ERIN'S "KEEN LEGAL EXPERIENCE WE DESERVE" UNMASKED

By Juan Montoya
As the county and member of the local bar and the judiciary wait with bated breath for the opinion by the Texas Attorney General on whether it was legal for JP 2-2 Erin Garcia-Hernandez (EGH) to sell waivers to couples who did not want to wait for the 732-hour state -mandated waiting period between obtaining their license to marry before the performance of the ceremony, we have stumbled across a revealing document.
The missive, an addendum to the Cameron County District Attorney's Office request for the opinion from the TAGO, is from the JP herself pointing out what she believed were some pertinent facts that she said were not included in the DA's request.
The addendum was dated Oct. 31 and addressed to the Opinion Committee who stamped it received the same day.
In it, EGH sattes that although the law that the DA cites is "100 percnet accurate," there were new laws that took effect Sept. 1, 2013, that were not addressed.
"The law referenced does not govern the waivers that were issued in my office," she states.
The JP also attached email correspondence between her and the Cameron County Clerk's office where she makes it appear that after she received notice of "new legislative changes and requirements to obtain marriage licenses effective September 13, 2013," shes stopped issuing (and selling) the waivers.
However, several attorneys we contacted, including a judge who gives JPs classes on conducting business in offices throughout the state said that there was nothing in the "new" legislation addressing the selling and issuance of waivers to the 72-hour waiting period, merely to the obtaining of the marriage license.
"There were no changes to the issuance of waivers," said one. "The new law had noting to do with the performance of the ceremony or the issuance of waivers to the waiting period."
In essence, the legislature did not touch the wording of who can issue the waivers or who can charge for issuing them.
Section 2.204 of the Texas Family code, requires that a marriage ceremony may not take place during the 72‐hour period immediately following the issuance of the marriage license unless:
(a) An applicant is a member of the armed forces of the United States and on active duty;
(b) An applicant is not a member of the armed forces of the United States but performs work for the United States Department of Defense as a department employee or under a contract with the department;
(c) Completes a premarital education course described by Section 2.013, and who provides to the county clerk a premarital education course completion certificate (Together in Texas) indicating completion of the premarital education course not more than one year before the date the marriage license application is filed with the clerk; Or,
(d) An applicant obtains a written waiver;
 An applicant may request a judge of a court with jurisdiction in family law cases, a justice of the Supreme Court, a judge of the court 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 the marriage license.  The Judge shall execute the waiver if the judge finds that there is good cause for the marriage to take place during the 72‐hour period.  The judge shall sign the waiver.
EGH's addendum amounts to trying to "hang on a slim hook in  a gray area" by trying to argue that since the JP's court has jurisdiction over delinquency and truancy, this makes the JP court a "court with jurisdiction in family case law," noted a local lawyer who practices family law.
Additionally, what this oblique legal reasoning has to do with the illegal issuing and selling waivers to the 72-hour waiting period is a mystery to many.
"What on earth does that have to do with making money off selling these waivers?" asked the lawyer. "The waivers were issued so she could perform the wedding ceremony immediately after the marriage license was issued and collect the $200 fee. That seems pretty cut and dried."
In fact, in emails EGH attached to her addendum to the TAGO, the county clerk staffer did not mention anything about waivers. It was the JP who brought up the issue asking: "So we are no longer authorized to issue the waiver on the 72 hour waiting period?"
"That is correct..JP's cannot issue waivers," the staffer replied.
"What is she talking about?" asked the family law attorney. "They never could. She's trying to blow smoke with that email. Let her produce the email that the county clerk sent her saying they could. I bet none exists."
A keen legal mind like EGH who says she has the "legal experience voters desevre" might have perused over 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, how this law evolved.
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.