# FILED
June 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk TIMMY D. TOMLINSON, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9703- CH-00143 VS. ) ) Davidson Chancery ) No. 96-1179-II I CHARLES TRAU GHBER, CHA IRMAN ) TENNESSEE BOARDOF PAROLES, ) ET AL., ) ) Respondents/Appe llees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE ELLEN HOBBS LY LE, CHANCEL LOR

TIMMY D. TOMLINSON, #12478 5 Morgan Cou nty Regi onal Correc tional Faci lity P. O. Box 2000 Wartburg, Tennessee 37887 Pro Se/Petiti oner/Appellant JOHN KNOX WALK UP Attorney Gen eral and Repor ter JOHN R. M ILES Assistant Attorney Gener al Cordell H ull Buildi ng, Second Fl oor 425 5th Avenue N orth Nashvil le, Tennessee 37243- 0488 Attorney for Respondents/Appel lees

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

The Tennessee Board of Par oles declined to grant par ole to an inmate in the custody

of the D epa rtme nt of Corre ctio n. Af ter h is ad mini stra tive appeal of that decision was turn ed down, the i nmate pe titioned th e chancery court for a Writ of Certiorari. The court dismissed hi s petition on t he ground on untimeliness. W e affirm the dismissal, but base our decision on the alte rnate ground of the pet itioner’s failure to state a clai m upon which relief can be g ranted.

I.

On October 22, 1988, Timmy Dwayne Tom linso n was co nvict ed of two counts of aggravated rape, assaul t with att em pt to murde r, and attempt to comm it rape. He was sentenced toforty ye ars. His sentence wa s later

redu ced t o twen ty-fi ve years.
On August 8, 1995 a hearing off icer conducted a parole hearing f or Mr. Tomlinson. The hearing officer recommended that parole be d eclined, based u pon high risk and s eriousness of offense. The B oard adopted the he aring o fficer’s recommendations on A ugust 18, 1995.

Mr. Tomlinson filed an i nternal appeal of theB oard’s de cision. His appeal was denied on March 21, 1996. He filed hi s Petition for Certiorari in chancery court on April 15, 1996, claiming that the Bo ard had acted illegall y an d arbitrarily in denying him parole w ithout first or dering a psychologi cal examinat ion, and in using the seriousness of his offen se as a factor in makingits decisi on. The trial co urt dismiss ed the petition on the ground that it was not filed within the six ty-d ay ju risdi ction al tim e limit set fort h in Tenn. Code Ann. § 27-9-102. This appeal followed.- 3 - II.

On appeal, Mr.Toml inson concedes t hat his petiti on was filed more than sixty days after theBoar d r efused to grant hi m parole, but argues that it was not unti mely, because it was filed within sixty days of the Boar

d’s denial of hi s appeal of that refusal.

This court hasprevious ly determi ned in a case i nvolvi ng revocation of parole, that th e sixty d ay p eriod within which the petitioner was required to file his Petition for Writ of Certiorari di d not begin to run until the Board’s de c ision became final and h e had exhau sted his ad mini stra tive remedies. See Jennings v. Traughber , Appeal No. 01A01-950 9-CH-00390 (filed Nashville, March 6, 1996).

Howeve r the question of the correct starting point for t he sixty-day jurisdict ional time limit i n cases wh ere the Board dec lines to g rant parole has not been decided by this court. See Fite v. Board of Parole s , 9 23 S.W.2d 543 (Tenn. App. 1996). Sams v. Traugh b er , Appeal No. 01-A-01-9603-CH -00133 (Fil ed Nashvil le, August 14, 1966). In the present case, we have examined the petitioner’s allegatio ns and we find that even i f his petition were cons idered to be ti mely, he has failed to state a claim upon w hich relief may be granted. See Tenn. R. Civ . P. 12.02(6).

As we haveobserved many times before, the Writ of Certi orari may be granted only u nde r very na rrow co ndit ions . It is ava i lable on ly where the p leadin gs in the revi ewing court indicatethat the inferior tribunal has

“exceeded i ts jurisdic

tion, or has acted ill egally , arbitrar ily or fraudulently. ” See Powell v. Par ole Eligibi

lity Review Board, 879 S.W,2d 871, 873 (Tenn. App. 1 994); see also Yokley v. Stat e , 632 S.W .2d 123 (Tenn. App . 1981).- 4 - This fundamental limitation o n the scope of the wri t has frequentl y led petition e rs to adopt the lang uage of the above- cited cases w hile descri bing procee dings that do not appear to suffer from any significant

irregul arity. The present case appears to be one of these.

The petitioner

bases his pr imary cl aim upon Tenn. Code Ann. § 40-28- 116(a)(2): No person conv icted of a sex crime sha ll be released on parole unless a licensed psychiatrist or licensed psychologist designated asa health service provider has evaluated such an inmate and determi ned to a reasonable deg ree ofmedical or psycholog ical certai nty that the inmate does

not pose the likelihood of committing s exual assaul ts u pon release from co nfine ment. The evaluation s shall be pr ovided by psychiatr ists or license d psycholog ists desig nated as health service providers whose service s are contrac ted for and funded by the board or the department.

Since he apparently did not receive such a n evaluation, Mr. Tomlinson claims that t hat the Board acted i llegally in regar d to his case. I t does not appe ar to us, h owever , tha t the plain wo rdsof t he st atut e or th e legi slat ive intention behind it req uire that a psycholog ical eval uation be performed beforea parole hearing may

be conducted for an inmate w ho has been conv icted as a sex offende r.

It appears that the purpose of the statute is to protect the public by preventingthe Board from releasing a convicted sex off ender until the required psycholog ical finding is obtained, not to c reate a ne w procedural right for such offende rs. This doesnot mean, of course, that the Board or the Department may withhold psycholog ical eval uation from an inmate, and then use the absence of the required fin ding as its sole reason for denyingparole.- 5 - I n th e present case the Board denied par ole for Mr. Tomli nson because of high risk, and because his release at th is stage in his sentence would depreciate theseriousness of his offenses. See Tenn. C ode Ann. § 40-35-50 3. Itwas not deni ed beca use h e did not re ceive a favorable psychologi cal evaluation.

W hile t here may be an overlap between the psycho logical evaluation thatthe statuterequires and a finding of hi gh risk, we note that Mr. Tomlinson was also convicted of assault with attempt to com mit murder, which is not classifie d as a sexual offense, a nd ther efore does no t require th e petiti oner to undergo psycholog ical eval uation before parol e may be gr anted or denied.

The petitioner’s second claim is a challe nge to the practi ce of using the seriousness

of a prisoner’ s offense as a reason for decl inin g paro le. W e have dealt extensively with this q uestio n in previ ous cases, and we have found that even though the seriousnes s of a prisoner’ s offense may have been factored into the sentence he received, in appropriate ca ses it may also be a leg itimate reason for decliningparole. SeeTenn. Code Ann. § 40 -35-503(a)(2); South v. Board of Paroles , Appeal No. 01-A-01-9609- CH-00 393 (Filed N ashvill e, December 11, 1996); Mosley v. Board of Par oles , Appeal No. 01-A-01-9604-CH -00162 (Fil ed Nashvil le, November

1, 1996). This appears to be one s uch case.

III.

The action of thetrial cour t is affirmed, but for failure tostate a claim upon which relief can be gr anted rather than for untimeliness
. Remand this cause

to the ChanceryCourt ofDavidson County for furth er proceeding s consistent with this opinion. Tax the costs on appeal to the appe llant.- 6 - _____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., J UDGE