Suit Filed to Remove Lehmberg; Next Move for Judge & Escamilla

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In the continuing saga resulting from District Attorney's Rosemary Lehmberg's DWI from this past weekend, local attorney Kerry O'Brien has filed suit to remove Lehmberg from office. The suit is based off of chapter 87 of Texas's Local Government Code.

From the KXAN story:

An Austin lawyer is asking the courts to removed Travis County District Attorney Rosemary Lehmberg from office, saying her arrest last weekend on a drunken driving charge undermined her abilities as a prosecutor.

“As a prosecutor with other 35 years of experience prosecuting drunk drivers, Lehmberg was well aware of the extreme danger of getting behind the wheel of a car intoxicated and driving it at night on a public road,” Kerry O'Brien said in his petition to the district courts of Travis County.

“Lehmberg violated the public trust, demeaned her office and created a substantial risk of injury to others.”

The petition from O'Brien, an employment attorney who owns his own law firm, was filed with the courts on Tuesday and cites Lehmberg's own letter to the courts saying that she planned to plead guilty.

O'Brien specifically asks the court to temporarily remove Lehmberg while a case is prepared to have her permanently stripped of her office.

In Travis County, however, the District Attorney's office doesn't prosecute most DWI offenses, misdemeanors handled instead by the County Attorney's office.

Below the jump, watch Harold Cook explain that and other problems with Lehmberg leaving office.

Attorney Kerry O'Brien has started a Facebook page, “Remove Rosemary Lehmberg,” and he is a regular voter who voted in the Republican primary in 2010 and 2000 (as well as the Democratic primary in 2008).

For removal proceedings to occur, a district judge must grant an order of citation and serve Lehmberg. If the judge issues such a citation, the judge may then temporarily suspend Lehmberg and appoint someone to perform the duties of District Attorney during the temporary suspension. O'Brien hopes that such temporary suspension of Lehmberg occurs, as well.

A trial to remove Lehmberg may require the cooperation of County Attorney David Escamilla, who might even have the power to stop it from happening. Statue generally requires that “The county attorney shall represent the state in a proceeding for the removal of an officer.” The statue further lists exceptions that would only apply here if Escamilla himself is also subject to removal proceedings.

A legal argument exists that the suit may not be able to move forward if Escamilla chooses not to join the proceedings. In the 1955 case Garcia v. Laughlin, the Texas Supreme Court declared, “Individual citizens have no private interest distinguishable from the public as a whole and have no right to maintain an ouster suit without being joined by a proper state official.” (emphasis added). That declaration has been followed numerous times since.

Garcia was even extended in 2011 when the Harris County Department of Education began similar proceedings against trustee Michael Wolfe. The Department and four of its trustees eventually moved to depose Wolfe under pre-suit discovery rules, which the district court allowed, but the Texas Supreme Court stated that the trial court abused its discretion for granting even pre-trial discovery “without the request of the county attorney who must prosecute an ouster action for the State.”

So, Kerry O'Brien still has long to go before ousting Rosemary Lehmberg. If a district judge grants an order of citation against Lehmberg, Escamilla will have a big decision to make. It's possible that Escamilla can stop this removal hubbub dead in its tracks and that Lehmberg would serve her DWI sentence before simply finishing out the remainder of her term.

Below is the text of O'Brien's entire petition as well as citation to the two quoted Texas Supreme Court cases.

Cited cases:

Garcia v. Laughlin, 285 S.W.2d 191, 193 (Tex. 1955)

In re Wolfe, 341 S.W.3d 932 (Tex. 2011)

The following is the text of O'Brien's lawsuit, pulled from his Facebook page:

TO THE HONORABLE JUDGE OF THIS COURT:

COMES NOW, the STATE OF TEXAS, by the relation of KERRY V. O'BRIEN (“O'Brien”), and files suit against Respondent-Defendant ROSEMARY LEHMBERG (“Lehmberg”) in her official capacity as District Attorney of Travis County, seeking Lehmberg's removal from her public office pursuant to Chapter 87 of the Local Government Code, and in support would respectfully show as follows:

I. DISCOVERY CONTROL PLAN

1. Discovery will proceed under a Level 3 discovery control plan as set out in Texas Rule of Civil Procedure 190.4.

II. PARTIES

2. Kerry V. O'Brien is a resident of Travis County, Texas. O'Brien has resided in Travis County continuously since at least 1999. Pursuant to Local Government Code section 87.018, O'Brien is acting in the capacity of relator in this action being brought by the State of Texas. As required by Local Government Code section 87.015(b), O'Brien is not nor has he ever been under indictment for any crime in any jurisdiction.

3. Defendant Rosemary Lehmberg is the current criminal district attorney for Travis County, having been duly elected to that position in 2008 and re-elected in 2012. Lehmberg resides in Travis County. Lehmberg may be served with citation at her residence at 2606 Deerfoot Trail, Austin, Texas, or, in the alternative, at her current place of employment at the Travis County District Attorney's Office, 509 W. 11th Street, Austin, Texas.

III. JURISDICTION AND VENUE

4. Pursuant to Texas Local Government Code section 87.015, this cause is being filed in the county of Lehmberg's residence.

5. The subject matter is within the jurisdiction of this court.

6. All parties are subject to this court's personal jurisdiction.

IV. BACKGROUND FACTS

7. Lehmberg is the current criminal district attorney for Travis County, Texas. She was duly elected to her position in 2008, and re-elected in 2012.

