HonorableD. C . Beer State HighwayEngineer Austin, Texas
Dear Sir: Opinion No. O-3239 Re: Authorityof State HighwayDepartment aftgr lapse of more than four years from date of filing of olalmsunder Article 5472-e and 5472-b, t'opey moneys to contractorswithout regard to olaima of materialmen.
We have your requertfor an opinionfrom this departmentupon the following Question:
May the State HighwayDepartmentafter the lagee of more than four years from the date of the filing of claims under Artlola 5472-a and 5472-b,proceedto pay money to contractorswithout regard to the claim of materialmen?
Article 5472-a reeds as follows:
"That any person,firm or corporation,or trust estate,furnishing any material,apparatus,fixtures,machineryor labor to any contractorfor any public improvementsin this State, shall have a lien on the moncy6,or bonds, or warrants, due or to become due to such contractor6for such Improvements; provided,such person, firm, corporation,or stock association, shall,before any paymentis made to such contractor,notify in writing the officialsof the State, county,town or municipalitywhose duty it is to pay such contractorof his claim."
Article 5472-breads:
"Thetno public official,when so notifiedin writing,shall pay all of said moneys,bonds or warrants,due said contractor,but shell retain enoughof said moneys,bonds or warrant0 to pay said olalm, in case it is establishedby judgmentIn a court of proper ,jurledictlon."
Vernon'sRevisedCivil Statutes,Article 5472b-1providesfor the filing of a bond by the contractorwith the officialsof the State, county,town or municipality,and for the releaseand dischargeof the lien fixed upon ,the money in the hands of the officialby the fll$%, ofWid ,bone\and ~i@aPProval HonorableD. C. Greer, Page 2 (O-3239)
by the proper official. This Articlealso providesthat no actionshall be brought on such bond after the expirationof six months from the date of the filing of the same.
It is the opinionof this departmentthat the mere lapse of time will not authorizethe HighwayDepartmentto releaseto the contractorsthe moneys upon which lienshave been fl;xedby the filing of claimsas prescribedby the foregoingArticles. It seems that the releaseof mokzys is authorizedonly when bond is furnished,aa providedby Article 5472b-1,or when satisfactoryevidenceis submittedand affidavitsmade by the contractorthat all just bills for labor and materialhave teen paid in full by the contractor. Vernon'sRevisedCivil Statutes,Article 5160. Mere lapse of time, though it be for more than four years, does not, in our opinion,justifythe HighwayDepartmentin releasingthe moneyswithoutregard to the claima of the materialmen. It may be, of course,that as respectsindividualclaimssuits againstcontractorto enforcethe obligationout of which the claim arisesmay be barred by the statutesof limitations;but the statuteof limitations,in our judgmant,is a defensepeculiarto the contractorand onawhichmay be waived by him, and, in any event,whether the statuteof limitationshas run any particularcase may be a questionof fact4
Your questionis thereforeansweredin the negative.
Yours very truly,
ATTORNEYGENERALOF TEXAS
S/ R. W. Fairchild
BY R. W. Fairchild Assistant
APPROVEDMAY ;I:!,:+1 s/ GROVERSELLERS FIRST ASSISTANT ATTORNGiGENERAL
APPROVEDOPINIONCOMMITTEE BY B. W. B. CHAIRMAN