Honorable Leroy L. Moore Opinion V-39
County Attorney
Houston County Ret .Whetheror not the
Crockett, Texas proviso to Art.
7298> Rev, Stat,,
Vernonfe Codifica-
tion, is a statute
of limitationwhich
must be pleaded by
the taxpayer.
Dear Sir:
We acknouledgereceipt of your letter requesting an
opinion upon the above titled subject matter, such letter
being as follows:
"Relative to Article 7298 of VemonTs
Revised Civil Statutes of Texas;
"I know in all civil cases where the
statute of limitation is used as a defense
that it is necessary to plead it in order t0
avail oneself of the benefits of it, Ques-
tion; Would it be necessary to plead the
ten year statute of limitation a ainat road
and school taxes under Article 7!3
98 in order
to get the benefit of the plea of limitation
where in the provision of said article it is
provided 'that no suit shall be brou htp?
I am wondering if the word shall uset there-
in is mandatory or merely'directory,w
Article 7298 of the Revised Civil Statutes9 Vernonjs
Codification,is as follows:
"Limitationnot available* That na
delinquent taxpayer shall have the right to
plead in any Court or in any manner rely up-
on any Statute of Limitation by way of de-
fense against the payment of taxes due from
Honorable Leroy L, Moore - Pago 2
him or her to the State, or any county,
city, Navigation District, Drainage Dis-
trict, Road District, Levee District,
town, Reclamation District, Irrigation
Dfstriet, ImprovementDistrict, School
Distriot and all other Districts; pro-
vided, that no suit ehall ba brought for
,thecollection of delinquent taxes of a
School Dirtriet or Rood DiaOrict unless
institutedwithin ten years frem the
time the ssme shall become delinquent,*
The Court of Civil Appeals for the 7th Supreme Ju-
die ,ialDistsfct in Cook vsa City of Booker, 167 SOW, (Zd)
232'pheld the proviso contained in Article 7298 of the
St4.tuteato be a statute of liraioa'tiena
to be speei.f%cal-
ly pleaded in defense, saying: *T&e Caurt erred in suae
taining the special exccptien of th,eaeheol distlrietto
Appellant's plea of limitation,,and ermitting it to re-
cever a judgaent for the item of 8321 0759 a part Of which
the record shows on its face w&e barred by the 10 years
statute of limitation,** * ewe
In Opfnian We, O-449Sa this Department,after qust-
ing Article 7298, held:
\
,. *We think the proviso of th,eabove-
", cpuot~sdetatuta is, otrictly and properly
cmetrued, a limitation statute, and the
rules and decisions $oveming aad appli-
' cable t:egeneral statutea ef lMit.atien
wouJ,dapply here. Under such, it must be
'.. said that these delinquent school and read
district taxes are net remitted, releaeed
or discharged by the statute citad and
: ~ quoted above but same only gees to the re-
reedyand furnishes the taxpayer a defense
to an action brought for such taxes after
the limitatien Period0 The school and
road dkstriot taxes in the instant caee
are still due and owing to the respective
taxing authorities involved, despite the
assr$t&on of the taxpayer that he will in-
voke the applicabla atatute of limitation
WI to a portion ef them, It is oaly the
remdy for their collectionwhich may be
afferSed by this limitation statute, Li.&Bi*
'tationfara defense which muat be slpacially
Honorable Leroy LO Moore - Page 3
urged9 is personal to the debtor, and may be
waived by him,”
The fame holding was made in Opinion lk~a@-569$ which
o inion, In turn, cited Opinion Ho,.O-3315, a-a,
kMln&
6iat the ‘statuteis one ,oflimitation,
Purthormore,Rule 94 of the Rules of Praetico *aJ
Proceaure in Civil Actions ir in part a* follows*
WI pleading to a prezsdtn, p%eo&
ing, a party shall cot forth aFf f zmbim-
ly *** statute of l&nitations~,*e~ and ury
other netter eomtituti an avoWm6~e 0s
affirmat ire defense **+ 9Js
I_
We adhere to the opioiane, follau the daetrivti *od
rule above quoted, and enewer your quastim to *ha eBkct
that the proviso contained in Ctxtlcle 729$ i8 a statute
of limitations which must be pleaded by the tarpayer de-
fendant in order to avail himself of t?m tlefeme.
The proviso appended to Article 7298 of 6he Belied
Cfvil Statutes is a statute of limitationo necessary Co
be plead& affirmatively by the defendant ta%pwer in
order to avail himelf, of such defense, cli tau (1(D) years
limitaticmo