Thursday, October 24, 2013


 
BEDLAM REIGNS IN COMMISSIONERS
COURT AND DA SAENZ's OFFICE

ADDENDUM:  Montoya in his endless posts absolutely refuses to even acknowledge that the family law code gives JP's limited jurisdiction in juvenile cases.  The fact he will not even acknowledge it proves he thinks it discounts his argument.

But what is funny, with Louis Sorola advising him and Montoya having zero knowledge of statutory construction and interpretation he actually makes the argument for broad authority to sign the 72 hour waiver by any judge with jurisdiction in family law cases.  The history of the law shows going from very specific to a general statement of anyone with jurisdiction in family law cases.  Under the rules the court will interpret the history to mean the legislature intended to expand who can and cannot sign the waivers.

Numerous sources have now told me that Montoya is in and out of Abel Gomez's office on a regular basis.  Constable Gomez is very confused.  He is there to protect the judges and not to give out dirt on the judges.  Further if it can be shown Constable Gomez is feeding Montoya information on criminal matters related to employees then Constable Gomez can and will be sued by the employee.

ORIGINAL POST

It is a total and complete lack of leadership between DA Saenz and County Judge Cascos which has DA Saenz's attorneys and basically a political vendetta at odds with attorneys for the county.

FACT:  DA Saenz tried to get a grant jury to indict Ernie Hernandez - he failed.
FACT:  DA Saens tried to get a grant jury to indict Norma Hernandez - he failed
FACT:  DA Saenz now wants to indict Ernie and Norma Hernandez's daughter - you are beyond stupid if you cannot see this blatant abuse of office - and for the record he will fail.  His only motivation is to manipulate the election, with justice not even on the table.

When this mess explodes, Judge Cascos' failure to call for an emergency meeting so that Ernie Hernandez and Erin Garcia's attorney can file answers in federal court, it will cost Judge Cascos reelection.  The appearance [note I only said appearance] is he is taking sides with DA Saenz.  Judge Cascos is the only obstacle to Ernie Hernandez and Erin Garcia defending themselves in federal court by seeking an emergency hearing and ending this.  Why is he blocking them from seeking an emergency hearing?

When they win and they will the issue come November 2014, will be why did Judge Cascos run cover for DA Saenz and block Ernie Hernandez and Erin Garcia from seeking an emergency hearing to end this mess?  This question will cost him the election.

THE CORE PROBLEM COMES DOWN TO TWO ISSUES, CAN JP'S SIGN THE 72 HOUR WAIVERS, AND IF SO WHO GETS THE FEE FOR THE WAIVER

I will start with the fee.  If DA Saenz had anyone on staff with the skills to use a phone, which he does not, they could have called around to all the major counties.

I have spoken with the chief clerks for filing fees in Dallas, Tarrant, Harris, Travis, Bexar, and Lubbock countries and to a clerk I was told it is illegal  for the District Clerk to charge a fee for the 72 hour waiver.   Assuming the District Clerks in each of these major counties are correct [they can be wrong] what then forms the basis of District Clerk Aurora de la Garza charging $267 for the waiver?

I spoke with JP Linda Salazar and she said she has never charged a fee for this or issued a waiver because during her years working for Menton Murray she routinely saw the petitions filed with the District Clerk before being presented to Judge Murray.  In her mind this informed her it was a matter for the district clerk and the district judges.  The point here is, this potentially illegal  fee has been happening a very long time.

If the fee is illegal Cameron county can and should be sued in a class action to recover the fees for the victims.  In Dallas county when the district clerk got caught charging an illegal fee, the lawyers sued and Dallas county paid out millions in settlement.

THE QUESTION

If it is illegal for the district clerk to charge a fee, then who gets the fee being charged by the JP's?  They can't give it to Aurora de la Garza because it is illegal - assuming the District Clerks in Dallas, Tarrant, Harris, Travis, Bexar, and Lubbock counties are correct.

Luis Saenz could have had his staff make the same calls, but he had no interest in the law or facts.  It is about a political vendetta - plain and simple.

FEES FOR GETTING MARRIED

The fee charged by the judges is purely random and arbitrary.  It is based on tradition - there is no statutory authority I can find or any the JP's know of, of whom I have interviewed on the issue.  So if the tradition accepted by the State of Texas is to allow the judges to charge any fees they want, what prevents any judge from saying $150 for a marriage during business hours but $175 if it includes a 72 hour waiver?  Absolutely nothing.  DA Saenz can cite no law which regulates the fees the JP's can or cannot charge.  If there is no statute on the issue what then is DA Saenz alleging has been violated?

