In 2006, District Attorney Tim Cole had a decision to make. The then-chief prosecutor for Montague, Clay and Archer counties had been arrested for drunken driving after a day of July Fourth celebrating at a lake across the state line in Oklahoma.
It didn’t take him long to conclude he could no longer in good conscience continue being the chief law enforcement officer in the community northwest of Dallas. “I had criticized other (prosecutors) in the same situation, and it would have been pretty hypocritical of me not to do what I expected them to do,” he recalled.
So despite the urging of other prosecutors to stay, he resigned. “I felt like I needed to do it for my own integrity and the integrity of the office,” he said. Yet today, after working for a few years in private practice, he’s back working as an assistant prosecutor, in Wise County outside of Dallas.
Travis County District Attorney Rosemary Lehmberg, who pleaded guilty to DWI on Friday and was sentenced to 45 days in jail, has insisted she has no intention of quitting. Friends and colleagues say part of the reason is personal. A driven career prosecutor who ascended to the top job in 2008 after working three decades behind the scenes, her county work has been her life.
Politics are also a factor. While an obscure Texas statute allows prosecutors to be removed from office for drinking, it’s rarely invoked, although a local lawyer has filed such a petition under the law. State law calls for the governor to name a replacement for a vacated DA’s office. Rick Perry almost certainly would appoint a fellow Republican, dealing an insulting political blow to Travis County, which votes Democratic.
It’s still unclear whether Lehmberg can survive professionally. Other Texas public officials convicted of drunken driving haven’t spent stretches of time in jail. The Travis County position is also especially high profile because it includes the state’s public integrity unit, which prosecutes Texas public officials accused of misdeeds in office. And jail records described Lehmberg as uncooperative toward police and correctional workers after her arrest, details that could ratchet up public pressure for her to resign.
Cole’s professional trajectory also highlights the complicated calculus that must be performed when a law enforcement official sworn to uphold the law is caught breaking it. Elected officials, in particular, who are under no legal obligation to quit, must weigh their ambition and competence against a critical public perception that can erode the effectiveness of their work.
There is no clear course. An American-Statesman analysis shows that, unlike Cole, other district attorneys, as well as judges and elected officials, have chosen to remain in office after their DWIs.
In some cases, they have tried to separate their professional work from their personal mistakes. When Tarrant County state District Judge Elizabeth Berry was arrested for drinking and driving in 2008, other judges handled her DWI cases until charges against her were dropped, recalled Warren St. John, then president of the Tarrant County Criminal Defense Lawyers Association.
Others haven’t let it influence their elected work. State Rep. Harold Dutton Jr., D-Houston, introduced several DWI-related bills while his own charges for drunken driving were pending.
‘Perception of integrity’
A central argument for Lehmberg’s removal from office is that those charged with enforcing the law can’t possibly be impartial or effective after running afoul of those same rules. “It’s very difficult to prosecute objectively regarding a DWI if you yourself are currently facing a charge on the same violation,” state Sen. Donna Campbell, a New Braunfels Republican whose district extends into southern Austin and Travis County, said last week.
Others said the hypocrisy of insisting others follow the law can erode moral authority. Prosecutors “have the advantage of understanding the seriousness of the crimes, the horrible things it causes,” said John Bradley, the Republican former Williamson County district attorney. “If someone commits that crime, despite having all of that knowledge, it damages the public’s perception of integrity.”
That’s why the state agency overseeing police licensing deals so harshly with officers accused of crimes, said John Helenberg, director of agency operations for the Texas Commission on Law Enforcement Officer Standards and Education. While a felony conviction means automatic license revocation, the commission has discretion on misdemeanor convictions.
Agency records show that most officers don’t receive much sympathy, however. From 2010 through 2012, the agency heard 93 cases of licensed police or correctional officers convicted of DWI. Of those, 72 — 3 of every 4 — saw their licenses to work as law enforcement officers suspended for 10 years.
Helenberg said one reason is that a DWI conviction, in particular, would make it difficult for a police officer to be an effective trial witness. “How can he testify in a DWI case if he’s committed the same crime?”
As cases move farther away from street-level enforcement, though, how to penalize law enforcement officials whose personal misjudgments bleed into their professional lives becomes less clear. That is especially true for elected officials, whose ultimate bosses — voters — are permitted performance evaluations only every two to six years, leaving the decision of whether to stay or go in the hands of the accused.
