Look closely at the picture above. The grey highlights show the approximate overlay of several Mertzon city streets. The yellow arrow represents the city owned alley that runs the distance between 5th and 4th streets. That white/silver roofed building on the right is the new gym, now called Hornet Gym. My purpose here is to show you where the new gym sits on top of 4th street and the alley.
Neither 4th Street or this alley were lawfully transferred from the City of Mertzon to Irion County ISD.
The citizens of Mertzon still own the land that city street and alley the gym rests on. (Might "City Gym" be a better name for the facility? I think so.) Here's why.
Mayor Bill Taylor and the City Council do not have complete discretion to do what they want with our city streets. Mertzon is classified under law as a "general law" municipality, which practically speaking means that our city leaders have only the authority that the state legislature grants to the city.
Here is what our legislature has said about the authority to close a street and alley:
Texas Transportation Code
Sec. 311.008. CLOSING OF STREET OR ALLEY BY GENERAL-LAW MUNICIPALITY. The governing body of a general-law municipality by ordinance may vacate, abandon, or close a street or alley of the municipality if a petition signed by all the owners of real property abutting the street or alley is submitted to the governing body.
This statute says that the City Council may vacate, abandon or close a street by ordinance. Further support can be found in Texas Civil Practices and Remedies Code 16.005(a)(1), which provides that the statute of limitations for challenging "passage by a governing body of an incorporated city or town of an ordinance closing and abandoning, or attempting to close and abandon, all or any part of a public street or alley in the city or town" is two years.
An ordinance is, simply, municipal made law. The process for passing municipal laws is very specific. Here are examples of current ordinances from the City of Mertzon website.
Mayor Taylor and the City Council did not vacate, abandon or close 4th Street with an ordinance, as required by the law above. In fact, they abandoned the street with an MOU, a Memorandum of Understanding, and an affidavit. An MOU is simply a form of agreement often used between two governmental entities. An MOU is not and ordinance and does not carry the enforceability of law like an ordinance does. The affidavit they filed also does not qualify as an ordinance.
Here are the MOU and affidavit (pdf) filed by the City and Irion County ISD at the Irion County Courthouse.
Keep in mind that President Vicente Flores, the school board and Superintendent Ray DeSpain have no authority over streets. Like the City of Mertzon, their authority is limited by the authorities they are granted by the Texas legislature and in the Texas Constitution. Put plainly, they have no authority in law to build a gymnasium down on a city street of their choosing. If they ever build on a street or alley lawfully, it is only allowed when agreed to by the City of Mertzon.
Were President Flores, Superintendent DeSpain, the school board and Mayor Taylor and the city council aware of the requirement of an ordinance? You bet they were. I notified them in my public comments to the City Council on December 7, 2020 and January 4, 2021, before ground was broken for the new gym.
Everyone with authority knew, as did the District's key agents, WBK Construction and Potter Architects, and the District's lawyers at Eichelbaum Wardell. I copied the planet with emails, including the Texas Education Agency, advising everyone that the street had not been properly closed. But, the District and its agents persisted in building anyway, apparently taking the position that they would ask for forgiveness later IF anyone cared to make a point of it.
Well, I care to make a point of it. I am a taxpayer and property owner - an abutting property owner, at that.
Why should YOU care? See this post about how there is NO documentation on the closure of the alley. If you are a property owner in Mertzon, you need to be aware of this. The school is going to come back in a short few years for more bond money to build more facilities, so you need to pay attention.
Related Post: Pickin' a Fight. (The alternate site, approved by the school board, would have been built on property solely owned by the school district and would not have involved closing a street.)