IT COMES DOWN TO A SIMPLE QUESTION -
CAN THE JP'S SIGN THE 72 HOUR WAIVERS

A basic rule of statutory construction is to give the statute the broadest interpretation as possible and to avoid any reading of the statute which questions its constitutionality.

FROM THE TEXAS FAMILY LAW CODEOn the issue of the 72 hour issue of waiver before marriage

2.204 "(c) An applicant may request a judge of a court with jurisdiction in family law cases ... for a written waiver permitting the marriage ceremony to take place during the 72-hour period immediately following the issuance of the marriage license"

JP's have limited jurisdiction under the Family Law Code.

Click for Family Law Code

54.021(b) A county, justice, or municipal court may exercise
jurisdiction over a person alleged to have engaged in conduct
indicating a need for supervision by engaging in conduct described
in Section 51.03(b)(2) in a case where:
(1) the juvenile court has waived its original
jurisdiction under this section; and
(2) a complaint is filed by the appropriate authority
in the county, justice, or municipal court charging an offense
under Section 25.094, Education Code.

A broad reading of the statute gives JP's limited jurisdiction under the family law code in juvenile cases.  The law is clear.  Any claim by DA Saenz that the Family Law Code does not give JP's limited jurisdiction in juvenile cases under the family law code will be met with a claim he is wrong or that the code is unconstitutionally vague. 

Any judge following the rules of construction will avoid the constitutional question and rule JP's can sign the 72 hour waivers.

Is the law the way I want it - no - it is a mess.  The legislature needs to begin by regulating the fees judges can charge for weddings. 

If the District Clerks I mentioned above are correct that it is illegal for the District Clerk to charge a fee for the 72 hour waiver, then it would be illegal for the JP's to pay over the fee to the District Clerk.  It is that simple

Under common practice in all of Texas there are no rules governing what a JP or any judge can or cannot charge for in terms of a wedding service.  So if they are allowed to sign the 72 hour waiver,  there is then no rule which prohibits them from charging extra for the 72 hour waiver.

WHERE WE ARE HEADED

Thanks to DA Saenz and Louis Sorola any attorney can now sue District Clerk Aurora de la Garza in a class action to recover the 72 hour fee waiver she has been charging for years.  This could cost the county big time.  We have a mess because of dirty politics.

If anyone has committed a crime then so be it - let them be charged.  But given the clear or unclear state of the law, where is the crime?

I challenge anyone to link to a state statute which authorizes the District Clerk to charge for the 72 Hour Waiver.  If she cannot charge the fee, then the JP's or any other judge has no legal duty to turn the money over to the District Clerk.

Rather than keep on saying JP's have no jurisdiction under the family law code - how about arguing substantively how § 54.021(b) of the Family Law Code does not give JP's limited jurisdiction under the family law code.

In the end I can see a judge ruling the law is such a mess there is no enforceable action period against anyone for anything and then say the legislature needs to step in and do their job and fix it.

But make no mistake this is all about dirty politics and Luis Saenz by  choice has made himself part of it.

And politics being politics, come November the Democrats will argue Judge Cascos as a Republican with the intent of embarrassing the Democrats and helping Gregg Abbott carry the LRGV delayed allowing Erin Garcia and Ernie Hernandez from filing an answer in federal court.  His real intent will not matter - because this is politics - Luis Saenz has proven that.  Karma is a funny thing in politics.

9 comments:

Anonymous said...

Sounds like you are giving legal advise to those individuals that paid money to the District Clerk.
Luis will come after you next

BobbyWC said...

No I am covering the story by investing the time to call district clerks all over the state to find out what they do.

It is about getting to the truth.

If charging a fee is illegal by the clerks then they need to stop charging the fee

If charging a fee is illegal by the clerks then the JP's would have no duty to pay over to the county any money because it would be illegal.

While it is lost on those who see this as a way to finally take down the Hernandez family Texas Supreme COurt judges and Court of Criminal Appeals judges also marry people

The randomness of the fees based on state tradition is something they certainly do not want to talk about - it will hurt them - they certainly do not want to open that door.

This is only going to get worse before it gets better.

If it is in fact illegal for Aurora de la Garza to charge a fee - Erin's and Ernie's attorneys need to point that out as part of Erin's defense. The problem then becomes a county attorney is admitting Aurora de la Garza is charging an illegal fee.

DA Saenz has hung this county and taxpayers by getting involved before guidance came from the AG.

The rush was political and not very well thought out.

And for all of you "I cannot read English people" Saenz is the one who has authority to request the AG opinion not the county attorneys.

Bobby WC

Anonymous said...

