Texas Lawyer

Controversial Texas DA Resigns, Saying Prescription Drugs Impaired His Judgment
John Council, Mary Alice Robbins and Brenda Sapino Jeffreys
Texas Lawyer

DA Chuck Rosenthal
DA Chuck Rosenthal
02-19-2008

After he was snared in a net of swirling controversies including an e-mail scandal and the high-profile indictment of a sitting Supreme Court justice followed by an immediate move to dismiss that case, Harris County, Texas, District Attorney Chuck Rosenthal resigned from office on Friday.

In a press release he sent out that same day, Rosenthal said prescription drugs had impaired his judgment.

Joe Owmby, an assistant Harris County district attorney who is chief of the office's police integrity division, says Rosenthal notified his staff of his resignation by e-mail hours before the press release was issued.

"It's kind of sad, so you don't know how to react," says Owmby, who has worked in the office with Rosenthal for 20 years. "I thought he would be here until the end of the year, because that's all he communicated to us. But I can understand the change in circumstances."

Rosenthal sent his letter to Gov. Rick Perry, according to the press release, who will have to appoint Rosenthal's replacement. In the interim, Bert Graham, the first assistant Harris County DA, will be in charge of the office.

"I'm the temporary caretaker, so to speak," Graham says. "I have to make the approvals and disapprovals that the district attorney made until the governor appoints somebody."

Graham said he did not know previously that prescription drugs had impaired Rosenthal's judgment. "It was news to me. Most people my age or his age are taking some sort of medication," says Graham, who is 64. Rosenthal is 62. "So it wasn't a great shock to me that he was taking some medication."

Rosenthal did not immediately return calls seeking comment.

Krista Piferrer, a spokeswoman for the Office of the Governor, says Perry has not yet received Rosenthal's letter of resignation. Piferrer says she does not know whether Perry will make an appointment before the March 4 primary.

E-MAIL WOES
Rosenthal's e-troubles began last December, when e-mails he sent and received in the latter half of 2007 were disclosed as part of discovery in a federal civil rights suit, Erik Adam Ibarra, et al. v. Harris County, Texas, et al. The e-mails on his office computer included several romantic notes Rosenthal had sent to his executive assistant, Kerry Stevens. As a result, Harris County Republican leaders pressured Rosenthal to remove his name from the party's March 4 primary ballot, which he did on Jan. 2.

Less than a week later, more e-mails from Rosenthal's work computer were disclosed as part of Ibarra, including messages the DA sent to assistant prosecutors in his office seeking help arranging a barbeque to kick off his re-election campaign.

Texas Penal Code §39.01(a)(2) forbids office seekers from using state equipment for campaign purposes.

The e-mail scandal and the media attention that it attracted played a role in Rosenthal's decision, he says in the Friday release.

"The federal court's release of my private emails around Christmas of last year brought a lot to bear on my wife and children. I have been trying to restore my family as a unit, but the constant media pressure has made that restoration more difficult. I am hopeful that, in my retirement, the media will accord my family the privacy we need to heal," Rosenthal wrote.

On Jan. 10, the Texas Office of the Attorney General announced it was investigating to determine if Rosenthal's e-mails relating to campaign events constituted "official misconduct."

In his press release, Rosenthal says the AG investigation of him has been called off.

"The Texas Attorney General's office has informed my attorney that they will not proceed with a removal action if I resign. Without commenting on the merits of any case the Attorney General may have pursued, to have yet another controversy surround this office is intolerable to me," Rosenthal wrote.

A spokesman with the AG's office confirms in a written statement that the investigation had been halted.

"With the Harris County District Attorney's resignation, Charles Rosenthal, Jr. no longer holds office, thus removal proceedings against him have concluded as a matter of law," writes AG spokesman Jerry Strickland. "To the extent further assistance is needed by local authorities, the Office of the Attorney General is prepared to provide it. Under Texas law, the jurisdiction to further pursue related matters lies with the Harris County District Attorney's Office."

NEW SUIT FILED
Rosenthal resigned the same day a courtroom foe filed a petition in state court seeking a court order to have him and Harris County Sheriff Tommy Thomas removed from office.

On Friday, Erik Ibarra, the plaintiff in the federal court suit that led to the public release of Rosenthal's work e-mails, filed the removal petition that seeks to temporarily and permanently remove Rosenthal and Thomas from office.

Ibarra alleges Rosenthal should be removed for "intoxication, incompetence or official misconduct" under §§87.012.-013 of the Texas Local Government Code.

