Federal judge says no to Alpha Tex restraining order against Floyd County

Published: Nov. 16, 2011 at 9:54 PM CST|Updated: Dec. 15, 2014 at 1:24 AM CST
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LUBBOCK, TX (KCBD) - The owners of Alpha Tex Kennels filed a lawsuit against Floyd County, the Humane Society of West Texas and "unidentified employees" of KCBD NewsChannel 11 on Tuesday afternoon.  The lawsuit also names Sheriff Paul Raissez, Justice of the Peace Tali Jackson, County Attorney Pro Tem Donald Feare and other individuals.

Part of the lawsuit called for a temporary restraining order against various Floyd County officials.  On Wednesday afternoon the judge flatly refused that portion of the lawsuit that called for a restraining order.

The lawsuit on behalf of Mark, Sandra, and Kory Smith claims that Floyd County committed felony theft when the Sheriff seized 192 dogs in late September.

The Sheriff obtained a seizure warrant to take the dogs based on complaints of animal cruelty.

Members of the Humane Society of West Texas took the dogs into foster care.  It has been reported that at least one horse was put down, and some of the dogs have died since they were taken from Alpha Tex.

The lawsuit claims that KCBD trespassed onto Alpha Tex property.  At no time did Sandra or Mark Smith ask KCBD to leave or to stop video taping.  Sandra Smith granted an on-camera interview in which she said conditions had gotten out of hand but they were only temporary problems.  As of Wednesday afternoon, KCBD has not been served a copy of the complaint.

"This is not a puppy mill situation," Smith said at the time.  "Yes it outgrew us, it outgrew us in a big way."  She claimed that the Sheriff had over-reacted.

Tuesday's lawsuit in federal court also claims that Floyd County's Attorney Pro-Tem committed a felony by having a private conversation with Justice of the Peace Tali Jackson immediately prior to being named as Attorney Pro Tem.  The lawsuit claims that the federal court can step in because the Smiths' are raising constitutional issues.

The lawsuit also asks that a Thursday hearing in Floyd County be stopped.  It claims that without a restraining order the hearing will go forward and it will violate the Smiths' rights.

The family's attorney Paul Holloway argues that the Texas statutes on animal cruelty are unconstitutional because they do not provide for due process before someone loses ownership of his or her animals in a forfeiture proceeding.

Holloway writes in part, "This case is about the tyranny wrought when constitutionally guaranteed freedoms are cast carelessly aside and trampled under the political agenda of radical, liberal, animal rights activists."

But U.S. District Court Judge Sam Cummings refused to take the case away from a Floyd County Justice of the Peace.  Cummings ruled in part, "Federal courts should abstain from interfering in a state-court action."

Cummings wrote that there can be exceptions to the rule but this case was not one of them.

The federal lawsuit is still on the books even after Cummings' ruling.  The suit demands money damages for the value of the dogs, damage to reputation, and lost profits.

Copyright 2011 KCBD NewsChannel 11. All rights reserved.