Barton Hawkins v. Dept of Correction

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 9, 2001

BARTON HAWKINS v. TENNESSEE DEPARTMENT OF
CORRECTION

Appeal from the Circuit Court for Davidson County
No. 00C-3267 Walter C. Kurtz, Judge

No. M2001-00473-COA-R3-CV - Filed July 25, 2002

Petitioner, a state inmate, filed the underlying pro se petition for writ of certiorari to challenge the
result of a prison disciplinary proceeding against him. The trial court dismissed the suit sua sponte
for improper venue. Because the legislature has localized venue for actions brought by inmates to
the county where the prison facility is located, we affirm the decision of the trial court, but remand
for transfer to the appropriate trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed as Modified and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM C. KOCH , JR., J., joined.

Barton Hawkins, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stephanie
R. Reevers, Associate Deputy Attorney General, for the appellee, Tennessee Department of
Correction.

OPINION

Appellant Barton Hawkins is an inmate who seeks review of actions taken against him by
the Disciplinary Board at West Tennessee State Penitentiary in Henning (“the Board”). The
disciplinary actions at issue were imposed after the Board found that Mr. Hawkins had refused a drug
screen.

In his petition, Mr. Hawkins claims that because he was unable to produce a urine sample
during a routine screening, he was charged with “refusing a drug screen” in violation of TDOC
Policy # 502.01(VI)(F)(2) and found guilty by the Board. Mr. Hawkins alleges that he has “shy
bladder syndrome” which prevented him from producing a urine sample in front of others and that
he should have either been given an alternate test or access to a “dry room” to have the opportunity
to produce a sample.1 Mr. Hawkins appealed the Board’s decision to the warden and wrote several
letters to the commissioner of the Tennessee Department of Correction (“the Department” or
“TDOC”) seeking relief from the disciplinary actions taken against him. His appeals were denied.
After exhausting these administrative remedies, Mr. Hawkins filed a petition for writ of certiorari
in Davidson County, naming the Department of Correction as the respondent.

In his petition, Mr. Hawkins also claims that after the Board found him guilty of refusing a
drug screen, he has since been subjected to monthly urine tests, during which he has also been unable
to produce a sample for testing. As a result, he alleges that he has been subjected to write-ups and
disciplinary hearings seven (7) times, with the punishment accumulating to 110 days of punitive
segregation, loss of privileges and, ironically, three more years of monthly testing which, he asserts,
he will be incapable of performing. He alleges he was not allowed to have medical professionals
testify at his hearings, that mental health professionals treating him refused to supply a written
statement because the applicable TDOC policy made exceptions only for medical reasons, and that
the Commissioner’s office advised him to get a written statement from the mental health
professionals. He has attached documents verifying some of his claims.2

In his petition, Mr. Hawkins alleged that the Board violated his due process rights by
sentencing him to punitive segregation for more than 100 days, imposing excessive fines, and
suspending visitation and package privileges for one year.

Before the Department responded to the petition, the trial court entered an order dismissing
the action sua sponte for improper venue. Relying on Tenn. Code Ann. § 41-21-803, the court
determined that venue was not proper in Davidson County, but that the action should have been
brought in the county in which West Tennessee State Penitentiary was located. Mr. Hawkins
appealed, and both he and the Department assert the trial court’s dismissal was erroneous. The sole
issue before us is whether the trial court was correct in dismissing the petition for improper venue.

I. Venue, Jurisdiction, and Suits Against the State

Venue refers to locality, and in the legal sense it signifies the proper locality in which a court
of competent jurisdiction may adjudicate an action. It is within the power of the legislature to fix
the venue of actions according to its judgment. Tennessee’s venue rules are largely statutory and are
intended to provide the criteria for determining where a lawsuit may or should be filed.
Metropolitan Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 880 (Tenn. Ct.
App. 1982).

1
TDOC Policies allow for the use of such a “dry room” unde r certa in circum stances. TD OC Policy #
506.21(V I)(B)(9).

2
W hile this acco unt is troubling, we are aware the Departm ent has not answered beca use the petition was
dismissed before the Department responded. In any eve nt, the me rits of his claim have not been heard by the trial court
and are no t before us in this ap peal.

2
 Venue is either local or transitory, depending on the subject matter of the cause of action.
State v. Graper, 155 Tenn. 565, 569, 4 S.W.2d 955, 956 (1927). A cause of action that may arise
anywhere is transitory, but one that could arise in only one place is local. Burger v. Parker, 154
Tenn. 279, 290 S.W. 22 (1927).3 Otherwise transitory actions are considered to be local when a
statute prescribes a particular county in which they must be brought. State ex rel. Huskey v. Hatler,
606 S.W.2d 534 (Tenn. 1980). In fact, venue statutes evince legislative purpose to localize transitory
actions. White v. Garner, 192 Tenn. 429, 241 S.W.2d 518 (1951).

Even though venue is considered a personal privilege of the defendant that can be waived if
not raised in a timely manner, Metropolitan Dev. & Hous. Agency, 637 S.W.2d at 880, waiver is not
available when a transitory action has been localized by statute. In that situation, venue has become
part of the court’s authority to hear a particular action and is, therefore, jurisdictional. Curtis v.
Garrison, 211 Tenn. 339, 344, 364 S.W.2d 933, 935 (1963); Terminix Int’l Co. v. Tapley, No.
02A01-9701-CH-00028, 1997 Tenn. App. LEXIS 546, at *13-*15 (Tenn. Ct. App. Aug. 4, 1997)
(no Tenn. R. App. P. 11 application filed).

Jurisdiction involves a court’s lawful authority to adjudicate a controversy brought before
it. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). “The jurisdiction of a court in its
broad sense is its power to hear and determine controversies, and in a more restricted sense is its
power to adjudicate a particular case.” 21 C.J.S. Courts § 9.

Jurisdiction is implicated in the case before us, not only because of localized venue, but also
because it is a lawsuit against a state entity. Article I, section 17 of the Tennessee Constitution
provides in pertinent part:

Suits may be brought against the State in such manner and in such courts as the
Legislature may by law direct.

