DA HOMES IN ON ISSUANCE AND SALE OF 72-HOUR WAIVERS

By Juan Montoya
Cameron County District Attorney Luis Saenz says that the current controversy surrounding the issuance and sales of waivers to forgo the 72-hour waiting period between the acquisition of a marriage license by the county clerk and the performance of the ceremony by a justice of the peace comes down to three basic questions.

1) Is a justice 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?
These questions have been drafted into a request for an opinion by Chief DA assistant Rene Gonzales and submitted the the Texas Attorney General's Office for an opinion.
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 JP 2-2 Erin Garcia Hernandez. Some of the people who paid for the waivers said they were charged $40. Others claim that they paid $25. She is the daughter of Pct. 2 commissioner Ernie Hernandez.
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."
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 with a judge of family law cases, a justice of the supreme court, a judge of the court of family appeals, a county judge, or a court of appeals 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."
And by omitting justice of the peace courts from those courts that are authorized to issue the waivers, the Texas legislature made sure that the urban-suburban (rural) rivalries would be eliminated. It stands to reason, then, that a justice of the peace cannot unilaterally issue the waivers in violation of the spirit of the law.
In 1988, the 70th Legislature in Section 2 said that only a district judge was authorized to issue an order waiving the 72-hour.
In 1989, the 71st Legislature amended it to say that "an applicant may request a district court or a statutory court granted jurisdiction in family law cases (county-courts-at-law) and proceedings...for an order permitting the marriage ceremony to take place during the 72-hour period..."
In 1995, the 74th Legislature amended the section to allow those courts to issue a waiver instead of a written order to forgo the 72-hour waiting period.
Some of the couples who were married by Garcia-Hernandez said they were charged $250 for the ceremony and $40 for the 72-hour waiver. Others say that she charged only $150 for wedding and $25 for the waivers.
But whatever the amount, what has emerged here is a scenario where clerks for Garcia-Hernandez are laying in wait for couples who have been issued a wedding license to lure them to perform teh ceremony.
"Some friends of mine who were married by Erin said they were on the way to Linda's office (Linda Salazar, the justice of the peace for the Pct. 2-1 court.), and la mujer guera y alta que habla español mocho, talked to them in the hallway and told them that she could marry them just the same and that they wouldn't have to wait for three days to do it," said a woman who knew the couple. "She said it was the same thing."
We have also learned that once the waiver forms got to the county clerk's office, staffers there didn't know where to file them, since no other JP's offices generated such a document.
"The clerks most often would just throw them away or shred them," said an attorney acquainted with the case.
That is markedly different with the 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.
There is no uniform fee for the ceremony and the county does not receive any of the marriage ceremony fee charged.
So far, Erin Garcia-Hernandez has married just under 300 couples since she took office last November. It's easy to see that the marriage racket is hugely lucrative. At an average of $200 per ceremony, that amounts to $60,000 that goes into her pocket. It is also easy to see that being able to issue waivers – whether legal or not – gives her a leg up on the competition next door since the couples don't have the need to come back to the court three days later.
After the controversy surround the waivers erupted, the legal counsel for the county commissioners court issued an order preventing all justices of the peace from issuing such waivers.