Lawyer and 39 Others Seek to Intervene in Lehmberg Suit

Kerry O'Brien, the lawyer who filed suit last month seeking to oust Travis County District Attorney Rosemary Lehmberg in the wake of her drunken driving arrest, is back, this time filing a petition on behalf of himself and 39 other county residents in a second attempt to ensure that Lehmberg is forced from office.

Photo by Jana Birchum

In the latest filing, O'Brien is seeking to intervene in a lawsuit filed last week by County Attorney David Escamilla, who had dismissed O'Brien's original filing and then re-filed a case against Lehmberg on behalf of the county.

At issue is whether Lehmberg can be forced from office pursuant to a provision in the state's Local Government Code that allows certain public officials to be subject to removal from office for official misconduct, incompetency, or "intoxication on or off duty caused by drinking an alcoholic beverage." O'Brien initially filed suit alleging Lehmberg had violated all three provisions; he said he felt a moral obligation to do so to ensure that drunken driving is taken seriously.

Kerry O'Brien

O'Brien was eliminated from the lawsuit on April 29 when Escamilla filed to have O'Brien's lawsuit dismissed and then filed his own version of the lawsuit, raising only the question of whether Lehmberg was drunk. What should happen next is a matter of some debate. Escamilla's lawsuit makes it clear that his office sees the point of pursing the case is to see if Lehmberg's conduct would warrant removal. The LGC chapter in question is intended to protect the public from an elected officials "who are unable to perform their duties adequately or may injury the public interest in the performance of their duties," reads the suit. The point of the filing is to "ensure protection of the public and the public interest in the execution of the duties of the Travis County District Attorney."

In theory, the question of whether Lehmberg was drunk would be decided by a jury and then a judge would decide whether, if guilty, that warranted removal. Escamilla's lawsuit points to a middle way, however, where the lawsuit would proceed just as any other civil action, through discovery and, possibly, into a settlement, which could include any manner or number of requirements (think rehab or counseling or even anger management classes).

The suggestion that the suit could be settled without Lehmberg's ouster is what apparently has prompted O'Brien to interject, asking the court to allow him and 39 others to join in the suit. "We join Mr. Escamilla's removal suit," he wrote in an email, "but point out that settling the case with Ms. Lehmberg is nether appropriate nor the will of the People." If Escamilla stops short of seeking Lehmberg's removal, he wrote, "then it is not the People's lawsuit. It is purely Mr. Escamilla's." Indeed, O'Brien suggests that the 39 new plaintiffs – "extraordinary citizens," he wrote – actually represent "tens of thousands of Travis County citizens who want to see...Lehmberg out of office now." O'Brien notes that a Facebook page he started – the Remove Rosemary Lehmberg page – has received more than 5,000 likes. Of course, more than 250,000 residents actually voted Lehmberg into office for a second term last November.

Indeed, that's why removal lawsuits should not be taken lightly: By definition they represent a single person (or, if a judge allows O'Brien's group to intervene, several dozen individuals) making a decision on behalf of the entire county that would necessarily undo the will of county voters. Lehmberg has said she will not resign her post.

Still, it seems O'Brien is unlikely to back down. The members of his FB page "represent the true will of the People on this issue, and they aren't settling down," he wrote. "Lehmberg's resignation is three weeks overdue. We look forward to seeing it as soon as possible. Until then, as she is released from jail, we will make our opinion known to her as loudly as possible."