FILED

June 18, 1997

Cecil W. Crowson

Appellate Court Clerk

TIMMY D. TOMLINSON, )

)

Petitioner/Appellant, )

) Appeal No.

) 01-A-01-9703-CH-00143

VS. )

) Davidson Chancery

) No. 96-1179-III

CHARLES TRAUGHBER, CHAIRMAN )

TENNESSEE BOARD OF PAROLES, )

ET AL., )

)

Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

TIMMY D. TOMLINSON, #124785

Morgan County Regional Correctional Facility

P. O. Box 2000

Wartburg, Tennessee 37887

Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP

Attorney General and Reporter

JOHN R. MILES

Assistant Attorney General

Cordell Hull Building, Second Floor

425 5th Avenue North

Nashville, Tennessee 37243-0488

Attorney for Respondents/Appellees

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

KOCH, J.
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O P I N I O N

The Tennessee Board of Paroles declined to grant parole to an inmate

in the custody of the Department of Correction. After his administrative appeal of that

decision was turned down, the inmate petitioned the chancery court for a Writ of

Certiorari. The court dismissed his petition on the ground on untimeliness. We affirm

the dismissal, but base our decision on the alternate ground of the petitioner’s failure

to state a claim upon which relief can be granted. 

I.

On October 22, 1988, Timmy Dwayne Tomlinson was convicted of two

counts of aggravated rape, assault with attempt to murder, and attempt to commit

rape. He was sentenced to forty years. His sentence was later reduced to twenty-five

years.

On August 8, 1995 a hearing officer conducted a parole hearing for Mr.

Tomlinson. The hearing officer recommended that parole be declined, based upon

high risk and seriousness of offense. The Board adopted the hearing officer’s

recommendations on August 18, 1995.

Mr. Tomlinson filed an internal appeal of the Board’s decision. His

appeal was denied on March 21, 1996. He filed his Petition for Certiorari in chancery

court on April 15, 1996, claiming that the Board had acted illegally and arbitrarily in

denying him parole without first ordering a psychological examination, and in using the

seriousness of his offense as a factor in making its decision. The trial court dismissed

the petition on the ground that it was not filed within the sixty-day jurisdictional time

limit set forth in Tenn. Code Ann. § 27-9-102. This appeal followed.
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II.

On appeal, Mr.Tomlinson concedes that his petition was filed more than

sixty days after the Board refused to grant him parole, but argues that it was not

untimely, because it was filed within sixty days of the Board’s denial of his appeal of

that refusal.

This court has previously determined in a case involving revocation of

parole, that the sixty day period within which the petitioner was required to file his

Petition for Writ of Certiorari did not begin to run until the Board’s decision became

final and he had exhausted his administrative remedies. See Jennings v. Traughber,

Appeal No. 01A01-9509-CH-00390 (filed Nashville, March 6, 1996).

However the question of the correct starting point for the sixty-day

jurisdictional time limit in cases where the Board declines to grant parole has not been

decided by this court. See Fite v. Board of Paroles, 923 S.W.2d 543 (Tenn. App.

1996). Sams v. Traughber, Appeal No. 01-A-01-9603-CH-00133 (Filed Nashville,

August 14, 1966). In the present case, we have examined the petitioner’s allegations

and we find that even if his petition were considered to be timely, he has failed to state

a claim upon which relief may be granted. See Tenn. R. Civ. P. 12.02(6). 

As we have observed many times before, the Writ of Certiorari may be

granted only under very narrow conditions. It is available only where the pleadings

in the reviewing court indicate that the inferior tribunal has “exceeded its jurisdiction,

or has acted illegally, arbitrarily or fraudulently.” See Powell v. Parole Eligibility

Review Board, 879 S.W,2d 871, 873 (Tenn. App. 1994); see also Yokley v. State, 632

S.W.2d 123 (Tenn. App. 1981).
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This fundamental limitation on the scope of the writ has frequently led

petitioners to adopt the language of the above-cited cases while describing

proceedings that do not appear to suffer from any significant irregularity. The present

case appears to be one of these. 

The petitioner bases his primary claim upon Tenn. Code Ann. § 40-28-

116(a)(2):

No person convicted of a sex crime shall be released on

parole unless a licensed psychiatrist or licensed psychologist

designated as a health service provider has evaluated such

an inmate and determined to a reasonable degree of medical

or psychological certainty that the inmate does not pose the

likelihood of committing sexual assaults upon release from

confinement. The evaluations shall be provided by

psychiatrists or licensed psychologists designated as health

service providers whose services are contracted for and

funded by the board or the department. 

Since he apparently did not receive such an evaluation, Mr.

Tomlinson claims that that the Board acted illegally in regard to his case. It does

not appear to us, however, that the plain words of the statute or the legislative

intention behind it require that a psychological evaluation be performed before a

parole hearing may be conducted for an inmate who has been convicted as a sex

offender.

It appears that the purpose of the statute is to protect the public by

preventing the Board from releasing a convicted sex offender until the required

psychological finding is obtained, not to create a new procedural right for such

offenders. This does not mean, of course, that the Board or the Department may

withhold psychological evaluation from an inmate, and then use the absence of the

required finding as its sole reason for denying parole.
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In the present case the Board denied parole for Mr. Tomlinson

because of high risk, and because his release at this stage in his sentence would

depreciate the seriousness of his offenses. See Tenn. Code Ann. § 40-35-503.

It was not denied because he did not receive a favorable psychological evaluation.

While there may be an overlap between the psychological evaluation

that the statute requires and a finding of high risk, we note that Mr. Tomlinson was

also convicted of assault with attempt to commit murder, which is not classified as

a sexual offense, and therefore does not require the petitioner to undergo

psychological evaluation before parole may be granted or denied.

 

The petitioner’s second claim is a challenge to the practice of using

the seriousness of a prisoner’s offense as a reason for declining parole. We have

dealt extensively with this question in previous cases, and we have found that

even though the seriousness of a prisoner’s offense may have been factored into

the sentence he received, in appropriate cases it may also be a legitimate reason

for declining parole. See Tenn. Code Ann. § 40-35-503(a)(2); South v. Board of

Paroles, Appeal No. 01-A-01-9609-CH-00393 (Filed Nashville, December 11,

1996); Mosley v. Board of Paroles, Appeal No. 01-A-01-9604-CH-00162 (Filed

Nashville, November 1, 1996). This appears to be one such case.

III.

The action of the trial court is affirmed, but for failure to state a claim

upon which relief can be granted rather than for untimeliness. Remand this cause

to the Chancery Court of Davidson County for further proceedings consistent with

this opinion. Tax the costs on appeal to the appellant.
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_____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

WILLIAM C. KOCH, JR., JUDGE