On February 9, 2016, a Texas court held that a person adjudged delinquent for capital murder  as a juvenile and later transferred from the Texas Youth Commission to the adult prison system is not subject to the extraordinary parole review requirement set forth in §508.046, Texas Government Code (TGC).

Zahir Querishi, a Texas state prisoner, was adjudicated delinquent under § 54.03 of the Texas Family Code for having committed capital murder.  Pursuant to § 51.13(a) of that code, such an adjudication does not constitute a criminal conviction.  Three years later, when he was about to turn 18, the district court ordered him transferred to the adult prison system to serve out the remainder of his 40 year sentence.

The parole board first considered Querishi for parole after he had served 50% of his sentence.  In doing so, the parole board subjected him to the extraordinary parole vote procedure for prisoners who  received a life sentence following a conviction of capital murder.  This procedure, set forth in TGC § 508.406, requires the prisoner to receive 5 votes in favor of parolel from the entire 7 member statewide parole board instead of a simple majority of a local parole panel consisting of one parole board member and two parole commissioners.  This onerous procedure was instituted with the intention of making it more difficult for prisoners convicted of sex offenses or capital murder to receive parole.  In Querishi’s case, the intention worked-parole was denied for at least three years.

Prior to his parole review, Querishi informed parole officials that he was not subject to the extraordinary parole vote as he had never been convicted of capital murder and his was a civil case, rather than a criminal one.  They didn’t understand.  When he objected to the results of his parole review on that basis and applied for reconsideration via special review, the application was denied and he was informed that all capital murder cases were subject to the extraordinary voting procedure.

Aided by Austin attorney Richard Wetzel, Querishi filed a civil application for a writ of habeas corpus under Article V, § 8 of the Texas Constitution in the court that originally adjudged him delinquent.  He argued that, pursuant to Ex parte Valle, 104 S.W. 3d 888 (Tex. Crim. App. 2003), his adjudication was a civil  matter and not a criminal conviction for capital murder under the Penal Code which would subject him to the extraordinary parole voting requirements.  Instead, Querishi argued that his 40-year determinate sentence was covered by TGC §499.05 (d) (2), which states that a murder shall be eligible for parole upon completing one-half of the calendar time of his sentence and not be subjected to the extraordinary parole voting requirements of §508.046.

The court agreed.  It ordered the Texas Board of Pardons and Paroles to re-review Querishi’s application for parole, not to apply the extraordinary voting procedures of §508.046, but rather to proceed to have his parole determination made by a standard three-member local parole panel.  See: Ex parte Querishi, 315th J.D. Court of Harris County, Texas, Case No. 86,707.

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