This provision embodies the concept of sovereign immunity, which means that a
governmental entity cannot be sued in its own courts without giving consent. Northland Ins. Co.,
33 S.W.3d at 729. Thus, as a sovereign, the State is immune from suit except as it consents to be
sued. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777 (1965). Legislation authorizing
suits against the state must be so plain, clear, and unmistakable as to leave no doubt of the intention
of the legislature that it should be done. Northland Ins. Co., 33 S.W.3d at 729; Daley v. State, 869

3
In Five Star E xp. In c. v. Davis, the Tennessee Supreme Court stated:

There are two types of actions for purposes of ve nue. A transitory action is one in which the injury
occurred to a sub ject no t having an immovable location; therefore a transitory action could have
occurred anywhere. T ypical examples of transitory actions are actio ns sounding in tort and contra ct.
On the other hand, a local action is an action in which the injury occurred to an immovable ob ject; the
classic example is an action involving injury to real property. Local actions must be brought in the
county in which the property is located.

Five Star E xp., Inc. v. Davis, 866 S.W .2d 944, 945 at n.1 (Tenn. 1993) (citations omitted).

3
S.W.2d 338 (Tenn. Ct. App. 1993); Sweeney v. State Dep’t of Trans., 744 S.W.2d 905 (Tenn. Ct.
App. 1987).

Only the legislature has constitutional authority to determine how, or even if, lawsuits against
the State may be brought. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001). Even where
authorization for suit against the state exists, “suits may only be brought in those courts and under
those conditions specified by the legislature . . . .” Crowe v. Harton, 579 S.W.2d 888, 890 (Tenn.
Ct. App. 1979). As the Constitution of Tennessee clearly states, the legislature may direct the
manner and the courts in which a lawsuit against the State may be brought. When it makes such
direction, the requirements are jurisdictional. Southwest Williamson County Cmty. Ass’n v.
Saltsman, 66 S.W.3d 872, 882 (Tenn. Ct. App. 2001).

II. Venue for Civil Actions by State Inmates

The trial court based its dismissal of Mr. Hawkins’s claim on Tenn. Code Ann. § 41-21-803,
which states, “Except as otherwise provided by law, an action that accrued while the plaintiff inmate
was housed in a facility operated by the department shall be brought in the county in which the
facility is located.” In its final order dismissing the case, the trial court stated, “Venue is not in
Davidson County, but rather in the county in which West Tennessee State Penitentiary is located.”

The statute relied upon by the trial court was adopted in 1996 as part of a statutory scheme
governing civil litigation by state prison inmates. The set of statutes was intended to reduce
frivolous claims filed by inmates and clearly countenanced claims arising from an inmate’s treatment
during incarceration. See Tenn. Code Ann. §§ 41-21-801 to -818. This court has recently interpreted
the venue statute, Tenn. Code Ann. § 41-21-803, in Howse v. Campbell, No. M1999-01580-COA-
R3-CV, 2001 Tenn. App. LEXIS 311, at *13 (Tenn. Ct. App. May 2, 2001) (no Tenn. R. App. P. 11
application filed), wherein we held that Tenn. Code Ann. § 41-21-803 effectively localized transitory
actions filed by state prisoners.

Mr. Howse, a state prisoner, filed a civil rights claim to challenge the conditions of
confinement and treatment by TDOC employees at a TDOC facility in Lake County. He filed the
suit in Davidson County against the commissioner and various TDOC employees. The defendants,
state officials or employees, moved to dismiss, and the trial court granted the motion citing improper
venue as the basis. On appeal, this court agreed, stating that the conduct complained of occurred at
the facility in Lake County and that Tenn. Code Ann. § 41-21-803 “requires inmates to file their suits
in the county where their alleged cause of action accrued.” Howse, 2001 Tenn. App. LEXIS 311,
at *13-*14.

The holding and the reasoning of Howse are applicable herein. The only difference in the
action brought by Mr. Howse and the action brought herein is that the first was pursuant to 42 U.S.C.
§ 1983, and the claim herein was brought through the procedural vehicle of writ of certiorari. Mr.
Hawkins’s petition and amended petition make it clear that his complaint is with the conduct of
employees at West Tennessee State Penitentiary, in particular the proceedings before the Board and
the warden’s actions denying his appeals. The alleged cause of action accrued in the county where

4
the prison was located, and under Howse, Tenn. Code Ann. § 41-21-803 makes that county the
appropriate venue. We find no reason to adopt an interpretation of Tenn. Code Ann. § 41-21-803
different from that made in Howse.4

The specific statutory exception to venue in the county where the facility is located is “except
where otherwise provided by law.” This language implies there must exist another statute
specifically establishing venue elsewhere. Five Star Exp., Inc., 866 S.W.2d at 946 (Tenn. 1993)
(stating that “unless the venue is otherwise expressly provided for” language in the general transitory
venue statute clearly authorizes the legislature to designate a different venue). Because venue
statutes often relate to the type of lawsuit involved, we look first to the proper venue for the type of
action brought herein.

4
In Davis v. Holland, 31 S.W.3d 574 (T enn. Ct. App. 2000), this court discussed Tenn. Code Ann. § 41-21-803.
In Da vis, the trial court considered venue in a 42 U.S.C. § 1983 lawsuit against numerous Department of Correction
emplo yees. These state defendants moved to dismiss the action, which was brought in Davidson County, on the basis
that the inmate was housed in a facility in Lauderdale County, the actions he complained of occurred while he was in that
facility, and, therefore, Tenn. Code Ann. § 41-21-803 required the conclusion that Lauderd ale County was the only
proper venue. The inmate, Mr. Davis, argued that venue was proper in Davidson County because all the defendants
resided there. The trial court found that while the cause of action arose in Lauderdale County, it would consider Mr.
Davis’s assertions if he amended his complaint to indicate the actual residence s of the defenda nts.

On appeal, this court, even though specifically stating that the venue issue need not be conclusively addressed
by us because the inmate had not raised that issue on appeal, observed:

However, there was a strong implication in the trial court’s ruling that venue for this case would have
been proper in Davidson Co unty if Mr. Davis had supplied it with the residential addresses of the
individual defendants. W hile that may be co nsistent with the result of Sweatt v. Conley, supra, we are
not sure that case applies here, since it did not consider the effect of Tenn. Code Ann. § 41-21-803.

