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Click here for the full text of this decision FACTS:Nueces County collected ad valorem taxes on property later determined in a boundary dispute to belong to its neighbor San Patricio County. San Patricio County sued Nueces County under Texas Local Government Code �72.009 to establish their common boundary line. As part of that suit, San Patricio County sought to recover taxes that Nueces County had collected on the disputed land. The trial court resolved the boundary dispute as to some of the disputed land in San Patricio County’s favor but held that Nueces County was protected by governmental immunity from San Patricio County’s suit to recover the taxes collected by Nueces County on the land. The 13th Court of Appeals affirmed the trial court’s boundary determination but reversed its dismissal of the tax-recovery suit, concluding that governmental immunity did not protect Nueces County. Reasoning by analogy to cases holding that municipalities do not enjoy governmental immunity when performing proprietary functions, the 13th Court held that counties enjoy immunity only when “carrying out governmental activities implicitly delegated by the State to be carried out.” The 13th Court concluded that governmental immunity did not protect Nueces County, because its assessment and collection of ad valorem taxes on property not located within its boundaries is not a governmental activity delegated by the state. The Texas Supreme Court agreed to review the case and decide whether governmental immunity protected Nueces County from San Patricio County’s suit to recover the taxes that it paid. HOLDING:Vacated and rendered. The 13th Court, the court stated, determined that immunity does not exist when a county acts beyond its delegated power. But the court noted “that the distinction between waiving immunity and finding it nonexistent is a fine one that yields the same effect and,”[d]ue to the risk that the latter could become a ruse for avoiding the Legislature, courts should be very hesitant to declare immunity nonexistent in any particular case.’ “ Thus, the court found that governmental immunity would presumptively apply in this suit between counties. The 13th Court’s reasoning, the court stated, that Nueces County was not entitled to immunity because it acted beyond its governmental authority in taxing what turned out to be San Patricio’s land “is additionally flawed to the extent it is based upon a line of cases holding that cities do not enjoy immunity from suit when they undertake”proprietary’ rather than”governmental’ functions.” As “involuntary agents of the state” without the power to serve the local interests of their residents, the court stated, counties have no “proprietary” functions; all of their functions are “governmental” in nature. Under a proprietary theory, the court stated, virtually all negligent or improvident action on the part of a governmental unit could be characterized as action beyond its delegated constitutional authority. The court noted that in its 1884 decision City of Galveston v. Posnainsky, it held that the city was shielded by governmental immunity even though it presumably had no delegated constitutional power to negligently destroy state roads. The court “likewise recognized immunity in suits alleging that the governmental unit exercised what could as well be characterized as nondelegated powers, like collection of illegal taxes from voluntary payers.” Governmental immunity shields counties against such suits absent express legislative waiver, the court stated. The “heavy presumption in favor of immunity,” the court stated, derives not just from principles related to separation of powers but from practical concerns: “In a world with increasingly complex webs of governmental units, the Legislature is better suited to make the distinctions, exceptions, and limitations that different situations require. The extent to which any particular city, county, port, municipal utility district, school district, or university should pay damages involves policy issues the Legislature is better able to balance.” That principle, the court stated, holds equally true here. OPINION:Per curiam.

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