FILED

August 5, 1998

Cecil W. Crowson

Appellate Court Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JIMMY KEY, )

)

Plaintiff/Appellant, )

) Davidson Chancery

VS. ) No. 95-3896-I

)

TENNESSEE BOARD OF ) Appeal No.

PAROLES, ) 01A01-9610-CH-00480

)

Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT

FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

For Plaintiff/Appellant: For Defendant/Appellee:

Jimmy Key John Knox Walkup

Pro Se Attorney General and Reporter

Brenda Rhoton Little

Parker, Allen & Crofford

Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1Tenn. Ct. App. R. 10(b) provides:

The Court, with the concurrence of all judges participating in the case, may

affirm, reverse or modify the actions of the trial court by memorandum opinion when

a formal opinion would have no precedential value. When a case is decided by

memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall

not be published, and shall not be cited or relied on for any reason in a subsequent

unrelated case.

-2-

MEMORANDUM OPINION

This appeal involves a dispute between the Board of Paroles and a prisoner convicted of

being an habitual criminal over the inmate’s right to custodial parole and the calculation of his

sentence credits. The Chancery Court for Davidson County granted the Board’s motion to dismiss,

and the prisoner has appealed. We affirm the dismissal of the prisoner’s suit in accordance with

Tenn. Ct. App. R. 10(b).1

In 1976 Jimmy Lee Key was convicted of burglary and of being an habitual criminal and was

sentenced to life imprisonment. Three years later, while confined at the Morgan County Regional

Correctional Facility, Mr. Key murdered a fellow inmate. In a plea agreement, he agreed to plead

guilty to second degree murder in return for a thirty-five year sentence to be served consecutively

with his life sentence. In April 1991, the Board of Paroles granted Mr. Key custodial parole from

his life sentence but rescinded the parole one year later in accordance with an Executive Order by

Governor McWherter excluding certain violent offenders from eligibility for early release

consideration. The Board paroled Mr. Key on his life sentence in the usual way in December 1994.

As soon as he was paroled the second time, Mr. Key filed a declaratory judgment action in

the Chancery Court for Davidson County challenging the Board’s 

1992 decision to rescind his original parole and the calculation of his sentence reduction credits. The

trial court dismissed Mr. Key’s petition on the ground that the Board’s actions could only be

reviewed using a common-law writ of certiorari.

The power to pardon or parole rests in the Executive Branch. See Tenn. Const. art. III, § 6.

Accordingly, the Board is wielding executive power when it makes parole decisions, and these

decisions, if made according to law, are not reviewable by the courts. See Tenn. Code Ann. § 40-28-

115(c) (1997); Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn. Crim. App. 1995). Prisoners

seeking to challenge the fundamental legality of a parole decision may do so using a common-law

writ of certiorari, see Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App.

1994), but may not obtain judicial review by declaratory judgment. See Watson v. Tennessee Dep’t

of Correction, No. 01A01-9707-CH-00360, 1998 WL 4707, at *2 (Tenn. Ct. App. Jan. 9, 1998),

perm. app. denied (Tenn. May 26, 1998). Accordingly, the portion of Mr. Key’s petition challenging

the recision of his first parole fails to state a claim upon which relief can be granted.
-3-

Likewise, the portion of Mr. Key’s petition challenging the calculation of hissentence credits

fails to state a claim. The Tennessee Department of Correction, not the Board, is responsible for

administering the prisoner sentence reduction program. Accordingly, Mr. Key has sued the wrong

agency and is entitled to no relief from the Board.

We affirm the trial court’s dismissal of Mr. Key’s petition and remand the case to the trial

court for whatever further proceedings may be required. We also tax the costs of this appeal to

Jimmy Key.

______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION 

__________________________________

SAMUEL L. LEWIS, JUDGE