AUWTIN 11. -,%XAS 

PRICEDANIEL 

ATTORNEY GENERAL. 

August 3, 1951 

Hon. B. F. McKee 

County Auditor 

Hidalgo County 

Edinburg, Texas 

,. Dear Sir: 

Opinion Eo. V-1230 

Re: Authority of the Commlssloners~ Court to 

waive limitations and 

pay the County; Judge 

for services as a member of the Juvenile 

Board when the salary 

claim would otherwise 

be barred by limitations. 

You have requested an 'opinion concerning the 1 

authority of the commissioners' court to waive limitatlons an 

of the J % 

pay the county judge for se.rvices as a member 

venile Board. when the salary claim would~ other-~: 

wise be barred by lim'itations. You ask specifica1l.y: 

"Does the Commissioners' Court have 

the authority to waive limitations and is 

the disbursing officer required to plead 

limitations?" '. 

The salary claim is basad on Article 3912e-5,'~: 

V.C.S., the constitutionality of which was upheld in 

Travis County v. @tthews, 235 S.W.2d @l.r(Tex.Civ.App. 

950 P 1 Although the c~ourt did not 

dete~mei~~"~h~ecou~~~;~'a;lthority to waive limitation, : 

it stated at page 6%: 

33 53 C.J.S., Limitations of Actions 

Sec. 24, p, 959, it is said: 'Power t.0 waive 

limitations has been held to extend to a 

state, a county, and,a municipal corporation.' 

a$:, 

"When a county comes into court it 

comes as any.other litigant.~ 11 Texi' Jur .pp. 

614~615; Brite vi Atascosa County, Tex.Clv. 

App. San Antonio,243 S.W. 878 (Writ Dis.); 

McKinuey v. Freestone County,, Tex.Com.App., 

291 S.W. 529. And, even though a county is 

essentially an instrumentality.of the state, 
HOG. B.‘F. McKee, page 2'(V-1230) 

. . 

~‘the general. limitation statutes are with 

certain defined exceptions available in defense of suits by counties:. 1 Hatcher v. 

State, 125 Tex. 84, ,81. S .W.2d 499, 501, 98 

A.L.R. 1213. 

“The ,statute of limitaiiona whi1.e no 

longer an odious plea is one which must be 

specially pleaded and one which courts do 

not go out of their way to sustain. Duckvorth v. Fallas County Levee Improvement 

Dist. 30. 5, Tex.Civ.App. Austin, 11. S.W.28 

263. 

“We bel.ieve the tenor of the, law on the 

subject of the ‘right of a county to waive a 

plea of limitation to be such that no semblance of bad, faith can be attached to the 

action of the Commissioners’ Court In ab,id.- 

-;ng by the judgment of the. District Court 

uphold in,- such right.. “ 

1005 

I 

f 

I 

In Wier v; Silver Bow County; 124 P.2d 1.003, 

(Kant. Su?. 19+2), the court, on this question, held: 

“The ,etatute of limitations is a personal ,prisil.ege which may be waived. It 

must :he pl.eaded, in order to be’available as 

z defense. .~ The county c’ommissionere have the 

right and power’,‘to direct and control the 

prosecuti:on and definsk of, all suits to which 

the countg~ is. a. party. V se. 4465.14 Rev. 

Codes. It seems clear that the board could 

decl!ine to plead the statute of limitations 

whenever it was of the opinion that facts 

showing the bar of the statute could not be 

established. This was the implication of 

g$;y;;fj ‘~7~~“s2~-.‘“~:~a~“,rt~~~; as 

to municipal, corporations. 37 C.J. 721, note 

19z And we .think the same rule applies to 

the county through its board of commissioners. 

If the boards’-could thus waive the statute of 

limitations by d,eclinirq to plead it, then it 

seems equal.ly clear that it cou1.d expressly 

stL@.zte that the claims are not barred. 

.Thls is qo,t the same as stipulqting.to a,. 

concl.usion of law, but Is equival.ent to a 

stipulation tha.t the facts are not such that 

the ,plea of the statute of limitations would 

be available.” 
:r 

Hon. B. F. McKee, page 3 '(V-1230) 

it has been held by this office that limitation is a matter of affirmative defense which may be 

waived by the county. Att'y Gen. Op. V-1165,(1951); 

Letter Opinion to Hon. Jackson S. Webb, County Attorney 

of Bastrop County, dated Bovember 1, 1949. 

In view of the foregoing, it is our opinion 

that the Commissioners' Court of Hidalgo~County is authorized to waive limitations' and pay the County Judge 

of Hidalgo County for services as a member of the Juvenile Board when the salary claim based hen Article 

3912e-5, V.C.S., would otherwise be barred by limitations. 

The pleading or waivin& of limitations is the 

prerogative of the commissioners1 court, and no other 

official is empowered to plead limitations on behalf of 

the county without authority from the commissioners" 

court. 

SUMMARY 

The Commissioneqs' Court of Hidaigo 

County has authority.to waive limitations 

and .pay the county juee for. services as 

a member of the Juvenile Board, although 

his sa~lary claim would otherwis'e be bar- 

, red by limitations. Pleading or waiving 

limitations is the prerogative%f the 

commissioners' court, and no other officer of .the county has authority to i%voke 

such plea. Travis County v. Matthews, 

235 S.W.2d 591 (Tex.Civ.App. 1950, error 

ref. n.r.e.); Wier v. -Silver Bow County 

124 P.28 1003 m 

op. V-1165,(1&n 

t. Sup. 1942); Att'y ien: 

APPROVED: .I 

'Bruce Allen 

County Affairs Division 

Everett Rutchinson 

Executive Assistants 

Charles D. Mathews 

First Assistant 

JR:mw 

Yours :very truly, 

PRICE DAEIEL 

Attorney Gpnerel 

. 

BY &.,.~ ,.I 

John Reeves 

Assistant.