Ex Parte Z.Q. ( 2022 )

Dismissed and Memorandum Opinion filed November 3, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00243-CV
EX PARTE Z.Q., Appellant
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 0000-86707
MEMORANDUM OPINION
Appellant Z.Q. attempts to appeal an order in which the juvenile court
denied his post-adjudication application for writ of habeas corpus without issuing
the writ of habeas corpus or addressing the merits of his request for habeas corpus
relief. The State asserts that this court lacks appellate jurisdiction because this
order is not an appealable order. We dismiss for want of appellate jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
When Z.Q. was a juvenile, he received an adjudication of delinquent
conduct for committing both a capital murder and an attempted capital murder, for
which he received two determinant sentences of 40 years. Z.Q. was initially placed
in the custody of the Texas Youth Commission (“TYC”).
In 1997, the juvenile court determined that Z.Q. should be transferred from
the TYC to the Texas Department of Criminal Justice, Correctional Institutions
Division (“TDCJ-CID”) to complete his sentences. Z.Q. is currently serving his
40-year determinate sentences in the custody of TDCJ-CID.
His initial parole review date was in May of 2014. In conducting its parole
vote, the Texas Board of Pardons and Paroles (the “Board”) used the extraordinary
vote provisions of section 508.046 of the Government Code, which, for release,
requires that at least two-thirds of the members of the Board vote in favor of
release.1 None of the seven board members voted to release Z.Q. The Board set his
next parole review for June of 2017.
In July 2015, Z.Q. filed an original application for writ of habeas corpus in
the original juvenile court, pursuant to article V, section 8 of the Texas
Constitution2 asserting that the Board violated his constitutional right to due
process by misapplying the Government Code provisions governing parole panels
and votes. He argued that the Board erred in determining his parole under section
508.046, which requires a two-thirds majority vote of the entire Board if the inmate
was convicted of an offense under certain sections of the Penal Code.3 Z.Q. argued
that section 508.046 did not apply to him because he was adjudicated for capital
murder, not “convicted” of that offense, and therefore is not a convicted capital
felon. Z.Q. argued that he instead is entitled to have his parole determined by a
simple majority vote of a three-member panel as provided for by Government
1
See Tex. Gov. Code § 508.046 (West, Westlaw through 2021 C.S.).
2
See Tex. Const. art. V, § 8.
3
See Tex. Gov. Code § 508.046.
2
Code section 508.045.4
The juvenile court granted habeas corpus relief in favor of Z.Q. ordering the
Board to: (1) not subject Z.Q.’s parole determination to the extraordinary vote
provisions of Texas Government Code § 508.046; and (2) proceed to have his
parole determination made by a standard three-member parole panel under Texas
Government Code § 508.45.
In a mandamus proceeding filed by the Board, this court concluded that (1)
the Board’s alleged misapplication of Government Code section 508.046 did not
constitute a violation of Z.Q.’s constitutional rights for which habeas relief is
available; and (2) because Government Code section 508.045 does not create a
liberty interest that is cognizable on habeas corpus review, the juvenile court
abused its discretion in granting habeas corpus relief.5 This court directed the
juvenile court to vacate its order granting habeas corpus relief.6
In July 2017, the Board again reviewed Z.Q.’s parole eligibility under the
extraordinary vote provisions of Government Code section 508.046 and again
denied Z.Q. release on parole. In July 2020, the Board reviewed Z.Q.’s parole
eligibility under Government Code section 508.046 and again denied Z.Q. release
on parole. In November 2020, Z.Q. filed an application for a writ of habeas corpus
in the juvenile court, pursuant to article V, section 8 of the Texas Constitution and
Family Code section 56.01(o). Z.Q. again asked the juvenile court to enter an order
granting habeas relief and prohibiting the Board from using the extraordinary vote
provisions of Government Code section 508.046 to assess Z.Q.’s parole eligibility
4
See Tex. Gov. Code § 508.045 (West, Westlaw through 2021 C.S.).
5
See In re Texas Board of Pardons and Paroles, 495 S.W.3d 554, 560–63 (Tex. App.—Houston
[14th Dist.] 2016, orig. proceeding [mand. denied]).
6
See id.3
because Z.Q. was adjudicated for capital murder, not “convicted” of that offense.
The State responded in opposition. On April 6, 2021, the juvenile court signed an
order denying Z.Q.’s habeas corpus application “without issuing the writ or
hearing on the merits” (the “Order”).
Z.Q. timely filed a notice of appeal and seeks to appeal the Order.
II. ANALYSIS
Does this court have appellate jurisdiction to review the Order?
The State argues that this court lacks appellate jurisdiction over the Order
because the juvenile court denied Z.Q.’s habeas corpus application without issuing
a writ of habeas corpus and without considering or resolving the merits of the
application. Therefore, we first determine whether we have appellate jurisdiction.
Although quasi-criminal in nature, proceedings in juvenile court are
considered civil cases; thus, the Supreme Court of Texas, rather than the Court of
Criminal Appeals, is the Texas court of last resort for such matters. In re M.P.A.,
364 S.W.3d 277, 282 n.2 (Tex. 2012). The Court of Criminal Appeals has
determined that it lacks jurisdiction to issue extraordinary writs in such cases, even
those initiated by a juvenile offender who has been transferred to the Texas
Department of Criminal Justice because he is now an adult. Id. It is the applicant’s
age at the time he commits the delinquent acts that determines jurisdiction, rather
than his age when applying for habeas corpus relief. Id. Thus, though an
application for a writ of habeas corpus is not a normal civil suit, the proceedings
regarding Z.Q.’s habeas corpus application and his attempted appeal from the
Order are considered to be civil. See id.; See In re Texas Board of Pardons and
Paroles, 495 S.W.3d 554, 558 (Tex. App.—Houston [14th Dist.] 2016, orig.
proceeding [mand. denied]).
