Tuesday, October 22, 2013

 
IS AURORA DE LA GARZA ILLEGALLY
CHARGING FOR MARRIAGE WAIVER?

According to the clerk's office in Lubbock - yes.  They explained the Local Government code provides no authority for charging a fee.  In fact the fee being charged by Cameron County is $267.00.  No where in her list of fees is there anything which says fee for Waiver of 72 Hours.  Her staff is claiming they charge it under Civil Cases.  But there is no legal authority for it.

See Aurora's fees

Under general civil or family where do you see a fee for a Waiver?  Does not exist.

The Local Government Code defines the fees.  Nothing related to fees.


"Sec. 118.018. MARRIAGE LICENSE. (a) The fee for "Marriage License" under Section 118.011 is for issuing a marriage license. The fee must be paid at the time the license is issued, except as provided by Subsection (b-1).
(b) The fee includes every service relating to issuance of the license, including preparing the application, filing health certificates, administering oaths, filing waivers and orders of the county judge, and issuing and recording all papers including the return of the license.
(b-1) The county clerk shall issue a marriage license without collecting a marriage license fee from an applicant who:
(1) completes a premarital education course described by Section 2.013, Family Code; and
(2) provides to the county clerk a premarital education course completion certificate indicating completion of the premarital education course not more than one year before the date the marriage license application is filed with the clerk." 
 
  
Apparently several JP's will testify in court that Letty Garza of Joe Rivera's office gave permission to the JP's to sign the 72 hour waivers and charge a fee.

My advice to all JP's is to get clearance from the county attorney to issue immediate refunds of the fees and to stop signing the waivers until the AG issues an opinion stating otherwise.

This is a mess and Louis Sorola, Mary Esther Garcia, and Sofia Benavides will be the fall guys.

In my mind the fee issue is very problematic.  There appears to be no authority for anyone to charge a fee for the 72 Hour Waiver.

But the issue of who can and cannot sign the waiver is up in the air.  All statutory construction begins with a simple rule.

“[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant”

Corley v. U.S., 129 S.Ct. 1558 (2009)

THE WAIVER STATUTE RAISES QUESTIONS AS TO WHO CAN AND CANNOT ISSUE THE WAIVER

c)  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.

Here is the deal all family law (divorce - custody - child support- juvenile) judges are district court judges.  If the legislature intended that only district court judges be allowed to sign the waivers they would have said district court judges.

The fact they said family law cases, which includes juvenile, means the legislature intended that anyone with jurisdiction over family law cases can sign the waivers, and not just district court judges.  Otherwise the use of the term "jurisdiction in family law cases," would be superfluous.  Why not just say district court judges?  Answer because the legislature intended all judges with jurisdiction in family law cases and not just district court judges.

The family law code is clear - JP's have limited jurisdiction in juvenile cases under the family law code.

DA Saenz needs to request an AG opinion on both the fees and the waiver.  I can find no authority for anyone charging a fee.  When Dallas County got caught charging illegal fees they got hit with a class action lawsuit and lost.  Now the JP's of which there are several would do themselves a favor by refunding all fees immediately.  If the AG later finds they can charge a fee, then they can go back to charging a fee.
 
THE FUNNY THING

Ernie Hernandez is a defendant.  Commissioners Court cannot say that the legal discussions must be kept from Ernie Hernandez because he is a defendant.  The lawyers have a legal duty to Ernie Hernandez and cannot act with the consent of Commissioners Court while he is being kept in the dark.

There is a serious question about whether or not Sofia Benavides must remove herself from Executive Session on these issues.  In my view Commissioner Court needs to build a Chinese Wall around her on the issue.  If she fails to voluntarily remove herself from Executive Session or any votes she will be hanging herself come the next election.  It is her son-in-law to be who is doing this.  Louis Sorola is well on his way to hanging Sofia Benavides.

5 comments:

Anonymous said...

Bobby what happened to YOU DESERVE LEGAL REPRESENTTION??? Is this what she was elected for? So she gets caught creating and pocketing the money and now the suggestion is OH just return the money and everything will be just fine!!! Come on Bobby, in that case every thieve that gets caught all they have to do is return what ever they stole and all is well? She is an Elected Official and she got caught. Whether other JP's want to find blame on Letty Perez is no excuse. Honestly Bobby I know you are trying to help Erin but on this one they are on their own. You tried your best but even you know the civil case will go forward. It is not as simple as just returning the money. Some of these victims will not get their US residency because of what Erin and the others did. This is why it was filed on Federal Court and the Federal Government don't play nice and forgive that easily. If I was a victim I would be not just upset but would be asking for jail time.

BobbyWC said...

You are wrong at every level - corporations in class actions settle cases all of the time for improperly charged fees - Dallas county settled a class action for improperly district court fees

It is that simple

As to the impact of the marriage there is no impact - the law is clear that if you do not seek an annulement within 30 days on the 72 hour issue the marriage becomes binding - so you are wrong again

Also the first questions the judge will ask these moronic attorneys - what prevents your clients from just getting married again - nothing

Really answer the question - if they think their marriage is void what prevents them from going back and getting married again right now so the problem is solved?

What - do tell my readers

you are simply wrong at every level

Bobby WC

BobbyWC said...

Dallas County settles class action on improper fire fee

http://www.dallascityattorney.com/Lowenberg_Compliance/lowenberg_compliance.html

No crime - just refund the fee = also years ago the district court was sued for collecting an illegal fee - money refunded - no crime - so why is there a crime here?

Is the law different because it is Erin Garcia - if the same problem is happening elsewhere and the solution is to return the money why should the rule be different for Erin Garcia

I am not worried about my post because judges and county officials have thanked me for getting the story our

Louis Sorola has made many enemies with this nonsense and if what one woman told me is true one of those enemies is Sofia Benavides

Bobby WC

Bobby WC

Anonymous said...

Bobby,

The County Court-at-Law Judges in Hidalgo County have family law jurisdiction. They handle cases involving divorce, child custody, child support & visitation. The County Court-at-Law Judges in Cameron County do not have family law jurisdiction.

BobbyWC said...

Thay's my point - by using that language the legislature intended to include every judge either through statute of the Texas constitution who has family law jurisdiction

Bobby WC