Da vis, 31 S .W .3d at 577 . Sweatt v. Conley, No. 01-A-01-9706-CH-00246, 1997 Tenn. App. LEXIS 862 (Tenn. Ct. App.
Dec. 5, 19 97), appeal after remand sub nom. Sweatt v. Tennessee Dep’t of Co rr., 2002 T enn. App. LEX IS 319 (T enn.
Ct. App. May 2, 2002), involved an inmate’s action against various employees of the Department and a doctor, seeking
declaratory and m andamus relief and also alleging a violation of civil rights. The various defendants moved to dismiss
on the basis of, among o ther things, impro per venue. This court determined that venue in Davidson County was improper
because a claim for civil rights violation is a transitory action and subject, therefore, to Tenn. Code A nn. § 20-4-101.
W e concluded that because there existed no statutes specifically providing for venue in § 1983 actions, the provisions
of the general transitory venue statute applied. Id. 199 7 T enn. A pp. L EX IS 86 2, at *15 . However, this court noted in
a footnote the rece nt passage of the statute that was to be codified as Tenn. Code Ann. § 41-21-803, which was not
app licable to Mr. Sweatt’s petition because of the date of passage. This court described that legislation as “a provision
requiring a plaintiff inmate to file a claim for an action which accrued while the plaintiff was an inmate in the county in
which the facility is located.”

5
 III. Venue for Common Law Writ of Certiorari

We must consider the venue statute applicable to petitions seeking judicial review of the
decision of a board or commission through a common law writ of certiorari action.5 Tenn. Code
Ann. § 27-9-102 outlines the procedural steps an aggrieved party must take to seek review of an
order or judgment of a board or commission.6

Such [aggrieved] party shall, within sixty (60) days from the entry of the order or
judgment, file a petition for certiorari in the chancery court of any county in which
any one or more of the petitioners, or any one or more of the material defendants
reside, or have their principal office, stating briefly the issues involved in the cause,
the substance of the order or judgment complained of, the respects in which the
petitioner claims the order or judgment is erroneous, and praying for an accordant
review.

Tenn. Code Ann. § 27-9-102. The circuit court is given concurrent jurisdiction over such
proceedings pursuant to Tenn. Code Ann. § 27-9-103.

Thus, under the statute alone, venue would lie in either the county of residence of the
petitioner7 or the county of residence of the material defendant or the county where the principal
office of the material defendant is located. However, courts have limited appropriate venue because
of the nature of a petition for writ of certiorari.

5
Mr. Hawkins sought relief under both the common law and statutory writ of certiorari to review the actions
taken by the p rison d isciplinary board against him at West Tennessee State Penitentiary. This court has determined that
the com mon law writ, as o ppo sed to the statutory writ, is the ap propriate mechanism in which to assert the claim . Rhoden
v. State Dep’t of C orr., 984 S.W .2d 9 55, 9 56 (Tenn. Ct. A pp. 1 998 ); Buford v. Tennessee Dep’t of Corr., No. M1998-
000157-COA-R3-CV, 1999 Tenn. App. LEXIS 755 , at *12 (Tenn. Ct. App. Nov. 10, 1999) (no Tenn. R. App. P. 11
application filed); see also Perry v. Cold Creek Corr. Facility Disciplinary Bd., No. M1999-01898-COA-R3-CV, 2000
Tenn. App. LEX IS 519, at *9 (Tenn. Ct. App. Aug. 9, 2000) (no Tenn. R. App. P. 11 application filed) (determining that
the common law writ, as opposed to the statutory writ, is the appropriate mechanism).

6
Tenn. Code Ann. § 27-9-101 provides the authority for judicial review of “any final order or judgment of any
board or co mmission functioning under the laws of this state . . . in the manner provided by this chapter.” As this statute
states, the procedure to be used is set out in Tenn. Code Ann. §§ 27-9-101 through -114 . Fallin v. Knox County Bd. of
Com m’rs, 656 S.W.2d 338, 341 (Tenn. 1983); Fairhaven Corp. v. Tennessee Health Facilities Comm., 566 S.W.2d 885,
886 (Tenn. Ct. App. 1976 ) (citing Fentress County Beer Bd. v. Cravens, 209 Tenn. 67 9, 35 6 S.W .2d 2 60 (196 2); Hoover
Motor Exp. Co. v. Railroad & Pu b. Util. Comm’n , 195 Tenn. 59 3, 261 S.W.2d 233 (1953)) (explaining that the
procedural framework for review under both the common law and statutory writs appears in Ch. 9 of Title 27); see also
Ben H. C antrell, Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 M EM . S T . U N IV . L. R EV . 19,
19 (1977) (stating that Chapter 9 of Title 27 provides the procedural framework for review under both the common law
and statutory writs of certiorari but does not affect the availability of either writ).

7
The residence of Mr. Hawkins is not the prison in which he is incarcerated for purposes of determining venue.
In re Joseph, No. M 1999-02 795-CO A-R3-CV , 2002 T enn. App. LEX IS 302, at *7-*8 (Tenn. Ct. App. Apr. 30, 2002 ),
(no Tenn. R. App . P. 11 application filed).

6
 The “grant” of the writ is simply an order to the Board to send up its record for review. Tenn.
Code Ann. § 27-9-109. The purpose of granting the writ is to have the record of the Board or other
lower tribunal filed so that a reviewing court can determine whether the petitioner is entitled to relief.
Puckett v. Broome, 53 Tenn. App. 663, 667, 385 S.W.2d 762, 764-65 (1964). “The writ of certiorari
lies at common law to review and supervise the proceedings of inferior tribunals . . . .” Clark v.
Metropolitan Gov’t of Nashville and Davidson County, 827 S.W.2d 312, 316 (Tenn. Ct. App. 1991).
“Certiorari at common law performed the function of aid to a review and supervision of the
proceedings of inferior boards and tribunals by a superior tribunal,” and issuance of the writ is for
the limited purpose of determining “whether there had been an absence or excess of jurisdiction, or
a failure to proceed according to the essential requirements of the law.” Puckett, 53 Tenn. App. at
667, 385 S.W.2d at 764 (quoting Conners v. City of Knoxville, 136 Tenn. 428, 432, 189 S.W. 870,
871 (1916)).

