Mertzon City Council December 1 2025
- G. Noelke
- Dec 2, 2025
- 7 min read
Agenda Analysis | Meeting Review | Meeting Documents | Commentary | Last Meeting
The trenching on the IC ISD campus for the flood control structure started in earnest the week of Thanksgiving.
A. Agenda Analysis
Executive session, item 5: This is a meaty one with 3 specific legal reasons listed. Yes, it is lawful for a governmental body to go into a closed session to discuss real estate, to speak to their attorney about pending litigation and to discuss personnel matters. The public may eventually hear what these matters concern, or the issues may be dealt with at the closed part without a vote. They can't vote on a matter in closed session. I am careful not to make guesses about what closed sessions cover; I am not interested in being a rumor mill.
Zoning ordinance discussion with attorney Jeff Betty, item 6: One way for elected folks to get cover for something new is to get their attorney to speak during the meeting to say, "Yep, you can do this" or "No, you shouldn't do this." I served in this role regularly when I represented state agencies on behalf of the Texas Attorney General's Office. Here's some inside baseball: The attorney client relationship here is quite like that of the attorney client relationship involving a private citizen. The governmental body, like a private citizen, is never compelled to accept the advice of the attorney. The client in both situations can disregard the advice of the attorney. The difference, of course, is that a lawyer providing advice to a governmental body, as in this case, does so publicly. This increases the stakes dramatically.
Zoning ordinance, item 7: I'm suspending judgment until the meeting...
The rest, items 8 - 10: These are stock agenda items and should not be disregarded.
B. Meeting Review
Zoning ordinance, item 6: Based on advice of their counsel, Jeff Betty, the Council agreed to send a proposed zoning ordinance that I drafted back to the drawing board to be reconsidered as a "resolution". This is complicated enough to deserve several subparts. a. Did you know that any citizen can propose to their City Council that they adopt a specific ordinance? Yes, you can. They don't have to adopt it, as was the case here. b. My proposal was very specific, and it in essence created an obligation to provide documents to the City so that the City staff could conduct a desk audit. Any time a person or government applied for a local, state or federal permit involving water or land development or construction, they would have by required by the ordinance to provide a copy of that application to the City.
c. Mr. Betty did not recommend adoption of the ordinance because it could not be enforced. Of course, I wrote it so that it so that it did not have an enforcement provision because the City does not currently have a municipal judge, enforcement officer or any desire from the Council to do enforcement. (Had I put in a provision that said, for example, failure to produce the application would be a $50 fine, Mr. Betty could have also said the City can't enforce it!) Mr. Betty instead recommended that the ordinance be converted to a "resolution" so that it wouldn't have an enforcement problem. That's what the Council ultimately asked him to do. But, what's the use now? A resolution will be ignored even more readily that an ordinance because a resolution doesn't care the weight of a law. Who cares at this point? d. Well, I care, and I'll explain below in my commentary why the Citizens of Mertzon should, too.
Other matters: The Council did accomplish some other matters at this meeting, but because of my personal investment in the proposed ordinance I am limiting my meeting review - and Commentary - to that issue.
C. Commentary
More on ordinance enforcement, item 6: a. Knowledge is power, and knowledge about where one's next drink of water is going to come from is one of the most forgotten about survival decisions we make on a daily basis. We will get our next drink from the tap in the kitchen, right? Who in today's world thinks about that as power? Well, we should because it is the essential reason for living in a municipality. Collectively, it is easiest (in theory) when our community manages our water source. The municipality provides the water and relieves its citizens of carrying water on their backs. The simple fact of municipal water supply gives citizens the time to earn a living, raise a family, bathe, and expend what leisure time we have, among many other things.
b. Water, potable water, is the future of Mertzon. The growth of the City is being managed by certain determinations of TCEQ, which importantly have no transparent enforcement mechanisms for challenge by citizens, that limit the number of water meters the City can allocate. Private water well development, however, is regulated by the Irion County Water Conservation District (IC WCD). And, the over development of private water wells means that the water table will fall and the wells used by the City to provide water to its citizens - and IC ISD - will also dry up and fail. To date, the City of Mertzon and the IC WCD operate independently of one another and share no information about water management. c. My proposed ordinance required, among other things, persons who were regulated by the IC WCD to provide documentation about that permit to the City. The ordinance would have required a simple desk audit of the documentation. The purpose of the desk audit was to provide the City with more information about how water was being used privately within the city limits so that it could potentially prospectively manage water for its citizens. d. And, based on a legal abstraction put forth by the City's lawyer that the ordinance would not be enforceable, the Council punted the idea to an early death by sending it to their attorney to be redrafted as a resolution and considered at another meeting. e. A Libertarian-like approach to water management by a municipality is a mistake, especially in Texas. Were Mr. Betty a property owner in the City I would like to think he would be much more concerned about the ramifications of dispensing with an ordinance that addresses water development because of enforcement issues. Taken to its logical end, the cynically minded could just as easily justify the repeal of each and every one of the City's municipal ordinances because they, too, are unenforceable. (The City has a history now of repealing its unenforceable ordinances. See B 3 of this meeting where I discuss the Council's repeal of speed limits and stop signs.) f. This longstanding refusal to regulate water by the City is an unforced error, and a serious one. I said as much back in 2019 when I encouraged the City, IC ISD and the County to collaborate on stormwater development because of the run off coming off IC ISD was so damaging to the community. Had our local government back then considered with foresight what more water runoff would mean, perhaps today we wouldn't be dealing with spending hundreds of thousands of dollars on flood control structures to protect our city streets, City Park and private property. (Mr. Betty, btw, was also counsel to the City back in 2019 as well, so he is professionally familiar with the problems our community faces with water regulation.) g. Under no circumstances can Texas municipalities ignore water. Above ground, without regulation, it becomes the great equalizer and destroys everything in its path. Below ground, without regulation, the potential for its disappearance because of scarcity means the municipality fails in one of its essential services to its citizens. The future in Mertzon is all about water.
Another reason why I write this blog: While researching an unrelated legal matter last week, I came upon, again, the Preamble to the Texas Disciplinary Rules of Professional Conduct. These rules continue to regulate me even as I write these pages as a citizen lawyer, even without a particular client. It is refreshing to think that I am complying with a particular provision in the Preamble because of my legal training (and moral upbringing), yet without any real conscientious effort on my part. (I enjoyed writing the proposed ordinance for the City, though it took me about six hours of time. I was not paid for my effort, of course.) Here is the Preamble provision I am thinking of: 5. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
Go to the Texas Center for Legal Ethics for more on the professional responsibilities of lawyers.
Here’s a great podcast listen, Eating What You Kill This Thanksgiving, a NYT interview of Steven Rinella.
Copyright 2025 G. Noelke
