Board voted to continue the hearing in 

order to obtain a psychological evaluation of Petitioner. After receiving the psychological 

evaluation, the Board reconvened the hearing on March 28, 2017, and denied parole due 

to the seriousness of his offenses.

On June 1, 2017, Petitioner filed a petition for common-law writ of certiorari 

challenging the denial of parole by the Board. On February 16, 2018, the Board filed a 

Notice of No Opposition to Granting Petition for Writ of Certiorari. The trial court 

granted the petition for writ of certiorari by written order filed on February 23, 2018, 

ordered the Board to prepare and certify the record of the parole board proceedings, and 

set a briefing schedule. On August 30, 2018, the trial court filed its Memorandum and 

Order Denying Petition for Writ of Certiorari Challenging Denial of Parole. This appeal 

followed.

ANALYSIS

“Prisoners do not have an absolute right to be released on parole.” Brennan v. Bd. 

of Parole, 512 S.W.3d 871, 873 (Tenn. 2017). “Parole is a privilege, not a right.” Id.

(citing Tenn. Code Ann. §§ 40-28-117(a)(1), 40-35-503(b); Tenn. Bd. Parole R. 1100-01-

01-.02(2)); see also Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7

(1979) (“There is no constitutional or inherent right of a convicted person to be 

conditionally released before the expiration of a valid sentence.”).

The procedure for obtaining judicial review of the Board’s parole decision is by 

way of a common-law writ of certiorari. Hopkins v. Tenn. Bd. of Paroles & Prob., 

60 S.W.3d 79, 82 (Tenn. Ct. App. 2001); see also Thandiwe v. Traughber, 909 S.W.2d 

802, 803 (Tenn. Ct. App. 1994)). Review of the Board’s parole decision by the trial court 

and the appellate court is limited to whether the Board exceeded its jurisdiction, followed 

an unlawful procedure, or acted without material evidence to support its decision, i.e., 
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acted illegally, arbitrarily, or fraudulently. See Stewart v. Schofield, 368 S.W.3d 457, 465 

(Tenn. 2012); Greenwood v. Tennessee Bd. of Parole, 547 S.W.3d 207, 217 (Tenn. Ct. 

App. 2017) (“[I]f no material evidence exists to support the Board’s decision, it is 

arbitrary or illegal.”). “The reviewing court does not inquire into the intrinsic correctness 

of the decision, reweigh the evidence, or substitute its judgment for that of the Board.” 

Brennan, 512 S.W.3d at 873. Stated another way, “it is not the correctness of the decision 

that is subject to judicial review, but the manner in which the decision is reached.” 

Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994).

Petitioner contends the Board acted arbitrarily in denying parole based solely on 

the seriousness of his offenses. He also contends the decision was arbitrary because the 

Board failed to provide a detailed reason for its decision and failed to consider the 

specific facts of the offense.

As the Board correctly notes in its brief, “[c]ourts have repeatedly upheld Board 

decisions denying parole [based on the seriousness of the crime].” Brennan, 512 S.W.3d 

at 875 & n.4. As was the case in Brennan, the Board based its denial of parole on Tenn. 

Code Ann. § 40-35-503(b)(2), which provides that “no inmate convicted shall be granted 

parole if the board finds that . . . [t]he release from custody at the time would depreciate 

the seriousness of the crime of which the defendant stands convicted or promote 

disrespect for the law.” Accord Tenn. Bd. Parole R. 1100-01-01-.07(4).

In Brennan, the inmate argued that, “although the offense of attempted rape of a 

child is a parole-eligible offense, the Board denied parole solely because he committed a 

sexual offense.” 512 S.W.3d at 876. Like here, Mr. Brennan also contended that “the 

Board failed to provide a detailed reason for its decision and failed to consider the 

specific facts of the offense.” Id. The Supreme Court found Mr. Brennan’s challenges to 

the denial of his parole deficient, stating:

Parole decisions are fact-intensive, and the record does not support Mr. 

Brennan’s conclusory statement that he was denied parole based solely on 

the nature of his offense. The Board’s hearing officer stated he had 

considered the various written and oral statements submitted by Mr. 

Brennan and would provide the listed materials to the Board for review. 

The hearing officer questioned Mr. Brennan regarding the offenses and the 

efforts he had made while incarcerated to improve his educational, 

vocational, and employment skills. Mr. Brennan faults the Board for not 

giving a detailed explanation for its decision; however, the Board gave an 

adequate, legally-sufficient explanation for its decision and was not 

required to provide a more detailed reason. Mr. Brennan contends he has 

done well in prison; has the support of the victim, family members, and 

friends; has undergone sexual offender treatment; and has a plan for the 

future. These facts, while favorable to Mr. Brennan, do not entitle him to 
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parole.

The Board was required to consider a number of factors in making its 

decision. We have carefully reviewed the evidence presented to the Board, 

which shows that Mr. Brennan has the support of the victim, his family, and 

friends; has behaved well as a prisoner; regrets his wrongful actions; has 

apologized to the victim; and has plans for the future that include 

employment, church attendance, and continued sexual offender therapy. 

