By Juan Montoya
Let's say you've just obtained your marriage license from the Cameron County Clerk's Office.
You know that you have to wait 72 hours before you can get married. So you saunter over around the corner to see a justice of the peace to see if you can schedule the marriage ceremony. In your ardor to consummate the union, you ask the office personnel if there's a way that you can get a waiver on the 72-hour waiting period.
If you went to JP 2-1 Linda Salazar, you would be told that the only one who can waive it is a court with jurisdiction over family law (a district court), a justice of the Texas Supreme Court, a judge of the court of criminal appeals, or a judge of a court of appeals if they find a good cause for the waiver.
Notice that the law (Texas Family Law 2.204) specifically leaves out a justice of the peace.
So you turn away disappointed and – passing by Erin Garcia Hernandez's JP 2-2 court – ask if she can help you since you're going out of town.
A clerk in her office says the judge will be glad to help you and produces a form bearing the county seal, her name and office, and a place below the document to be signed by the judge.
Why wait 72 hours as the law prescribes? For an additional $40 plus the $250 or $300 for the ceremony, Erin will gladly sign the petition for the waiver drafted by her office, affix you and your loved one's names to the "official document," and have you out the door as husband and wife minutes after you got your license from Joe Rivera's office. Why wait? Get your license and marry the same day despite the law.
Well, there may be a little problem with that "marriage."
It may not be legal.
For months now, it has become common knowledge that these illegal waivers have been flowing out of Erin Garcia's JP 2-2 office and making their way through the county's bureaucracy. There's only one hitch. There's no place – no file, no basket – where they belong. Conveniently, many of these "waivers" found their way to the shredder and the waste baskets in the county offices.
But what, you may ask, is the big deal about the use of waivers justices of the peace?
The law is quite clear on that:
The section of Texas Family Law quoted above reads in full:
"An applicant may request a judge with a court of jurisdiction in family law cases, a justice of the supreme court, a judge of criminal appeals, a county judge, or a judge of a court of appeals for a written waiver permitting the marriage ceremony to take place during the 72-hour period immediately following the issuance of a marriage license."
Texas law reads that: "Justice of the peace courts have original jurisdiction in misdemeanor criminal cases where punishment upon conviction may be by fine only. These courts generally have exclusive jurisdiction of civil matters when the amount in controversy does not exceed $200, and concurrent jurisdiction with the county courts when the amount in controversy exceeds $200 but does not exceed $10,000. Justice of the peace courts also have jurisdiction over forcible entry and detainer cases and function as small claims courts. Trials in justice of the peace courts are not of record. Appeals from these courts are upon trial de novo in the county court, the county court at law, or the district court."
Notice that there is no mention of family law in a justice of the peace court.
This was intentionally done so that justices of the peace, who stand to benefit personally from the wedding ceremony fee do not issue these like candy for self-profit. The 72-hour waiting period was included in Texas Family law so that the groom and wife can have time to think if they really want to go through with the ceremony. The fact that Erin Garcia's staff – at her direction? – had to devise an instrument that her court was not authorized to issue indicates that the forms were made with the intent to profit since they were sold for an additional $40.
The Texas Penal Code speaks to that as well. In Section 37.10 (Tampering with Governmental Record), (a) 2 states: A person commits an offense if he:
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record.
Then, it states two lines later:
(4) possesses, sells, or offers to sell a governmental record or blank governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its falsity; or
(6) possesses, sells, or offers to sell a governmental record or blank document record form with knowledge that it was obtained unlawfully.
The Penal Code states that "if the actor's intent is to defraud another, ...the offense is a state jail felony.
The offense becomes a felony of the third degree if "the actor's intent in committing the offense was to defraud or harm another."
What harm could there be?
Suppose that someone got tired of married life and found out that he was married through the use of an illegal "waiver." What's to prevent him or her from throwing out the other spouse on their ear? And if the couple is trying to legalize their immigration status and federal examiners find that their ceremony was held in violation of the law, would they be rejected?
A spouse in this situation wouldn't need to recur to divorce court. He or she could just get the marriage annulled and be done with it since it was not based on a legal document.
We are looking into how many of these "waivers" were issued and how many couples in Cameron County may have paid Erin Garcia's office the $40 to get the fraudulent waiver issued so they could marry before the 72-hour waiting period. Doubtless, there will be many since it appears she wasn't going to let a potential customer walks away without plunking down the $40 for the waiver and another $250 for performing the ceremony.
What we do know is that according to figures provided by the county clerk's office from December 2012 to June 2013, she had racked up 170 wedding ceremonies. How many of these used the fraudulent waivers? We don;t know yet, but we're looking.
If you know someone who may have been charged the $40 by this court and was married before the 72-hour period had passed, you may want to tell them to file a police report with the local cops. Their marriage may be illegal. Feel free to email us at email@example.com if you hear of a case.
We are unsure what liabilities the county may incur as a result of these fraudulent waivers, but as an officer of the county, we suspect there are some of which we, as non-lawyers, would not be aware.
We'll keep you posted.