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

Briefs A ugust 2, 2001
JEREL HUGHES v. TENNESSEE DEPARTMENT OF

CORRECTION, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 00-2096-III Ellen Hobbs Lyle, Chancellor

No. M2001-00074-COA-R3-CV - Filed Septem ber 3, 2002

Petiti oner, a state inmate, filed the underly ing action seeking review of a ctions taken by the Tennessee Department of Correction and the Tennessee Boar d of Probation and Parole, including the decision of the Board to deny parole and set thenext parol e hearing two years later. Petitioner hadbeen convicted of an additional felony while on parole from a previous felony conviction. The trial court dismissed the petition for failure to state a claim under Tenn. R. Civ. P. 12.02(6). For the reasons set forth below, we affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM C. K OCH , J R ., J., joined. Jerel Hughes, Clifton, Tennessee, Pro Se.
Paul G. Summers, Attorney Gene ral andReporter ; Michael E. Moore , Solicitor Genera l; Ashley S. Old, Assistant Attorney Gene ral, for the app ellees, Tennessee Department of Correction and Tennessee Board of Probation and Parole.
OPINION
Mr. Hughes , a state

prisoner , appea

ls from the

trial cou rt’s dismissa l of his action seeking judicia l review by c ommon law w rit of ce rtiorar i, a decl arator

y ju dgment, issuance

of a writ o f ha beas corpus, and other relief. His lawsuit was based upon the following set of facts, w hich w e must presume t o be true bec ause he appeals from the gra nt of a motion to dismiss. Bell v. Icard, Merrill, Cullins, Timm, Furen and Ginsburg, P.A. , 986 S.W.2d 550, 554 (Tenn. 1999).
Mr. Hughes was convicted and sentenced in 1993 to imprisonment for a term of fifteen (15) ye ars. He was paroled from that sentence on Septemb er 10, 19 97. One y ear late r, while o n parole2

from his original sentence, he committed another offe nse, aggravated r

ob bery, for which he was sentenced, on February

11, 1999, to eight (8) y ears imprisonment, but with all but one yea r (day for day) suspended, followed by place ment on supervised probation.
He was served with a

parole r evocati on warr

ant short ly a fter his a rrest for the 1998 offense, andhe appeared before the B oard of Probation and Parole (“Board”) on May 13, 1999. In his brief Mr. Hughes refers to this hearing as a revocation hearing and sta tes it “was the result of appellant committing a

subsequent

offense.” According to the doc uments attached to Mr. Hughes’s petition, his parole from his original sentence was r evoked and

the time for him to begin serving his new sentence was set for September 15, 1999. The reason for the revocation was indicated as “NF,” meaning new felony. We note tha t acco r ding to the same form, Mr. Hughes’s sentenc e was calculated to expire on January 12, 2005.
Mr. Hughes allege s that on Sep tembe r 16, 1 999, h e was “f orced t o go back before” a Board hearing officer and that the result was a decision that he ha d to serve an additional two (2) years and could be reconsidered by

the Board for parole after those two (2) ye ars. Mr. Hughesrefer s to this hearing as a

“time setting hearing,” but the doc uments att

ached to Mr. Hughes’s pe

tition indic ate this was a parole

hearing which re sulted in

a recommendation that he be denied parole. The reasons for the denial, indicate d by

checkma rks on the form, we re “The re is a substantial risk that the offender will not confo

rm to the c onditions o f relea se” and “The offe nder’s c ontinued c orrect

ional tre atment, medical ca re or vo ca ti on al or ot he r t ra in in g i n t he in st it ut io n w il l s ub st an ti al ly e nhance the of fender’s capaci ty to leada law-abiding life when give n release status at a later time.” Below these reasons are handw ritt en not es sta ting, “parole violation” and “substance abuse,” which we interpr et as being further explanation of each reason, respec tively . This recommendation by the hearing officer was approved by the