4
People who were children when they engaged in delinquent conduct and
were adjudicated by a juvenile district court as having engaged in delinquent
conduct may file in a juvenile district court an application for a writ of habeas
corpus under article V, section 8 of the Texas Constitution, which gives juvenile
district courts plenary power to issue the writ of habeas corpus. See In re Hall, 286
S.W.3d 925, 927 (Tex. 2009); In re Z.Q., No. 14-12-01109-CV, 2013 WL 55991,
at *1 (Tex. App.—Houston [14th Dist.] Jan. 3, 2013, orig. proceeding) (mem. op.).
There is an important distinction between the issuance of a writ of habeas corpus
and the granting of habeas corpus relief based on a claim set forth in a habeas
corpus application. See Ex parte Bowers, 36 S.W.3d 926, 926 (Tex. App.—Dallas
2001, pet. ref’d). A writ of habeas corpus does not grant substantive relief; rather
the writ is an order issued by a court or judge of competent jurisdiction, directed to
the person having the applicant in custody, or under restraint, commanding the
person to produce the applicant, at a time and place named in the writ, and show
why the applicant is held in custody or under restraint. See Ex parte Walker, 489
S.W.3d 1, 7 (Tex. App.—Beaumont 2016, pet. ref’d).
The Supreme Court of Texas, this court, and sister courts of appeals have
exercised appellate jurisdiction over appeals from an order in which a juvenile
court ruled on the merits of a claim in a post-adjudication application for a writ of
habeas corpus. See In re M.P.A., 364 S.W.3d 277, 281–82, 292 (Tex. 2012); In re
Z.Q., No. 14-12-00129-CV, 2013 WL 176116, at *1 (Tex. App.—Houston [14th
Dist.] Jan. 17, 2013, no pet.) (mem. op.); Ex parte Gardner, No. 10-15-00372-CV,
2016 WL 5944764, at *1–3 (Tex. App.—Waco Oct. 12, 2016, pet. denied) (mem.
op.); In re J.W.A., No. 03-03-00464-CV, 2005 WL 2574024, at *3 & n.4 (Tex.
App.—Austin Oct. 13, 2005, no pet.) (mem. op.). However, there is no right of
appeal from an order in which a juvenile court denies an applicant’s habeas corpus
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application without issuing a writ of habeas corpus and without addressing the
merits of any claim in the application. See Ex parte Villanueva, 252 S.W.3d 391,
393–94 (Tex. Crim. App. 2008); Ex parte T.W.A., No. 10-22-00022-CV, 2022 WL
3655150, at *2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.); Ex parte
Miller, No. 09-08-00194-CV, 2008 WL 5780816, at *1–2 (Tex. App.—Beaumont
Apr. 2, 2009, no pet.) (mem. op.). We therefore examine whether the juvenile court
issued a writ of habeas corpus and whether the juvenile court addressed the merits
of a claim in Z.Q.’s habeas application. See Ex parte Villanueva, 252 S.W.3d at393–94; Ex parte T.W.A., 2022 WL 3655150, at *2; Ex parte Miller, 2008 WL
5780816, at *1–2. We review the entire appellate record for this determination. See
Ex parte Bowers, 36 S.W.3d at 926.
Z.Q. suggests that this court has appellate jurisdiction based on the Supreme
Court of Texas’s opinion in Harbison v. McMurray. See 158 S.W.2d 284, 286–88
(Tex. 1942). Though the Harbison court concluded that the Court of Civil Appeals
had jurisdiction over an appeal from the denial of habeas corpus relief, the trial
court in that case ruled on the merits of the claims in the habeas corpus application;
therefore the Harbison case is not on point. See id. at 286, 288. Z.Q. also cites the
opinion in In re Commitment of Richards. See 202 S.W.3d 779, 788–89 (Tex.
App.—Beaumont 2006, pet. denied). Though the Richards court concluded that it
had jurisdiction over the appeal from the denial of habeas corpus relief, the trial
court in that case ruled on the merits of the claims in the habeas corpus application;
therefore the Richards case is not on point. See id.Z.Q. and the State agree, and the record reflects, that in the Order the trial
court denied Z.Q.’s habeas corpus application without issuing a writ of habeas
corpus and without holding a hearing on the merits of the application. After
reviewing the entire appellate record, we conclude that the juvenile court denied
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Z.Q.’s habeas corpus application without issuing a writ of habeas corpus and
without addressing the merits of any claim in Z.Q.’s habeas corpus application.
Therefore, the Order is not an appealable order, and this court lacks jurisdiction to
consider appellant’s appeal. See Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim.
App. 1983); Ex parte Miller, 2008 WL 5780816, at *1–2; Purchase v. State, 176
S.W.3d 406, 407 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Ex parte Bowers,
36 S.W.3d at 926.
III. CONCLUSION
We conclude that we do not have appellate jurisdiction to review the Order.
We order the appeal dismissed for lack of appellate jurisdiction.
/s/ Randy Wilson
Justice
Panel consists of Justices Wise, Poissant, and Wilson.
7