Honorable D. C . Beer State HighwayEngineer Austin, Texas Dear Sir: Opinion No. O-3239 Re: Authority

of State HighwayDepartment aftgr lapse of more than four years from date of filing of olalmsunder Article 5472-e and 5472-b, t’o pey moneys to contractors

without regard to olaima of materialmen.
We have your requertfor an opinion from this department upon the following Question: May the State HighwayDepartment after the lagee of more than four years from the date of the filing of claims underArtlola 5472-a and 5472-b,

proceedto pay money to contractors without regard to the claim of materialmen? Article 5472-a reeds as follows: “That any person, firm or corporation, or trust estate,furnishing any material,

apparatus,

fixtures,

machinery

or labor to any contractor

for any public improvements in this State, shall have a lien on the moncy6, or bonds, or warrants, due or to become due to such contractor6 for such Improvements; provided,

such person, firm, corporation, or stock association, shall,before any payment is made to such contractor, notify in writing the officials

of the State, county,town or municipality whose duty it is to pay such contractor of his claim.” Article 5472-breads: “Thetno public official, when so notified in writing,shall pay all of said moneys, bonds or warrants, due said contractor, but shell retain enough of said moneys, bonds or warrant0 to pay said olalm, in case it is established by judgmentIn a court of proper ,jurledictlon.” Vernon’s

RevisedCivil Statutes, Article 5472b-1

provides

for the filing of a bond by the contractor with the officials of the State, county,town or municipality,

and for the releaseand discharge of the lien fixed upon ,the money in the hands of the official by the fll$%, ofWid ,bone\ and ~i@aPProvalHonorable D. C. Greer, Page 2 (O-3239)

by the proper official. This Articlealso provides that no action shall be brought on such bond after the expiration of six months from the date of the filing of the same. It is the opinionof this department that the mere lapse of time will not authorize

the HighwayDepartment to releaseto the contractors the moneys upon which lienshave been fl;xed by the filing of claimsas prescribed

by the foregoing Articles. It seems that the release of mokzys is authorized only when bond is furnished, aa provided

by Article 5472b-1,

or when satisfactory evidenceis submitted and affidavits

made by the contractor

that all just bills for labor and material have teen paid in full by the contractor.Vernon's RevisedCivil Statutes, Article 5160. Mere lapse of time, though it be for more than four years, does not, in our opinion,justifythe HighwayDepartment in releasing

the moneyswithoutregard to the claima of the materialmen. It may be, of course,that as respectsindividual claims suits againstcontractor to enforce the obligation out of which the claim arisesmay be barred by the statutes

of limitations;

but the statuteof limitations, in our judgmant,

is a defense

peculiar

to the contractor

and onawhich

may be waived by him, and, in any event, whether the statuteof limitations has run any particular case may be a question of fact4 Your questionis therefore answeredin the negative.

Yours very truly, ATTORNEYGENERAL

OF TEXAS S/ R. W. Fairchild

RWF:db/ldw APPROVED

MAY ;I:!,:+1 s/ GROVERSELLERS FIRST ASSISTANT ATTORNGiGENERAL APPROVEDOPINION

COMMITTEE BY B. W. B. CHAIRMAN BY R. W. Fairchild Assistant