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.
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