Law Office of Rick Reed

316 West 12th Street, Suite 313 Austin, Texas 78701-1820 512-322-9443 Fax: 512-322-9443 www.maverickcounsel.com
rick.reed@maverickcounsel.com RICHARD D. REED ATTORNEY & COUNSELOR AT LAW BOARD CERTIFIED, CRIMINAL LAW TEXAS BOARD OF LEGAL SPECIALIZATION

May 30, 2013 Contact: Rick Reed, 512-322-9443 Press Release Today I filed a sworn complaint with Travis County District Attorney Rosemary Lehmberg and her First Assistant, John Neal, alleging that on April 13, 2013, Ms. Lehmberg committed the third-degree felony offense of obstruction or retaliation during the course of her dealings with corrections officers at the Travis County Jail. Applicable Texas rules and statutes governing the conduct of prosecutors prohibit Ms. Lehmberg, and any attorney associated with her office, from investigating the complaint and prosecuting herself. Therefore, in a cover letter accompanying the complaint, I have requested that Ms. Lehmberg ask the Honorable Julie Kocurek, presiding judge of the district courts of Travis County with criminal jurisdiction, to permit her to recuse herself from the matter so that Judge Kocurek may appoint an attorney pro tem to perform the duties of Ms. Lehmberg’s office with respect to the investigation and prosecution of the complaint. Yesterday I filed an original petition in Cause No. D-1-GV-13-000511 seeking judicial removal of Ms. Lehmberg from the Travis County District Attorney’s Office. The petition alleges that on April 12 and April 13, 2013, Ms. Lehmberg engaged in

official misconduct by committing the following criminal offenses: the Class A misdemeanor offense of coercion of a public servant; the Class A misdemeanor offense of official oppression; the Class A misdemeanor offense of abuse of official capacity; and the third-degree felony offense of obstruction or retaliation. The petition complies with all applicable requirements of Texas law: it was sworn to before it was filed; it sets forth the grounds alleged for the removal of the District Attorney “in plain and intelligible language”; and it cites “the time and place of the occurrence of each act alleged as a ground for removal with as much certainty as the nature of the case permits.” This morning I filed an application for a court order requiring the issuance and service of citation and certified copy of petition. That application sets forth in detail the facts and circumstances upon which the petition for removal is based, and it catalogues the evidence from which those facts and circumstances were drawn. Attached to the application is a transcript of the audiovisual recording made by John Ribsam, the Travis County Sheriff’s deputy who arrested Ms. Lehmberg for the Class B misdemeanor offense of driving while intoxicated. Given the fact that Travis County Attorney David Escamilla had previously filed a petition seeking Ms. Lehmberg’s removal from office, some might wonder why anyone else would file a petition seeking the same result. I did so for several reasons. First, like many other residents of Travis County, I have closely monitored the proceedings in the two lawsuits that were previously filed seeking Ms. Lehmberg’s removal from office, as well as the media coverage concerning the events that led to the commencement of those lawsuits. After reading media reports regarding some of the events surrounding Ms. Lehmberg’s arrest, reading that a Travis County resident had filed a petition seeking Ms. 2

Lehmberg’s removal from office, and reading that a politically-influential group of almost 200 Texas lawyers led by former State Bar President Broadus A. Spivey had sought to influence the court in disposing of that petition by filing with the court a memorandum opposing it solely because in their opinion she had “had an extraordinary 36-year career as a Travis County prosecutor, an Assistant District Attorney, and since 2009, as District Attorney,” I decided to examine the evidence myself to find out exactly what Ms. Lehmberg had done on the night in question. Consequently, on April 26, 2013, I filed an application with Travis County Sheriff Greg Hamilton seeking to obtain copies of all public information in his care, custody, or control relating to the events surrounding Ms. Lehmberg’s arrest. When I examined the records that I received pursuant to that application, I discovered that on the night in question, Ms. Lehmberg had done far more than simply drive a motor vehicle after consuming one-too-many alcoholic beverages; I discovered that she had committed several criminal offenses ranging in seriousness from the misdemeanor offense of failure to comply with duty to stop and give information to the third-degree felony offense of obstruction or retaliation. Moreover, when I reviewed the petition for removal that Mr. Escamilla had filed I discovered that it was potentially vulnerable to legal attack on two fronts. First, the citation that was served on Ms. Lehmberg in the case that Mr. Escamilla filed is legally invalid because the order pursuant to which it was issued and served was not issued in compliance with section 74.059(c)(4) of the Government Code, which required that the judge to whom the petition was submitted request the presiding judge of the Third Administrative Judicial Region of Texas to assign another judge who was not a resident of Travis County to hold court in 3

