                                  NO. 07-11-00467-CV

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                      MAY 17, 2012


                        THE CITY OF AMARILLO, APPELLANT

                                             v.

                           KEITH BRIAN BURCH, APPELLEE


            FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

              NO. 63,645-A; HONORABLE RICHARD DAMBOLD, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                CONCURRING OPINION

       I concur in the Court’s judgment affirming the trial court’s denial of the City of

Amarillo’s plea to the jurisdiction, because I agree with the majority that Burch has not,

by his pleadings, affirmatively negated the trial court’s jurisdiction over his inverse

condemnation claim. Cf. Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 321

S.W.3d 1 (Tex.App.—Houston [14th Dist.] 2008), aff’d, 320 S.W.3d 829, 844 (Tex. 2010)

(holding plaintiffs’ petition affirmatively negated subject-matter jurisdiction over alleged

takings claim by establishing affirmative defense of consent). I agree also the City has

not shown that the December 2005 license and settlement agreement, its July 2006
addendum or the 1980 easement agreement in favor of the City conclusively

demonstrate the absence of jurisdiction. Beyond that, I do not join in the majority’s

discussion of the City’s further contentions regarding the effect of the license and

settlement agreement and the easement agreements with the City and the State of

Texas. It seems to me the City’s contentions delve into the merits of Burch’s claims to a

degree unnecessary to a determination of the trial court’s jurisdiction. I would leave

discussion of those contentions for another occasion.




                                                        James T. Campbell
                                                             Justice




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