07/07/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 1, 2021
MICHAEL HALLIBURTON V. TENNESSEE BOARD OF PAROLE
Appeal from the Chancery Court for Davidson County
No. 20-844-IV Russell T. Perkins, Chancellor
No. M2020-01657-COA-R3-CV
After being denied parole and exhausting all administrative remedies, an inmate filed a
petition for writ of certiorari in the Chancery Court of Davidson County. The chancery
court dismissed the petition pursuant to Tenn. Code Ann. § 41-21-812 because the inmate
had unpaid court costs from previous litigation. Finding no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.
Michael Halliburton, Hartsville, Tennessee, pro se.
Herbert H. Slatery, III, Attorney General and Reporter, and Pamela S. Lorch, Senior
Assistant Attorney General, for the appellee, Tennessee Board of Parole.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
A Shelby County jury convicted Michael Halliburton of attempted first-degree
premeditated murder, one count of domestic assault, and two counts of aggravated assault,
for the brutal beating of his wife with a metal knife sharpener after she told him she wanted
a divorce. State v. Halliburton, No. W2015-02157-CCA-R3-CD, 2016 WL 7102747, at
*1 (Tenn. Crim. App. Dec. 6, 2016). The trial court approved the jury’s verdict and
sentenced Mr. Halliburton to twenty-one years’ imprisonment. Id. His convictions and
sentence were upheld on direct appeal. Id. Thereafter, Mr. Halliburton unsuccessfully
sought post-conviction relief. Halliburton v. State, No. W2019-01458-CCA-R3-PC, 2020
WL 4727434, at *1 (Tenn. Crim. App. Aug. 13, 2020).
Mr. Halliburton first became eligible for parole on March 13, 2018, but the
Tennessee Board of Parole (“the Board”) denied parole after a hearing. In 2020, he became
eligible for parole a second time. The Board again denied parole after a hearing on March
10, 2020. Mr. Halliburton appealed the second denial to the Board but was denied relief.
Having exhausted his administrative remedies, Mr. Halliburton filed a petition for common
law writ of certiorari in the Chancery Court for Davidson County on August 21, 2020,
asserting that the Board violated his procedural due process rights in several ways. With
his petition, he filed a motion and supporting affidavit requesting permission to proceed in
forma pauperis. Additionally, he filed an affidavit pursuant to the requirements of Tenn.
Code Ann. § 41-21-805, setting forth all of the previous lawsuits he had filed.
On October 22, 2020, the Board filed a motion to dismiss pursuant to Tenn. Code
Ann. § 41-21-812, asserting that Mr. Halliburton’s petition should be dismissed because
he had “outstanding costs from prior litigation.” Relying on a declaration from the deputy
clerk for the Tennessee Supreme Court, the Board asserted that Mr. Halliburton owed
$163.75 from a prior case against the Board of Professional Responsibility and $163.75
from a prior case against the Board of Judicial Conduct. The chancery court granted the
motion to dismiss after concluding that Tenn. Code Ann. § 41-21-812 prohibited Mr.
Halliburton from filing the petition because he had a total of $327.50 in unpaid court costs.
Mr. Halliburton timely appealed.
ANALYSIS
As a preliminary matter, we note that Mr. Halliburton is a pro se litigant. This Court
has stated the following principles about pro se litigants:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see also
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). Additionally, we allow
pro se litigants some latitude in preparing their briefs and endeavor to “give effect to the
substance, rather than the form or terminology,” of their court filings. Young, 130 S.W.3d
at 63.
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I. Unpaid court costs.
Mr. Halliburton contends that the chancery court erred in dismissing his petition
pursuant to Tenn. Code Ann. § 41-21-812 because the outstanding court costs were paid in
full prior to the court entering the order of dismissal. Tennessee Code Annotated section
41-21-812 provides as follows:
(a) Except as provided by subsection (b), on notice of assessment of any fees,
taxes, costs and expenses under this part, a clerk of a court may not accept
for filing another claim by the same inmate until prior fees, taxes, costs and
other expenses are paid in full.
(b) A court may allow an inmate who has not paid any costs or expenses
assessed against the inmate to file a claim for injunctive relief seeking to
enjoin an act or failure to act that creates a substantial threat of irreparable
injury or serious physical harm to the inmate.
As it is used in the statute, the term “claim” “means any lawsuit or appeal filed by an inmate
except a petition for post-conviction relief.” Tenn. Code Ann. § 41-21-801(1). Therefore,
if an inmate owes court costs from previous cases, Tenn. Code Ann. § 41-21-812(a)
provides that a court clerk may not accept for filing any more lawsuits or appeals by the
inmate except those for post-conviction relief. Sweatt v. Tenn. Dep’t of Corr., 99 S.W.3d
112, 115 (Tenn. Ct. App. 2002).
