The latest desperate distraction being thrown about the blogosphere trying to cloud the fact that a grand jury subpoenaed the marriage records of JP 2-2 Erin Garcia-Hernandez and the fraudulent waivers she sold couples for $40 to sidestep the Texas law-mandated 72-hour waiting periods for couples to get her $250 commission is laughable.
The report that Cameron County commissioners court legal counsel is asking the AG for an opinion on whether JPs can issue 72-hour waivers and that Cameron County District Attorney Luis Saenz should hold off on seizing the marriage records and receipts to present them to a grant jury until the opinion is forthcoming from Austin sounds to us like wishful thinking.We have already documented the fact that 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.
So why should the DA ask for an opinion from the AG.
All anyone has to look for is to go to Sampson and Tindall's Texas Family Code Annotated – the Bible of Family Law – to see that in Subchapter C: Ceremony and the return of license, the writers write 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.\
So why ask for an AG opinion?
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.
Then, in the latest version amended and effective in 2008, the legislature removed the statutory county courts (county-courts-law) and inserted county judges among the other courts having authority to issue the waivers to the 72-hour waiting period.
Nowhere in the evolution of the legislature is a justice of the peace court authorized to issue those waivers, much less and order to wive the 72-hour waiting period.
So why should the DA wait for an AG opinion? If the average layman can understand the intent of the law by reviewing the evolution of the section it is obvious that the legislature implicitly removed justices of the peace for issuing any such waivers, why can't the county's legal counsel?
18 comments:
Come on Mr. DA, you have prosecuted people on less evidence on other offenses...but now that a judge who has papi as a county commissioner your now asking for an AG Opinion! If that is the case why aren't you asking attorney opinions on other crime cases. The law is plainly written, the elements of the offense are right in front of your face, the evidence is plainly clear and the facts are there in support. What is there that you don't understand and requesting an AG Opinion...or is this just another tactic by your office to delay an indictment! Why? Is it because of her political ties with other politicans, county commissioners, judges, lawyers and even other connected family members? We entrusted you with the job as DA and to prosecute those who commit crimes against persons or property...you took an oath of office to keep us safe and to prevent and suppress crime. Now I or we the people demand you do your job that you promised to up hold and to perform...and that is to do your job as our DA for Cameron County!!!
I am a citizen, voter and tax payer of this county and we the citizens, voters and tax payers demand you do your job...as a public servant and not abuse you offical capacity by not presenting this matter to the grand jury. Let the grand jury be the fact finders of the charge.
Juan,
Excellent writing, clear, concise, well documented and to point. This should keep refute some of the ridiculous and far fetched arguments coming out of some corners.
Justices of the peaces do have some family law jurisdiction, arguably. Luis is doing the right thing in getting the AG opinion. None of this shit really matters anyway. Unless these couples annulled their marriages within 30 days of the ceremony..the marriages are legally binding.
Are you Anonymous guys missing the point of the post? It clearly says that the Commissioners Court Attorney is requesting the AG opinion. Those attorneys, Bruce Hodges and Dylbia Vega are the Commissioner attorneys and they do not work for the DA. Personally, I think the DA should go forward with the case ASAP.
Common on Luis, grow a pair and do the right thing!! Or could it be that you are just buying time for the Hernandez machine? What a joke and disappointment you are Mr. DA.
I beleive the fee the Justices were pocketing is really the validity of the lawsuit even if the Jps have the authority to issue waivers.. they do not have the authority to keep the money ..the monies should be sent to the auditor .. it is county money not personal funds. i see this as the REAL problem. ignorance to the law is NO excuse.
Are they going to make the argument that a JP is an extension of the county judge? Is it a CJ, per se, for some purposes or does a JP derive some of his/her power from the CJ? Like the ability to sign waivers by the power vested in the JP by the CJ?
Depending on the opinion of the AG, the DA make get screwed, the JP may go free and we'd once again receive the proverbial BJ.
Well Erin has been caught red handed and trying to pretend it's a personal/political vendetta, her argument can easily be shot down with an objective AG opinion. The law is specific on which judges can issue 72 hour waivers, and JP's are not included.
The AG will simply reiterate that fact and solidify the case against Erin's illegal moneymaking scam.
Save the Forestal.
http://www.brownsvilleherald.com/news/local/article_3c440d3a-3b90-11e3-b2e2-001a4bcf6878.html
BUNCH OF CROOKS.
Again writer of the October 23, 6:55pm posting...you say that the JPs have some Family Law Jurisdiction...can't argue that fact but the real fact is that the law is clearly spelled out by the statute...mind you... this is a statutory law that only allows for certain courts, judges and justices to perform these waivers. There is no where in the statute that allows or gives authority to a JP to perform such waivers...our legislators kept this statute intact with some minor amendments for checks and balances. Why? Because it would be a battle field for all JPs to bring the marrying business to their courts knowing that they could sign off on these waivers profitting...allowing to marry within the waiting period. Not only this but it allowed for the county (over all) to make money, this included the JP, the county clerks office and the district clerks office. This is the checks and balances that makes this playing field fair!!!!!
My mistake...if the Opnion is being sought by the county civil section and not the DAs Office. Then the DA has a clear road to proceed to the fact finders the 'Grand Jury' for an 'Indictment'.
Come on Mr. DA, do your job...get that indictment through...you have the crime, the facts, the elements and now the evidence to suport your findings. Get it done....
If and when our esteemed DA find his cojones and prosecutes the Hernandez clan, he want to be able to say; "Greg Abbott made me do it.".
Sorry he doesnt care that we are the people who chose or not chose him to do dat job. He is as corrupt or worse than Villalobos and he just tries to cover his shit with all the legal talk. If he was so educated he should know the family law code and he would have no need to ask the AG but he is just as ignorant as all them court employees.
QUE BIGOTES TAN FEOS
damn erin should have given the case over to the begones ya que la vieja de ese wey es mojado y arreglada por el mismo y sus chantajes bueno ni modo
I live in Harlingen and HPD will not enforce my court orders for my kids because this asshole has told HPD they don't have to enforce orders in family matters. WTF? He wants everyone to think he's tough on family violence but when people realize the cops won't enforce court orders people will start taking matters in to there own hands and family violence will increase! How can a DA advise cops not to enforce court orders??? Isn't that illegal?? Isn't it his job to enforce all laws and court orders? Fucking dumb asshole!!!!!!!!!!!!!!!!!!!!!!
Lets prolong the indictment., there's an election coming up. We need to get the Hernandez reelected..
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