Board.
Mr. Hughes administratively appealed this ruling pursuant

to Board procedure, and by letter datedApril 27, 2000, he was informed that his appeal had been denied and that this determination was final. The letter stated that Mr. Hughes ’s appeal from the September 16, 1999 parole g rant hearing had beenthoroug hly reviewed, that he had not supported his claim that significant new information or evidence existed wh ich was n ot a vailable at the time

of the he aring, and that h is alleg ation of

su bs ta nt ia l p ro ce du ra l i rr eg ul ar it y by t he he ar in g o ff ic er wa s u ns ub st an ti at ed by a review of the file and the tape of the hea ring. Subsequent ly, Mr. Hughes filed a petition

for common law writ of cer tiorari in Davidso n County seeking review of the

Board’s decision to decline parole for a nother two yea

rs. During the course of this litig ation in

the trial court, Mr. Hughes amended his complaint and filed var ious other moti ons and requests for relief. He named both the B oard and the Department of Correct io n (hereinafter

referred to jointly

as “the State”). The trial court issued a memorandum and or der dealing with the various claims for relief and gra nted t he State’ s motion to di smiss and d enied all motions filed by

Mr. Hughes. I

n gran ting the motion to dis miss pursua nt to Tenn. R. Civ. P. 12.02(6), the court

held that the petition for writ of certiorari was not filed within the sixty (60) day time limit imposed i n T ennessee Code An notated § 27-9-102

and did no t alleg e any

illega l,1 Mr. Hughes’s position is that both the heari ngs result ed in decisions by the Board that his new sentenc e beg in

on September 15, 1999, and t hat duri ng the t

ime between the t wo hearin gs he had violated no rules or gi ven the Board any reason t o “bring him back up and t ake his parole. ” Had he begun his new sent ence on September 15, 1999, he argues (continued...)
3 fraudul ent, or arbitrary

action on the part of the Board. The trial cour t dismissed the motion for injunctive relief

based on the conclusion that Mr. Hughes did not showhe was entitled to the relief he requested. The trial court determined that the petition for habe as corpus relief was inapprop riate because the evidence before the court did not establish that the term of imprisonment had expired or the judgment was void. The court determined that Mr. Hug hes’s motion for

extraordinary appe al was premature and filed in the wrong cour t. The court denied

Mr. Hughes’s request

to be brought before the cour t becaus e he fai led to stat e a claim under any

of the legal theories he asserted. The trial court denied Mr. Hughes’s motion for declar atory judgment based on l ack of jur isdiction because Mr. Hughes had not previously sought a declaratory

orde r from the Department of Correction regarding his sentenc e calculation.
On appeal, Mr. Hughes raises the following issues: (1) whether the trial court was cor rect in dismissing the petition for failure to state a claim; (2) whether the Board exceeded its jurisdiction or acted in an illegal, arbitrary , or capricious manner; (3) whether the trial c ourt was c orrect in dismissing the petition as untimely; (4) whether the trial court was correct in dismissing the petition for habeas corpus relief; (5) whether the Board was corre ct in calculating Mr. Hughes’s sentenc e; and(6) whether the tri al court was correct in deny ing Mr. Hughes’s motion for appointment of counsel. Based o n the follo wing, w e affir m the dec ision of the

trial cou rt.
I.
Alth ough the State makes technical procedural arg uments herein, relating to relief under common law writ of certiorari, the writ of habeas cor pus, and the Administrative Procedures Act’s provisions on declaratory judgments, before we a ddress th e requir

ements of

the appr opriate procedure, we must first identify Mr. Hug hes’s real claim. The

State has not responded

directly to what we perceive to be the prisoner’s actual complaint from which he seeks relief. Neither has the Statefiled the administrative record regarding actions taken

by either the De

partment of Correction or the Board regar

ding Mr. Hughes’s sentence.
Mr. Hughes filed a petition for writ of certiora ri to challenge the decision of the Boa r d denying his administrative appeal. That decision affirmed the Boar d’s earlier decision which, i n part , denie d pa role to Mr . Hughe s. Howev er, it is not really the denia l of paro le to which he objects. Instead, it is the re setting of his next p arole he aring f or two y ears la ter, whe n, acco rding to his argu ment, he was not required to appear before the Board at all. He argue s that at the original revocationhearing, the Board orde red that his new sentenc e begin Septembe

r 15, 1999 ; that bec ause his new s entenc e was for only one yea r, he was not required to meet with the Board be fore being released on superv

ised prob ation for

the rema inder of that sente

nce; a nd t hat the Board’s second hearing resulted in an order requiring him to serve additional time. 1 His argument is based on the1 (...continued)

his sentence would have expired and he would have been released before the date set f or his next parole heari ng.

