Why Rosemary Lehmberg Needs to Stay as Travis County DA

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In the debate about whether or not Rosemary Lehmberg should resign, what's really at stake is whether the entire state of Texas can afford to let Rick Perry control the office of Travis County DA. Given Perry's history and the unique faculties of the office, the answer is clear: Lehmberg needs to stay.

This goes beyond mere partisan politics and gets at the nature of good government itself, which is admittedly a hard argument to make when videos of the embattled elected official in a spit restraint are circulating on the Internet. Those calling on Lehmberg to resign need to recognize the severity of handing the Public Integrity Unit and the environmental prosecution division over to a Perry crony whose attitude on everything from pre-trial release to the death penalty is likely to be out of touch with Austin's progressive community values.

But this issue is not just about a progressive orientation towards criminal justice. This debate is fundamentally about what the Travis County DA's office does, by virtue of being located in our state's capital city, and whether Rick Perry should have control over those faculties of the office. It's about good government, and that's something Rick Perry can't be expected to provide.

Bottom line: this debate is about the capacities of the office of Travis County DA, not about the major mistakes made by the elected official currently in that office. Anyone arguing for Lehmberg to step down needs to explain why the Public Integrity Unit and statewide environmental prosecutions are in better hands with Rick Perry than the current staff of the DA's office.

Read more below the jump.  At Stake: The Public Integrity Unit

The number one reason why Lehmberg needs to remain in office, weather the storm, make a strong public apology, and hopefully lead the way on addressing Austin's pernicious culture of drunk driving is the Public Integrity Unit.

The Public Integrity Unity investigates public corruption, insurance fraud, and gas tax fraud. It was created under former DA Ronnie Earle, who through the unit successfully began the prosecution of disgraced former Congressman Tom DeLay, which was completed under Lehmberg. She also successfully prosecuted Democrat Kino Flores, lest anyone think these cases or ethics violations exist only on one side of the aisle.

Republicans want to dismantle the unit and give prosecutorial control to the Attorney General's office. It's fair to posit that the AG may well have gone along with DeLay's argument that he didn't commit money laundering because he used a check instead of cash. Besides, the AG's office has few resources to prosecute ethics violations what with all of the taxpayer money they're wasting on frivolous lawsuits against the Federal government.

Pioneering Environmental Prosecutions

Lehmberg has also made the Travis County DA's office a leader in successful prosecution of criminal environmental cases. Lehmberg won a grant from TCEQ to hire a specialized environmental prosecutor that has opened over 50 cases and assessed millions in fines to date. These prosecutions are one of the most effective tools to stop major polluters from illegally dumping in our waterways and onto our land.

Given the Harold Simmons sycophants in the Governor's office and Legislature, anyone who cares about our parks, rivers, air quality, and water safety should be deeply disinclined to see that aspect of of the DA's office wither away under a Perry appointee.

A Perry Appointee In Travis County

Should Lehmberg resign, Rick Perry would appoint her replacement. I don't have any faith in Rick Perry in this regard — look at what he's done to the UT Regents, or consider his decision to appoint Michael Williams to the head of the TEA — and presume that he would appoint the worst possible caretaker of the Public Integrity Unit, someone who would immediately cease aggressive environmental prosecutions.

Perry's appointment would have to go through the State Senate for approval, which means that hypothetically all 12 Democrats would need to hold the line and block the appointment, which seems an unlikely expenditure of political capital given the circumstances. However, Perry could appoint a new DA once session ends, and that person would serve as an Interim appointment until the 2015 session when they would need to be confirmed. Perry could also call for a special election, but why would he once he got his hands on the Travis County DA's office?  

Lehmberg was re-elected in 2012, thus Perry's appointee would serve until 2016 — likely longer than Perry himself will be in office. It would be an ironic turn of events if one of the lasting legacies of Perry's time in office was taking control of the Travis County DA.

Take A Leave of Absence?

Questions remain whether Lehmberg can take a leave of absence or serve a temporary suspension. Currently, a citizen petition filed by attorney Kerry O'Brien is pending against Lehmberg. For that to proceed, statutorily Travis County Attorney David Escamilla would have to join in the case against Lehmberg. Additionally, the judge assigned the case, Hon. Lora Livingston, would also have to grant an order of citation and serve Lehmberg. As Michael Hurta explained, 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.

The question of a leave of absence or temporary suspension would be different if she was terminally ill or a victim of circumstances far beyond her control. However, regardless of the tremendous mistake Lehmberg made, the greatest concern needs to be ensuring that the Travis County DA's office does not fall into the hands of Rick Perry not simply for partisan reasons, but for the sake of good government.

A High Stakes Mistake

Ultimately it's what's at stake in the Travis County DA's office that makes this situation so frustrating for anyone who decries the erosion of our collective trust in government. Let's be clear: Lehmberg made a terrible, needless mistake: she could certainly have afforded to call a cab and take one back to her car the next day. No one with a BAC of .239 should ever get behind the wheel, and after she is released I'd like to see Lehmberg play a leading role in addressing Austin's problematic culture of drunk driving.

