PROOF IS IN THE PUDDING: ERIN INDICTMENT IN WORKS?

(Breaking News: We have just learned that all of Cameron County JP 2-2 Erin Garcia-Hernandez's marriage records have been subpoenaed by a grand jury and have been seized by investigators with the Cameron County District Attorney's Office. More details later.) 

By Juan Montoya
Even before the current controversy involving the issuance of fraudulent waivers to the state-mandated 72-hour waiting period by JP 2-2 Erin Garcia-Hernandez erupted, we have learned that some staff members form the Cameron County Clerk's Office had told her privately that only the county judge or a district court was authorized to issue them.
According to sources there, Garcia-Hernandez – an attorney – is said to have asked them if they were sure she could not. Now we hear that she has hinted to some of the people there that perhaps they can say that it was their idea to use the fake waivers.
Nonetheless, she continued to issue them even though her justice of the peace court was not authorized under the Texas Family Code. Not only that, but her office created an instrument (a waiver), and then couples $40 for issuing it.
As an attorney, Garcia-Hernandez should have known that there is an established process in the Cameron County judicial wing for a couple who wants to forgo the 72-hour waiting period. Military personnel and those already living in marriage don't have to wait the 72 hours or need a waiver from a district judge. Everyone else needs to get approval from the county judge, a district judge, a court with jurisdiction over family law (not a JP court), an appellate court judge or a justice of the supreme court.
Further, there is already an established process in Cameron County through the county clerk, via the district clerk's office and the district courts to attain the waiver. The cost through the district clerk's office leaves a $237 fee with the county.
In the case of Erin Garcia-Hernandez, by bypassing the established process, it left $40 in her pocket plus the fee she charges for marrying couple, $250. It leaves $0 for the county.
So there you have it. There is ample proof that she knew of the process, had a bogus "waiver" document with the seal of her office imprinted upon it, and then sold it with the intention to fool the customer and profit personally from it.
Now that a couple has sued the justice of the peace in federal court to protect themselves from a negative decision on their residency application by the U.S. Citizenship and Immigration Service if they decide that the use of the fraudulent waiver was part of a scheme to defraud the government, the ball is now fully in the court of the local district attorney.
Was there a waiver issued in violation of the state's Family Code by Garcia-Hernandez? Was there a document (the waiver) created at her direction by her court that she was not authorized to issue? Did she – as some of the couples are saying – charge them $40 to get it? If so, not only did she commit a misdemeanor under the Family Code, but also a misdemeanor under the Texas Penal Code by tampering with a government document, but then the offense rises to a felony under the Texas Penal Code because she sold it with the intent to defraud.
This happened not once, mind you, but at least 13 times as far as far we know right now.
As we said, the paper trail is there for everyone to see. To produce a fake "waiver" is an obvious crime. To sell it is a felony. To be a repeat offender only makes matters worse. When will the state grand jury shoe drop?
To say that "everybody else did it" is to state a defense that two (or three) wrongs make a right. However, we have also l;earned that other JPs in the county might be guilty of issuing the waivers as well. Some have bypassed the system, we are told, by postdating the effective marriage date to 72 hours later.
To say that she will return the money is not only to admit guilt, but it begs the question that a crime was committed. What if every shoplifter, burglar, embezzler or bank robber simply give back the money or loot they have stolen and the law will forget it? It doesn't work that way. If the issue had not been raised, would she have gone about conducting business as usual? Probably.
According to federal law, it doesn't matter to the feds if the applicants believe that they are in compliance with state law. If the government thinks the issuance of waivers to have an immediate wedding without having to wait for the 72 hour period, it might cause them to delay or to even deny the applicants their residency or even their eventual citizenship.
According to a Department of Justice website, "The Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded the INS (Lutwak v. United States, 344 U.S. 604 (1953)."