August 2010 - Posts
El Paso County Attorney Jo Anne Bernal today announced that the Office of the Texas Attorney General Greg Abbott has formally declined to issue a legal opinion regarding the granting of marriage licenses to individuals who have undergone sex change operations.
On April 19, 2010 El Paso County Attorney's Office requested a legal opinion as to whether the County Clerk could legally issue a marriage license under a new Texas law when one of the parties is a female and the other was born a man but subsequently underwent sexual reassignment surgery and is now living as a woman.
The request was made after two Hudspeth County women requested, and were denied, a marriage license in El Paso in February of this year. As proof of identification, one of the applicants presented a birth certificate identifying her as a male, a court order approving his name change from a male to female, and an Arizona driver's license with her new identity as a female.
Presented with conflicting documents, the El Paso County Clerk's Office requested guidance from the County Attorney's Office as to the eligibility of the applicants to obtain a marriage license.
Legal analysis revealed the existence of a legal gray area around this particular issue, raised by recent changes adopted by the Texas Legislature. Up until 2009, the identity and gender of a marriage license applicant was established through a birth certificate. However, during the 81st Session, the Texas Legislature expanded the list of documents acceptable to establish proof of identity and age for purposes of obtaining a marriage license. Section 2.005(b) of the Texas Family Code lists the nineteen documents approved and, to make things more difficult, all are given equal legal weight.
This is important for transgender individuals, as conflicting information on various personal documents may arise not from fraud, but because of sex reassignment surgery, and so transgender applicants should be able to self-identify their gender, as opposed to a court doing it for them.
In a letter dated on August 6, 2010, the Texas Attorney General's Office notified the El Paso County Attorney's Office that they will refrain from answering any questions or issuing an opinion, and in fact are closing the file on this request. The reason provided for this action is that issues included in the opinion request are the subject of pending litigation recently filed in the 245th District Court of Wharton County, In the Estate of Thomas Trevino Araguz III, Deceased, Cause No. 44575. The letter further states that, once that litigation is concluded, the El Paso County Attorney could submit another request if these questions remain unresolved.
El Paso County Attorney Jo Anne Bernal expressed her disappointment regarding the decision of the Texas Attorney General Gregg Abbott.
"Unfortunately, the ambiguity in the law and confusion for the County clerk remains," Bernal concluded.
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AG Opinion Press Release.pdf
AG Letter (RQ-0881-GA).pdf
AG Opinion Request.pdf
El Paso County Attorney Jo Anne Bernal today announced the sentencing of an El Paso resident accused of engaging in Deceptive Business Practices.
On August 6, 2010, 31-year-old Jesus Piña pled guilty to one count of committing a Deceptive Business Practice, a crime of dishonesty punishable by up to one year in jail and/or a fine not to exceed $4,000. However, Piña will serve 2 years in prison because the County Attorney's Office presented evidence that Piña is a habitual offender.
The County Attorney's Office requested County Court at Law #7 Judge Robert Anchondo to run Mr. Piña's sentence consecutively with another one year sentence that was imposed the same day on another Deceptive Business case.
In order to obtain the enhanced punishment, Assistant County Attorney Arne Schonberger demonstrated in court that, since 1999, Piña has accumulated 11 convictions for engaging in various felonies and misdemeanors.
It was presented to the Court that Piña would receive from victims thousands of dollars in upfront payments for construction jobs he never finished. The Court ordered restitution of $4,800 and $9,000 on the two cases today. Upon completion of his sentence, Mr. Piña is scheduled to be surrendered to immigration authorities for possible deportation.
El Paso County Attorney Jo Anne Bernal expressed her satisfaction on the outcome of the case.
"My office takes our responsibility of protecting El Paso consumers from unscrupulous contractors and con-artists very seriously. This case is another example of my office's willingness to consider every available legal resource to bring justice to the victims," Bernal said.
"If you are planning on doing renovations or improvements to your home, do your homework before hiring anyone. It is highly recommended that you first check the contractor's references and business record with the Better Business Bureau and with our office," Bernal added.
