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What Happens Next?

As D.A. Rosemary Lehmberg serves her sentence, the county attorney takes on the civil lawsuit and the next steps

By Jordan Smith, Fri., May 3, 2013

Lehmberg and Austin Police Chief Art Acevedo at a 2009 press conference
Lehmberg and Austin Police Chief Art Acevedo at a 2009 press conference
Photo by John Anderson

State Rep. Phil King, R-Weatherford, took the front mic on the floor of the Texas House late Friday morning, April 26, with a grave look on his face. It was just the second time in some 15 years that he'd requested to do so on a matter of personal privilege, he told his colleagues. "I guess I'm speaking not only as a legislator, but as a person who was a police officer for 15 years and a judge for about eight," he said. The question, he continued, is whether the recent arrest of Travis County District Attorney Rosemary Lehmberg on a drunken driving charge – and, more broadly, her behavior during and just after that arrest – means that she is unfit to remain the administrator over the Public Integrity Unit, housed under the D.A.'s office, with statewide jurisdiction to investigate – and to criminally prosecute, if it comes to that – alleged wrongdoing by state officials, including state reps like King. "What concerns me," King said of Lehmberg, "is what appeared to be utter contempt and disrespect for the law and for the office."

That Lehmberg was drunk on the night of Friday, April 12, and that she behaved as a drunk during her arrest and overnight stay at the county jail's central booking facility – alternating between disrespectful, combative, and despondent – isn't in dispute. A blood test taken at the jail several hours after her arrest put her blood-alcohol content at .239 – nearly three times the legal limit for driving. A video recording of her wobbling around a parking lot in Northwest Travis County while trying to pass a field sobriety test administered by a Travis County Sheriff's deputy is readily available online, as are clips made by jailers Down­town, where she was held overnight. In those clips Lehmberg is placed into a restraint chair by jailers after they tell her repeatedly to stop kicking on her cell door for attention. "You're going to hurt yourself if you keep doing that," her jailers told her. Lehmberg is flippant when they place her in the chair – and she accuses them, as she does the deputies arresting her, of being the ones "ruining" her career.

A week after her arrest, Lehmberg pleaded guilty in county court to the charge and was sentenced to 45 days in jail – the harshest sentence ever handed to a local defendant in a first-time DWI case, her attorney David Shep­pard told reporters after she was led from the courtroom to the jail in handcuffs.

The entire incident is, at best, embarrassing for Lehmberg, 63, who has worked for the D.A.'s office for nearly four decades. To King, and others, it's more than embarrassing: "To sit in the back of a police car and to be standing in front of the police car and to hear comments, not, 'I am sorry, I can't believe I've done this, what was I thinking?' but to [be] hearing things such as, 'Well, congratulations, officer, you've ruined my career,' shows a complete disrespect for the circumstances at hand." In fact, said King, unless Lehmberg chooses to resign her post, to which she was elected a second time last year, the Legislature should take action to defund the PIU and to remove it from the Travis County D.A.'s office. Lehm­berg's behavior was "particularly inappropriate for someone who heads a public integrity unit."

The Political Circus

Beyond official disdain, Lehmberg's actions are now the subject of a civil lawsuit filed under a relatively obscure provision of the Local Government Code that allows a citizen to file for removal of an elected official for official misconduct, incompetency, or "intoxication on or off duty caused by drinking an alcoholic beverage." Kerry O'Brien, a local attorney who initially filed the suit, said he felt a "moral duty" to ensure the crime of drunken driving is taken seriously. O'Brien was eliminated from the equation, however, on April 29, when Travis County Attorney David Esca­milla filed paperwork to dismiss O'Brien's suit – a motion granted by the county's presiding Judge Lora Livingston – and then filed a new and separate suit that also questions whether Lehmberg's drunken incident should subject her to removal from office. Lehm­berg will now have to file a response, after which Esca­mil­la has several options.

In any case, since O'Brien stepped into the fray and Lehmberg began serving her sentence, the political intrigue has exploded. Her arrest has become daily fodder for radio talk-show hosts, the subject of Facebook pages, and a ready vehicle for political posturing. Republican state officials, for example, have long dreamed of either moving the PIU to a more friendly venue – i.e., under Attorney General Greg Abbott – or of having the opportunity to install a Republican as D.A. of solidly Dem­o­crat­ic Travis County, if only until November 2014* (the next general election). There are even dueling Facebook pages: O'Brien's "Remove Rosemary Lehmberg" page, and a "Remove the Remove Rosemary Lehm­berg" page created to counter him.

