HonorableLeroy

County Attorney Houston County Crockett,Texas L. Moore OpinionV-39

Ret .Whether

or not the proviso to Art. 7298> Rev, Stat,, Vernonfe Codification, is a statute of limitation

which must be pleaded by the taxpayer.

Dear Sir:

We acknouledgereceipt of your letter requestingan opinion upon the above titled subjectmatter, such letter being as follows:

"Relativeto Article 7298 of VemonTs Revised Civil Statutes of Texas;

"I know in all civil cases where the statuteof limitationis used as a defense that it is necessaryto plead it in order t0 avail oneself of the benefits of it, Question; Would it be necessaryto plead the ten year statute of limitationa!3 ainat road and school taxes under Article 7 98 in order to get the benefit of the plea of limitation where in the provisionof said article it is provided 'thatno suit shall be brou htp? I am wondering if the word shall use t therein is mandatory or merely'directory,w
Article 7298 of the Revised Civil Statutes9Vernonjs Codification,is as follows:

"Limitationnot available* That na delinquenttaxpayer shall have the right to plead in any Court or in any manner rely upon any Statute of Limitationby way of defense against the payment of taxes due fromHonorable Leroy L, Moore - Pago 2

him or her to the State, or any county, city, Navigation District,DrainageDistrict, Road District,Levee District, town, ReclamationDistrict, Irrigation Dfstriet, ImprovementDistrict,School Distriot and all other Districts;provided, that no suit ehall ba brought for ,the collectionof delinquenttaxes of a School Dirtriet or Rood DiaOrict unless instituted

within ten years frem the time the ssme shall become delinquent,*

die
232

St4 The Court of Civil Appeals for the 7th Supreme Ju- ,ial Distsfct in Cook vsa City of Booker, 167 SOW, (Zd) 'pheld the proviso contained in Article 7298 of the .tutea to be a statute of liraioa'tiena to be speei.f%cally pleaded in defense, saying: *T&e Caurt erred in suae taining the special exccptienof th,e aeheol distlriet

to Appellant'splea of limitation,, and cever a judgaentfor the item of 832 1ermitting it to re0759 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 qusting Article 7298, held: \

,. ",

'
'..

: ~ *We think the proviso of th,eabovecpuot~sdetatuta is, otrictlyand properly cmetrued, a limitationstatute,and the rules and decisions$oveming aad applicable t:e

general statuteaef lMit.atien wouJ,d apply here. Under such, it must be said that these delinquentschool and read district taxes are net remitted,releaeed or dischargedby the statutecitad and quoted above but same only gees to the rereedy and furnishesthe taxpayer a defense to an action brought for such taxes after the limitatienPeriod0 The school and road dkstriot taxes in the instant caee are still due and owing to the respective taxing authoritiesinvolved,despite the assr$t&on of the taxpayer that he will invoke the applicablaatatute of limitation WI to a portion ef them, It is oaly the remdy for their collectionwhich may be afferSedby this limitationstatute, Li.&Bi* 'tation far a defensewhich muat be slpaciallyHonorableLeroy LO Moore - Page 3

urged9 is personalto the debtor, and may be waived by him,”

The fame holdingwas made in Opinion lk~a @-569$ which
6i o inion, In turn, cited Opinion Ho,. O-3315,a-a,

kMln& at the ‘statute

is 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 zmbimf ly *** statute of l&nitations~,*e~ and ury other netter eomtituti 9Js an avoWm6~e 0s affirmat ire defense **+ 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 defendant in order to avail himself of t?m tlefeme.

The proviso appendedto 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