AUWTIN 11.-,%XAS

PRICEDANIEL ATTORNEYGENERAL. 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 amember 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 amember

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 onArticle 3912e-5,'~: V.C.S., the constitutionality of which was upheld in Travis County v. @tthews, 

### 235S.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 

### 53C.J.S., Limitations of Actions Sec. 24, 

### p, 959, it is said: 'Power t.0waive limitations 

### has been held to extend to a state, a county, and,a municipal corporation.' a$:, "Whena county comes into court it comes as any.other litigant.~ 11Texi' 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, 125Tex. 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.- -;ngby the judgment of the. District Court upholdin,- such right.. “

1005

I

f I In Wier v; Silver BowCounty; 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 maybe 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 Andwe.think the samerule 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 sameas 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 amatter of affirmative defense which maybe 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 amember of the Juvenile Board when the salary claim based henArticle 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 onbehalf 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 amember 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 toi%voke such plea. Travis County v. Matthews, 235 S.W.2d 591 (Tex.Civ.App. 1950, error ref. n.r.e.); Wier v. -Silver BowCounty 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,
PRICEDAEIEL Attorney 

### Gpnerel

.


## BY &.,.~,.I John Reeves Assistant.