Mr. Brennan has served only a small portion of his twenty-year sentence 

for sexually assaulting his ten-year-old sister over a period of a month and a 

half. After considering these and other factors, the Board denied parole, as 

was its prerogative. It is not our role to inquire into the intrinsic correctness 

of the Board’s decision.

Id. at 876–77 (internal citations omitted) (footnote omitted).

Because the Board notified Petitioner that the reason it denied parole was due to 

the seriousness of his crimes, the Board gave Petitioner an adequate, legally-sufficient 

explanation for its decision and was not required to provide a more detailed reason. See 

Brennan, 512 S.W.3d at 876 (citing Hopkins, 60 S.W.3d at 83; Boyd v. Tenn. Bd. of 

Paroles, No. M1998-00914-COA-R3-CV, 2001 WL 360702, at *2 (Tenn. Ct. App. Apr. 

12, 2001); Jordan v. Tenn. Bd. of Paroles, No. 01A-01-9607-CH-00347, 1997 WL 

13756, at *4 (Tenn. Ct. App. Jan. 16, 1997)).

Petitioner also contends the Board failed to follow the mandate of Tenn. Code 

Ann. § 40-35-503(g) by failing to consider his completion of education, vocational, and 

employment skills programs in making the decision to deny parole. We find this 

contention is not supported by the record. To the contrary, the record reveals the 

following dialogue between Chairman Montgomery and Petitioner, which occurred near 

the end of the first day of the parole hearing:

MONTGOMERY: Thank you for those comments and words. I hear 

remorse. And, of course, I tell you this so you 

understand, that there’s two women out there that’s 

lives will never be the same, that they have to live with 

what happened to them forever.

FERGUSON: Yes, sir.

MONTGOMERY: And, it’s, you know, very, very traumatic. Some 

people may never get over it. You know, but—so it’s 

very, very serious, what’s taking place here.
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FERGUSON: Yes.

MONTGOMERY: I would have to say that, you know, I do have to look 

at the write-ups that you had up until the last three 

years. It looks like you’ve turned that around and you 

have been able to adjust and start to live within the 

confines of the institution and the way you’re 

supposed to live.

I’m going to recommend psychological evaluation on 

you. Because of the recommendations that I’ve gotten, 

the letters I’ve gotten and from the support, and the 

way you have conducted yourself, I’m going to allow 

that. It’s very unusual, when there’s two rapes 

involved of two different people, but I am going to do 

that. I’m going to recommend psychological 

evaluation. And we will conduct the next hearing on 

3/17, I think it is. I will set it at 3/17. And we’ll see 

how the psychological evaluation goes and go from 

there.

That doesn’t necessarily mean that you’re going to be 

released. That just gives us some kind of a measuring 

stick there as to how you’re doing and what might be 

the possibilities on down the road. So don’t take that as 

something that’s going to automatically let you out.

You know, we don’t want to lead you into a false 

sense of anything. But we do think that that is the law, 

it has to be done. We have to do a psychological 

valuation before anybody involved in rape is released, 

so we will take that step and do that at this time.

That’s my vote. That doesn’t necessarily mean that the 

other board members are going to agree with that vote. 

But we’ll know in about seven to ten days when we get 

four alike votes. Okay?

FERGUSON: Okay. Thank you.

MONTGOMERY: I wish you good luck. And I want to appreciate—I 

want to thank everybody here that testified at this 

hearing today. It’s been very much important to me as 
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a hearing officer to be able to get all the information I 

can to make these decisions. So thank you very much. 

Y’all have a safe trip home. I appreciate it.

As the transcript from the parole hearing reveals, the Board received and 

considered Petitioner’s accomplishments while in prison, as evidenced by Chairman 

Montgomery’s observation that “[i]t looks like you’ve turned that around and you have 

been able to adjust and start to live within the confines of the institution and the way 

you’re supposed to live.” Moreover, the record also reveals that the Board gave Petitioner 

no indication that he would be paroled if the psychological evaluation was favorable. To 

the contrary, Chairman Montgomery expressly stated, “That doesn’t necessarily mean 

that you’re going to be released. That just gives us some kind of a measuring stick there 

as to how you’re doing and what might be the possibilities on down the road. So don’t 

take that as something that’s going to automatically let you out.”

As was the case in Brennan, Petitioner has served only a small portion of his 96-

year sentence. After considering the foregoing factors, the Board decided to deny parole 

under Tenn. Code Ann. § 40-35-503(b)(2) due to the seriousness of Petitioner’s

convictions on two counts of especially aggravated kidnapping and three counts of 

aggravated rape of two women. As mentioned earlier, “[c]ourts have repeatedly upheld 

Board decisions denying parole [based on the seriousness of the crime].” Brennan, 

512 S.W.3d at 875 & n.4. Thus, the Board denied parole, as was its prerogative, and it is 

not our role to inquire into the intrinsic correctness of the Board’s decision. See id.

at 877.

Based on the foregoing and the entire record, we find no basis upon which to 

conclude that the Board applied an incorrect legal standard in reaching its decision or that 

its decision was against logic or reasoning. Accordingly, we affirm.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against the appellant, Rex A. Ferguson.

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 FRANK G. CLEMENT JR., P.J., M.S.