The Honorable Anna Beth Merten Opinion No. H- 77
County Auditor, Wailer County
P. 0. Box 966 Re: Is a Road and Bridge
Hempstead, Texas 77445 Warrant Coupon dated
April 10, 1939, a valid
claim and should it be
Dear Ms. Merten: approved for payment?
You have asked us if the .County Auditor of Waller County is obligated
to pay a claim based upon a $50 coupon issued April 10, 1939, which became
due of April 10, 1940. The coupon represented the interest due on a warrant
which was a part of the Series 1939’Waller County Road and Bridge Warrants.
The coupon is now 33 years past due.
As early as 1881 the Texas Supreme Court held that the statute of
limitation on a coupon begins to run from the date when the coupon is due.
City of Galveston V. P. J. Loonie, 54 Tex. 517 (1881). TheCourt denied
recovery on coupons which had been due over four years at the date of the
institution of the suit.
Article 5527, V. T. C. S. , governs the period of time during which
an action on this coupon could have been brought. It reads:
“There shall be commenced and prosecuted
within four years after the cause of action shall
have accrued, and not afterward, all actions or
suits in court of the following description:
“1. Actlms for debt where the indebted-
ness is evidenced by or founded upon
any contract in writing. ”
The right to recover on the coupon accrued on.April 10, 1940. Therefore,
it is our opinion that the Office of the County Treasurer of Waller County is
not ‘obligated by law to pay the bearer of the coupon when it is presented
p. 352
The Honorable Anna Beth Merten, page 2 (H-77)
thrity-three years after its due date. Rockwall County v. Roberts County,
128 S. W. 369 (Tex. 1910); Hidalgo County v. Jackson, 119 F. 2d 108 (CCA 5th,
1941); Mullens v. Baily, 374 S. W. 2d 455 (Tex. Civ. App., Corpus Christi,
1964); Davis v. Dennis, 448 S. W. 2d 495 (Tex. Civ.App., Tyler, 1969).
If suit is instituted in the collection of the past due coupon and the
statute of limitation is plead by Waller County, no recovery can be had.
It should be noted however, that the defense of limitation may be waived,
and should Waller County wish to acknowledge the claim it may do so.
Article 5539, V. T. C. S. The right of a county to waive the statute of limit-
ation is acknowledged in Falls County v. Mires, 218 S. W. 2d 491 (Tex. Civ.
APP. 3 1949, err. ref’d. ); and in Hidalgo County, Texas v. Jackson, 119 F. 2d
108, (CCA 5th, 1941).
SUMMARY
Wailer County may refuse to honor the coupon
now 33 years past due because the claim is subject
to the plea that is barred by the statute of limitation
provisions of Article 5527, V. T. C.‘S. ) or it may
acknowledge the claim and waive the limitation.
Very truly yours,
Attorney General of Texas
APPRRVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 353