2 This l angua ge was previ ousl y f ound at Tenn. Code Ann. § 40-3620. 4 proposition that the B oard’s s etting a date for the beginning of

his n e w sentence automatically caused his original sentence to end the day before, because those sentence s must be se rv ed co ns ec ut iv el y.
With regar

d to Mr. Hughes’s or

iginal f ifteen ( 15) year sen

tence, h is parole d

id not term

inate that sentence. While paro le normally terminates conf inement, the parolee continues in constructive custody until the expira tion o f the full term of his sentence. Parole is nothing more than a conditional suspension of a sentence. Howell v. State , 569 S.W.2d 428, 432-33 (Tenn. 1978). Upon revocationof Mr. Hughes’s parole, the Boa rd had wide discretion regarding appropriate continued incarceration.
The Board i s vested with the duty and autho

rity to decide “

the action to be tak

en” if pa role is vi olate d, Ten n. Co de Ann . § 40- 28-11 8(c), a nd aft er a par ole rev ocati on hea ring:

ma y, if it seesfit, requ

ire such prisoner to serve out in prison the balance of the maximum termfor which the prisoner was originally sentenced, calculated

from the date of the delinquency

or such part thereo f, as it may determine, or impose such punishment as it deems proper, subject to the provisions of § 40-28-123. Tenn. Code Ann. § 40-28-122(d).
In re levant pa rt, Tenn. Code Ann. § 40-28-1 23(a) pr ovides: Any prisoner who is convicted in thi s st ate of a felony , committe d while on parole from a state p rison, ja il or workhouse, shall serve the remainder of the sentence under wh i ch the prisoner was paroled, or such part of that sente nce, as the board may d eter mine before the prisoner commences serving the sentence received for the felony committed while on par ole.
This statute has been in existence for a long time a nd has inc luded ess entially the same langua ge that now appears in that sentence of Tenn. Code Ann. § 40-28-123(a) quoted above. See Hend erson v. State , 419 S.W.2d 176, 522 (Tenn. 1967). 2 Our cour ts have lo ng inter

preted t h i s statute as prec luding a

trial cou rt from imp osing the sent ence fo r a felo ny c ommitted on

parole t o run concurr

ently withthe original sentence from which the individual was par oled. Henderson , 419 S.W.2d at 522-23 (explaining that the eff ect of t he sta tute i s that the tr ial j udge is powerless to order such a concu

rrent se ntence) ; Taylor v. Morgan , 909 S.W.2d 17, 20 (Tenn. Crim. App. 1995); State
v. Buchanan , No. M1999-00980- CCA-R 3-CD, 2000 Tenn. Crim. App. LEXI S 173, at *11-*12 (Tenn. Cr im. App. F

eb. 29, 20 00) (per

mission toappeal d

enied Sept. 18, 2000 ); Bergdoff v. State , No. 01C01-9508-CC-00279, 1996 Tenn. Crim. App. LEXI S 629, at *11 (Tenn. Crim. App. Oct. 8,3 Our res earch reve als tha t the f act sit uati on pres ente d by Mr. Hug hes i s not uni qu e and that

