Wednesday, October 16, 2013


IS MONTOYA ABOUT TO SHILL FOR LOUIS SOROLA? THE MISLEADING ATTACK ON JUSTICE OF THE PEACE ERIN GARCIA

[Last night with the word of Marchan's daughter dying the same text included a note Sorola is about to announce against Erin Garcia - and then today Judge Rojas told several people Louis Sorola was talking about how he and Mary Esther Garcia will be the husband and wife JP team.  When Sorola announces the BV will start a series of articles related to Sorola and his ties to Villalobos.  It will not shock me if Villalobos gives up Sorola and Padilla for their conduct in the Ernesto Ivan Martinez case.  Martinez was convicted for the murder of Barry Horn. Padilla was working for Villalobos at the same time he and his cocounsel Sorola refused any meaningful defense for Martinez.  If Villalobos gives up Sorola and Padilla, Mary Esther Garcia's campaign for JP will be dead.]

At most the family law code is unclear as to whether or not Justices of the Peace can issue a 72 hour waiver for marriage. The law is clear on some things. Anyone with jurisdiction in family law cases can issue the waiver. And Justices of the Peace have limited jurisdiction under § 54.021(b) of the family law code - hence they have jurisdiction in family law cases. Also, it is the family law code which gives JP's the right to marry people in the first instance. See § 2.202(4) of the Texas Family Law Code

I am not taking a for sure position on this issue. I have emails out for clarification of certain matters. I am waiting on a response from those tasked to train JP's. I have also recommended all of the JP's ask DA Saenz to seek an AG opinion. Once I get those responses I will post them. In otherwords I am not saying JP's can or cannot issue the waivers. But I know for sure all of the following from Montoya's post is pure BS

"Suppose that someone got tired of married life and found out that he was married through the use of an illegal "waiver." What's to prevent him or her from throwing out the other spouse on their ear? And if the couple is trying to legalize their immigration status and federal examiners find that their ceremony was held in violation of the law, would they be rejected?

A spouse in this situation wouldn't need to recur to divorce court. He or she could just get the marriage annulled and be done with it since it was not based on a legal document."

All of the above by Montoya is reckless scare tactics without an ounce of merit.

Normally, when a judge signs an order without jurisdiction whether subject matter or in personam (means over the person), it is void. So if JP's cannot sign 72 hour waivers then any such waiver would be a void order - a legal nullity.

But the family law code takes care of that - Under Sec. 6.110. MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF LICENSE you have only 30 days to file for an annulment or you are considered married.

"a) The court may grant an annulment of a marriage to a party to the marriage if the marriage ceremony took place in violation of Section 2.204 during the 72-hour period immediately following the issuance of the marriage license.

(b) A suit may not be brought under this section after the 30th day after the date of the marriage."


FROM THE TEXAS FAMILY LAW CODE

On 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.

Click for Family Law code

The AG has spoken to JP courts and the family law code.

"Section 54.021 of the Family Code does not require a juvenile court to hold a hearing prior to waiving its exclusive original jurisdiction in a case under section 51.03(b)(2) of the Family Code and transferring the case to a justice of the peace."

See AG Opinion

As to any criminal conduct, if every judge who signs a void order were dragged into criminal court the criminal courts would be very busy indeed. The legal remedy for void orders is a mandamus.

Here are two examples of mandamuses I secured against judges for signing void orders. Judges are not charged with criminal conduct for signing void orders. Or in other words, orders when they have no legal authority to act.

Flores v. Banner - "Any orders Respondent issued in the case are void."

Frank Sharpe v. Roman Catholic Diocese of Dallas "We conclude the trial court's actions after it lost plenary jurisdiction were null and void."

No comments: