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May 7th, 2013:

What to do with a problem like Rosemary?

The Austin Chronicle has a great overview of the Rosemary Lehmberg situation.

Rosemary Lehmberg

All speculation aside, Lehmberg has vowed that she will not resign. In a letter to Travis County residents (apparently dictated to friends from jail and posted to her official website and to her Facebook page), Lehmberg reiterated that she intends to stay in office, but will not seek a third term (she says she never intended to do so). She wrote that she does take her offense seriously and offers apologies to TCSO deputies and jailers, to county residents, and to her staff. “There are hundreds of reasons that lead up to a single event in our lives – but no excuse for driving while intoxicated,” she wrote, adding that she will “seek professional help and guidance” upon her release. (At press time, Lehmberg had served 13 days. Exactly when she will be released remains fluid – her behavior and whether she qualifies for a job in the jail could significantly reduce the actual number of days she must serve.)

Exactly what will happen in the meantime isn’t entirely clear. But concerning the O’Brien lawsuit – now officially the Escamil­la lawsuit – the likely next steps are far less sexy than the rumors. Under Texas law, there are several mechanisms for removing officials from their positions, including Chap­ter 87 of the Local Government Code, which derives from a provision of the Texas Constitution stating that officials – including D.A.s, county attorneys, and constables – may be removed from office by district judges for “incompetency, official misconduct, habitual drunkenness, or other causes defined by law.” The “other causes” apparently may include a single incidence of “intoxication on or off duty,” as codified by lawmakers in 1987.

A petition for removal can be filed by virtually any county resident, but whether a judge approves the suit is another matter. In this instance, Livingston did so on Monday, agreeing to allow Escamilla’s re-filed lawsuit to proceed.

In theory, whether Lehmberg was intoxicated as charged would be decided by a jury; afterward, the judge, not the jury, would be tasked with determining whether that drunkenness actually warrants her removal – but removal is not automatic, lawyers consulted by the Chronicle say. Neither is taking the case to trial. Now that County Attorney Escamilla has assumed responsibility for the suit, he legally represents the interests of the state, and he has available to him the range of options available in any civil case: He can dismiss the suit altogether, take it to trial before a jury, or, alternatively, craft a settlement that would avoid a trial but would require Lehmberg to do any number of agreed-upon things – perhaps including counseling, a specified stint in rehab, and/or anger management classes. Escamilla has, for now, declined to comment, allowing the lawsuit to speak for itself.

Determining which route his case will ultimately take certainly depends on what happens during the discovery phase, when Escamilla’s office will receive evidence and be able to ask questions about why Lehm­berg was intoxicated that night, whether the incident was a one-time aberration or the symptom of some larger problem, and whether either circumstance would mean that she is incapable of carrying out the job voters elected her to do. Indeed, removing Lehmberg from office, if it came to that, would necessarily thwart the will of more than 256,000 voters who elected her to a second term in November 2012.

That is the key to understanding how serious a removal suit is, Potter County Attorney Scott Brumley wrote in a paper covering Texas laws that govern officeholder removals. The procedure outlined in state law is “intended for the benefit of society, rather than for the involved individuals,” Brumley wrote in a widely read paper on the rarely used procedure. “At the same time, it cannot be forgotten that the stakes in this kind of controversy are extremely high in a democracy. A removal suit seeks to undo the results of an election for reasons usually unrelated to the election itself. For that reason, the procedure cannot be invoked lightly.”

“Escamilla” is Travis County Attorney David Escamilla, who is now the custodian of the lawsuit to remove Lehmberg from office. The Statesman has an interesting story about the filer and original custodian, Kerry O’Brien.

This isn’t the first time O’Brien has taken on city hall.

As a college student studying music at the University of North Texas in the late 1990s, he tried to oust a classical guitar professor.

“He hadn’t performed in 10 to 20 years, and he wouldn’t push his students. He couldn’t teach,” said O’Brien, wearing casual Friday jeans on a Wednesday morning at Panera restaurant, a favorite hangout near his office in Rollingwood.

O’Brien surveyed the 15 students in the professor’s class. “I got 10 surveys back and showed them to the dean. When he saw the results he asked me if I had showed them to anyone else. The dean then offered to help me get into another music school of my choice. ‘We’ll help,’ he said. It was a bribe. I lost.”

He transferred to the University of Texas, where he eventually earned a degree in music theory, a reflection of his rolling stone ways as a college student.

Fresh out of Clements High School in Sugar Land, where he played the tuba and trombone and worked his way to drum major in the marching band, he enrolled at Texas A&M to study music.

That was a disaster. He was turned off by the Aggie Bonfire crew chiefs who were in charge of cutting wood for the bonfire. “I saw these drunk guys climbing trees. It was disgusting and insane,” he said.

