AG OPINION: JPS CANNOT ISSUE (OR SELL) WAIVERS) JP 2-2 ERIN HERNANDEZ GARCIA NOT OFF THE HOOK

By Juan Montoya
The questions posed by the Cameron County Attorneys Office were rather simple and straightforward.
1) Is a justice of the peace authorized by law to issue the waivers?
2) 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 were drafted into the request for an opinion by Chief DA assistant Rene Gonzales and submitted the Texas Attorney General Office for an opinion.
On April 2, three days after informing the DA's office that the opinions staff would need more than the statutory 180 days to issue an opinion, the AG came down quite solidly and said that the Texas Family Code did not grant authority to JPs to issue the waivers for the 72-hour waiting period between the granting of a marriage license and the performance of the ceremony.
"Accordingly, a court would likely conclude that a justice of the peace is not a "judge of a court with
jurisdiction in family law cases" for purposes of subsection 2.204( c) of the Family Code and thus
may not grant a waiver of the 72-hour waiting period after the issuance of a marriage license."

That most people would mean that JP 2-2 Erin Hernandez-Garcia overstepped her authority to issue a waiver form she had her staff make. When couples would  go to her office to inquire about the performance of the ceremony, they would be encouraged to get a waiver and have the judge perform the marriage ceremony (for a $150 to $250 fee, of course)."Why wait?," they would be told. At least 13 people plunked down an average of $40 for the bogus waivers and married, some within a mere half hour after the got their wedding license issued by the county clerk. The questions came to a head after a couple sued the judge in federal court fearing that federal authorities would suspect that they were trying to get "quickie" marriages that might endanger their immigration applications.

As a result, JP Hernandez-Garcia was made to draft a statement where she said that she was unsure that the sale and issuance of the waivers was legal to get them off the hook.

Meanwhile, DA Luis V. Saenz requested the opinion from the Texas AG to determine whether some violation had been committed when Hernandez-Garcia's office issued and sold the waivers. Now that the AG said that he doesn't believe that Hernandez-Garcia had any authority to issue the waivers and sell them, it will likely be left in the hands of a grand jury to determine whether any further legal action.

The AG's opinion did not address the fees charged for the waivers, leaving it up to the local DA's office to pursue if he sees fit.

And no matter what mental and legal contortions or gymnastics anyone wants to make to spin it as a loss for Saenz, it is clear that he is within his authority to seek actions if any laws have been broken or if the creation of the waivers and their sale by the JP amounted to criminal action.