the Board has apparentl y been f

ollowi ng the s ame procedure f or some ti me. See, e .g. , Garr ett v. Te nn. Bd. of Paroles , No. M2000- 002 19- COA- R3- CV, 2002 T enn. App. LEX IS 5, at *1-* 4 (Tenn. Ct. App. Jan. 4, 2002) (no Tenn. R. App. 11 appli cati on fi led) (stating in the facts that M r. Ga rrett was paro led in 1987 from a li fe sen tence; his par ole was r evoked aft er he was convict ed in 1994 of a felony and senten ced to twelve (1 2) years for his s eco nd se ntence ; i n August 1994 the Bo ard determin ed M r. Ga rrett wo uld b egin ser ving his twe lve-year sentenc e on F ebru ary 8, 1 995 ); Crass v. Te nn. Dep’t of Corr ., No. 01-A- 01-9409- CH-00434, 1995 Tenn. App. LEX IS 230, at *3-*4 (Tenn. Ct. App. Apr. 12, 1995 ) (no Tenn. R. App . P. 11 app lication filed ) (stating in the facts tha t Mr. Cr ass arri ved at the Depart ment of Corr ecti on in 1983 with
a sente nce of t wenty (20) year s; he was parole d in 1988; he was convict ed of new crime com mitted while o n par ole and
was giv en a s ente nce of thi rty -si x (36) year s; hi s parole w as revoked, and the Board ordered t hat his new c onvic tion be gin December, 1991. 5 1996) (no Tenn. R. App. P. 11 applica tion filed ); State v. Sharpe , No. 01C01-9301-CR-00031, 1993 Tenn. Crim. App. LEXI S 832, at *10 (Tenn. Crim. App. Dec. 9, 1 993) (no Tenn. R. App. P. 11 application filed); McDanie l v. State , No. 03- C-0 1-9 202 -CR -00 048 , 19 92 T enn . C rim . Ap p. LE XIS 866, at *5 (Tenn. Crim. App. Nov. 13, 1992) (permission to appea l denied M ar. 1, 19 93); State v. Brown , No. 86- 203 -III, 1 987 Ten n. C rim . Ap p. LE XIS 2231, at *1-*2 (Tenn. Crim. App. May 12, 1987) (permission to appeal denied Aug. 3, 1987). See also El-Amin v. Campbell , 973 S.W.2d 222, 223 (Tenn. Ct. App. 1998) (holding that as a matter of law, a sentence for a felony

committed

while on parole from a sentence for a f elony shall be consecutive to the sentence paroled upon if and when that parole is revoked).
Mr. Hughes relies upon the languag e of Tenn. Code Ann. § 40-28-123(a), and we think his argument is fairly construed a s presenting the question of whether that statute requires the Boa rd to make the sentences consecutive or, alternatively , whether the statute’s “or such part of that sentence as the Board may

determine” language give s the Board the authority and discretion to direct that the new sentence begin at a date ea rlier than the expiration of earlier sentence. 3 In other words, does the Board have authority

to allow the prisoner to serve thesentences concurrently ? If it does not, Mr. Hughes argue s, then the

Board’ s action in

setti ng the b egin ning of h is new sen

tence necessar

ily implies a determination that he was not required to serve any more of his original sentence.
Our courts have determined t hat the Board has such discretion. I n State v. V

enable , 606 S.W.2d 298 (Ten

n. Crim. Ap

p. 1980), the Court o f Criminal Appeals conside red the argument of a petitioner that the trial court’s judgment ordering that his sentenc e for a crime committedwhile on parole commence “at

the expiration of” his original sentence defeated the operation of Tenn. Code Ann. § 40-3620 “which provides that a parolee who is convicted of a subsequent felony must serve the remainder of the sentence under which he was paroled or such par t of that sentenc e as the Pa

role Board may determine be

fore he commences serving the subsequent sentence.” Venable , 606 S.W.2d at 302. The C ourt of Cr

iminal App eals co ncluded that any e rror in the wording of the judgment “was probably the re sult of inadvertence and not an attempt to usurp the paro le board ’s author ity t o determine how much of the defendant’s prior sentence should be served before

commencement of the instant sentence.” Id

. See also Walk er v. Stat e , No. 01C01-9707-CR-00297, 1998 Tenn. Crim. App. LEXI S 979, at

