Untitled Texas Attorney General Opinion

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