Because the certiorari procedure is for the purpose of a limited review of a lower tribunal’s
decision, venue is determined by the situs of the lower tribunal, board or commission whose decision
would be reviewed if the writ is granted, not by the residence of the parties. Delta Loan & Fin. Co.
of Tenn. v. Long, 206 Tenn. 709, 713-14, 336 S.W.2d 5, 6-7 (1960); McKee v. Board of Elections,
173 Tenn. 269, 272, 117 S.W.2d 752 (1938).

The revisory power of a higher court is limited to the correction of errors of tribunals
located within the territorial jurisdiction of the appellate body. It is the situs of the
lower tribunal, and not the residence of the parties, that points out the proper
appellate tribunal.

McKee, 117 S.W.2d at 754.

In both McKee and Delta Loan & Finance, the court found that only the statutory writ of
certiorari was applicable and that the procedures now appearing in Tenn. Code Ann. §§ 27-9-101
to -114 specifically did not apply. Thus, neither case involved interpretation of Tenn. Code Ann. §
27-9-102. Nonetheless, the reasoning is still applicable and was applied to that statute in Tennessee
Real Estate Comm. v. Potts, 221 Tenn. 585, 428 S.W.2d 794 (1968).

In Potts, the court found that Tenn. Code Ann. § 27-9-102 (then § 27-902) applied and that
the situs of the lower tribunal, therein the State Real Estate Commission, rather than the residence
of the petitioner, determined venue. In a portion of the opinion, interpreted and applied by later
decisions and also relied upon by the Department herein, the court held:

In our opinion, sec. 27-902 [now § 27-9-102], quoted supra, merely fixes permissible
venue for review of Boards and Commissions. It does not have the effect of giving
the trial court of any county wherein the party affected may have residence subject
matter jurisdiction over the review of a Board or Commission exclusively located
elsewhere. That section merely specifies the courts where the writ might be sought
if other jurisdictional requirements are met.

7
Potts, 221 Tenn. at 591, 428 S.W.2d at 796-97.

The rule that venue is determined by the situs of the lower tribunal is consistent with the
venue statute’s language regarding the material defendant’s principal office. McKee, Delta Loan &
Finance, and Potts involved suits against commissions or officials whose principal office was
exclusively located in Davidson County, and all involved a venue dispute between the county of the
petitioner’s residence and Davidson County.

The Department herein states that the Department ultimately oversees prison discipline and
that the Department’s principal office is located in Davidson County, thereby making that county the
only appropriate venue. However, this court has found that both the prison disciplinary board and
the warden of a prison were proper respondents or defendants in a common law writ of certiorari
action seeking review of a prison disciplinary board decision, and refused to adopt the Department’s
argument that it was the only proper defendant in such actions. Seals v. Bowlen, M1999-00997-
COA-R3-CV, 2001 Tenn. App. LEXIS 547, at *10-*14 (Tenn. Ct. App. July 26, 2001) (rehearing
denied Aug. 27, 2001). This decision was based upon the purpose of a petition for writ of certiorari,
which is to seek review of a decision by a lower tribunal, that can include a board, commission, or
officer. Subsequently, reaffirming the holding of Seals, we have found, “depending on the
circumstances, parties other than the Department may properly be named as defendants.” Robinson
v. Clement, 65 S.W.3d 632, 635-36 (Tenn. Ct. App. 2001).8

Accordingly, we are not convinced that an action seeking judicial review of the decision of
a prison disciplinary board is an action against the Department.9 To the contrary, in our opinion the

8
Discipline in prisons operated by private contractors, rather than TDO C, is different in one fundamental
respe ct. A disciplinary bo ard compo sed of employees of the private contractor has no authority to impose punishment
for disciplinary o ffenses; actual discipline is no t impo sed until the TDO C rep resentative ap proves the B oard ’s
recommend ation. Ma nde la v. Cam pbe ll, 978 S.W .2d 531, 533 (Tenn. 1998 ). Consequently, a writ of certiorari to review
the decision to impose sanctions should be addressed, in those situations, “to the governmental agency [rather than the
non-governmental board] that is responsible for the actions of which the petitioner complains.” Turn er v. Cam pbe ll, 15
S.W.3d 466, 468 (Tenn. Ct. App. 1999). This difference has been recognized in Seals v. Bowlen, 2001 Tenn. App.
LEX IS 547, at *12-*14, as significant in determining the proper defendants, and in Brow n v. Majors, No. W2001-00536-
COA-R3-CV, 2001 Tenn. App. LEX IS 948, at *11 (Tenn. Ct. App. Dec. 19, 2001) (no Tenn. R. App. P. 11 application
filed), as significant to the venue issue.

9
In Phillips v. State Bd. of Re gen ts, 771 S.W .2d 4 10 (Tenn. 19 89), a tenure d faculty member sought judicial
review of a decision to dismiss or suspend her. She filed her action in Shelby County, the situs of the college at which
she had been employed and bro ught it pursuant to Tenn. Code Ann. § 49 -8-304 which stated such actions may be brought
“in a chancery court having jurisdiction.” The State defendants argued that the suit actually challenged a final
determination of the B oard of Regents, wh ose situs is in Davidson Co unty, not the dec ision of the college or its president.
In considering the venue question, the court stated:

Contrary to the contention of defendants that the review is of the final action of the Board of Regents,
the focus of the judicial review in the cha ncery court is upon the procedure followed and the evidence
adduced at the administrative hearing, conducted at the institution involved. Any witnesses that may
testify in the cha ncery court are likely to reside in the county where the institutio n is located. We think
(continued...)

8
material respondent is the board which conducted the hearing and rendered the decision being
challenged. Because the situs of that lower tribunal determines venue under the common law writ
of certiorari venue statute, venue would lie in the county where the prison is located.