Travis County to dispose of the suit. Second, Mr. Escamilla’s petition alleges only one of the three grounds for removal set forth in section 87.013(a) of the Local Government Code, namely, “intoxication on or off duty caused by drinking an alcoholic beverage.” It fails to allege that Ms. Lehmberg engaged in any acts of official misconduct, the most serious ground for removal that is supported by the evidence. In her original answer filed last Friday, Ms. Lehmberg seeks to exploit the latter vulnerability by contending, among other things, that Mr. Escamilla’s petition fails to state a cause of action because it “alleges a single instance of intoxication as the sole basis for removal under Texas Local Government Code § 87.013(a)(3).” Moreover, in an affirmative defense set forth in her answer, Ms. Lehmberg further contends that she “had a single DWI incident—for which she pleaded guilty and received the harshest punishment of any first-time offender in Travis County,” “[y]et the State has never filed a removal proceeding against any male officeholder who was involved in a similar intoxication or DWI incident in Travis County.” Ms. Lehmberg contends that “the State has singled [her] out [] for different and disparate treatment, compared to male officeholders” and that such “disparate treatment of male and female officeholders is unconstitutional.” A thorough examination of Ms. Lehmberg’s behavior during the eight-and-onehalf-hour period that she was in the custody of Travis County law enforcement personnel reveals a pattern of conduct toward both law enforcement officers and judicial authorities that is indicative of the very sort of character against which the statute authorizing a petition for removal was designed to protect the public: dishonest, unethical, faithless, and corrupt. 4

It is evident from Ms. Lehmberg’s behavior during that period that she believes that there are two sets of laws governing the people of Texas—one set that applies to public officials such as herself, entitling such persons to exclusive privileges shielding them from criminal prosecution, and another set that applies to everyone else. Such a belief is incompatible with one of the core democratic principles embodied in the Texas Constitution, i.e., that “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” I believe that the people of Travis County can ill afford to continue to entrust the administration of justice and the execution of the law to someone who has not only proven to be dishonest, unethical, faithless, and corrupt, but holds beliefs that conflict with one of the fundamental constitutional principles that she has sworn to preserve, protect, and defend. Finally, it has troubled me to read that Mr. Spivey and many other Texas lawyers have sought to influence the court in disposing of Mr. Escamilla’s petition by filing with the court a memorandum that fails to offer any legal argument in defense of the petition for Ms. Lehmberg’s removal from office. The essential thrust of the memorandum is this: Ms. Lehmberg is a career prosecutor who, for the past four years, has served as the chief law enforcement officer of Travis County. Therefore, her status as District

Attorney entitles her to preferential treatment exempting her from removal from office, regardless of whether she has in fact violated the public trust. The attitude expressed in the memorandum is identical to the one that Ms. Lehmberg espoused on numerous occasions on April 12 and April 13, 2013, as she dealt with law enforcement officers and judicial authorities, frequently reminding them that she was “the District Attorney.” I 5

believe that such an attitude is incompatible with the core democratic principle that all persons have equal rights and that no person, including the chief law enforcement officer of Travis County, is entitled to exclusive privileges shielding such person from criminal prosecution or removal from office. Because the overwhelming weight of credible

evidence indicates that Ms. Lehmberg engaged in numerous acts of official misconduct subsequent to her arrest for driving while intoxicated, and because the petition for removal filed by Mr. Escamilla does not allege any such acts, I have filed a petition alleging such misconduct as additional grounds for her removal.

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