FILED

November 19, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

GARY W. PHELPS, )

)

Plaintiff/Appellant, )

) Davidson Chancery

) No. 95-1892-III

VS. )

) Appeal No.

) 01A01-9603-CH-00103

TENNESSEE BOARD OF PAROLES, )

ET AL., )

)

Defendants/Appellees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the Plaintiff/Appellant: For the Defendants/Appellees:

Gary W. Phelps, Pro Se J. Knox Walkup

AttorneyGeneral andReporter

Patricia C. Kussmann

Assistant Attorney General

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1Persons who have been convicted of sex crimes may not be released on parole until they

have completed a program for sex offenders and an appropriate mental health professional has

certified that they do not “pose the likelihood of committing sexual assaults upon release from

confinement.” See Tenn. Code Ann. §§ 40-28-116(a)(2), -117(b)(6) & 41-21-235 (1997). Based

on the State’s stipulated settlement in federal proceedings regarding the enforcement of these

statutes, this court has held that the Board cannot base its decision to deny parole to a sex offender

solely on the ground that the offender has not completed a program for sex offenders until the

Department of Correction has fully instituted these programs. See South v. Tennessee Bd. of Paroles,

946 S.W.2d 310, 312-13 (Tenn. Ct. App. 1996); Dalton v. Tennessee Bd. of Paroles, App. No.

01A01-9601-CH-00029, 1996 WL 230209, at *3-4 (Tenn. Ct. App. May 8, 1996) (No Tenn. R. App.

P. 11 application filed).

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O P I N I O N

This appeal involves a state prisoner’s efforts to obtain judicial review of the

decision of the Tennessee Board of Paroles to deny him parole. After exhausting his

available remedies before the Board, the prisoner filed a petition for writ of certiorari

in the Chancery Court for Davidson County challenging the Board’s decision. The

trial court dismissed the petition on the ground that it had not been filed within sixty

days as required by Tenn. Code Ann. § 27-9-102 (1980). We find that the petition

was timely filed and, therefore, vacate the order of dismissal.

I.

Gary W. Phelps is currently incarcerated at Turney Center serving two

consecutive sentences for sex crimes. He was afforded a parole hearing on February

14, 1995, and at the conclusion of the hearing, the hearing officer recommended that

Mr. Phelps should not be paroled because of the seriousness of his offenses and

because he had not completed a program for sex offenders.

1

 Between February 16

and 23, 1995, four members of the Board approved the hearing officer’s

recommendation, and Mr. Phelps was informed of the Board’s decision in a letter

dated February 28, 1995. 

On March 20, 1995, Mr. Phelps requested that the full Board review the

hearing officer’s decision. On April 25, 1995, the Board notified Mr. Phelps that his

request for review had been denied. Mr. Phelps received this notice on April 28,

1995 and filed a petition for writ of certiorari in the Chancery Court for Davidson
2

See West v. Tennessee Bd. of Paroles, App. No. 01A01-9604-CH-00362, 1997 WL 5179,

at *2 (Tenn. Ct. App. Jan. 8, 1997) (No Tenn. R. App. P. 11 application filed).

3

In West v. Tennessee Bd. of Paroles, supra., n.2, 1997 WL 5179, at *2, we held that a

prisoner’s untimely application for appellate review (formerly referred to as de novo review) did not

toll the time for filing a common-law writ of certiorari.

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County on June 23, 1995. The trial court dismissed the petition after concluding that

Mr. Phelps had not filed it before the deadline prescribed by Tenn. Code Ann. § 27-9-

102. 

II.

This appeal requires us to determine when the time for filing a petition for writ

of certiorari to review the Board of Paroles’ denial of parole begins to run. This issue

has been raised in prior cases, but we have never decided the question because those

cases were disposed of on other grounds.2

 Specifically, we must determine whether

the sixty-day filing period required by Tenn. Code Ann. § 27-9-102 commences when

a panel of the Board first denies parole or when the full Board denies the prisoner’s

timely application3 for appellate review. This is a pivotal issue in many of these cases

because the sixty-day filing period in Tenn. Code Ann. § 27-9-102 is mandatory and

jurisdictional. See Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App.

1994). 

A.

Prisoners do not have a right to be released on parole. See Graham v. State,

202 Tenn. 423, 426, 304 S.W.2d 622, 623 (1957); Tenn. Code Ann. § 40-28-117(a)

(1997). The decision to release a prisoner on parole is within the Board of Paroles’

discretion. State ex rel. Ivey v. Meadows, 216 Tenn. 678, 685, 393 S.W.2d 744, 747

(1965); Doyle v. Hampton, 207 Tenn. 399, 403, 340 S.W.2d 891, 893 (1960). The

Department of Correction is responsible for determining when a prisoner becomes

eligible for parole consideration, see Tenn. Code Ann. §§ 40-28-116 & 40-28-129

(1997), and this decision is based primarily on the portion of the sentence the prisoner

has served and on the sentence credits the prisoner has earned. See Tenn. Code Ann.