Our courts have addressed the issue of proper venue for common law writ of certiorari
petitions brought by inmates to challenge disciplinary actions. In two of these cases, both decided
without consideration of Tenn. Code Ann. § 41-21-803, the courts have considered the arguments
made by the Department herein. In both Williams v. Tennessee Dep’t of Corr., No. 02A01-9503-
CV-00046, 1995 Tenn. App. LEXIS 640, at *2 (Tenn. Ct. App. Oct. 2, 1995) (no Tenn. R. App. P.
11 application filed) and Cobb v. Vinson, No. 02A01-9707-CV-0014, 1998 Tenn. App. LEXIS 229,
at *5 (Tenn. Ct. App. Apr. 1, 1998) (no Tenn. R. App. P. 11 application filed), state inmates filed
pro se petitions for writ of certiorari against TDOC, the Board, or individual board members in the
Circuit Court of the county where the facility in which they were incarcerated was located to seek
review of actions taken by prison disciplinary boards. In both Williams and Cobb, the trial court
dismissed the actions due to improper venue. On appeal, however, this court reversed the decision
of the trial court in each case. Cobb, 1998 Tenn. App. LEXIS 229, at *13; Williams, 1995 Tenn.
App. LEXIS 640, at *12-*13.

In Williams, as in the case before us, the petitioner inmate named as the only respondent the
Tennessee Department of Correction.10 Relying on Potts and McKee, this court held in Williams that
it is the situs of the lower tribunal whose decision would be reviewed if the writ were granted that
determines the proper venue. Accordingly, the court held:

In the case before us, petitioner seeks review of actions taken by the prison
disciplinary board, the prison warden, and the commissioner of the Department of

9
(...continued)
that the legislature intended to provide for venue in the county where the university or community
college is located. In providing for jurisdiction in “a chancery court having jurisdiction,” the legislature
has obviously excluded, “the chancery court having jurisdiction.” If, as defendants contend, the judicial
review of all actions of Bo ard o f Rege nt institutions is exclusively in the chancery court of Davidson
County, “a chancery court” was inappropriate.

Phillips, 771 S.W.2d at 411.

In Phillips, the Board of Regents relied on Tenn. Code A nn. § 16-11-114(1), not § 4-4-104, and the court placed
importance on the de novo judicial review applicable to such tenure-related cases, noting that such procedure allows
supplementation of evidence in the administrative record. We are aware of the distinction between de novo review and
the limited re view under certiorari; nonetheless, additional evidence, not related to the merits of the matter, may be
presented in certiorari proceedings on issue s not found in the record or upo n issues re lating to whether the writ sho uld
be granted. In any event, the Court’s reasoning in Phillips to determine which of two venue statutes should apply provides
guidance in the case before us.

10
This choice of respondent is understandable since the Department has regularly filed motions to dismiss any
other defendant/respo ndent (or the entire lawsuit if the Department itself was not named) arguing that the Department
is the only prop er resp ondent in pe titions for writ of certio rari to review prison d isciplinary decisions. See Seals, 2001
Tenn. App. LEXIS 547, at *8-*14.

9
 Correction. Petitioner is not seeking review of a decision of a state board
“exclusively located elsewhere.”11 The situs of the disciplinary board involved herein
is at WTHSF, in Lauderdale County. Furthermore, petitioner is an inmate at the
same institution. The warden and members of the disciplinary board, employees of
the prison, have their principal office in Lauderdale County, and likely have their
residences there as well. The incident from which the charge against petitioner stems
occurred in Lauderdale County as did the disciplinary board’s hearing on the matter
and the warden’s affirmance of the Board’s decision. Only the commissioner of the
Department of Correction is located in Davidson County.

Williams, 1995 Tenn. App. LEXIS 640, at *10.

Similarly, in Cobb, this court rejected the argument of the respondents, the warden and the
chair of the disciplinary board at Lake County Regional Correctional Facility and the commissioner
of TDOC, that under Tenn. Code Ann. § 27-9-102, a petition for writ of certiorari to review a prison
disciplinary board decision can only be filed in the county where TDOC’s principal office is located.
This court adopted the reasoning and holding of Williams, noting that a prison disciplinary board is
not “exclusively located elsewhere” than the county where the prison is located. Because the
petitioner sought review of actions taken by the prison disciplinary board, the prison warden, and
the commissioner, because the disciplinary board and warden have their principal office in Lake
County, because the incidents complained of took place while the petitioner was an inmate at the
facility in Lake County, and because the Board’s hearing and the warden’s affirmance took place in
Lake County, this court held Lake County was not an improper venue. Cobb, 1998 Tenn. App.
LEXIS 229, at *11-*13.

In other cases involving venue for writ of certiorari petitions seeking review of prison
disciplinary actions, the results have been contrary to that reached in Williams and Cobb. See, e.g.,
Bishop v. Conley, 894 S.W.2d 294, 296 (Tenn. Crim. App. 1994) (stating that “because appellant
seeks relief against an agency of state government, the writ should have been filed in the county
which is the official situs of the agency’s head office”).12

Although we recognize the differing conclusions reached by our courts on the issue of venue
for a common law writ of certiorari action seeking review of a prison disciplinary board decision,
we are persuaded the Williams and Cobb result is the more correct one. That is because the “material
defendant” in a writ of certiorari action is the Board, officer, or lower tribunal that made the decision
which would be reviewed, and the situs of the Board determines venue. Applying those principles

11
This language obviously refers to the statement in Potts, 221 Tenn. at 591, 428 S.W.2d at 796-97, quoted
earlier, which involved a State board with only one principal office.

12
At least two memorandum opinions by this court reach the same conclusion as Bishop, but were decided on
differing principles. Other cases have involved prisons operated by a private prison contractor, and the venue
determinatio n was b ased upon that distinction. See, e.g., Brown, 2001 Tenn. App. LEXIS 948, at *11.

10
to prison disciplinary boards leads to the necessary conclusion that venue is in the county where the
prison is located.

Therefore, we conclude that the statute governing venue of petitions for certiorari to review
decisions of boards and commissions does not meet the “otherwise provided by law” exception to
Tenn. Code Ann. § 41-21-803 because it does not provide for venue other than in the county where
the prison is located.

