"...Kerry O'Brien, the lawyer who filed suit last month seeking to oust Travis County District Attorney Rosemary Lehmberg in the wake of her drunken driving arrest, is back, this time filing a petition on behalf of himself and 39 other county residents in a second attempt to ensure that Lehmberg is forced from office...."
"...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...."
"...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..."
"...Meanwhile, the campaign to try to force Lehmberg's resignation (which she has said won't happen) continues to be waged by local employment attorney Kerry O'Brien, who last month was first to file a civil suit pursuant to a rarely-used provision of the Local Government Code that allows for the ouster of certain public officials for misconduct, incompetency, or "intoxication on or off duty." O'Brien's case was dismissed, and a new suit was filed by County Attorney David Escamilla, and O'Brien is trying to intervene, arguing that his voice and those of Facebook users who "like" his Remove Rosemary Lehmberg page are the voice of the community, indignant that she hasn't yet fired herself. On Monday O'Brien alerted media to a rally being held at lunchtime at the East 12th Street I-35 overpass (with another slated for Thursday morning rush hour in Northwest Austin) where folks would be dropping a banner asking drivers to "honk if Rosemary should resign." (For more, see "What Happens Next?" May 3.)..."
"...Lehmberg was obviously intoxicated, and pleaded guilty to driving while drunk – her blood alcohol concentration level was nearly three times the legal limit well beyond an hour after she was taken to the jail. (Jim Collins, the assistant county attorney who was among the lawyers who actually tried the case, noted that it was a stroke of luck that Lehmberg's reckless behavior didn't end in her killing herself or someone else as she weaved along Highway 620, a half-empty bottle of vodka on the seat next to her.) Under the law, the intoxication alone would be enough to seek her ouster, but it was her behavior with the deputies who arrested her and those who had to deal with her at the jail that ultimately prompted O'Brien to file the initial suit seeking her removal..."
"...At issue is whether Lehmberg's conduct on April 26 – when she was arrested for drunk driving, was found to have a blood-alcohol level nearly three times the legal limit, spent a night in jail, and was at times combative with county jailers as evidenced by video of her stay – rises to a level to trigger her removal from office under a relatively obscure provision of the Local Government Code that allows citizens to initiate a removal proceeding for certain county officials for official misconduct, incompetency, or "intoxication on or off duty caused by drinking an alcoholic beverage." Local attorney Kerry O'Brien initially filed the suit, saying he felt he had a "moral duty" to do so; his action was later replaced by a similar suit filed by County Attorney David Escamilla, who has the responsibility under law to carry such an action...."
"...According to the lawsuit filed by local employment and labor attorney Kerry O'Brien, Lehmberg "violated the public trust, demeaned her office and created a substantial risk of injury to others" by driving drunk in Northwestern Travis County last weekend. The suit seeks to have Lehmberg temporarily removed, pending the outcome of the criminal case against her, and then, after being found guilty, seeks to have her removed from office for good, pursuant to provisions of the Local Government Code...."
"...The hearing is the next stage in the "bifurcated" process Peeples established to determine whether Lehmberg's April DWI arrest and subsequent conviction should disqualify her from further service as D.A. It is a civil proceeding, in the wake of a lawsuit initially filed by local attorney Kerry O'Brien, in accordance with a provision of Texas law that "any resident" can file a removal suit..."
"...Other than Daugherty, there were just two speakers who suggested the same – including Kerry O'Brien, the civil attorney who was first to file a suit seeking her removal pursuant to an obscure provision of the Local Government Code that allows for the ouster of certain elected officials for incompetence, official misconduct, or "intoxication on or off duty." O'Brien's suit was dismissed and then re-filed by County Attorney David Escamilla who is responsible for representing the county in this matter, though O'Brien has banded together with 39 others in an attempt to intervene in that suit. Escamilla's lawsuit is pending...."
"...Although she was clearly upset, Lehmberg's behavior as depicted in the videos is not as sensational as expected, based on a description included in a lawsuit filed last week that seeks to have her removed from office. In the lawsuit, employment and labor attorney Kerry O'Brien alleged that Lehmberg had kicked and spit at officers, an account he said he got from law enforcement officials in the jail that night..."
"...The plaintiffs' attorney, Kerry O'Brien, initially filed complaints against Buttross with the Equal Employment Opportunity Commission, which dismissed both claims – an action O'Brien says is fairly common for the EEOC. "It says absolutely nothing about the merits of the case," he said..."
"..."She did not attempt to spit … that did not happen," he said. The story about Lehmberg being out of control at the jail – requiring restraints and a so-called "spit restraint" to be affixed to her face – was made public in a lawsuit that seeks Lehmberg's removal from office, under provisions of the Local Government Code, that was filed by employment and labor attorney Kerry O'Brien..."
"...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 attorney Kerry O'Brien..."
"...Also this week, visiting Judge David Peeples set July 22 for a hearing on the removal suit – originally filed by attorney Kerry O'Brien, then dismissed and refiled by County Attorney David Escamilla, who is tasked with representing the state's interests...."
"...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..."
"...Meanwhile, as the controversy proceeds, there are now dueling Facebook pages: one created by attorney Kerry O'Brien, who has petitioned to have Lehmberg removed ("Remove Rosemary Lehmberg") – that's the "civil issue" Lehmberg refers to above; and one created by an unidentified defender of Lehmberg ("Remove Remove Rosemary Lehmberg")...."
"...Rick Perry. Austin Police Association President Wayne Vincent called for Lehmberg to resign; following that, lawyer Kerry O'Brien, who filed the suit seeking her ouster, penned a letter to presidents of the Travis County Sheriffs' Law Enforcement Association and Travis County Sheriff's Officers Association asking that they do the same, or explain why they won't...."
"...The brief is in response to attorney Kerry O'Brien's ouster petition and other high-profile demands for Lehmberg's resignation. The brief calls for Lehmberg to remain in office until the end of her current term, citing her years of service as a Travis County prosecutor and her advocacy work..."
"...Notably, none of the jail records indicate that Lehmberg attempted to either kick or to spit at any TCSO employees during her brief turn in the jail. Allegations that she did both and that she was otherwise out of control were alleged in a lawsuit that seeks to have Lehmberg removed from office, pursuant to provisions of the Local Government Code, that was filed this week by attorney Kerry O'Brien...."