Travis County District Attorney Rosemary Lehmberg already faces a suit to remove her from office for driving while intoxicated. She may have to defend against another suit — this one seeking to remove her for "official misconduct" and alleging she committed other crimes on the night of her arrest.
Visiting Judge David Peeples on June 12 ordered service of citation on Lehmberg for a removal suit filed by Austin solo and relator Rick Reed, a 2008 Travis County district attorney candidate who ran against Lehmberg.
Texas Government Code Chapter 87 permits a resident to file a removal suit for intoxication, official misconduct or incompetence, and it requires a judge to order citation for a suit to proceed.
Reed’s May 29 Relator’s Original Petition for Removal in The State of Texas Ex Rel. Richard D. Reed v. Rosemary Lehmberg alleges 16 counts of "official misconduct." Among other things, Reed alleges that Lehmberg used her status as DA to threaten corrections officers and a deputy that she would file criminal charges against them.
Lehmberg’s blood was drawn at the jail, and her blood alcohol content was 0.239, according to an April 17 lab report by the Texas Department of Public Safety. She was arrested late at night on April 12 and released on the morning of April 13.
"What is really so offensive about her conduct, and what in my mind merits her removal from office, is not the driving while intoxicated, but all the official misconduct: Her efforts to get these officers and judge to give her preferential treatment and release her, because she is the district attorney," says Reed.
He says he doesn’t have "political aspirations" in filing the suit, and it probably has "offended" local Democratic political donors.
Lehmberg didn’t return a telephone call seeking comment.
Catherine Mauzy, co-counsel for Lehmberg, says Reed’s allegations don’t have "merit" and she thinks he is "misconstruing and misunderstanding the evidence."
"To me, Mr. Reed’s petition is an attempt to second guess law enforcement and the county attorney’s office," says Mauzy, partner in Mauzy & Tucker in Austin. "They had all their evidence when they filed the charge of DWI against her. They did not feel at that time there were any other crimes committed."
James Collins, executive assistant county attorney in Travis County, represents the state, which is the plaintiff in the removal suits. Collins says the Travis County Attorney’s Office is analyzing Reed’s petition to determine whether any of the allegations would constitute the crimes that Reed claims. If so, the office must also determine whether any of the alleged crimes would fit the removal statute’s definition of "official misconduct," he notes.
"Our office takes this very seriously," says Collins. "We really need to take time in looking at it and searching for ourselves: Is this an appropriate thing we need to be doing? That’s the reason why we are not going to be rushed into making decisions. . . . We will make decisions as carefully as they need to be made."
Lehmberg pleaded guilty to class A misdemeanor DWI on April 19, and she served a 45-day jail sentence. Her driver’s license was suspended 180 days, and she was ordered to pay a $4,000 fine. Lehmberg voluntarily sought "treatment" in order to "deal with the behavior that lead to my arrest," she previously wrote in an email to Texas Lawyer.
Mauzy says that Lehmberg returned to work on June 13.
The other removal suit, filed April 29, seeks to remove Lehmberg for "[i]ntoxication on or off duty caused by drinking an alcoholic beverage." Lehmberg claimed in a May 24 original answer that the attempt to remove her and parts of the removal statute are unconstitutional. [See " Lehmberg: Removal Suit, Statute Unconstitutional," Texas Lawyer, June 3, 2013, page 4.]
Allegations in Reed’s petition
In his petition, Reed alleges that Lehmberg committed one count of official oppression for "screaming at" and "berating" a deputy who transported her to jail.
He alleges three counts of obstruction, three counts of retaliation and three counts of abuse of official capacity for Lehmberg’s alleged statement while she was in jail to two corrections officers and one sheriff’s deputy that, "y’all are going to jail, not me."
The petition also lists four counts of "coercion of public servant." Reed alleges that Lehmberg "attempted to influence" the deputy who took her to jail by using her status as DA to threaten that Austin Police Chief Art Acevedo would do something to "adversely affect" the deputy. Reed alleges that, while in jail, Lehmberg threatened that Travis County Sheriff Greg Hamilton would take adverse action against two corrections officers and a sheriff’s deputy.
Reed’s petition also includes two other allegations of abuse of official capacity, related to her statements about Acevedo and Hamilton, and a conversation that she had with the judge who arraigned her. Among other things, Reed alleges that Lehmberg tried to influence the judge to give back her cell phone, even though it’s a crime for a person to give a cell phone to an inmate.