Governmental immunity found to apply in county vs. county suit
Nueces County v. San Patricio County, No. 07-0166 (Tex. Jan. 25, 2008)(per curiam)
(governmental immunity, county vs county dispute over wrongfully collected property taxes)
RULING: Supreme Court vacates the court of appeals’ judgment, and renders judgment
dismissing San Patricio County’s claim for damages against Nueces County for lack of
NUECES COUNTY v. SAN PATRICIO COUNTY; from Refugio County; 13th district (13-05-00022-CV, 214 S.W.
3d 536, 12-07-2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court vacates the court of appeals' judgment and renders judgment.
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Nueces County collected ad valorem taxes on property later determined in a boundary dispute to belong to its
neighbor San Patricio County. We must decide whether governmental immunity protects Nueces County from
San Patricio County’s suit to recover the taxes that it paid. We hold that it does, and reverse the court of
San Patricio County sued Nueces County under Local Government Code section 72.009 to establish their
common boundary line. See Tex. Loc. Gov’t Code § 72.009. 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 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. 214 S.
W.3d 536, 553–54. Reasoning by analogy to cases holding that municipalities do not enjoy governmental
immunity when performing proprietary functions, the court of appeals held that counties enjoy immunity only
when “carrying out governmental activities implicitly delegated by the State to be carried out.” Id. at 553 (citing
City of Galveston v. Posnainsky, 62 Tex. 118, 128 (1884)). The court concluded that governmental immunity
does 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. Id.
The court of appeals reasoned that immunity does not exist in the first instance, an argument asserted by the
state, though on different grounds, in City of Galveston v. Texas, 217 S.W.3d 466, 471 (Tex. 2007). Identifying
no waiver of immunity here, the court of appeals determined that immunity does not exist when a county acts
beyond its delegated power. 214 S.W.3d at 553. But we have said 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.” City of Galveston, 217 S.W.3d at 471. Governmental immunity, then, would presumptively
apply in this suit between counties.
The court of appeals’ reasoning 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. The court of appeals reasoned that, although counties are granted the
power to assess taxes on their own land, they have no governmental authority to tax other counties’ land; when
they do, they act beyond their governmental authority and thus outside sovereign immunity’s protections. 214 S.
W.3d at 553; see Tex. Const. art. VIII, § 1-a (granting counties the exclusive right to assess ad valorem taxes on
property within their own boundaries).
However, as “involuntary agents of the state” without the power to serve the local interests of their residents,
counties have no “proprietary” functions; all of their functions are “governmental” in nature. Tex. Const. art. XI, §
1 interp. commentary; Posnainsky, 62 Tex. at 128. The court of appeals’ premise that Nueces County is not
entitled to immunity because it mistakenly taxed land beyond its boundaries does not diminish the governmental
nature of Nueces County’s actions. Virtually all negligent or improvident action on the part of a governmental
unit could be characterized as action beyond its delegated constitutional authority. But such characterization
does not deprive the governmental unit of immunity. For example, in City of Galveston, we held that the city was
shielded by governmental immunity even though it presumably had no delegated constitutional power to
negligently destroy state roads. See City of Galveston, 217 S.W.3d at 468. We have 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, see Dallas County Cmty. Coll. Dist. v.
Bolton, 185 S.W.3d 868, 876–79 (Tex. 2005), injury against citizens, see Posnainsky, 62 Tex. at 125, and
breach of contract, see Tooke v. City of Mexia, 197 S.W.3d 325, 328 (Tex. 2006). Governmental immunity
nevertheless shields counties against such suits absent express legislative waiver. Cf. Tooke, 197 S.W.3d at
332 (noting that one of the primary policies behind governmental immunity is to shield the public from “the costs
and consequences of improvident actions of their governments”).
San Patricio County contends that allowing a money-damages suit against Nueces County under these
circumstances is consistent with the policies supporting governmental immunity, insofar as the suit does not
seek to divert Nueces County’s properly collected tax resources from their intended purpose; rather, Nueces
County is itself the wrongful depletor of tax revenues which belong to San Patricio County. See Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). However, we emphasized in City of
Galveston that the “heavy presumption in favor of immunity” 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.” City of Galveston, 217 S.
W.3d at 469. That principle holds equally true here.
Accordingly, without hearing oral argument, we grant the petition for review, vacate the court of appeals’
judgment, and render judgment dismissing San Patricio County’s claim for damages for lack of jurisdiction. See
Tex. R. App. P. 59.1, 60.2(c).
OPINION DELIVERED: January 25, 2008