Honorable Leroy 

County Attorney 

Houston County 

Crockett, Texas 

L. Moore Opinion V-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 acknouledge receipt 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, Question; Would it be necessary to plead the 

ten year statute of limitation a 

!3 

ainat road 

and school taxes under Article 7 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 use t therein is mandatory or merely'directory,w 

Article 7298 of the Revised Civil Statutes9 Vernonjs 

Codification, is as follows: 

"Limitation not available* That na 

delinquent taxpayer shall have the right to 

plead in any Court or in any manner rely upon any Statute of Limitation by way of defense 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 District, Road District, Levee District, 

town, Reclamation District, Irrigation 

Dfstriet, Improvement District, School 

Distriot and all other Districts; provided, that no suit ehall ba brought for 

,the collection of delinquent taxes 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) 

'p held 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 exccptien of th,e aeheol distlriet to 

Appellant's plea of limitation,, and 

cever a judgaent for the item of 832 1 

ermitting 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,e abovecpuot~sd etatuta is, otrictly and properly 

cmetrued, a limitation statute, and the 

rules and decisions $oveming aad applicable t:e general statutea ef lMit.atien 

wouJ,d apply 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 rereedy and 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 invoke the applicabla atatute of limitation 

WI to a portion ef them, It is oaly the 

remdy for their collection which may be 

afferSed by this limitation statute, Li.&Bi* 

'tation far a 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 

6i 

o inion, In turn, cited Opinion Ho,. O-3315, a-a, kMln& 

at the ‘statute is one ,of limitation, 

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 zmbimly *** 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 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