*6-*7 (Tenn. Crim. App. Sept. 10, 1998) (permission to appeal denied Feb. 1, 1999) (holding that only the B oard has the authority to determine the portion of a paroled sentence that is to be served after revocation and the discr etion to determine “concurrency ”).4 W hile the Bo ard ma y have the authority to so decide, we cannot assume such was the i ntention of t he Board when the law d oes n ot req uire that c onc lusion, th ere is no express statement to that eff ect by the Board, and the documents i ndicat e a dif ferent date f or the ex pirat ion of t

he sent ence. 6 It has been held that even though a trial court may not impose concurr

ent sentences in the situation of

a felony c ommitted while on parole, the court may recommend to the Board that it allow the prisoner to serve both sentences concurrently

. State v. Herron , No. 249, 1990 Tenn. Crim. App. LEXIS 680, at *4-*5 (Tenn. Crim. App. Oct. 11, 1990) (permission to appeal denied Jan. 14, 1991). Ap pa re nt ly, it was c ommon pra ctice at one time for the Board to take into consider ation the trial court’s reco mmendation on the application of the consecutive sentence statute. Henderson, 220 Tenn. at 522- 23, 419 S.W.2d at 177-78. Nonetheless, it is within the Board’s authority and discretion to set the n

ew sente nce, for a felony committed

while on p arole, t

o begin to run before the prisoner has completely ser

vedthe rema

inder of the original sentence which wa s reinstated after parole revocation.
The statute clearly

gives the Board the authority to decide how much of

the prior sentence must be served before the new sentenc e commences. Nothing in the languag e of the statute equates this decision to the Board’s determination on how much of the reinstated remainder of the prior sentence must be served before the prisoner can be paroled again. Consequently , we do not agree withMr. Hughes’s argument that the Board’s setting of a begin ning da te for hisnew sent

ence mus t be interpreted

as an implicit decision that he would not be required to serve any portion of the remainder of his original sentence be yond the date set f

or beginning the new sentence

. 4

In at least t

hree ca ses, the Court of Criminal Appeals has addressed the same arg ument as that made herein by Mr. H

ughes and has found it to be without merit. In Crass v. Sta te , No. 03C01- 9304-CR-00135, 1995 Tenn . Crim. App. LEX IS 1013, at *1 (Tenn. Crim. App. Dec. 29, 1995) (permission to appea

l denied M ay

6, 1996), in a habe as corpu s petiti on, the appe llant specifically alleged that:
Since the Board of Paroles order ed the petitioner to begin serving time on the sentence for

the felon y committed while on parole on De cember 1, 1991, they effec tively

vacate d the remainder o f the prio r sentence bein g serv ed on the 1983 Grand Larce

ny conviction as of that da te.
The Court

of Crimina

l Appeals , follo wing Fletcher v. Livesay , No. 88-197-II I, 1988 Tenn. Crim. App. LEXI S 792 (Tenn. Crim. App. Dec. 28, 1988) (no Tenn. R. App. P. 11 application filed), affirmed the judgment of the trialcourt dismissing the habeas corpus petition. Crass , 1995 Tenn. Crim. App. LEXI S 1013, at *3-*5. The same result was reached in McMath v. State , No. 01C01- 9608-CC-00360, 1998 Tenn. Crim. App. LEXI S 155, at *3-*4 (Tenn. Crim. App. Feb. 4, 1998) (no Tenn. R. App. P. 11 application filed). Mr. McMath committed a felony while on release by

virtue of a commutation. His commutation was later revoked, he was sentenced to serve two (2) y ears on the new conviction, and

the Board

recomme nded that the new tw o (2) y

ear sen tence should begin5 The Governor agreed and s igned an order that Mr. McM ath’ s new sen tence woul d begin t o run on th at date