Amidst all this reverberation, it remains unclear what precisely will happen next – and whether Lehmberg's career and legacy will survive the bruising public debate.

First, there are the rumors. Take, for example, one that started after 172 Austin attorneys last week signed an amicus brief in response to O'Brien's lawsuit, in support of Lehmberg remaining in office. In various social media, online posters have spread the allegation that other prosecutors in the D.A.'s office who received first-time DWIs have been forced to resign; according to a D.A.'s office spokesman, there is no policy in the office requiring prosecutors busted for DWI to resign. Or there's the rumor bolstered on the April 26 Todd and Don Show on KLBJ-AM 590 (O'Brien was a call-in guest). Did Lehmberg have access to a desk and phone at the jail? "Is she able to conduct business?" Todd Jeffries asked O'Brien. He's "heard different things," O'Brien said, and while he doesn't want to spread rumors, there is "a lot of tight-lipped ... stuff going on" at the jail, "and a lot of stuff leaking. And that's unfortunate, because we should know exactly what her situation is," he said.

Perhaps someone should have asked. Travis County Sheriff's Office spokesman Roger Wade says there's nothing mysterious about Lehmberg's accommodations. Like any other inmate in protective custody, she's housed in segregation, on a 23-hour in-cell, one-hour out-of-cell schedule. "It's no picnic," he said – and there are no phones or desks in any jail cell.

Attorney Betty Blackwell and other lawyers shown here outside the courthouse are among 172 attorneys who have signed a petition in support of D.A. Rosemary Lehmberg.
Attorney Betty Blackwell and other lawyers shown here outside the courthouse are among 172 attorneys who have signed a petition in support of D.A. Rosemary Lehmberg.
Photo by Jana Birchum

The halls of the Capitol have also become a breeding ground for political speculation about next steps, grounded in wild – and not-so-wild – rumor. If Lehmberg can be forced to resign, the thinking goes, then Gov. Rick Perry will be able to install an ally in the politically powerful office that has statewide influence not only via public integrity, but also motor fuel tax, insurance fraud, and environmental law enforcement – a priority since Lehmberg took office in 2008. The latest rumor is that Perry's already got a man in mind for the job: Terry Keel, a former Travis County prosecutor and sheriff, and five-time state representative who is currently executive director of the Texas Facilities Commission, a job to which Perry appointed him in 2009.

There are plenty of rumors on the Dem­o­cratic side as well – primarily contending that O'Brien, an employment lawyer and self-described Republican who previously worked at the AG's office, filed the lawsuit for some personal political gain. O'Brien insists that is not the case. He says that even though he's a "registered Republican" (presumably in past primary elections, since Texas voters are not required to register party affiliation), he has consistently voted Democratic during the last decade, and he would rather the County Com­mis­sioners Court and not the governor's office be tasked with filling Lehm­berg's seat if she is removed. At the end of the day, he argues, it is Lehmberg's behavior that has rendered her unfit to continue to serve.

All speculation aside, Lehmberg has vowed that she will not resign. In a letter to Travis County residents (apparently dictated to friends from jail and posted to her official website and to her Facebook page), Lehmberg reiterated that she intends to stay in office, but will not seek a third term (she says she never intended to do so). She wrote that she does take her offense seriously and offers apologies to TCSO deputies and jailers, to county residents, and to her staff. "There are hundreds of reasons that lead up to a single event in our lives – but no excuse for driving while intoxicated," she wrote, adding that she will "seek professional help and guidance" upon her release. (At press time, Lehmberg had served 13 days. Exactly when she will be released remains fluid – her behavior and whether she qualifies for a job in the jail could significantly reduce the actual number of days she must serve.)

The Question of Removal

Exactly what will happen in the meantime isn't entirely clear. But concerning the O'Brien lawsuit – now officially the Escamil­la lawsuit – the likely next steps are far less sexy than the rumors. Under Texas law, there are several mechanisms for removing officials from their positions, including Chap­ter 87 of the Local Government Code, which derives from a provision of the Texas Constitution stating that officials – including D.A.s, county attorneys, and constables – may be removed from office by district judges for "incompetency, official misconduct, habitual drunkenness, or other causes defined by law." The "other causes" apparently may include a single incidence of "intoxication on or off duty," as codified by lawmakers in 1987.

