Texarkana, Texas, says it can't be sued for breach of contract because the Texas Constitution says so. But the seven cities in Bowie and Red River counties that are suing the Texas-side over water rights say Texarkana, Texas, is wrong and sovereign immunity does not apply since it's a lawsuit between cities. The cities have taken part of the battle to Texas' 6th Court of Appeals, which serves 19 counties and is based in Texarkana, Texas.

The City of Texarkana, Texas, believes that 96th District Judge Jimmy L. White should have dismissed the lawsuit, which is presently filed in district court in Bowie County. The lawsuit was filed by New Boston, Hooks, De Kalb, Wake Village, Avery and Annona over a contract called "member cities" signed in 1969. The cities argue that they were overcharged for water dating back to 1981.

" ... this is a water dispute arising from decades-old governmental programs where (the member cities) have asserted breach of contract, intentional torts and seek actual and exemplary damages," according to the City of Texarkana, Texas' brief filed on March 15. "This is not a close case. The court is presented with a record that requires dismissal in light of Texarkana's status. The only argument (the member cities) presented to the trial court was that (Texarkana, Texas) was without immunity because it was not engaged in a governmental function. But that is flatly wrong. The Legislature has expressly defined 'waterworks' to constitute governmental functions, and Texarkana was undeniably acting in furtherance of the public welfare when it chose to undertake regional water projects. Thus, even under the common law, immunity from suit will still apply."

But the member cities argue that Texarkana, Texas, cannot assert sovereign immunity in the case because the cities are not private parties. "Texas law is clear that municipalities have no independent sovereignty in relation to other state governmental agencies; rather, as agents of the state, they have only limited immunity against suits brought by private parties. Because member cities are governmental entities and arms of state government, they are not subject to Texarkana's sovereign immunity defense," the member cities argue in their brief filed on April 8 to the appeals court.

The member cities say that Texarkana, Texas, has waived its immunity from the breach of contract claims. "The overcharges forming the basis of this lawsuit arise from Texarkana's voluntary relationships with the member cities and not from an obligation that was enjoined on Texarkana by the state," the member cities argue.

Texarkana argues: "Texas law is clear that a government entity does not waive immunity from suit simply by entering into a contract."

White still has to rule on the cities' cross motions to rule in each side's favor in the lawsuit without taking the matter to trial. A ruling either way could end the battle in state court.