. 7 on a date well before the expi ration of the earlier sentence. 5 In a habeas c orpus proceeding, Mr. McMath alleged that

his continued incarceration was illegal bec ause he had fully served the sentence upon which he

was bein g held. He spec ifically alleged that

under Tenn. Code Ann. § 49-28-123(a) his previously imposed life sentenc e was terminated by the setting of a beginning time for his new se ntence. Relying on Fletcher v. Livesay , the court rejected that argument a nd affirmed the trial court’s dismissal of his habeas corpus petition.
In Fletcher , the petitioner used the same ar gument. Mr. Flet

cher wa s sentenc ed in 1971 to a term of ninety-nine ( 99) year s, buthis sente nce wascommuted

in 1981 to time served and he was placed on parole and was t o remain under supervision until 2021. In 1986, while on parole , he was convictedof another felony . On January 27, 1987, the B oard det ermi ned that Mr. Fletcher had violated his parole and ordered service of the one year se ntence on the new conviction to begin from th e date it was imposed, February 7, 1986, “thereby

affording Fletcher c

redit for the time serve d while waiting for the Board’s decision.” Fletcher , 1988 Tenn. Crim. App. LEXI S 792, at *3. Mr. Fl et cher claimed t

hat beca use Tenn . Code Ann . § 40-28- 123 requires a se ntence f or an off ense committed while the prisoner is on parole to beserved c onsecuti vely to the sentence for which the prisoner is on parole, the original ninety- nine (99) ye ar sentenceterminated upon completion of the new one-y ear sentence. Stated another way, the a

rgument was that the action of the Boar d setting the begi nning of the new sentence had ca used the expiration of the ninety-nine ( 99) year murd e r sentence. In consider

ing this argument, the Court of Criminal Appeals stated: Application of petitioner’s theory of “absorption” or “merger ” would cause the 99- year sentenc e to be “g obbled up ” by the one- ye ar sente

nce; put a nother w ay , it would effec tively

reduce the 99-year sentence to a one-y ear sent ence . . . . This r

esult is preposterous and absurd; . . . .
Id ., 1988 Tenn. Crim. App. LEXI S 792, at *3-*4.
We concl ude th at Mr. Hughes remains incarce rated under his original fifteen (15) y ear sentence because his parole from that sentence wa s revoked. The Board’s determination to allow him to begin serving his new sentencewhile he i s serving the rema inder of his orig inal sente

nce did nothave the effect of terminating or “expiring” the origina l sentence. By setting another grant of parole hearing for Mr. Hughe s, it is obvious the Board is willing at that time to consider how much of this o riginal sentence he must serve befor e he is re-paroled. The fact that he will have begu n servi ng, and perhaps have completed the incarceration par t of, his new sentencecan only operate to his advantage.6 The Cour t of Appeal s mayaf

fi rm a judgme nt on dif

fer ent groun ds from th ose rel ied on by t he tri al court

when the trial cou rt reach ed the corre ct result. Con tinental Ca s. Co . v. Sm ith , 720 S.W .2d 4 8, 50 (Te nn. 19 86) ; Arn old v . City of Chat tanooga , 19 S.W .3d 779, 789 (Tenn. Ct. App. 1999 ). 8 II.
Based upon our determination of the merits of Mr. Hughes’s claim, we ag ree with the trial court that he has failed to state a claim upon which relief ca n be granted

and that his complaint

was properly dismissed pursuant to Tenn. R. Civ. P. 12.02(6). 6

No prisoner

has a right to be released on parole prior to the expiration of his or her sentenc e. Robinson v. Traughber , 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999). Parole is a privilege, and the power to decide to release a prisoner on parole rests with the Board of Probation and Parole, not the courts. Hopkins v. Tenn. Bd. of Paroles & Prob. , 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001). Ac co rd in gl y, because parol e decisions are entirely discretiona ry, Richardson v. Tenn. Dep’t. o f Corr. , 33 S.W.3d 818, 820 (Tenn. Ct. App. 2000), Daniels v. Traughber , 984 S.W.2d 8 02, 803 (Tenn. Ct. App. 1998), the only vehicle f or obtaining judicial review of the Board’s decisions is a common law writ of certiorari. Thandiwe v. Traughber , 909 S.W.2d 802, 803 (Tenn. Ct. App. 1994).
The common law writ of certiorari is considered an extraordinar y remedy that is not avail able as of right. Utley v. Rose , 55 S.W.3d 559, 563 (Tenn. Ct