A petition for removal can be filed by virtually any county resident, but whether a judge approves the suit is another matter. In this instance, Livingston did so on Monday, agreeing to allow Escamilla's re-filed lawsuit to proceed.

In theory, whether Lehmberg was intoxicated as charged would be decided by a jury; afterward, the judge, not the jury, would be tasked with determining whether that drunkenness actually warrants her removal – but removal is not automatic, lawyers consulted by the Chronicle say. Neither is taking the case to trial. Now that County Attorney Escamilla has assumed responsibility for the suit, he legally represents the interests of the state, and he has available to him the range of options available in any civil case: He can dismiss the suit altogether, take it to trial before a jury, or, alternatively, craft a settlement that would avoid a trial but would require Lehmberg to do any number of agreed-upon things – perhaps including counseling, a specified stint in rehab, and/or anger management classes. Escamilla has, for now, declined to comment, allowing the lawsuit to speak for itself.

Determining which route his case will ultimately take certainly depends on what happens during the discovery phase, when Escamilla's office will receive evidence and be able to ask questions about why Lehm­berg was intoxicated that night, whether the incident was a one-time aberration or the symptom of some larger problem, and whether either circumstance would mean that she is incapable of carrying out the job voters elected her to do. Indeed, removing Lehmberg from office, if it came to that, would necessarily thwart the will of more than 256,000 voters who elected her to a second term in November 2012.

That is the key to understanding how serious a removal suit is, Potter County Attorney Scott Brumley wrote in a paper covering Texas laws that govern officeholder removals. The procedure outlined in state law is "intended for the benefit of society, rather than for the involved individuals," Brumley wrote in a widely read paper on the rarely used procedure. "At the same time, it cannot be forgotten that the stakes in this kind of controversy are extremely high in a democracy. A removal suit seeks to undo the results of an election for reasons usually unrelated to the election itself. For that reason, the procedure cannot be invoked lightly."

While the lawsuit will continue at its own pace, Lehmberg is likely to continue taking hits online and under the Dome. Proposing to remove the office from local control has become a perennial issue – particularly since the office's high-profile prosecution of former U.S. Rep. Tom DeLay (his sentence remains under appeal) – but has repeatedly died on the vine.

There are also plenty of stakeholders who have thus far resisted any impulse to jump into the controversy – including, notably, the unions representing the county's deputies and jailers, the two groups who, arguably, have the most obvious beef with the D.A. Instead, a little more than a week after Lehmberg's arrest, it was Wayne Vincent, president of the Austin Police Association, who came out in opposition to her remaining in office, but not the deputy or jailer associations (or any of the other regional or statewide law enforcement unions). Asked about his decision to step into the fray (without first consulting with his board of directors), Vincent said that he felt compelled to do so because Lehmberg's behavior during and after the arrest was so inappropriate that it prompted him to worry about whether, going forward, APD officers might somehow face "retaliation" from the D.A.'s office for doing their jobs. That's "what we worry about," he said. "It wasn't the DWI, it was the behavior in jail" that's concerning.

After Vincent weighed in, O'Brien wrote to the presidents of the two unions representing TCSO deputies and jailers, questioning their continued silence. "[A]t this point, your organization can no longer remain silent," he wrote. "The community wants to know where you stand. Do you agree with the APA that Ms. Lehmberg should resign?" O'Brien wrote. "If not, then why [do the sheriff's employees associations] believe that she can continue just as effectively as the top prosecutor and leader of the Public Integrity Unit after her drunk driving conviction," he continued. "Your law enforcement officer members must have the confidence that when they make an arrest for a serious criminal violation, they are releasing the suspect to a criminal justice system that has integrity and credibility. That will not be the case for the next three years, and potentially beyond, if Ms. Lehmberg remains in office."

Neither association has offered any public response to O'Brien's letter, but in an April 27 email to the Chronicle, James Milton Hodge, president of the Travis County Sher­iff's Officers Association (which represents a majority of the county's jailers), said that his organization will ultimately "do what is in the best interests of our members. We haven't made a decision yet and won't be bullied into doing so."

*Corrected: the article originally referred to the completion of Lehmberg's full term in 2016; but should she resign or be removed, following an interim appointment her successor would be elected in the next general election, November 2014.

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