The state’s civil case seeking to remove Travis County District Attorney Rosemary Lehmberg from office after her conviction for driving while intoxicated is set for trial on Oct. 21. But it might not immediately answer whether she will lose her job.

Also, a hearing on Oct. 18 could affect the evidence and arguments the jury gets to hear. Lehmberg also may argue for dismissal of the case.

“Jury selection is set for Monday morning,” says Visiting Judge David Peeples. He notes that, on Oct. 15, he denied a request by Lehmberg to continue the trial. He says that the trial could take two-to-three days.

Both sides have clashed about the jury’s role: Lehmberg wants the jury to decide if she gets removed, but the state argues that the judge must make that decision.

Peeples says he’s decided that, under Texas Local Government Code §87.013, the jury just decides whether the allegation that Lehmberg was intoxicated — a ground for removal — is “true” or “not true.” If the jury doesn’t find truth in allegation, the case would be over.

But if the jury finds it’s true, Peeples says he would be the one to make the discretionary decision about whether to remove Lehmberg. In that case, Peeples says he would hold another evidentiary hearing later to hear both sides’ arguments.

Lehmberg writes in an email, “Since my trial is set to begin Monday, it would be inappropriate for me to comment.”

Her co-counsel Dan Richards didn’t return a telephone call seeking comment.

Travis County Attorney David Escamilla, whose office represents the state, declines comment.

Escamilla filed the “intoxication” removal suit on April 29. On May 29, Austin solo Rick Reed filed a second suit, seeking to remove Lehmberg for 16 counts of “official misconduct” related to her behavior in jail after her arrest. The two suits were consolidated, but the state is only pursuing the intoxication allegations during the trial.

Gender Bias?

Lehmberg argued in a May 29 answer that the intoxication removal suit and the removal statute violate her rights under the Texas Constitution.

“Several male officeholders have had similar DWI’s or incidents of ‘intoxication.’ Yet the State has never filed a removal proceeding,” says the answer. “Such disparate treatment of male and female officeholders is unconstitutional.”

On Oct. 14, Lehmberg expanded her argument, claiming that she’s been subjected to “discriminatory enforcement” because of her gender, says her Defendant’s First Supplement to Original Answer, Special Exceptions and Affirmative Defenses.

The state claims that it “has not engaged in discriminatory enforcement,” says the Oct. 7 Plaintiff’s Motion for Pre-Trial Evidentiary Hearing. It asked the court — and not the jury — to determine if Lehmberg can make a case to meet two elements of that defense.

But Lehmberg argues in an Oct. 14 Defendant’s Objection to Motion for Pre-Trial Evidentiary Hearing, “The Court should apply the same standards that apply to all affirmative defenses in a civil proceeding. A scintilla of evidence creates a question of fact and only a jury may resolve disputed questions of fact.”

Pending Pre-trial Matters

Besides the dispute over Lehmberg’s discriminatory-enforcement defense, the Oct. 18 hearing could resolve requests from Lehmberg to dismiss the suit or to limit the state’s evidence.

In an Oct. 14 motion in limine, she argues that the jury shouldn’t see the video, testimony, documents and other evidence of her DWI stop, arrest, transportation and time in jail. She claims it’s not material to her guilty plea for DWI, which she claims is the “sole basis for removal” in the state’s case.

If any video or evidence is relevant, it would “only be relevant up to the point of her field sobriety test and arrest,” she argues in the motion.

She argues that other evidence should be inadmissible: all evidence dated before Nov. 6, 2012, the start of Lehmberg’s current term as DA; her criminal file and jail records; alcohol purchase receipts; records from “Alamo Draft House”; and more.

Lehmberg also argues the court should dismiss the suit or enter a directed verdict in her favor. She alleges that the basis for her removal is “a single instance of intoxication” but the Texas Constitution since 1876 has required “habitual drunkenness,” says an Oct. 11. Defendant’s Motion to Dismiss, Plea to the Jurisdiction, and Alternative Motion for Directed Verdict.

She argues the history of the law indicates that she can’t be removed for a single instance. The Texas Supreme Court in 1878 ruled that “four instances of intoxication” was “insufficient” to remove a public official. The original 1879 removal statute required three convictions for removal, she claims.

Lehmberg argues that the court should consider that history, because the modern removal statute improperly preserves a change in the law from the era of prohibition, when the federal Volstead Act made possession of alcohol a crime.

“Any rational basis for seeking removal for a single instance of intoxication could only be tied to the criminal prohibitions of the Volstead Act. That rationale has been extinct since 1933,” Lehmberg argues.