Currently serving a 45-day jail sentence after pleading guilty to driving while intoxicated, Travis County District Attorney Rosemary Lehmberg has said she won’t resign from office. But a judge on April 22 issued an order allowing a removal lawsuit to proceed.

In his April 18 second amended petition in The State of Texas Ex Rel. Kerry V. O’Brien v. Rosemary Lehmberg, Austin employment law solo Kerry O’Brien asks the court to temporarily suspend Lehmberg, appoint a temporary DA and to remove Lehmberg from office after a trial of the removal suit.

O’Brien alleges in the suit that Lehmberg’s arrest and subsequent behavior in the Travis County Jail warrants her removal because Lehmberg was intoxicated, her behavior in jail indicates she is "incompetent" and the behavior is official misconduct.

Catherine Mauzy, who says she’s co-counsel for Lehmberg in the removal suit, says that Lehmberg "does not intend to resign."

"Rosemary Lehmberg has an outstanding career as an exemplary public servant. She’s obviously made a mistake, and she has admitted responsibility for that. I don’t believe that mistake should be cause for her removal," says Mauzy, partner in Mauzy & Tucker in Austin.

On April 22, 261st District Judge Lora Livingston decided to allow the suit to proceed and issued citation to Lehmberg "as to the Intoxication ground only," according to an Order on Plaintiff-Relator’s Application for Issuance of Citation. She denied citation "as to the Incompetency and Official Misconduct grounds."

Lehmberg writes in an April 18email, "I have admitted my mistake and I have no further comment, pending instructions from the Court and the enforcement authorities."

Video footage released by the Travis County Attorney’s Office shows Lehmberg calling jailers "silly" and "stupid," and pulling away from their grasp. She repeatedly yelled at jailers to give back her cell phone. Jailers placed Lehmberg in a restraint chair, and a jailer explained in the video that the restraint would stop her from hurting herself because she repeatedly kicked the metal door of her cell. Lehmberg also yelled at a magistrate judge, who read her rights, to "leave her alone" and told him he was ruining her career.

Lehmberg was arrested for DWI on April 12 after a man called 911 to report a vehicle driving erratically on F.M. 620. A Travis County deputy completed an arrest affidavit noting, among other things, that Lehmberg smelled like alcohol, had bloodshot eyes, slurred speech and staggered when walking, and that there was an open bottle of vodka in the passenger area and Lehmberg admitted to drinking two vodka drinks. [See, "Travis County District Attorney Rosemary Lehmberg Charged With DWI," www.texaslawyer.com, April 15, 2013.]

On April 19, Lehmberg pleaded guilty to Class A misdemeanor DWI. Her sentence includes 45 days in jail, a $4,000 fine and a 180-day driver’s license suspension. Her blood alcohol content was 0.239, according to laboratory results released by the Travis County Attorney’s Office.The legal limit is 0.08. [See "DA DWI: Rosemary Lehmberg Sentenced to 45 Days in Jail," texaslawyer.com, April 19, 2013.]

David Escamilla, county attorney in Travis County, declines comment about the removal suit. But he writes in a statement that Lehmberg’s sentence was "at the higher end, if not the highest," for a first-time DWI, partly because, "Her conduct after arrest was deplorable."

Scott Brumley, county attorney of Potter County, has researched removal procedures in order to prosecute four removal suits and to train other prosecutors about them.

He explains that Texas Local Government Code §87 allows anyone who meets certain statutory criteria to file a removal suit against a county official, including a district attorney, for intoxication by alcohol, incompetence or official misconduct.

Speaking generally about the procedures, Brumley says a district judge reviews the petition and issues a citation order if the judge finds that there’s a sufficient case. The county attorney is the officer who litigates the suit on behalf of the state, which is the plaintiff. After reviewing the case, if the county attorney decides to proceed, it continues like other civil matters.

Brumley adds, "Any time there is a removal suit, there are tremendous political pressures going forward."

O’Brien says his suit isn’t politically motivated. He says as a lawyer he knew how to file the suit and as a solo he doesn’t have to answer to others.

"I had a moral obligation to do it," O’Brien says.

Lehmberg must file a written answer to the suit by May 20, says the April 22 order.