Homeowners can also look up on the County's website at www.epcounty.com/records the criminal and civil case histories of prospective contractors.
"In addition to researching your contractor, it is important to lay out when monies will be paid. Consumers must be very cautious when paying money up front. Once the consumer has given money to an unscrupulous contractor, it is very difficult for us to get it back. This is why we recommend the public not pay the complete amount of the contract until after the job is finished, and the homeowner is satisfied with the quality of the work," Bernal concluded.
The El Paso County Attorney's Office warns consumers against paying out large down payments and only if necessary, scheduling ‘progress payments' -periodic payments made only after designated portions of work have been satisfactory completed.
Residents who might have fallen victims of fraud or deceptive business practices are asked to contact the Criminal Section of the County Attorney's Office at 546-2050.
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Pina Sentence Press Release.pdf
El Paso County Attorney Jo Anne Bernal today announced that a Federal District Judge has dismissed a legal challenge filed by a local civil rights activist against the El Paso County's Ethics Legislation approved by the Texas Legislature last year.
On September 28, 2009, El Paso activist Carl Starr sued the County of El Paso and Texas Attorney General Greg Abbott (case EP-09-CV-353-KC) alleging that the implementation of the County Ethics Legislation, which regulates the creation of the County's Ethics Commission, was unconstitutional.
In his lawsuit Mr. Starr particularly objected to a provision of the ethics legislation that penalizes with fines and jail time individuals who file ethics complaints which the County deems to be frivolous or filed in bad faith. The plaintiff argued that the provision infringed on his First and Fourteenth Amendment rights and has a chilling effect on his freedom of expression.
In an order issued late yesterday, United States District Judge Kathleen Cardone dismissed any cause of action against Texas Attorney General Greg Abbott ruling that the 11th Amendment gives the States sovereign immunity and that the federal courts do not have jurisdiction over cases where a state is made party to a suit without its consent.
U.S. District Judge Cardone also dismissed the lawsuit against the County of El Paso ruling that it was premature for Mr. Starr to bring a lawsuit forward challenging the constitutionality of the Ethics legislation.
In her ruling, Judge Cardone stated:
"Although the County Ethics Commission is empowered with the authority to penalize individuals who file frivolous complaints or disseminate confidential materials, the facts indicate that no such rules are yet in effect. As the alleged County ordinances do not appear to have been adopted or enacted, and the existing state code, which is merely enabling legislation, cannot function to penalize Starr should he file an ethics complaint, any alleged penalties Starr would face appear to be only speculative. As such, Starr has failed to meet his burden of showing that his claim gives rise to a sufficiently ripe controversy."
El Paso County Attorney Jo Anne Bernal today expressed her satisfaction with the court's decision:
"Judge Cardone very carefully avoided ruling on any issue that is not yet fully presented to her for decision," Bernal said.
"Her ruling correctly notes that the El Paso County Ethics Commission has not yet completed its task of drafting a new County Ethics Code. Therefore, Starr's complaint that the Ethics Code is unconstitutional is not yet ready for judicial review," Bernal concluded.
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Ethics Commission Lawsuit Press Release.pdf
Signed Dismissal Order.pdf
Erich A. Morales recipient of the 2010 National "Promise of One" Award
The Susan G. Komen for the Cure's national office and local affiliate recently awarded Assistant County Attorney Erich A. Morales the Komen's "National Promise of One" award.
The award recognizes, on a national level, an individual's outstanding contribution to the Susan G. Komen for the Cure, as well as the power one person can make in Komen's promise to save lives and end *** cancer forever.
Mr. Morales began as a volunteer with the organization in 1997, chairing the Iron Men Committee at Race for the Cure. Since then, he has been actively involved in planning and implementing the "Race for the Cure" in El Paso, including serving as Chair for the local Race during the last 5 years.
Mr. Morales currently serves as President-Elect of the Susan G. Komen for the Cure El Paso Affiliate Board of Directors.
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Promise of One Award Press Release.pdf