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Lehmberg hearing reminds of Forgiveness Doctrine, county officials’ ‘free pass’

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The removal from office hearing of Travis County DA Rosemary Lehmberg is underway. San Antonio visiting Judge David Peeples is in charge of the proceeding to determine if the April DWI arrest and conviction of Travis County’s top law enforcement official disqualifies her from remaining in office. Meanwhile, the case also today provided a reminder of the Forgiveness Doctrine, a Texas statute which wipes clean with re-election county officials’ conduct slates.

The Austin American Statesman provided coverage including this from the morning session.

12:30 p.m. update: Five witnesses who prosecutors called to the stand Monday on the first morning of Travis County District Attorney Rosemary Lehmberg’s removal trial detailed why she was arrested April 12 and how she acted in custody later that night.

Two witnesses testified that they saw Lehmberg driving erratically, swerving between lanes and accelerating and braking unexpectedly.

John Ribsam, a sheriff’s deputy who drove Lehmberg to jail, said she seemed shocked and surprised when she was handcuffed but he said the decision to arrest her was “a very easy call to make.”

She had told Ribsam that she had been at a friend’s house having dinner — pork chops and salad — that night. She also said she had two small vodka sodas, the first around 7 p.m.

But she was unable to maintain her balance, she smelled strongly of alcohol and she couldn’t follow simple instructions, he said.

An analysis of her blood sample would later show that her blood alcohol level was nearly three times the legal limit.

After noting that Peeples will review the 911 calls, arrest and jailhouse videos outside the courtroom, the afternoon session opened with testimony from Tiffany Jones, a nurse from the Travis County Jail and then Tim Kutach, manager of Wiggy’s Wine & Spirits, before turning to personnel from Sierra Tuscon, an Arizona facility at which Lehmberg sought treatment.

The Statesman offered this late afternoon update.

Through @AustinCourts, the Austin American-Statesman is providing live Twitter updates from the courtroom. As this case is largely about public official accountability and responsible use of authority, a Tweet from today and the discussion that followed was especially noteworthy. (see sidebar)

Lehmberg was re-elected in November 2012. The “forgiveness doctrine” is a little-known – at least to the public – Texas statute that serves as a legal loophole to provide incumbent county officials, upon re-election, a “clean slate” with regard to acts of misconduct.

As incumbents across Texas prepare for the 2014 elections – including some with controversial or questionable records – voters should be aware that re-election coupled with the “forgiveness doctrine” reduces the means by which elected officials can be held accountable.

Section 87.0001 of Texas Local Government Code states, “An officer may not be removed under this chapter for an act the officer committed before election to office.” Officials to which this law applies appear to include district attorneys, county attorneys, county judges, county commissioners, county clerks, district clerks, district/county clerks, county treasurers, sheriffs, county surveyors, county tax assessor-collectors, constables, justices of the peace and “a county officer, not otherwise named by this section, whose office is created under the constitution or other law of this state.”

Williamson County taxpayers learned of the “forgiveness doctrine” in 2011 when it was used to dismiss an action seeking to remove County Judge Dan A. Gattis from office for “incompetence and official misconduct.” The Gattis case, dismissed by Bell County District Judge Rick Morris, illustrates this law’s power and ability to circumvent public integrity investigations. The lawsuit was based on five separate allegations claiming Gattis hired outside legal counsel without obtaining advance approval from the County Commissioners Court as per mandated open meeting laws. Merits of the allegations were not considered. Instead, the lawsuit was dismissed because each allegation had occurred prior to Gattis’ November 2010 re-election.

Morris, though retired and now serving in a visiting judge capacity, was mentioned in other recent Watchdog Wire coverage upon having denied the motion seeking recusal of visiting Judge Neel Richardson in the C.J. Grisham case.

In today’s world, laws aren’t necessarily about protecting taxpayers or other citizens. They too often are tools used by legal industry insiders for their own and their allies’ protection. The “forgiveness doctrine” certainly seems to be such an example available to county officials.

It’s unknown if a ruling in the Lehmberg case will come before the March primary, but the Lehmberg case once again highlights the need for voters to give real consideration to issues like accountability, transparency, respect for and adherence to the rule of law.

The “forgiveness doctrine” is not a likely topic at local candidate forums. It also is no reason to discount competent, ethical incumbents. Its availability for avoidance of accountability, however, is knowledge that well serves the voting public when it comes to officials with questionable records seeking re-election.

The Lehmberg case resumes Tuesday with the district attorney possibly taking the stand.

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