IV. The Department’s Position

The Department asserts that Tenn. Code Ann. § 41-21-803 has no application to a petition
for writ of certiorari seeking review of prison disciplinary actions because (1) jurisdiction for actions
against state agencies lies exclusively in Davidson County pursuant to Tenn. Code Ann. § 4-4-104;
and (2) actions against state officials are local, not transitory, and can only be brought in the county
of the situs of the official. As set out in its brief, the gist of the Department’s argument is:

In Morris v. Snodgrass, 871 S.W.2d 484 (Tenn. Ct. App. 1993), the Court recognized
that Tenn. Code Ann. § 20-4-101(a) pertaining to venue in transitory actions was not
applicable to suits against state officials since such actions were not transitory. The
Court also noted that because Tenn. Code Ann. § 4-4-101 was a statute of specific
nature which had been interpreted by the Supreme Court as placing venue for suits
against certain state officials in Davidson County, it prevailed over a statute of more
general application. Id. at 484. Similarly, while Tenn. Code Ann. § 41-21-803 has
the general effect of localizing transitory actions brought by inmates, it does not alter
the effect of Tenn. Code Ann. § 4-4-101, requiring that actions naming state agencies
or heads of agencies be brought in Davidson County.

In addition, Tenn. Code Ann. § 41-21-803 makes the statute applicable only to the
extent that there are no preexisting provisions of law to the contrary. The localizing
effect of Tenn. Code Ann. § 4-4-104 on suits against state officials is clearly
“otherwise provided by law” and suits naming state agencies are therefore excepted
from the effect of Tenn. Code Ann. § 41-21-803 by the statute itself.

Morris v. Snodgrass, 871 S.W.2d 484 (Tenn. Ct. App. 1993), was a declaratory judgment
action seeking to have two statutes declared unconstitutional and naming the Comptroller, the
Attorney General, and the Commissioner of the Department of Correction as defendants. This court
held that venue for the lawsuit was exclusively Davidson County because venue for lawsuits against
state officials “such as these defendants” is established in Davidson County by virtue of Tenn. Code

11
Ann. § 4-4-10413 and by court interpretations of that statute “placing venue for suits against certain
state officials in Davidson County.” Id. at 485-87.

The Morris court traced these principles to Delta Loan & Finance, supra, wherein a petition
for review of a decision of the Commissioner of the Department of Insurance and Banking was filed
in Shelby County. In determining that only Davidson County had jurisdiction to hear the action, the
Supreme Court in Delta Loan & Finance relied first upon older cases holding that “since the situs
of a municipal corporation is local, it cannot be sued in another county in a transitory action . . . the
court of such other county has no jurisdiction of such a suit.” Delta Loan & Fin., 336 S.W.2d at 7.
Because Tenn. Code Ann. § 4-4-104 establishes the official residence of each commissioner or head
of department at the capitol, the court reasoned that “the situs of such department and official
residence is, therefore, local like that of a municipal corporation.” Id. at 6.

The Morris court quoted from Delta Loan & Finance, to the effect that:

Though the statutes make some exceptions not here material, the rule is that a
commissioner or head of a department of state government may be sued as such only
in the county of his official residence; and a number of cases have held that such a
suit may not be maintained as a transitory action in another county.

Morris, 871 S.W.2d at 486 (quoting Delta Loan & Fin., 336 S.W.2d at 6).

The Morris court also relied on and quoted the Tennessee Supreme Court’s decision in
Chamberlain v. State ex rel Brown, 215 Tenn. 565, 387 S.W.2d 816 (1965):

T.C.A. § 23-2003 makes a writ of mandamus against a public official returnable in
the county where the office is kept. The situs and office of the Department of
Insurance and Banking is in Davidson County. This would be true of each division
thereof, there being no statute to the contrary.

Morris, 871 S.W.2d at 486 (quoting Chamberlain, 215 Tenn. at 568, 387 S.W.2d at 817).14

13
Tenn. Code Ann. § 4 -4-104 states:

(a) Each dep artment shall ma intain a central office at the capitol, which shall be the official residence
of each com mission er, or head of departm ent.

(b) The commissioner of each department may, in the commissioner’s discretion and with the approval
of the governor, establish and maintain at places other than the seat of government, branch offices for
any one (1) o r more functions of the com mission er’s departm ent.

14
W e note that, unlike the divisions of the department in Cham berla in, there are statutes relating to the
establishment and lo cation of the various state prisons and facilities. See Tenn. Cod e Ann. §§ 41-1-101 , -201, -702. In
addition, the warden is given charge and custody of the prison, as well as responsibility for the custody, welfare, conduct
(continued...)

12
 We do not interpret Morris quite as broadly as the Department. While in that case this court
held that Tenn. Code Ann. § 4-4-104 localizes venue of actions against some state officials, the
opinion inherently recognized there may exist exceptions to the general rule, whether those
exceptions are based on the proper defendant, the authority of a department to have offices located
elsewhere (which relates to the “exclusively located elsewhere” language of Potts), or another
specific statute.

The argument made by the Department herein was addressed in both Williams15 and Cobb,
wherein this court stated that “blanket statements to the effect that ‘only the courts of Davidson
County have the necessary subject matter jurisdiction to review the actions of a state agency’”16
resulted from an overbroad interpretation of Potts because they overlooked the “exclusively located
elsewhere” language and the Potts court’s reliance on the earlier holding in McKee that venue in
certiorari cases is determined by the situs of the lower tribunal. Williams, 1995 Tenn. App. LEXIS
640, at *8-*9; see also Cobb, 1998 Tenn. App. LEXIS 229, at *9-*11.17

We conclude that prior judicial interpretation of Tenn. Code Ann. § 4-4-104 does not always
preclude the bringing of lawsuits against state entities in a county other than Davidson. Regardless
of our opinion as to the scope and application of Tenn. Code Ann. § 4-4-104, however, the
dispositive issue herein is the effect of Tenn. Code Ann. § 41-21-803.

It is not debatable that the legislature has authority to direct that suits against state
departments or other state entities, commissioners, officers, or employees be filed in a county other
than Davidson. The legislature has exercised that authority in a number of situations. See, e.g.,
Tenn. Code Ann. § 67-1-1803 (providing that suits to dispute taxes filed against the commissioner
of revenue are allowed in either Davidson County, the taxpayer’s county of residence, or the county
where the taxpayer’s principal place of business is located); Tenn. Code Ann. § 4-5-322(b)(1)
(stating that under the UAPA, petitions for judicial review of a final decision of the department of

14
(...continued)
and safekeeping of the prisoners therein. Tenn. Code Ann. §§ 41-1-104 and 41-21-201. This includes the discretion
to award sentence reduction credits. T enn. C ode Ann. § 41-2 1-23 6. Record s of the affairs of eac h priso n are to be kept
at the prison, Tenn. Code Ann. § 41-1-111.

