The Austin Chronicle

More Trouble for Rosemary Lehmberg

By Jordan Smith, June 3, 2013, 8:29am, Newsdesk

Former prosecutor and candidate for Travis County district attorney, Rick Reed, has filed a criminal complaint, alleging that D.A. Rosemary Lehmberg engaged in several criminal acts in the hours after she was popped on April 12 for drunk driving.

Lehmberg was arrested after a caller to 911 reported a vehicle driving dangerously on FM 620 near Comanche Trail. The driver of that car was Lehmberg, who was put through a series of sobriety tests and then arrested for DWI; subsequent testing revealed that her blood-alcohol content was nearly three times the legal limit. Portions of her overnight stay at the county jail were recorded by jail staff and reveal a woman behaving like she is drunk, with emotions running from hostile to despondent. Lehmberg subsequently pleaded guilty to the DWI charge and accepted at 45-day jail sentence. She was released after 20 days and immediately entered treatment. She has not yet returned to work.

In his complaint, Reed, who ran unsuccessfully against Lehmberg in the 2008 Democratic primary, alleges that Lehmberg threatened correctional officers at the county jail in a way that amounts to third-degree felony obstruction or retaliation. Indeed, Reed points to a string of comments Lehmberg made while in custody as evidence that she was unlawfully threatening officers who were charged with processing and keeping Lehmberg safe during her overnight stay. In particular he notes that in talking to staff she made several veiled threats – including that they should remove a set of handcuffs, should call Travis County Sheriff Greg Hamilton, and that they'd "better do somethin' quick, because y'all are going to be in jail, not me, if you don't do something pretty quick." Reed is asking that Lehmberg step aside and allow the county's presiding criminal judge, Julie Kocurek, to appoint an attorney to investigate and prosecute the criminal complaint.

Reed has also filed suit, pursuant to a rarely-used provision of the Local Government Code, seeking Lehmberg's ouster from office. The LGC allows for lawsuits seeking the removal of certain elected officials for official misconduct, incompetence, or "intoxication on or off duty." A lawsuit alleging that Lehmberg violated all three provisions was first filed in April by local employment and labor attorney Kerry O'Brien. That suit was subsequently dismissed and a complaint alleging only that Lehmberg should be removed for intoxication was filed by County Attorney David Escamilla, who is the official ultimately tasked with representing the state's interests in any removal suit.* Indeed, Escamilla will also be tasked with addressing the merits of Reed's suit, which Reed filed in part, he said in a press release, because he believes that the suit Escamilla filed is deficient in at least two ways. First, it failed to request that a judge outside of Travis County be assigned to handle the matter. Second, Escamilla failed to allege that Lehmberg engaged in official misconduct, which Reed believes is the most serious of the charges that can be proved through her conduct in jail after she was arrested. Reed alleges that Lehmberg's misconduct includes acts of coercion of a public servant, official oppression, and abuse of official capacity.

Indeed, in her response to Escamilla's suit, Lehmberg argues that a single instance of DWI is not a basis for her removal. She had a "single DWI incident" and notes that no removal suit has ever been filed against a male elected official for a similar intoxication offense in Travis County. Lehmberg contends that she has been singled out for disparate treatment.

Reed argues that it was Lehmberg's behavior after her arrest that should inform the lawsuit seeking her removal, not necessarily the DWI itself. "A thorough examination of Ms. Lehmberg's behavior during the eight-and-one-half-hour period that she was in the custody of Travis County law enforcement personnel reveals a pattern of conduct toward both law enforcement officers and judicial authorities that is indicative of the very sort of character against which the statute authorizing a petition for removal was designed to protect the public [against]: dishonest, unethical, faithless, and corrupt," he wrote in a press release.

*While Escamilla's lawsuit does allege only that Lehmberg was intoxicated, it does so because civil district Judge Lora Livingston dismissed charges of official misconduct or incompetence. Whether Lehmberg should be removed will be decided by an outside judge; Reed's contention appears to be that the initial decision of whether to include the charges of incompetence and official misconduct should also be decided by an appointed outside judge.

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