IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 07-0166

════════λ= 2;═══

Nueces = County, = Petitioner,

San Patricio = County,=20 Respondent

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the Thirteenth = District of=20 Texas

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

PER = CURIAM

Nueces County collected ad valorem taxes on = property=20 later determined in a boundary dispute to belong to its neighbor San = Patricio=20 County. We must decide whether governmental immunity protects Nueces = County from=20 San Patricio County=92s suit to recover the taxes that it paid. We hold = that it=20 does, and reverse the court of appeals=92 judgment.

San = Patricio=20 County sued Nueces County under Local Government Code section 72.009 to=20 establish their common boundary line. See Tex. Loc. Gov=92t Code =A7 = 72.009. As part=20 of that suit, San Patricio County sought to recover taxes that Nueces = County had=20 collected on the disputed land. The trial court resolved the boundary = dispute as=20 to some of the disputed land in San Patricio County=92s favor, but held = that=20 Nueces County was protected by governmental immunity from San Patricio = County=92s=20 suit to recover the taxes collected by Nueces County on the land. The = court of=20 appeals affirmed the trial court=92s boundary determination but reversed = its=20 dismissal of the tax-recovery suit, concluding that governmental = immunity did=20 not protect Nueces County. 214 S.W.3d 536, 553=9654. Reasoning by = analogy to cases=20 holding that municipalities do not enjoy governmental immunity when = performing=20 proprietary functions, the court of appeals held that counties enjoy = immunity=20 only when =93carrying out governmental activities implicitly delegated = by the=20 State to be carried out.=94 Id. at 553 (citing City of = Galveston v.=20 Posnainsky, 62 Tex. 118, 128 (1884)). The court concluded that = governmental=20 immunity does not protect Nueces County because its assessment and = collection of=20 ad valorem taxes on property not located within its boundaries is not a=20 governmental activity delegated by the state. Id.

The = court of=20 appeals reasoned that immunity does not exist in the first instance, an = argument=20 asserted by the state, though on different grounds, in City of = Galveston v.=20 Texas, 217 S.W.3d 466, 471 (Tex. 2007). Identifying no waiver of = immunity=20 here, the court of appeals determined that immunity does not exist when = a county=20 acts beyond its delegated power. 214 S.W.3d at 553. But we have said = that the=20 distinction between waiving immunity and finding it nonexistent is a = fine one=20 that yields the same effect and, =93[d]ue to the risk that the latter = could become=20 a ruse for avoiding the Legislature, courts should be very hesitant to = declare=20 immunity nonexistent in any particular case.=94 City of Galveston, = 217=20 S.W.3d at 471. Governmental immunity, then, would presumptively apply in = this=20 suit between counties.

The = court of=20 appeals=92 reasoning that Nueces County was not entitled to immunity = because it=20 acted beyond its governmental authority in taxing what turned out to be = San=20 Patricio=92s land is additionally flawed to the extent it is based upon = a line of=20 cases holding that cities do not enjoy immunity from suit when = they=20 undertake =93proprietary=94 rather than =93governmental=94 functions. = The court of=20 appeals reasoned that, although counties are granted the power to assess = taxes=20 on their own land, they have no governmental authority to tax other = counties=92=20 land; when they do, they act beyond their governmental authority and = thus=20 outside sovereign immunity=92s protections. 214 S.W.3d at 553; see = Tex. Const. art. VIII, =A7 = 1-a (granting=20 counties the exclusive right to assess ad valorem taxes on property = within their=20 own boundaries).

However, as=20 =93involuntary agents of the state=94 without the power to serve the = local interests=20 of their residents, counties have no =93proprietary=94 functions; all of = their=20 functions are =93governmental=94 in nature. Tex. Const. art. XI, =A7 1 = interp.=20 commentary; Posnainsky, 62 Tex. at 128. The court of appeals=92 = premise=20 that Nueces County is not entitled to immunity because it mistakenly = taxed land=20 beyond its boundaries does not diminish the governmental nature of = Nueces=20 County=92s actions. Virtually all negligent or improvident action on the = part of a=20 governmental unit could be characterized as action beyond its delegated=20 constitutional authority. But such characterization does not deprive the = governmental unit of immunity. For example, in City of Galveston, = we held=20 that the city was shielded by governmental immunity even though it = presumably=20 had no delegated constitutional power to negligently destroy state = roads. See=20 City of Galveston, 217 S.W.3d at 468. We have likewise recognized = immunity=20 in suits alleging that the governmental unit exercised what could as = well be=20 characterized as nondelegated powers, like collection of illegal taxes = from=20 voluntary payers, see Dallas County Cmty. Coll. Dist. v. Bolton, = 185=20 S.W.3d 868, 876=9679 (Tex. 2005), injury against citizens, see = Posnainsky,=20 62 Tex. at 125, and breach of contract, see Tooke v. City of = Mexia, 197=20 S.W.3d 325, 328 (Tex. 2006). Governmental immunity nevertheless shields = counties=20 against such suits absent express legislative waiver. Cf. Tooke, = 197=20 S.W.3d at 332 (noting that one of the primary policies behind = governmental=20 immunity is to shield the public from =93the costs and consequences of = improvident=20 actions of their governments=94).

San = Patricio=20 County contends that allowing a money-damages suit against Nueces County = under=20 these circumstances is consistent with the policies supporting = governmental=20 immunity, insofar as the suit does not seek to divert Nueces County=92s = properly=20 collected tax resources from their intended purpose; rather, Nueces = County is=20 itself the wrongful depletor of tax revenues which belong to San = Patricio=20 County. See Tex. Natural Res. Conservation Comm=92n v. IT-Davy, = 74 S.W.3d=20 849, 854 (Tex. 2002). However, we emphasized in City of Galveston = that=20 the =93heavy presumption in favor of immunity=94 derives not just from = principles=20 related to separation of powers but from practical concerns: =93In a = world with=20 increasingly complex webs of governmental units, the Legislature is = better=20 suited to make the distinctions, exceptions, and limitations that = different=20 situations require. The extent to which any particular city, county, = port,=20 municipal utility district, school district, or university should pay = damages=20 involves policy issues the Legislature is better able to balance.=94 = City of=20 Galveston, 217 S.W.3d at 469. That principle holds equally true = here.

Accordingly,=20 without hearing oral argument, we grant the petition for review, vacate = the=20 court of appeals=92 judgment, and render judgment dismissing San = Patricio=20 County=92s claim for damages for lack of jurisdiction. See Tex. R. App. P. 59.1, = 60.2(c).

OPINION = DELIVERED: January=20 25, 2008