15
W e note the author of the Williams opinion was also the author of the opinion in Mo rris.

16
This quotation is from Norton v. Everhart, 895 S.W.2d 317, 320 (Tenn. 1995 ), and the Department also relies
on Norton in the case before us. That case involved the propriety of a transfer by a court without jurisdiction to one
having jurisdiction in the absence o f statutory authority. Id. at 319-20. The case was a challenge to a decision by the
Board of Paroles to revoke Mr. No rton’s parole, and the action was filed in Morgan Co unty. The issue in the case before
us was not discussed since, as the Court stated, “it is undisputed that only the courts of Davidson County have the
necessary subject matter jurisdiction to review the actions of a state agency,” citing Potts, 221 Tenn. at 591, 428 S.W.2d
at 797. In Norton, the defendant lower tribunal was the Board of Paroles, which is exclusively located in Davidso n
County.

17
As discussed earlier, the Williams and Cobb courts found the lower tribunal was the prison disciplinary board,
the board was not exclusively located in Davidson County, and venue was in the county where the prison is located.

13
human services in a contested case are filed in either the county which is the official residence of the
commissioner or the county of residence of any of the petitioners; petitions to review decisions of
the TRA are filed in the court of appeals); Tenn. Code Ann. § 36-5-1003 (providing that judicial
review of administrative decisions relative to Title IV-D child support services lies with the court
having jurisdiction of the support order or the court in the county of the person’s residence or the
county where an entity was served with a subpoena or request for information); Tenn. Code Ann.
§ 9-8-404 (stating that claims against the state filed in the Claims Commission may be removed or
transferred to the appropriate court with venue).18

When the legislature directs a venue for specific actions against state entities, courts cannot
ignore that directive. Rather, our task is to determine legislative intent. As discussed earlier, the
legislature has, in Tenn. Code Ann. § 41-21-803, localized venue for actions by inmates in state
custody for complaints arising during their stay in prison. Therefore, even if Tenn. Code Ann. § 4-4-
104 operates to localize actions against state departments and some state officials, the appropriate
question is which “localizing” statute should prevail. The analysis is the same whether the question
is viewed as one of venue or one of jurisdiction to hear actions against the state.

V. The More Specific Statute Governs

The Tennessee Supreme Court has provided guidance on how to reconcile two venue statutes
and has held that the more specific statute governs over the more general. Five Star Exp., 866
S.W.2d at 946. In that case, the Court determined that the appropriate venue for workers’
compensation actions was established by the specific statute applicable to such lawsuits, despite
prior authority holding that the general venue statute for transitory actions, Tenn. Code Ann. § 20-4-
101, had to be taken into account in such cases. The court held:

Therefore, it would seem that the workers’ compensation venue statute would fit
squarely into this exception [“unless venue is otherwise expressly provided for”] to
the general rule [in Tenn. Code Ann. § 20-4-101(a)] regarding venue of transitory
actions. This conclusion is buttressed by the basic rule of statutory construction
which provides that a general statute concerning a subject must defer to a more
specific statute concerning the same subject. See Watts v. Putnam County, 525
S.W.2d 488 (Tenn. 1975); Koella v. State ex rel. Moffett, 218 Tenn. 629, 405 S.W.2d
184 (1966).

Id. at 946;19 see also Ferguson v. Ram Enter., Inc., 900 S.W.2d 19 (Tenn. 1995) (reaffirming the
Five Star Exp. holding where the workers’ compensation venue statute provides a Tennessee forum,

18
This includes counties other than Davidson. Austin v. Sta te, 831 S.W .2d 789, 789 n.1 (Tenn. Ct. App. 1991 ).

19
Tenn. Code A nn. § 2 0-4-1 01(a) contains the generally app licable venue principles for all transitory civil
actions, “ unless venue is otherwise provided for.” In analyzing whethe r Te nn. Co de A nn § 2 0-4-1 01 o r another statute
determines venue, courts have applied the “otherwise provided for” exception along with the well-established rule of
statutory construction tha t a spec ific statute or provision governs over a general statute or p rovisio n.

14
but applying the general venue statute when a Tennessee forum is not available under the workers’
compensation venue statute).

A similar result was reached in Valley Fid. Bank & Trust Co. v. Ayers, 861 S.W.2d 366, 369
(Tenn. Ct. App. 1993), wherein this court held that the specific venue statute relating to chancery
court controlled over the general statute on venue in transitory actions. In Frye v. Memphis State
Univ., 671 S.W.2d 467, 468-69 (1984), the Tennessee Supreme Court held that the legislature
intended that the more specific procedures found in the statutes governing tenure of university
faculty apply to administrative actions, and judicial review of those actions, against tenured faculty
rather than the more general procedural provisions of the Uniform Administrative Procedures Act.
That action was brought in Shelby County. Similarly, in Phillips, the Court found that the legislature
intended to provide for venue to contest suspension or dismissal of a tenured faculty member in the
county where the college or university holding the administrative hearing was located. Phillips, 771
S.W.2d at 411.

Before we apply the “more specific governs” rule, we must first determine whether Tenn.
Code Ann. § 41-21-803 applies to lawsuits by prisoners against the State or its entities or employees,
i.e., whether the two statutes concern the same subject. In construing a statute, we must attempt to
ascertain and effectuate the legislative intent and purpose. State v. Walls, 62 S.W.3d 119 (Tenn.
2001). Legislative intent is derived from the plain and ordinary meaning of the statutory language
when the statute is unambiguous, Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000), and when the
language is ambiguous we examine the entire statutory scheme to determine legislative intent and
purpose. State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997).

