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Judge denies alcohol TRO, plaintiffs threaten new suit

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TYLER, TX (KLTV) -

A visiting judge Monday night denied the temporary restraining order to put a halt to the elections or to the counting of votes as it pertained to the two alcohol propositions on the ballot Tuesday in Smith County JP 2 and the city of Tyler - but the plaintiffs' lawyer said after the decision that another lawsuit will be filed if the propositions pass at the polls.

"We knew that the restraining order would be a difficult - it would be a difficult burden to meet," said Matthew Thigpen, managing partner of Ladd and Thigpen, P.C. and lawyer for the plaintiffs. "However, we felt it was appropriate based upon the importance of this matter to our community."

Thigpen represented Delores Radford, a resident of Smith County JP 2, and Richard Lanham, a Tyler resident, in the suit filed Monday against City of Tyler Secretary Cassandra Brager, Tyler Mayor Barbara Bass, Tyler City Council Members Jason Wright, Ralph Caraway, Sam Mezavek, Martin Heines, Mark Whatley and Daryl Bowdre, Smith County Elections Coordinator Karen Nelson, Smith County Clerk Karen Phillips, Smith County Commissioners Jeff Warr, Cary Nix, Terry Phillips, Jo Ann Hampton, and County Judge Joel Baker.

Our cameras were not allowed inside the courtroom Monday, but Thigpen told visiting Judge Andrew Kupper that 6,242 signatures had problems with Texas election code because they are missing data, like failing to provide a registration number or a proper birthdate or were signed by people who didn't live in JP 2 or who signed the petitions twice.

Thigpen also Judge Kupper today that there are 3,733 signatures on pages that did not have the date of issuance on them from the county, which violates another state election code.

Telling the judge those signatures should never have been certified - something Buy Local First Treasurer Bob Westbrook says wasn't the case.

"As the judge ruled today, the city and the county did do their due diligence," he said. "This is the largest community in the state of Texas that still doesn't sell beer and wine off premise, and so there was no doubt in my mind that the city and the county were going to do their due diligence and make sure that everything was checked and double checked."

Thigpen says it's now up to the citizens to decide on Propositions One and Two - but that if they pass, an election contest will be filed in a Smith County court on Wednesday - questioning the validity of the ballots and of the petition signatures.

"I think my clients have every right as citizens of Smith County and as Texas citizens to make sure their elected officials comply with their sworn duties, one of those being as to the certification of ballots.," said Thigpen. "So this is, quite frankly, citizenship in action. If you have a concern, you bring it forth."

Attorneys for the county asked the judge to grant a $50,000 bond if the restraining order had been passed to pay for the cost of a special election.

The city of Tyler's Planning and Zoning Committee will hold a meeting Tuesday afternoon at 1:30 to discuss how the city code will change if the propositions pass Tuesday night.

Copyright 2012 KLTV. All rights reserved.

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