COUPLE'S LAWYERS NO-SUIT ERIN, SEEK COUNTY STATEMENT; GRAND JURY PROBE PENDING ON AOG WAIVER RULING

By Juan Montoya
Apparently convinced that their clients can attain documentation that absolves them of playing as role in any scheme to defraud the U.S. Government because their same-day marriage was based on a fraudulent waiver of the 72-hour waiting period issued by Justice of the Peace 2-2 Erin Garcia-Hernandez, lawyers for a couple applying for residency have withdrawn their federal lawsuit.
The plaintiffs, Alberto Maldonado and Claudia Esmeralda Gonzalez,  filed a civil complaint against Garcia-Hernandez  alleging she jeopardized Maldonado’s immigration status by giving him false information on marriage license rules, they stated in their complaint.
According to their original petition, the JP told them she could issue a waiver for a 72-hour waiting period so they could get married on the same day.
The couple contended that they had told Erin Garcia-Hernandez that they were in the process of their application for the groom's legal residency.
The complaint originally named as defendants Erin Garcia-Hernandez, her father Pct. 2 commissioner Ernie Hernandez Jr., her brother Ernie III, and Cameron County.
In an amended motion, both men and the county were removed from the petition and the justice of the peace was left as the sole defendant.
Then, after attorneys for the couple said they had been engaged in "ongoing intermediary communication that posting and public notice requirements mean that time is needed to properly post and consider potential non-monetary documentation that will potentially resolve this litigation and aid plaintiffs in their immigration process, which is the basis for their claim and which would mitigate any other claims they have, or may have, without assisting documentation," they non-suited her as well.
However, they did leave open the possibility of returning to the litigation if their request for some form of documentation from the county showing their clients did not enter into a scheme with county officials to defraud the government in their residency application is not successful.
They non-suited the three defendants and the county "without prejudice" to their claim which allows them to refile if not satisfied with procuring the required documentation.
But while the federal lawsuit is on hold, the Cameron County District Attorney's request for an opinion from the Texas Attorney General to determine whether a Justice of the Peace is authorized to issue the waivers, whether they can charge, and where the money paid for the waivers by the public should go is continuing.
Last week a state grand jury issued a subpoena for the marriage records of the JP 2-2 office and DA Luis Saenz had his chief assistant Rene Gonzalez submit three questions to the AOG before determining how to proceed with the grand jury process.
Saenz asked the AOG three basic questions in his request for an opinion. They are:
1.) Are justices of the peace authorized by law to issue the waivers?
20) Is a justice of the peace authorized to charge a fee for the waivers?
3) And if the fee is collected, who does it go to, to the justice of the peace or to the county?
There is no mention there of any particular justice of the peace or specific circumstance. When the AG's opinion is delivered, Saenz said his office can then proceed on specific cases that arise before his office.
The need for answers to these questions arose from the questions surrounding the issuance of at least 13 (and perhaps as many as 17) such waivers by Garcia-Hernandez. Some of the people who paid for the waivers said they were charged $40. Others claim that they paid $25.
Both Erin and her father are running for reelection in the 2014 Democratic Party primary in March.
To Saenz, the amounts paid don't really bear on the principal question underlying the request for an opinion.
"Is a justice of the peace authorized by law to issue a waiver?" he asked. "That's the basic question we need answered."
But it is also important to find out where the money charged for the waivers went. Did they go into county coffers? Or did they go into the justice of the peace's pocket?
On its face, the state Family Code would seem to argue against the issuance of waivers by justices of the peace in the state.
The most recent  version of the Texas Family Code (2008) states that only a judge in a court that handles family-law cases, a justice of the supreme court, a judge of the court of appeals, and a county judge can issue a 72-hour waiver.
Notice that a justice of the peace court is not included among them. The earliest version of the law only allowed for an order to be issued by a district court. That was changed to a waiver by the courts listed above in subsequent amendments to the code.
Sampson and Tindall's Texas Family Code Annotated – the Bible of Family Law – in Subchapter C concerning Ceremony and the return of license, states the precedent to the history and evolution of the precedent to this law.
After going through the reasons for the 30-day validity of the marriage license, they say that the 72-hour waiting period after obtaining a license ostensibly was erected to prevent couples from marrying in haste without time for proper reflection.
"The truth is that suburban justices of the peace lobbied for the change because courthouse JPs were taking the lion's share of the lucrative business of performing marriages. Requiring couples to wait for 72 hours makes it unlikely that they will return downtown to get married."
In the case of the JP 2-2, it is apparent that the issue of the "waiver" might have been used to leverage the fee for the performance of the wedding ceremony – anywhere from $150 to $250.
There is a markedly different process followed in legitimate waivers issued by the district courts.
 In that case, there is a specific waiver form that must be completed at the district clerk's office, signed by a district judge, and filed away in a case file. In the case of the form generated in Erin Garcia-Hernandez's office, there is no existing file for them. In fact, there are no such forms left at the county clerk's office.
 However, the ones that did survive bear the logo of the Justice of the Peace office of Erin Garcia-Hernandez and her signature below the body of text approving the waiver of the 72-hour waiting period. Once the waiver is issued, the marriage ceremony could be performed and the justice of the peace can collect whatever fee that particular office charges.
"Depending on what the AOG opinion states, then it is up to the discretion of the local DA to exercise his options," said a local attorney. "The Hernandezes should not celebrate just yet. This will be hanging over their daughter's head for as long as it takes the AOG to formulate and return an opinion."