Bedlam cannot "rain" on anything. It is a state of mind. You can, however, say that Bedlam rules. The origin is from the London Bethlem mental asylum. Bethlem is Europe's oldest extant psychiatric hospital and has operated as such, continuously, for over six hundred years.

Anonymous said...

Maybe you meant "Bedlam Reigns", that would make sense.

BobbyWC said...

I do not mind corrections when politely done - yours is very polite and for that I thank you.

Now look at the definition and rethink your position

http://www.merriam-webster.com/dictionary/bedlam

It means more than the institution

we may have to agree to disagree

Bobby WC

Anonymous said...

A J.P. may be able to say I charge X number of dollars to perform a wedding but a wedding with a waiver costs XX dollars and get away with saying they did not charge a fee for the waiver (though the appearance of impropriety is glaring.) But apparently Garcia was stipulating a fee specifically for the waiver. That will make it hard to deny. If it's illegal for a district clerk to collect the fee then likely it is also illegal for anyone else to collect the fee.
Also, if you are postulating that wrong doing, such as the district clerk charging an illegal fee, should be handled on the down low to protect the county I have to disagree. Where is the motivation to behave? If the office holder knows that if it is discovered and kept quite to spare the county why not try it and see how long you can get away with it? It may cost us all but perhaps then we will quit voting for people who do this kind of stuff. If we keep electing people who think the rules do not apply to them then we deserve to pay.

BobbyWC said...

First of all great post - you asked me a valid question in a professional manner and I thank you for that - your type questions make the BV better.

TO be clear if Aurora de la Garza is charging an illegal fee I want a law firm to file a class action - accountability is everything.

I did a post already stating that it may be possible any fee by Aurora or the JP's is illegal - so we are on the same page on that one.

The problem becomes "if" and I say "if' because I have said there is some confusion on this - a JP can sign the 72 hour waiver then because there are no written rules governing what a JP can charge the fee may be good.

As to the clerks office as I already posted no statute authorizes the fee

The clerk is regulated by statute the judges by common practice.

I can assure you I oppose this common practice - we need a statute defining all fees any judge can charge for wedding related services.

ON the issue of judicial immunity I have spent over 20 years working on breaking that wall - Montoya and company have repeatedly attacked me for my work in the area - but now they want Erin Garcia held accountable all of a sudden judicial immunity does not matter

I am speaking from 20 plus years of trying to break down that wall - they are going no where - trust me the day the wall falls I will be in the street celebrating stone drunk and yelling about effing time.

But I deal in facts - And 20 plus years experience in the area tells me immunity will apply - I personally think it sucks and it is judicial activism - I have said this for over 20 years and Montoya and McHale have repeatedly attacked me for my work in trying to break down this wall.

Where have they been for 20 plus years working on this issue - nowhere - but they have attacked me for my work in the field of judicial immunity.

I think any idiot can read the reasoning behind the Declaration of Independence and the issue of redress and see all immunity doctrines are judicial activism to protect the judges, government and lawyers. There is no constitutional or statutory basis for it - it is 100% judge made law. [well the states have now passed laws adopting the judge made law, but before that it did not exist]

The reasoning is just bizarre - they go back to the immunity given the crown - really I do not lie

But our government is not created by the crown - it is created by the people and the power held in trust by the government at the discretion of the people.

Jefferson made this clear and the constitution guarantees redress - the entire point of the Declaration of Independence was the crown denying the people redress - so how do you get to immunity without 100% judicial activism?

But you know what - it is real so it will apply - now if Sorola has the gonads to argue that all immunity is judicial activism and violates the Social Trust embodied in the Declaration of Independence you will see me post 100% support for the argument.

But it will not change the fact for now immunity applies - but I can only hope some day a large law firm with the millions needed to make the case in the courts and publicly will come along and stand with the people against the judiciary.

No one wants judicial immunity to fall more than I do. It has destroyed the integrity of our courts and the people's confidence in our courts.

Bobby WC

BobbyWC said...

To the person who made the note on Bedlam - we are both wrong - as I am getting to post this morning it is clear to me I should have said Bedlam Reigns - but I do appreciate you post - I never mind polite posts which make my writing better - they are always welcome

Bobby WC

BobbyWC said...

At 2:52 my readers will see a comment wherein another reader or maybe the same reader caught yesterday the mistake I only saw this morning.

The bloggers have a thing called a dashboard where we can see pending comments. For reasons I do not know not all comments come through to yahoo - maybe it came through as a spam.

Anyway I was just looking at the dashboard for something else and saw the comment made yesterday

So to that reader - thanks for the catch and you are 100% correct

Bobby WC