Friday, August 29, 2014

Proper way to remove drunk official | Last Word

You can’t blame Gov. Rick Perry and his supporters for attacking as political the indictment brought against him for trying to pressure Austin District Attorney Rosemary Lehmberg to resign after her drunk-driving conviction.

When politicians are indicted, they almost always decry the indictments as political.

That is not to say that the indictment of Perry is justified.

We won’t be able to reach an informed opinion on that until we learn what evidence caused the grand jury to vote to indict.

Even when the evidence comes out, opinions will be mixed, just as there were mixed opinions as to whether Lehmberg should have resigned in the wake of her arrest and her egregious drunken behavior toward the arresting officers.

But one thing is clear: The Texas constitution gives no role to the governor in removing her or any other local officer.

The reason is historical.

In 1870, Edmund J. Davis was elected governor with overwhelming support from newly enfranchised blacks.

He had opposed secession and fought on the Union side. As governor he established a state police that included former slaves and attempted to uphold civil rights laws.

He also appointed local officials to support such Reconstruction-era laws. 

So when Texans wrote their post-Reconstruction constitution in 1876 – our current constitution – they made sure we would never have another Edmund J. Davis. 

The constitution gives the governor no role in removing local officials.

It gives that authority, instead, to district judges under a procedure fashioned by the Legislature.

Any citizen of the county in which the district attorney lives can petition any district judge in that county to begin the process.

The county attorney then acts as prosecutor.

Until recently, the procedure hadn’t been used in more than half a century, despite the fact that two Republican district attorneys have been convicted of driving under the influence during Perry’s tenure.

For one it was a second offense.

But although it drew little attention in the rest of the state, an Austin lawyer filed such a petition last year and Rosemary Lehmberg was put through the full process.

This was after she had pleaded guilty to driving drunk and was given what may be a Travis-County record 45-day sentence for a first DWI offense that did not result in injury.

The causes laid out by the removal law include “incompetency, official misconduct or intoxication on or off duty caused by drinking an alcoholic beverage.”

The intoxication language, indicating that a single drunken event could trigger removal, was added in the Prohibition era.

The state constitution lists “habitual drunkenness” as a cause for removal of county and local officials.

The Travis County judge who drew the Lehmberg case recused himself, and Republican David Peeples of San Antonio was appointed to preside over the case.

If you looked up the expression “sober as a judge” in the dictionary, Peeples’ picture might accompany the definition.

He is the highly respected presiding judge for a district that includes 22 counties. 

Last December, Peeples listened to three days of testimony put on by the Travis county attorney’s office on one side and by Lehmberg’s lawyers on the other.

At the end of closing arguments, Peeples immediately ruled that Lehmberg not be removed.

He then sternly told her she should keep a copy of the DVD showing her drunken behavior and view it regularly.

Peeples didn’t explain his decision, but questions he asked during the proceedings indicated he was looking for substantial evidence that Lehmberg was likely to repeat the single offense that got her into trouble.

It seems he agrees with what Gov. Perry said on “Meet the Press” last spring:

“America is a place that believes in second chances.”

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