. App. 2001 ); Blackmon v. Tenn. Bd. of Paroles , 29 S.W.3d 875, 878 (Tenn. Ct. App. 2000). Under a petition for common law writ of certior ari, a court’s review of administrative age ncy dec i sions is limited to a determination of whether the admin

istrative body acte d wi thin its jurisdiction or acted arbitrarily, c apriciously, or il le ga ll y. Cooper v. Williamson County Bd. of Educ. , 746 S.W.2d 1 76, 179 (Tenn. 1987 ). Bec ause the Board has the authority to take th e a ct io n c om pl ai ne d o f, it ha s n ot ac te d i ll eg al ly, arbitrarily or beyond its jurisdiction in ref

using pa roleand setting the next parole hearing. There fore, Mr. Hughes has not sta

ted a cla im for relief unde

r the com mon law wr

it of cer tiorari. Habeas corpus relief

for a pe rson inca rcera ted afte r convic tion of a c

rimeis availa

ble only when a convicting court is without jurisdiction or authority to sentence a defendant or when the sentence has expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1992). Mr. Hughes’s claim is that his sentence has expired. As discussed above, however , his original fifteen (15) y ear sentence has notexpired. Consequently, Mr. Hug hes has not stated a claim for relief under the wr it of habeas corpus.
To the extentthat Mr. Hughes actually challenged computation of his sentence, it is correct that such a claim must be brought against the Depa rtment of Correction, because theDepartm ent is given e xclusive re sponsibilit

y for “calculating the sentence expiration date and

the ear liest rel ease date of any

felony offe

nder. . . .” Tenn. Code Ann. § 40-28-129. Such an action must be brought pursuant to Tenn. Co de Ann. § 4 -5-225, a nd a prer equisi te is that the petitioner first seek a declaratory

order from the agency . Tenn. Code Ann. § 4-5-225(b). The trial court herein found that9

Mr. Hughes had not sought a declara tory order f

r om the Department concerning his sentenc e calculation.
We are not convinced that Mr. Hughes’s c omplaint is with the Department’s calculation of his sentence expiration or any other a spect

of his sentence, except to the extent that the Department did not interp ret the B oard’s s etting o f the time for his ne

w sentence to beg

in as an imp licit determination that his original sentence was fully served on that

date. We have addressed that issue in our disc

ussion of t

he meritsof his prin

cipal ar gument. However, this court has previously held that an involuntary dismissal because of the failure to comply with Tenn. Cod e Ann § 4- 5-225(b)is not an a djudicat ion on the m

erits whi ch would preclude future judicial review if the administrativeremedy is soug ht. McMahan v. Whisman , No. 01-A-01-9711-CH-00681, 1998 Tenn. App. L EXIS 353, at *5 (Tenn. Ct. App. May 29, 1998) (no Tenn. R. App. P. 11 application filed). Therefore, the dismissal of Mr. Hughes’s a ction on the basis of failure to request a declaratory order from the Department is without prejudice.
The last issue presented by Mr

. Hughes on appeal is whethe r the tria l court wa s corre ct in denying his motion f

or appoin tment o f counsel, filed pursuant to Rule 13, Section 1(d)(4) of the Rules of the Supreme Court of Tennessee. The trial court denied the motion and based itsruling on the holding in Barish v. Metropolitan Gov’t , 627 S.W.2d 953, 955 (Tenn. Ct. App. 19 81), whe re this court determined that “there is no absolute right to counsel in a civil action.” See also Memphis Bd. of Realtors v. Cohen , 786 S.W.2d 951, 953 (Tenn. Ct. App. 1989); Howse v. Johnson , No. M1998- 00513-C0A-R3-CV, 2000 Tenn. App. LEXI S 383, at *6 (Tenn. Ct. App. June 13, 2000) (no Tenn. R. App. P. 11 appl i cation f iled). We a

ffirm the decision of the tri al court

deny ing Mr. H

ughes’ motion for

appointme

nt of coun sel.
III.
Based upon the f

orego ing, the

judgmen t of the tr ial cou rt is hereby a

ffirmed. Costs of the appeal are assessed to appellant, Jerel Hug hes, for which execution may issue if necessary

.

____________________________________ PATRICIA J. COTTREL L, JUDGE