The videos and photos from the jail are an uncomfortable reminder that our elected officials can be all too human and make the same terrible decisions that far too many other Texans make every day. Houston, Austin, and Dallas are three of the most deadly cities in the country for alcohol-involved car crashes. That doesn't make it Ok — and our public servants should know better and be better, especially those in such critical positions.

It's a terrible situation, but ultimately the importance of the duties carried out by the Travis County DA's office and the consequences of Rick Perry appointing a replacement outweigh Lehmberg's mistake. To her credit, Lehmberg pleaded guilty, as opposed to no-contest like most first-time DWI defendants, and received the harshest sentence handed down to any first-time DWI offender in Travis County history. She has a long road ahead to regain the public trust, but given her 35 years working for the people of Travis County in the DA's office, I think she will be up to the challenge.

The Consequences Are Too Damn High

The faculties of the Travis County DA's office — unique because of our position as the home to our state's Capitol — are too important to hand over to a Perry crony. The current staff will be able to continue capably carrying out the duties of the office, and will make sure that its most critical functions remain intact. No matter how disgraced Lehmberg may be right now, it would be a catastrophe to allow a Republican to dismantle what few checks and balances we have on ethics violations and massive environmental polluters.

I'm sure people will dismiss this as partisan demagoguery or suggest that my support for Lehmberg in prior elections undermines its validity, but those critiques do nothing to address the fundamentals of what's at stake: giving Rick Perry control over the Public Integrity Unit, and giving massive environmental polluters a free pass to resume dumping in our Texas waterways.

Those calling for Lehmberg's resignation need to credibly make the case that those functions will continue to exist under the auspices of a Rick Perry appointee. However, that's highly unlikely, so for the sake of the office — and the ability of the next democratically elected Travis County DA to exercise the powers it currently holds — Lehmberg needs to stay.  


About Author

Katherine Haenschen

Katherine Haenschen is a PhD candidate at the University of Texas, where she studies political participation on digital media. She previously managed successful candidate, issue, voter registration, and GOTV campaigns in Central Texas. She is also a fan of UCONN women's basketball and breakfast tacos.


  1. I threw up in my mouth when I read the part about “progressive community values”
    Whatever happened to setting politics aside and doing the right thing?  Just once?  

    Either way, the public integrity unit was a sham even before Ann Richards' little lapdog shopped the Tom DeLay case to 8 different grand juries.  Ol' Ronnie's prosecution of Democrats were like angel's visits – few and far between.  Meanwhile the zeal (and prosecutorial misconduct) with which he went after Republicans resulted in numerous embarrassments, like the Kay Bailey affair.  There is no good reason why Travis County should have sole control over defining political misconduct across the state.  They've proved time and time again incapable of handling it.  

    The equitable thing to do is have a special prosecutor appointed by the governor look into these charges where and when applicable.  That way, the entire state would have a say, not just one self-absorbed county that thinks it's smarter and more indie than everyone else.

  2. well said
    I am disappointed by the D.A's behavior in this one instance, but I, along with an overwhelming majority of Travis County voters, voted for her and for Rick Perry to overturn the will of the voters is to disenfranchise us.  

    Her behavior in this unfortunate incident is not to be forgiven or forgotten, but it has nothing to do with her performance in office.   SHe will, and should, continue to serve in the way Travis County voters elected her to serve.

  3. We lose either way.
    The very existence of the “Public Integrity Unit” within the Travis County District Attorney's office is legally specious. The only justification for the unit is that the Travis County D.A. can prosecute public officials because their crimes would have most likely happened in Travis County (as it is the county in which the state capital sits).

    In most states either the Attorney General or a special prosecutor would handle these duties. Such is also the case at the federal level. Just because a Democrat holds the office is no reason to excuse yet another of this state's crazy ways of doing things.

    Granted, no Perry appointee would be any more trustworthy, but the current Travis County D.A. has managed to publicly destroy her own integrity with her actions. Can we really trust her to be the sole guardian of the so-called “Public Integrity Unit”?

    The video of her conduct inside the county jail makes it all that much worse. Not only can we see her in her illegal drunken state, but we see her threatening and abusing officials who are attempting to enforce the law. How can anyone now or in the future take her seriously as she would claim to enforce it herself?

    Whether she stays or goes, the people of Travis County and the rest of Texas (at least until we figure out a better office than the local D.A. to police our state officials) will suffer.

  4. DA and PIU
    Unless you have served on grand juries that heard PIU cases from across the state, you have no experience or knowledge of how the DA staff and the PIU works.  I have served on grand juries that heard these cases, one was extremely high profile.  The DA NEVER interfered. The asst. DA's presented the cases, and we have excellent asst. DA's who are well prepared before they come to the grand jury. It was never political, although one of the cases involved politicians, just the facts with a lot of witnesses and testimony then the grand jury decided.  We need to have it here, not in the AGs office tried by people who owe their job to the current AG or the current political party in the governor's office.  In my years of experience with the DA's office, they are extremely professional, well prepared, and if they are not, the grand jury can always ask for more information.  The grand jury is appointed by a judge, not the DA.  They report to the judge, the decisions are picked up by the judge's office, signed by the jury foreman, not sent via the DA's office.

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