"...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..."
"...Recently, local attorneys have been circulating an anti-Toth email by Westlake lawyer Kerry O'Brien, who says Toth is "at best, under-qualified, and at worst, unqualified. And it's obvious that he's pushing red-meat hyper-partisan buttons to cover for it." O'Brien says that while he "almost always" votes for Republican candidates, in this race he'll vote for Triana, and he's also taken the step of filing as a write-in for the Place 6 seat – partly as a GOP alternative to Toth, but primarily "to give myself legal standing in case I could file any court proceedings concerning Toth's candidacy." Out of Practice..."
"...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...."
"...Attorney Kerry O'Brien has not abandoned his personal campaign against 3rd Court of Appeals GOP candidate Mike Toth, recently appointed by Gov. Greg Abbott to the Place 6 seat to serve out Justice Bob Pemberton's unexpired term, even as Toth campaigns against Dem nominee and District Court Judge Gisela Triana..."
"...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..."
"...Whether that meets the "practicing attorney" provisions of the state constitution is unclear, but Austin-based Republican attorney Kerry O'Brien reviewed Toth's career and work under Paxton, and describes him as "at best, under-qualified, and at worst, unqualified." ("Point Austin: Disorder in the Court ... of Appeals," Sept..."
"...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")...."