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Berkman v. City of Keene

Use of the property as a children's home and the filing of an annexation petition for the property are at best "indirect" or "attenuated" benefits to the City, and do not constitute a contract for "service" under Texas Local Government Code �271.152. Therefore, the City's immunity from suit was not waived. Waco Court of Appeals, No. 10-08-00073-CV, 11-04-2009

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OPINION ON REHEARING

Bret “Doc” Berkman filed suit against the City of Keene alleging that the City was obligated to furnish water and sewer services to his property at no charge under an agreement between the City and Berkman’s predecessors in title. The trial court granted the City’s summary-judgment motion. On original submission, we reversed the judgment and remanded this cause for further proceedings. The City contends in its motion for rehearing that the case should be dismissed for want of jurisdiction because of its immunity from suit. We agree.

According to the agreement which is the basis for the underlying suit, the City agreed to furnish up to 1.2 million gallons of water per year to the property at no charge and to furnish sewer services to the property at no charge. The City agreed to furnish water and sewer services under these terms for 35 years if the property was “used on a continuous basis from the date of this agreement forward as a home for children who are wards of the State” or for 20 years if the property ceased to be used for this purpose.

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