I
The Attorney General of Texas
April 27, 1978
JOHN L. HILL
Attorney General
Honorable Ernie Tullis Opinion No. H- 1159
Administrator
Texas Employment Commission Re: The statute of limitations
Austin, Texas 78778 in the Texas Employment
Commission Act.
Dear Mr. Tullis:
You ask three questions about the statute of limitations in the Texas
Unemployment Compensation Act. Section 14(b) of the Act, codified as
article 5221b-12(b), V.T.C.S., provides in part:
Collections: If, after notice, any employer defaults
in any payment of contributions, penalties or ,interest
thereon, the amount due shall be collected by civil
action in a District Court in Travis County, Texas, in
the name of the State and the Attorney General, and
the employer adjudged in default shall pay the costs of
such action; provided, however, that no court action
shall be begun to collect contributions or penalties
from an employer after the expiration of three (3)
years from the due date of such contributions, except
that, in any case of a willful attempt in any manner to
evade any of the provisions of the Unemployment
Compensation Law or Commission rules or regulations
promulgated thereunder, such action may be begun at
any time.
You first ask whether article 5221b-12(b) absolutely prohibits the
Commission from filing suit to collect delinquent taxes three years after the
due date. In our opinion, this article establishes a three year statute of
limitations for collection of taxes, in the absence of a willful attempt to
evade the Act. The language of this section is similar to the language of
general statutes of limitation. See e. V.T.C.S. arts. 5526, 55264 5527.
The predecessor of article 5221b-12-7-F b contained an additional sentence
referring to “ItI he three-year period of limitations herein prescribed.” Acts
1943, 48th Leg., ch. 339, S 1, at 573; see Acts 1955, 54th Leg., ch. 116, S 10, at
p. 4694
Honorable Ernie Tullis - Page 2 (H-1159)
408 (repealing additional sentence), Thus, the Legislature which enacted the three
year deadline considered it as a statute of limitations, and we do not believe it
should be regarded as an absolute bar on the Commission’s filing suit. ci. Attorney
General Opinion Mll(1967). See also Maher v. Gonxalez, 360 S.W.2d 764 (Tex. Civ.
App. - San Antonio 1964, no writ).e statute of limitations constitutes a defense
which must be affirmatively pleaded. Southwestern Fire & Casualty Co. v. Larue,
367 S.W.2d 162 (Tex. 1963); Tex. Il. Civ. P.94. In the absence of pleading, the
defense is waived. Musso v. Cronley, 422 S.W.2d 840 (Tex. Civ. App. - Waco 1967,
no writ).
Your remaining questions concern the recovery of an overpayment of benefits
pursuant to article 5221b-14(d), which provides as follows:
Any person who, by reason of the nondisclosure or
misrepresentation by him or by another, of a material fact
(irrespective of whether such nondisclosure or misrepresen-
tation was known or fraudulent) has received any sum as
benefits under this Act while any conditions for the receipt
of benefits imposed by this Act were not fulfilled in his
case, or while he was disqualified from receiving benefits,
shall, in the discretion of the Commission, either be liable to
have such sum deducted from any future benefits payable to
him under this Act or shall be liable to repay to the
Commission for the Unemployment Compensation Fund, a
sum equal to the amount so received by him, and such sum
shall be collectible in the manner provided in . . . [article
5221b-12(b), V.T.C.S.] for the collection of past due contri-
butions.
You ask whether a suit to collect the overpayment is subject to the three year
statute of limitations. In our opinion, the statute of limitations is part of “the
manner provided . . . for the collection of past due contributions” under article
5221b-12(b). See American National Insurance Co. v. Hicks, 35 S.W.2d 128 (Tex.
Comm’n App. 1931, jdgmt adopted) (statutes of limitations regulate method
whereby law is applied). The three year statute of limitations is therefore
applicable by reference to suits for collection of overpayment from recipients
under article 5221b-14(d). See Westervelt v. Yates, 194 S.W.2d 395, 398 (Tex. 1946).
You finally ask whether the three year statute of limitations also bars the
deduction of overpayments from future benefits payable to a claimant. Article
5521b-14(d) provides two alternative methods for recovering overpayments. The
recipient may be liable (1) to have the overpayment deducted from future benefits
or (2) to repay the sum to the Commission. The Commission can deduct the
overpayment from future benefits without resorting to the collection procedure
given in article 5221b-12(b). A lawsuit is necessary only to recover the excess from
funds the person holds. Since the collection procedure is inapplicable to deductions
from future benefits, the statute of limitations which constitutes part of that
procedure is also inapplicable.
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Honorable Ernie Tullis - Page 3 (H-1159)
SUMMARY
The three year statute of limitations for collection of
unemployment contributions under article 5221b-12(b),
V.T.C.S., does not prohibit the Commission from filing suit
and may be waived by the defendant. The statute of
limitations applies to a suit by the Commission to recover an
overpayment of benefits under article 522lb-14(d), V.T.C.S.,
but does not apply to the deduction of overpayments from
future benefits.
Very truly yours,
Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
jst
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