I 

The Attorney General of Texas 

April 27, 1978 

JOHN L. HILL 

Attorney General 

Honorable Ernie Tullis Opinion No. H- 1159 

Administrator 

Texas Employment Commission 

Austin, Texas 78778 

Re: The statute 

in the Texas 

Commission Act. 

Dear Mr. Tullis: 

of limitations 

Employment 

You ask three questions about the statute of limitations in the Texas 

Unemployment Compensation Act. Section 14(b) of the Act, codified as 

article 5221b-12(b), V.T.C.S., provides in part: 

Collections: If, after notice, any employer defaults 

in any payment of contributions, penalties or ,interest 

thereon, the amount due shall be collected by civil 

action in a District Court in Travis County, Texas, in 

the name of the State and the Attorney General, and 

the employer adjudged in default shall pay the costs of 

such action; provided, however, that no court action 

shall be begun to collect contributions or penalties 

from an employer after the expiration of three (3) 

years from the due date of such contributions, except 

that, in any case of a willful attempt in any manner to 

evade any of the provisions of the Unemployment 

Compensation Law or Commission rules or regulations 

promulgated thereunder, such action may be begun at 

any time. 

You first ask whether article 5221b-12(b) absolutely prohibits the 

Commission from filing suit to collect delinquent taxes three years after the 

due date. In our opinion, this article establishes a three year statute of 

limitations for collection of taxes, in the absence of a willful attempt to 

evade the Act. The language of this section is similar to the language of 

general statutes of limitation. See e. 

-7-F 

V.T.C.S. arts. 5526, 55264 5527. 

The predecessor of article 5221b-12 b contained an additional sentence 

referring to “ItI he three-year period of limitations herein prescribed.” Acts 

1943, 48th Leg., ch. 339, S 1, at 573; see Acts 1955, 54th Leg., ch. 116, S 10, at 

p. 4694 
Honorable Ernie Tullis - Page 2 (H-1159) 

408 (repealing additional sentence), Thus, the Legislature which enacted the three 

year deadline considered it as a statute of limitations, and we do not believe it 

should be regarded as an absolute bar on the Commission’s filing suit. ci. Attorney 

General Opinion Mll(1967). See also Maher v. Gonxalez, 360 S.W.2d 764 (Tex. Civ. 

App. - San Antonio 1964, no writ).e statute of limitations constitutes a defense 

which must be affirmatively pleaded. Southwestern Fire & Casualty Co. v. Larue, 

367 S.W.2d 162 (Tex. 1963); Tex. Il. Civ. P.94. In the absence of pleading, the 

defense is waived. Musso v. Cronley, 422 S.W.2d 840 (Tex. Civ. App. - Waco 1967, 

no writ). 

Your remaining questions concern the recovery of an overpayment of benefits 

pursuant to article 5221b-14(d), which provides as follows: 

Any person who, by reason of the nondisclosure or 

misrepresentation by him or by another, of a material fact 

(irrespective of whether such nondisclosure or misrepresentation was known or fraudulent) has received any sum as 

benefits under this Act while any conditions for the receipt 

of benefits imposed by this Act were not fulfilled in his 

case, or while he was disqualified from receiving benefits, 

shall, in the discretion of the Commission, either be liable to 

have such sum deducted from any future benefits payable to 

him under this Act or shall be liable to repay to the 

Commission for the Unemployment Compensation Fund, a 

sum equal to the amount so received by him, and such sum 

shall be collectible in the manner provided in . . . [article 

5221b-12(b), V.T.C.S.] for the collection of past due contributions. 

You ask whether a suit to collect the overpayment is subject to the three year 

statute of limitations. In our opinion, the statute of limitations is part of “the 

manner provided . . . for the collection of past due contributions” under article 

5221b-12(b). See American National Insurance Co. v. Hicks, 35 S.W.2d 128 (Tex. 

Comm’n App. 1931, jdgmt adopted) (statutes of limitations regulate method 

whereby law is applied). The three year statute of limitations is therefore 

applicable by reference to suits for collection of overpayment from recipients 

under article 5221b-14(d). See Westervelt v. Yates, 194 S.W.2d 395, 398 (Tex. 1946). 

You finally ask whether the three year statute of limitations also bars the 

deduction of overpayments from future benefits payable to a claimant. Article 

5521b-14(d) provides two alternative methods for recovering overpayments. The 

recipient may be liable (1) to have the overpayment deducted from future benefits 

or (2) to repay the sum to the Commission. The Commission can deduct the 

overpayment from future benefits without resorting to the collection procedure 

given in article 5221b-12(b). A lawsuit is necessary only to recover the excess from 

funds the person holds. Since the collection procedure is inapplicable to deductions 

from future benefits, the statute of limitations which constitutes part of that 

procedure is also inapplicable. 

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Honorable Ernie Tullis - Page 3 (H-1159) 

SUMMARY 

The three year statute of limitations for collection of 

unemployment contributions under article 5221b-12(b), 

V.T.C.S., does not prohibit the Commission from filing suit 

and may be waived by the defendant. The statute of 

limitations applies to a suit by the Commission to recover an 

overpayment of benefits under article 522lb-14(d), V.T.C.S., 

but does not apply to the deduction of overpayments from 

future benefits. 

Very truly yours, 

Attorney General of Texas 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jst 

'P. 4696