In the petition filed in the 164th District Court in Harris County, In Re: Charles Rosenthal Jr., Harris County Attorney and Sheriff Tommy Thomas, Ibarra alleges that a series of e-mails sent by or to Rosenthal's work computer from June through October 2007 demonstrated his "lack of judgment and his professional incompetence and/or official misconduct," because, in some of them, he "has seen fit to engage in racially derogatory 'jokes.' "

Alternatively, Ibarra also alleges Rosenthal should be removed on the ground of intoxication. "Upon information and belief, from 2001 to 2007, Mr. Rosenthal drinks at the office while performing his duties and may be intoxicated when making his decisions as district attorney. If Mr. Rosenthal is alleging as a defense for his acts of perjury that he was intoxicated, then he should be removed from office," Ibarra alleges in the petition.

Ibarra and his brother Shawn are plaintiffs in Ibarra, the civil rights suit pending in U.S. District Judge Kenneth Hoyt's court. The plaintiffs in Ibarra also seek a contempt order and sanctions against Rosenthal for allegedly deleting thousands of e-mails that were under subpoena.

Hoyt held two days of hearings on that contempt motion on Jan. 31 and Feb. 1 before recessing the hearing on the request of Ronald Lewis, Rosenthal's defense attorney for the sanctions matter. On Feb. 11, Hoyt issued an order that the hearing would resume on Feb. 25.

Lewis, a partner in Marshall & Lewis in Houston, did not immediately return a telephone message. Neither did Houston criminal defense attorney Ronald Woods, who also represents Rosenthal in connection with the e-mails.

Also in the removal petition filed on Friday, Ibarra seeks to have Thomas removed from office for "incompetency and/or official misconduct." Among a series of allegations, Ibarra alleges Thomas is "incompetent in failing to investigate multiple criminal acts and civil rights violations" against him and his brother, the plaintiffs in the related federal court suit.

Thomas did not immediately return a telephone call seeking comment. Capt. John Martin, the public information officer for the sheriff's department, says he spoke briefly with Thomas about the suit, but the sheriff had not read it. Martin says, however, that Thomas responds that Ibarra's lawyer, Lloyd Kelley of Houston, filed the removal petition in an effort to "influence the other pending lawsuit."

Kelley, of Lloyd E. Kelley & Associates of Houston, could not be reached immediately for comment.

FIRE FIGHT
Rosenthal was also criticized for the way his office handled the Jan. 17 indictments a grand jury returned against Texas Supreme Court Justice David Medina and his wife, Francisca, in connection with a June 28, 2007, fire that damaged the Medinas' home and a neighboring house in Spring, Texas. Those indictments were dismissed by 176th District Judge Brian Rains on Jan. 18 at the request of the Harris County district attorney's office on the ground there was insufficient evidence.

Rosenthal was criticized by some of the members of the grand jury, who publicly leveled accusations that Rosenthal moved to dismiss the indictments for political reasons. Rosenthal repeatedly has denied those accusations.

Houston criminal defense solo Brian Wice says he thinks Rosenthal had little choice but to resign.

"Not unlike Richard Nixon in the summer of 1974, he knew the walls were closing in on him; he knew his options were limited," Wice says.

Rob Kepple, executive director of the Texas District and County Attorneys Association, says he is "heartbroken" over news of Rosenthal's resignation.

"I'm a personal friend of Chuck's, and I know the tough situation he was in," Kepple says.

But Kepple says he also is aware that there is a lot of work to be done to get the Harris County DA's Office back to normal.

Bexar County District Attorney Susan Reed says, "Speaking as an outsider looking in, his resignation is probably the best thing he could have done for his office to let it settle down and get back to the work they need to do for the citizens of Harris County."

Houston criminal defense attorney Dick DeGuerin says he's not surprised by Rosenthal's resignation. "To have fallen so far, so fast, it's got to be devastating for him and his family," says DeGuerin, a partner in DeGuerin Dickson & Hennessy.

However, DeGuerin says he's hopeful that Rosenthal's resignation is a signal for a whole new beginning for the DA's office, which he says has suffered from a lack of oversight, leadership and discipline.

Williamson County District Attorney John Bradley, who was an assistant DA in Harris County from 1987 until 1989, says Rosenthal made the only choice he could in resigning.

"In knowing Chuck, he gave great weight into looking at how it was important to consider the other prosecutors in the office and the distractions that were continuing because of all of this," Bradley says. "Some people might look at this as a big political game, and there are certainly players who are taking advantage. But I have every confidence that Chuck did what he thought was right for the city of Houston."


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