In addition to Cole and Lehmberg, at least two other elected district attorneys have faced DWI charges in recent years. Unlike Cole, former Kaufman County DA Rick Harrison elected to serve out his term in office when he was charged with drunken driving in 2009. Local voters had overlooked an earlier drunken driving arrest when they elected Harrison to the top law enforcement job in 2006 but were less forgiving when he ran again in 2010.
In 2003, Terry McEachern, then the longtime district attorney for Hale and Swisher counties in the Panhandle, was found guilty in New Mexico of aggravated driving while intoxicated. He stayed on as prosecutor for another year but was voted out of office in 2004, though the election was complicated by his role in the notorious Tulia drug cases, as well as his switching political parties.
Neither Harrison nor McEachern returned calls.
Few sanctions for judges
Many judges choose to stay on the bench after their alcohol-related legal brushes, according to records at the State Commission on Judicial Conduct. While a felony conviction is grounds for suspension or removal of a sitting judge, only selected misdemeanors such as official oppression and record tampering or crimes of moral turpitude can result in suspension or removal.
That means a simple DWI charge against a judge falls into a gray area when it comes to formal discipline. Indeed, because most of the commission’s sanctions are private and do not identify the judge or jurisdiction, the penalties are less punitive than intended to remind the offender of the dignity of the office.
As a result, judicial sanctions haven’t necessarily distinguished between illegal drinking and legal — but embarrassing — incidents. “The judge acted imprudently when he consumed alcoholic beverages at a public event and placed himself in a position where it appeared to law enforcement officers and others that he was publicly intoxicated,” reads one 2000 case in which the commission issued a county court-at-law judge a private warning.
The same year, an unnamed county court judge received a private reprimand, a slightly more severe sanction, for a drunken driving conviction. “The judge, whose court has jurisdiction over alcohol-related offenses, pled guilty to the charge of driving while intoxicated,” according to a commission summary of the decision.
The only instance in which a sitting judge was publicly sanctioned for a misdemeanor drinking-and-driving conviction was in 2007, when Webb County Justice of the Peace Hector Liendo was publicly admonished after being sentenced to a pretrial diversion program and community service. In their written ruling, commissioners, whose deliberations are private, seemed influenced by the fact that Liendo tried to talk the officer out of arresting him by stating that he was a judge and complaining that the arrest would ruin his career. “Judge Liendo’s conduct…cast discredit upon the judiciary and administration of justice,” they wrote.
Liendo did not return calls to his office, where he still serves as a judge.
Although the judicial conduct commission cannot require a judge to stop hearing alcohol-related cases, some judges, like Berry, have still done so to head off concerns that their personal criminal case might influence their judgment. Despite such precautions, critical public perceptions can echo for years.
In 2008, Bexar County state District Judge Raymond Angelini recused himself from hearing DWI cases pending the outcome of his own charge, which was subsequently dropped for lack of evidence. Since then, Angelini has resumed hearing drunken driving cases.
But a report last year by San Antonio TV station WOAI noted that over the past three years, 60 percent of defendants in his courtroom facing felony DWI charges had received only probation, a higher percentage of jail avoidance than that of any other area judge except one. Angelini did not return a call to his office.
Sitting legislators who’ve faced drinking-and-driving charges in court haven’t always steered clear of handling legislation addressing the same topic.
In 2003, during the first legislative session after his own DWI arrest, Sen. Gonzalo Barrientos, D-Austin, filed a bill calling for higher penalties for commercial drivers convicted of drunken driving. The new statute included a provision mandating that commercial drivers lose their licenses for a year if they refused to submit to a blood or breath test — something Barrientos did during the incident involving him in downtown Austin.
Barrientos, who declined to comment, eventually paid a fine and performed community service.
Dutton, the Houston legislator, also has not shied away from trying to influence DWI laws as he faced his own drunken driving charges. He, too, refused to provide police a breath sample after he was pulled over near downtown Austin in April 2007. In 2009, with his case still pending, he proposed a bill that would have made it easier for those who refuse to give breath or blood samples after a drunken driving arrest to get their driver’s license back.
Dutton, who did not return a call to his Capitol office, eventually received deferred prosecution in 2010. He has a bill pending that would create a specialty court for first-time DWI offenders that would, among other provisions, expunge any mention of the case if the defendant completes the program.
Investigative reporters Eric Dexheimer and Tony Plohetski have written extensively on law enforcement and criminal justice issues, including limited disclosure of information on the sanctioning of state judges, the rarity of Texas hate crime prosecutions and a lack of ethnic and racial diversity on Travis County grand juries.