It is clear to us that the set of statutes found at Tenn. Code Ann. §§ 41-21-801 to -818 were
intended to address lawsuits arising from the conditions of an inmate’s incarceration, his or her
treatment during that incarceration, and conduct by those responsible for the custody and care of
inmates. The definitional section defines “claim,” as used in those statutes, to include “any lawsuit
or appeal filed by an inmate except a petition for post-conviction relief.” Tenn. Code Ann. § 41-21-
801(1). The statutes specifically refer to a system for resolving inmate grievances, requiring that the
department maintain such a system, Tenn. Code Ann. § 41-21-817, and requiring that an inmate
utilize such grievance system, where applicable, as a prerequisite to a lawsuit, Tenn. Code Ann. §
41-21-806. In addition, Tenn. Code Ann. § 41-21-815 provides:

This part does not authorize a claim for preventive relief against the department, an
employee of the department, or of any other agency, agent, employee or officer of
this state if the claim is brought by a person housed in a facility operated by the
department and the claim accrued while the person was housed in the facility.

This section evidences an implicit understanding that other types of actions may be brought
or relief sought and granted against the department or state agencies, officials, or employees. We
think the legislature clearly envisioned that the types of actions which might accrue during a state
inmate’s incarceration would include actions involving the conditions of his or her confinement,

15
including sanctions resulting from enforcement of prison rules. Such actions would necessarily
involve state entities, officials, or employees as defendants.

The clear language of Tenn. Code Ann. § 41-21-803 is that a civil action accruing while the
inmate is incarcerated is to be brought in the county where the facility in which he or she is housed
is located. We also note that Tenn. Code Ann. § 41-21-809 authorizes the court to hold a hearing at
the department’s facility wherein the plaintiff inmate is housed. While the purpose of the venue
provision is not explicitly stated, it furthers a number of goals. The most obvious one is that venue
in the locality of the facility is more convenient because the parties, any witnesses who might be
allowed to testify, and relevant records are located there.

Consequently, we are unpersuaded by the Department’s argument that Tenn. Code Ann. § 41-
21-803 does not apply to actions against the Department. In Howse and Davis, the state defendants
apparently took the position that Tenn. Code Ann. § 41-21-803 established the exclusive venue for
civil rights lawsuits brought by prisoners and obtained dismissal of those actions because they were
brought in Davidson County. We are aware that 42 U.S.C. § 1983 actions are brought against
defendants in their individual capacities, as opposed to their official capacities and as opposed to the
department or governmental entity. We must presume this distinction provides the basis for the
Department’s seemingly opposite position in the case before us.

However, the statute makes no such distinction. The language of Tenn. Code Ann. §§ 41-21-
801 to -818 provides us with no indication that the legislature intended for venue to depend upon
which cause of action an inmate asserts, which defendants are named, or which procedural vehicle
is used. We do not believe the legislature intended to create such potential inconsistencies subject
to pro se litigants’ understanding of legal procedure. To the contrary, we find the legislature clearly
intended that lawsuits by state inmates against state entities, officials and employees, arising from
conditions or other incidents of incarceration are to be brought in the county where the correctional
facility is located.

We also find that Tenn. Code Ann. § 41-21-803 is more specific than an interpretation
localizing actions against state departments or the statute upon which that interpretation is based,
Tenn. Code Ann. § 4-4-104. Civil actions by state prisoners are a subcategory of actions which could
be brought against a state department or commissioner. The categories are not mutually exclusive.
As explained above, to hold otherwise would be to presume the legislature did not envision that state
inmates complaining about treatment in state prisons would not sue the state department or officials
responsible for their custody. 20

Accordingly, we agree with the decision of the Davidson County Circuit Court that it was
without jurisdiction to hear this matter because the action was filed in the wrong court. However, the
consequence of that holding is not necessarily dismissal.

20
For the same reasons, we find that the “localizing effect” of Tenn. Code Ann. § 4-4-104 does not qualify as
an “otherwise provided by law” exception to Tenn. Code Ann. § 41-21-803.

16
 VI. Transfer

The general rule is that “a court lacking subject matter jurisdiction over a case has no
authority to transfer it, unless that authority is specifically conferred by statute, rule, or constitutional
provision.” Norton, 895 S.W.2d at 319. The Tennessee Supreme Court has clearly stated that trial
courts possess no “inherent authority to transfer cases in the absence of statutory authority.” Id. at
320; Coleman v. Coleman, 190 Tenn. 286, 293-94, 229 S.W.2d 341, 344-45 (Tenn. 1950). In
Norton, the Court invited the legislature to enact a broad transfer statute. Norton, 895 S.W.2d at
320. The legislature has since done so in Tenn. Code Ann. § 16-1-116, which became effective on
May 23, 2000.21 It states:

Transfer of actions or appeals.-Notwithstanding any other provision of law or rule
of court to the contrary, when an original civil action, an appeal from the judgment
of a court of general sessions, or a petition for review of a final decision in a
contested case under the Uniform Administrative Procedures Act, compiled in title
4, chapter 5, is filed in a state or county court of record or a general sessions court
and such court determines that it lacks jurisdiction, the court shall, if it is in the
interest of justice, transfer such action or appeal to any other such court in which the
action or appeal could have been brought at the time it was originally filed. Upon
such a transfer, the action or appeal shall proceed as if it had been originally filed in
the court to which it is transferred on the date upon which it was actually filed in the
court from which it was transferred.

We find Mr. Hawkins is entitled to the benefit of this statute and that it is in the interest of
justice that this action be transferred to the appropriate trial court. Accordingly, we remand to the
trial court for entry of an order transferring this action to the appropriate court in the county where
West Tennessee State Penitentiary is located.

VII. Conclusion

Pursuant to Tenn. Code Ann. § 41-21-803, Mr. Hawkins’s petition for writ of certiorari
seeking judicial review of decisions of the Board must be brought in the county where the prison is
located. Accordingly, the trial court herein correctly determined it had no authority to hear the case.
We remand to the trial court for transfer to a court with jurisdiction pursuant to Tenn. Code Ann. §
16-1-116.

21
Mr. Hawkins filed his petition on N ovembe r 8, 20 00.

17
 Costs of this appeal are taxed to the Department of Correction, for which execution may issue
if necessary.

___________________________________
PATRICIA J. COTTRELL, JUDGE

18