In the present case, Mr. Halliburton asserts that the chancery court should not have
dismissed his petition because he paid all outstanding court costs on November 2, 2020,
which was prior to the court entering the order of dismissal.1 He does not dispute, however,
that he owed $327.50 in court costs from two previous cases when he submitted his petition
on August 21, 2020. Thus, Tenn. Code Ann. § 41-21-812(a) barred the trial court clerk
from filing Mr. Halliburton’s petition. Because it was erroneously filed by the court clerk,
we conclude that the chancery court did not err in dismissing the petition. See Gray v.
Tenn. Dep’t of Corr., No. E2012-00425-COA-R3-CV, 2013 WL 5677004, at *6 (Tenn. Ct.
App. Oct. 17, 2013) (“The trial court did not err in finding Mr. Gray’s petition barred by
Tennessee Code Annotated § 41-21-812(a) and in dismissing his petition on that basis.”);
Dotson v. Contemporary Media, Inc., No. W2011-01234-COA-R3-CV, 2012 WL
1868255, at *7 (Tenn. Ct. App. May 23, 2012) (“If a clerk erroneously accepts, for filing,
a claim, to which Tennessee Code Annotated Section 41-21-812 applies, then the trial court
1
The record contains only Mr. Halliburton’s own assertion in a notarized answer to the Board’s motion to
dismiss that a friend of his “mailed a check to the clerk on October 29, 2020, for the full amount owed.”
He did not file, however, an affidavit of the friend who supposedly mailed the check, proof of the cancelled
check, or a statement from the court clerk to show that the outstanding costs had been paid. Thus, the
chancery court concluded that “the record before this Court contains no proof that the outstanding court
costs have been paid[, as t]here is no Declaration or Affidavit confirming this assertion nor is there any
evidence that the Tennessee Supreme Court costs are paid in full at this time.”
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is authorized to dismiss the case under the statute.”); Montague v. Tenn. Dep’t of Corr.,
109 S.W.3d 735, 737 (Tenn. Ct. App. 2003) (affirming trial court’s dismissal of inmate’s
complaint “on the authority of Tenn. Code Ann. § 41-21-812(a) which provides that the
clerk of the court shall not accept for filing a claim by an inmate on an affidavit of inability
to pay costs when that person owes unpaid costs incurred in a prior action”). This argument
is without merit.
II. Due Process.
Mr. Halliburton next asserts an “as-applied” constitutional challenge to Tenn. Code
Ann. § 41-21-812. Specifically, he asserts that, in applying Tenn. Code Ann. § 41-21-812
and dismissing his case due to outstanding court costs, the trial court violated his right of
access to the courts under the due process clause in the Fourteenth Amendment to the
United States Constitution and the due process clause in article I, section 8 of the Tennessee
Constitution.2 “In contrast to a facial challenge, which involves the constitutionality of the
statute as written, ‘[a]n ‘as applied’ challenge to the constitutionality of a statute is
evaluated considering how it operates in practice against the particular litigant and under
the facts of the instant case, not hypothetical facts in other situations.’” State v. Crank, 468
S.W.3d 15, 24 n.5 (Tenn. 2015) (quoting City of Memphis v. Hargett, 414 S.W.3d 88, 107
(Tenn. 2013)). Thus, to prevail, Mr. Halliburton must show that Tenn. Code Ann. § 41-
21-812 operates unconstitutionally when applied to the particular facts of his case. See
Waters v. Farr, 291 S.W.3d 873, 923 (Tenn. 2009) (Koch, J. concurring in part and
dissenting in part).
The determination of a statute’s constitutionality presents a question of law that we
review de novo with no presumption of correctness afforded to the trial court’s legal
conclusions. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008). We
must “uphold[] the constitutionality of statutes where possible.” State v. Pickett, 211
S.W.3d 696, 700 (Tenn. 2007). Therefore, “‘we begin with the presumption that an act of
the General Assembly is constitutional” and “‘indulge every presumption and resolve every
doubt in favor of the statute’s constitutionality.’” Id. (quoting Gallaher v. Elam, 104
S.W.3d 455, 459 (Tenn. 2003)). We review the trial court’s findings of fact de novo with
a presumption of correctness, unless the evidence preponderates otherwise. Hood v.
Jenkins, 432 S.W.3d 814, 822 (Tenn. 2013).
In Hughes v. Tennessee Board of Probation and Parole, 514 S.W.3d 707 (Tenn.
2017), the Tennessee Supreme Court addressed the same “as-applied” constitutional
2
In his appellate brief, Mr. Halliburton also asserts a facial constitutional challenge to Tenn. Code Ann. §
41-21-812, but he failed to raise this issue in the chancery court. Generally, we consider constitutional
issues raised for the first time on appeal to be waived. Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009)
(Koch, J. concurring in part and dissenting in part). We, therefore, decline to address this issue.
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challenge to Tenn. Code Ann. § 41-21-812 that Mr. Halliburton asserts here.3 As in this
case, the Board denied Mr. Hughes parole. Id. at 710. After exhausting all available
administrative appeal procedures, Mr. Hughes appealed the denial to the Davidson County
Chancery Court via a petition for common law writ of certiorari. Id. at 711. The chancery
court dismissed the petition pursuant to Tenn. Code Ann. § 41-21-812 because Mr. Hughes
had $258.85 in unpaid court costs. Id. Mr. Hughes appealed the dismissal, and the Court
of Appeals also dismissed the case pursuant to Tenn. Code Ann. § 41-21-812. Id.