Amateur psychologists, start your engines. I have no idea what will happen if this case eventually goes to a jury instead of reaching a settlement. I still think a first-offense DUI is insufficient reason to oust someone from office, though if it can be shown that she’s a habitual drunk who had just never been busted before that would be different. It would definitely thwart the will of the voters, since Rick Perry would appoint a Republican in a county that doesn’t elect Republicans. I forget where I saw it, but somewhere O’Brien suggested that Travis County Commissioners Court select a replacement for Lehmberg. They don’t have that authority, but if Perry would agree to abide by their recommendation, that would at least ameliorate the will-thwarting issue. Lehmberg says she won’t resign, so it’s a moot point until and unless she gets forced out. We’ll see how it goes.

Cities generally ignore Abbott’s domestic partnership opinion

Good for them.

On the right side of history

Attorney General Greg Abbott’s opinion [last] week, while not binding, is the latest of several challenges to same-sex benefits across the country that so far have had mixed results in the courts and prompted changes after officials in other states took action. In Texas, local governments from El Paso to San Antonio and north to Dallas County have their legal departments reviewing their benefits plans but don’t appear ready to budge yet – noting that their policies don’t address issues such as marriage or gender.

“It’s a benefits package that top companies in the area offer to their employees,” said Clay Jenkins, the top administrative official for Dallas County, which has a lesbian sheriff. “It is not only the right thing to do but also allows us to attract top talent so we can continue to have success.”

The cities of Austin, El Paso and Fort Worth already offer some benefits to domestic partners, while Pflugerville, outside Austin, became the state’s first school district to extend similar benefits.

“If our policy violates the law, we’ll change it. But I’d conclude we are not doing that,” said Samuel T. Biscoe, Travis County’s top administrative official. “Legally, we are in good shape.”

Fort Worth spokesman Bill Begley said the city does not anticipate any problems to come from Abbott’s opinion. “Our domestic partner policy does not say anything about marriage or gender.”

See here for the background. As noted, Abbott’s opinion is not legally binding, it’s his opinion as to how a judge would rule. Someone will have to sue in order to get a result that does have the force of law. At least one such lawsuit is in the works in El Paso, by one of the leading homophobes there. Of course, it’s possible that by the time this gets to the point of a legal decision here we may have an opinion from the Supreme Court on the constitutionality of DOMA, and who knows how that could scramble things. This ain’t over yet, not by a longshot.

Florida’s failure to be insane is our gain

Good news if you’re rooting for Houston to host Super Bowl LI.

Houston’s bid for Super Bowl LI received a major boost Friday when Florida lawmakers ended a 60-day legislative session without approving a plan that would have provided a $350 million upgrade for Sun Life Stadium in Miami.

Houston is bidding for the 2017 Super Bowl against South Florida or San Francisco — the city that doesn’t win the NFL owners’ vote for Super Bowl L.

The owners will vote on Super Bowls L and LI on May 21-23 at the league meetings in Boston.

Members of Houston’s bid committee were careful to not sound too confident after learning South Florida would not get the $350 million in taxpayer funding to improve the Dolphins’ stadium.

“This definitely improves our chance to get the Super Bowl,” said Ric Campo, chairman of the bid committee. “Miami’s stadium is woefully in need of repairs and upgrades to (Super Bowl) standards. Even after repairs, it wouldn’t come close to what we have at Reliant Stadium.

“If Miami isn’t willing to invest capital to make their facility world class, that puts them at a disadvantage. It improves our competitive advantage.”

Can’t imagine why they didn’t want to do that considering how well it went the last time, but hey, no one said this had to make sense. If there are three competitors for two slots and one competitor fails to meet the criteria required, that would seem to bode well for the other two. We may not even have to worry about the effect of the Astrodome on our bid. Sweet, right? We’ll know in a couple of weeks if it all worked out for us.

Ashby developers sued

I don’t know about this.

Sue me!

A group of residents who live near the site of the high-rise planned for 1717 Bissonnet filed suit against the developer in state district court Wednesday, another attempt to stop construction of the 21-story building.

The seven plaintiffs say if the property is built it will cause harm to them and their homes. They are concerned about physical damage to surrounding structures and safety issues associated with construction.

They say the building would stand 260 feet above grade, “casting an enormous shadow over dozens of surrounding homes and blocking sun and rain from reaching the yards of neighboring properties.” The building would “make it impossible for certain of the plaintiffs to maintain their gardens,” as well as affect the privacy of the homeowners.

The petition also says the developer is planning to remove old oak trees, which would “further erode the character of the neighborhood and diminish surrounding property values.” The property is near Rice University and the Museum District.

Officials with developer Buckhead Investment Partners said the suit has no merit.

I gotta say, I’m no fan of the Ashby project, but I’m inclined to agree with Buckhead on this. As we well know, the project violates no laws, and is now properly permitted. How are you going to prove any of these allegations? Anything is possible, and Lord knows there’s no shortage of talented and creative litigators in this town, but my money’s on the defense. The case number is 201326155, and it’s in Civil District Court 80, in case you’re curious. I’d love to hear what the lawyers out there think of this one.