UPDATED: County Attorney Files New Lehmberg Removal Suit

Original petition dismissed

By Jordan Smith, 12:00PM, Tue. Apr. 30, 2013

UPDATED: County Attorney Files New Lehmberg Removal Suit

Court sources have confirmed that Travis County Attorney David Escamilla on Monday afternoon dismissed Kerry O'Brien's petition seeking Rosemary Lehmberg's removal from office.

The post is updated below to include details about the suit and reaction from O'Brien.

Escamilla's newly filed suit re-frames the case solely around the question of Lehmberg's drunkenness and eliminates allegations that she should be removed based on official misconduct or incompetency – charges that were initially dismissed from O'Brien's petition last week by presiding civil Judge Lora Livingston.

Indeed, in the new filing Escamilla notes that the purpose of a removal suit of this type is not "an additional way to punish elected officials" – which is accomplished through criminal sanction, in Lehmberg's case the 45-day sentence she was handed after pleading guilty on April 19 to driving drunk a week earlier – "but instead to provide protection for the public from elected officials who are unable to perform their duties adequately or may injure the public interest in the performance of their duties," reads Escamilla's lawsuit. The point of his suit, Escamilla wrote, is "to ensure protection of the public and the public interest in the execution of the duties of the Travis County District Attorney."

In a letter posted to Lehmberg's Facebook page, the DA said that she "needs help understanding and treating the cause of this behavior." While admitting she plans to undergo treatment for the behavior, Lehmberg did not indicate whether the drunken driving was part of a deeper problem. The new suit begins a discovery period in the civil case that will likely answer that question.

Ultimately, however, whether to seek her removal is at the sole discretion of the County Attorney's office, who may take the case to trial or ultimately dismiss.

Indeed, in an email to reporters, O'Brien says that language in the new suit leads him to believe that Escamilla may not take the action all the way to jury trial and possible removal and may instead seek to settle the case – which is within Escamilla's power to do. "If that happens, that would completely defy why I brought the lawsuit in the first place, and would anger a ton of people," he wrote in a statement.

Although Escamilla's filing a new suit eliminates O'Brien's direct involvement in the case, O'Brien said he intends to monitor the case "very closely."

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