Mr. Hughes appealed to the Tennessee Supreme Court, arguing that the lower
courts’ application of Tenn. Code Ann. § 41-21-812 to dismiss his case violated his right
of access to the courts under the due process clauses of the federal and state constitutions.
Id. at 711-12. The Hughes Court noted that Mr. Hughes had a hearing before the Board
“that was not contingent upon his ability to pay any filing fees and also had the ability to
appeal the board’s decision within their internal system.” Id. at 723. Thus, the Court held
that there had been no due process violation because the statute did not “deprive [Mr.
Hughes] of administrative remedies” and did not “permanently bar [him] access to the
courts.” Id. at 723-24.
Here, like Mr. Hughes, Mr. Halliburton had a hearing before the Board that was not
contingent on his ability to pay any filing fees, he had the ability to appeal the Board’s
decision within its internal system, and he took advantage of that appellate process.
Applying the holding in Hughes, we conclude that Mr. Halliburton was not denied due
process.
III. Open courts clause.
Mr. Halliburton next asserts that, in dismissing his case pursuant to Tenn. Code
Ann. § 41-21-812, the chancery court violated his right of access to the courts under the
open courts clauses in art. I, sec. 17 of the Tennessee Constitution. Mr. Halliburton failed,
however, to raise this issue in the trial court. A tenet of appellate practice is that, if a party
fails to raise an issue in the trial court, he or she waives the right to raise that issue on
appeal. In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009); Dye v. Witco Corp., 216 S.W.3d
317, 321 (Tenn. 2007). Contrary to Mr. Halliburton’s assertion that this rule does not apply
to constitutional issues, our Supreme Court has expressly stated that, if a party fails to
challenge the constitutionality of a statute in the trial court, he or she waives that issue on
appeal “unless the statute involved is so obviously unconstitutional on its face as to obviate
3
While section 41-21-812 was found to be unconstitutional as applied to the parolee whose parole was
revoked in the case of Clifton v. Carpenter, 775 F.3d 760, 762 (6th Cir. 2014), the Tennessee Supreme
Court found Clifton to not be controlling in a case strikingly similar to the one at bar, due to the “different
interests” that were at stake. Hughes, 514 S.W.3d at 713. The Court noted that “‘[t]here is a crucial
distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty
that one desires.’” Id. (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9
(1979)).
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the necessity for any discussion.”4 Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.
1983); see also Waters, 291 S.W.3d at 918. Because Tenn. Code Ann. § 41-21-812 does
not contain a patently obvious facial constitutional defect, we decline to consider this issue
for the first time on appeal. See Meeks v. Tenn. Bd. of Prob. & Parole, No. M2007-00584-
COA-R3-CV, 2008 WL 802458, at *3 (Tenn. Ct. App. Mar. 24, 2008) (“We do not find
[Tenn. Code Ann. § 41-21-812] to be facially unconstitutional.”).
In light of the foregoing, we conclude that the trial court did not err in dismissing
Mr. Halliburton’s petition pursuant to Tenn. Code Ann. § 41-21-812 because he had
$327.50 in unpaid court costs.5
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed against
the appellant, Michael Halliburton, for which execution may issue if necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
4
Mr. Halliburton’s reliance on State v. Turner, No. E2016-00654-CCA-R3-CD, 2017 WL 1830106, at *13
(Tenn. Crim. App. May 5, 2017), is misplaced. Although our Supreme Court has held that constitutional
challenges to statutes may be raised at any time “in cases involving the deprivation of life or liberty,” this
case does not involve a deprivation of life or liberty. Veach v. State, 491 S.W.2d 81, 83 (Tenn. 1973). Mr.
Halliburton was convicted and sentenced to prison. A convicted person has “‘no constitutional or inherent
right . . . to be conditionally released before the expiration of a valid sentence.’” Hughes, 514 S.W.3d at
713 (quoting Greenholtz, 442 U.S. at 9). Rather, “parole is a matter of legislative grace.” Id. at 720.
“‘There is a crucial distinction between being deprived of a liberty one has, as in [being out on] parole, and
being denied a conditional liberty that one desires.’” Id. (quoting Greenholtz, 442 U.S. at 9). Mr.
Halliburton was deprived of liberty when he was convicted and sentenced to prison. The Court of Criminal
Appeals affirmed both the conviction and the sentence. At best, Mr. Halliburton’s interest in parole could
best be described as a liberty he dearly hoped to receive. Thus, the Board’s denial of parole did not deprive
him of liberty. The holding in Turner is inapplicable to the facts of this case.
5
The remaining issues Mr. Halliburton raises in his appellate brief concern his challenges to the Board’s
procedures, which were the basis of his petition for writ of certiorari that was dismissed by the trial court.
Because we affirmed the chancery court’s dismissal of the petition, we decline to address these remaining
issues.
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