8. Under Texas law, a Texas district attorney is responsible for representing the State in all criminal cases in the district courts of her district, and in appeals therefrom. Furthermore, the Travis County District Attorney holds the unique position of having the responsibility of enforcing the state's Government and Election codes statewide. The Travis County District Attorney's office performs this function through the state-funded Public Integrity Unit. Therefore, Lehmberg holds the dual responsibility of leading the prosecution of local crimes as well as certain violations of law by Texas state and federal elected officials.

9. Upon information and belief, at or around 10:45 p.m. on April 12, 2013, Lehmberg was traveling in her vehicle on FM 620 near the Steiner Ranch neighborhood in northwest Travis County.

10. Upon information and belief, motorist Mark Weston, traveling behind Lehmberg, observed Lehmberg's 2001 Lexus swerving in and out of a bike lane for about one mile on the southbound side of FM 620 near RM 2222. As Lehmberg approached Comanche Trail, Weston observed Lehmberg's vehicle swerve into oncoming traffic. Weston called 911 to report the danger. Lehmberg subsequently pulled to the side of the road in front of St. Luke's on the Lake Episcopal Church in the 5600 block of FM 620.

11. Upon information and belief, within minutes, deputies from the Travis County Sheriff's Office reported to the scene and engaged with Lehmberg. Deputy J. Ribsam described Lehmberg as moderately intoxicated, with bloodshot, watery and glassy eyes. Deputy Ribsam further found that Lehmberg appeared “excited,” “insulting,” “cocky,” yet “cooperative.” He further described Lehmberg as disoriented, with slurred speech, and described seeing her swaying and staggering. After Lehmberg failed portions of the field sobriety test administered by the officer, she refused to cooperate with further testing. An open container of vodka was found in the passenger compartment of her vehicle. Lehmberg stated that she had consumed two vodka drinks earlier in the evening.

12. Lehmberg was arrested for driving while intoxicated, booked and subsequently released. Upon information and belief, approximately three hours after the arrest, Lehmberg's blood was drawn pursuant to a court order to examine her blood-alcohol concentration level. At this time, Relator is unaware of the results of the sample.

13. Under Texas Penal Code Chapter 49, a generic first-time conviction for DWI is a Class B misdemeanor, with a minimum of 72 hours of confinement. If the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is still a Class B misdemeanor, but with a minimum of six days of confinement. If it is shown at trial that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense becomes a Class A misdemeanor. Generally, the punishment for a Class B misdemeanor is a fine of up to $2,000 and/or confinement for up to six months. Generally, the punishment for a Class A misdemeanor is a fine of up to $4,000 and/or confinement for up to one year.

14. Upon information and belief, on or about April 14, 2013, Lehmberg emailed Travis County Attorney David Escamilla from her personal email account a letter in which she admits that she was guilty of driving while intoxicated:

To: Mr. David Escamilla and the Judge of any Court of Jurisdiction

From: Rosemary Lehmberg

Date: April 14, 2013

Please accept this as my Plea of Guilt to the Charge of Driving While Intoxicated, arising from my arrest on 4/12/13, for whatever level of offense is determined to be justified by the facts.

I enter this unconditional Plea without request for delay, without legal argument by counsel, without any plea bargain, and without any request for leniency or consideration of any type.

I am guilty of DWI and of acting unreasonably and the fault is all my own.

I am deeply sorry for my actions. I apologize to the citizens of Travis County and specifically to the dedicated officers and employees who had to deal with my violation and any disrespectful conduct after my arrest.

Further, I agree to appear, without delay, to enter this plea and I accept whatever assessment of jail time is deemed appropriate by the sentencing Court.

15. Pursuant to Texas Local Government Code Section 87, a district attorney may be removed from office for intoxication on or off duty caused by drinking an alcoholic beverage. Lehmberg has already admitted that she was intoxicated and all indications suggest that it was caused by drinking an alcoholic beverage. Her forthcoming guilty plea will demonstrate such as a matter of law.

16. While the removal law could be abused by overzealous citizens for political purposes, such is not the case here. As a prosecutor with over 35 years of experience prosecuting drunk drivers, Lehmberg was well aware of the extreme danger of getting behind the wheel of a car intoxicated and driving it at night on public roads. Lehmberg violated the public trust, demeaned her office and created a substantial risk of injury to others. The fact that Lehmberg had an open container of vodka within her passenger compartment and refused to cooperate with the responding officers further demonstrates an inherent disrespect for the public safety laws she is charged with enforcing. Under the circumstances, Lehmberg has demonstrated that she should be removed from the office to which she was elected.

V. JURY DEMAND

176. As required by Local Government Code section 87.018, a jury trial is demanded.

VI. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the State of Texas ex rel. Kerry V. O'Brien respectfully requests that:

a. The Court order that citation and a certified petition be served on Lehmberg;

b. The Court temporarily suspend Lehmberg and appoint another person to perform the duties of the office, in accordance with Local Government Code section 87.017;

c. After service of citation, Defendant Lehmberg be summoned to answer this suit within the time required by law;

d. After trial on the merits, a jury finding be entered that Rosemary Lehmberg was intoxicated on or off duty from drinking an alcoholic beverage, thereby warranting removal from office pursuant to Local Government Code Chapter 87, and that Lehmberg be so removed; and

e. The Court award court costs to the State and/or Relator and any other relief to which it may be entitled.

Respectfully submitted,

Kerry V. O'Brien

Relator

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