§ 40-28-115 (1997); Tenn. Comp. R. & Regs. r. 1100-1-1-.07(1)(a) (1995). 
4Tenn. Comp. R. & Regs. r. 1100-1-1-.07(3)(c).

-4-

After becoming eligible for parole consideration, a prisoner is afforded a

hearing before either a hearing officer or a panel of the Board. These hearings must

be conducted in accordance with the Open Paroles Hearing Act. See Tenn. Code

Ann. §§ 40-28-501 through -505 (1997). Prisoners may be permitted to be present

during the deliberations following the hearing, see Tenn. Comp. R. & Regs. r. 1100-

1-1-.07(3)(a), but in any event they are entitled to be informed of the decision “as

soon as it is made.” See Tenn. Comp. R. & Regs. r. 1100-1-1-.07(3)(b). 

If a parole hearing is conducted by a hearing officer, the hearing officer’s

decision is advisory only and must be either accepted, modified, or rejected by a

majority of the members of the Board. See Tenn. Comp. R. & Regs. r. 1100-1-1-

.07(2)(a). After the Board has acted on the hearing officer’s recommendations,

inmates have the right to appeal to the Board for further consideration on three

grounds. Written requests for this appellate review must be received by the Board

within twenty-one days after the Board’s final disposition “is made available to the

inmate.”4 The decision concerning whether to grant or to deny the appeal is

discretionary with the Board.

B.

The trial court did not explain the factual basis for its determination that Mr.

Phelps’s petition for common-law writ of certiorari had not been filed within the time

required by Tenn. Code Ann. § 27-9-102. We may assume, however, that the trial

court must have determined that the running of the filing period in Tenn. Code Ann.

§ 27-9-102 was not tolled while the Board was considering Mr. Phelps’s request for

appellate review of the Board’s decision announced in its February 28, 1995 letter.

Indeed, the Board asserts in its brief that the filing period began to run on February

28, 1995 and that there is no other possible date because the Board does not have the

authority to extend the filing deadline in Tenn. Code Ann. § 27-9-102. We certainly

agree that the Board does not have the authority to extend a statutory filing deadline;
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however, identifying the correct date when the filing period begins to run is another

matter.

Common-law writs of certiorari are extraordinary remedies. See Clark v.

Metropolitan Gov’t of Nashville and Davidson County, 827 S.W.2d 312, 316 (Tenn.

Ct. App. 1991). In the proper circumstances, the courts may grant these writs to

review decisions that are not final. See Boyce v. Williams, 215 Tenn. 704, 713, 389

S.W.2d 272, 276 (1965); Hewgley v. Trice, 207 Tenn. 466, 472, 340 S.W.2d 918, 921

(1961). However, the courts should decline to grant writs of certiorari if there are

other plain, adequate, and speedy remedies available to the person seeking the writ.

Pack v. Royal-Globe Ins. Co., 224 Tenn. 452, 465, 457 S.W.2d 19, 24 (1970); McGee

v. State, 207 Tenn. 431, 434, 340 S.W.2d 904, 905-06 (1960). 

Tenn. Code Ann. § 27-9-102 requires a petition for common-law writ of

certiorari to be filed “within sixty (60) days from the entry of the order or judgment.”

In the context of reviewing decisions of the Board to deny parole, Tenn. Code Ann.

§ 27-9-102 should be construed to refer to the final decision that fully and finally

resolves all the claims with no option for further administrative remedies. Any other

interpretation of Tenn. Code Ann. § 27-9-102 would require the courts to become

enmeshed in the Board’s proceedings prematurely and would also devalue the

administrative remedies still available to the prisoners seeking the writ. The Board’s

own procedures that permit appellate review by the full Board provide prisoners with

a plain, adequate, and speedy remedy that should not be circumvented.

Accordingly, we have determined that the time for filing a common-law writ

of certiorari to review decisions of the Board of Paroles should begin to run either

when a majority of the members of the board render their decision or, if the prisoner

has filed a timely request for appellate review by the Board, from the date the full

Board acts on the prisoner’s request. This interpretation of Tenn. Code Ann. § 27-9-

102 is consistent with our interpretation of Tenn. R. App. P. 4(b) regarding the filing

of notices of appeal and Tenn. Code Ann. § 4-5-322(b)(1) (Supp. 1997) regarding the

filing of petitions for judicial review of administrative decisions. 
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III.

We have determined that Mr. Phelps filed his petition for common-law writ of

certiorari within sixty days after the Board’s denial of his request for appellate review

and, therefore, that his petition was filed within the time required by Tenn. Code Ann.

§ 27-9-102. Accordingly, we vacate the order dismissing Mr. Phelps’s petition and

remand the case to the trial court for a consideration of the merits of Mr. Phelps’

claims. We also tax the costs of this appeal to the Board of Paroles for which

execution, if necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

___________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

___________________________________

SAMUEL L. LEWIS, JUDGE