Honorable D. C . Beer 

State Highway Engineer 

Austin, Texas 

Dear Sir: Opinion No. O-3239 

Re: Authority of State Highway Department 

aftgr lapse of more than four years from 

date of filing of olalms under Article 

5472-e and 5472-b, t’o pey moneys to 

contractors without regard to olaima 

of materialmen. 

We have your requert for an opinion from this department upon the following 

Question: 

May the State Highway Department after the lagee of more than 

four years from the date of the filing of claims under Artlola 

5472-a and 5472-b, proceed to 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-b reads: 

“Thet no 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 judgment In a court of 

proper ,jurledictlon.” 

Vernon’s Revised Civil 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 release and discharge of the lien fixed upon ,the 

money in the hands of the official by the fll$%, ofWid ,bone\ and ~i@aPProval 
Honorable D. C. Greer, Page 2 (O-3239) 

by the proper official. This Article also 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 opinion of this department that the mere lapse of time will 

not authorize the Highway Department to release to the contractors the 

moneys upon which liens have been fl;xed by the filing of claims as 

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 evidence is 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 Revised Civil Statutes, Article 

5160. Mere lapse of time, though it be for more than four years, does 

not, in our opinion, justify the Highway Department in releasing the 

moneys without regard to the claima of the materialmen. It may be, of 

course, that as respects individual claims suits against contractor to 

enforce the obligation out of which the claim arises may be barred by 

the statutes of limitations; but the statute of limitations, in our 

judgmant, is a defense peculiar to the contractor and onawhich may be 

waived by him, and, in any event, whether the statute of limitations has 

run any particular case may be a question of fact4 

Your question is therefore answered in the negative. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

S/ R. W. Fairchild 

RWF:db/ldw 

APPROVED MAY ;I:!,:+1 

s/ GROVER SELLERS 

FIRST ASSISTANT 

ATTORNGi GENERAL 

APPROVED OPINION COMMITTEE 

BY B. W. B. 

CHAIRMAN 

BY 

R. W. Fairchild 

Assistant