No. V-0039 (1947).

• Case Date: February 21, 1947
• Court: Texas

Texas Attorney General Opinions 1947. No. V-0039 (1947). 1February 21, 1947Honorable Leroy L. MooreCounty AttorneyHouston CountyCrockett, TexasOpinion No. V-39Re: Whether or not the proviso to Art. 7298, Rev. Stat., Vernon's Codification, is a statute of limitation which must be pleaded by the taxpayer.Dear Sir:We acknowledge receipt of your letter requesting an opinion upon the above titled subject matter, such letter being as follows:

"Relative to Article 7298 of Vernon's 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 to avail oneself of the benefits of it. Question: Would it be necessary to plead the ten year statute of limitation against road and school taxes under Article 7298 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 brought? I am wondering if the word shall used therein is mandatory or merely directory."

Article 7298 of the Revised Civil Statutes, Vernon's Codification, is as follows:

"Limitation not available. That no 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

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him or her to the State, or any county, city, Navigation District, Drainage District, Road District, Levee District, town, Reclamation District, Irrigation District, Improvement District, School District and all other Districts; provided, that no suit shall be brought for the collection of delinquent taxes of a School District or Road District unless instituted within ten years from the time the same shall become delinquent."

The Court of Civil Appeals for the 7th Supreme Judicial District in Cook vs. City of Booker, 167 S.W. (2d) 232, held the proviso contained in Article 7298 of the Statutes to be a statute of limitations to be specifically pleaded in defense, saying; "The Court erred in sustaining the special exception of the school district to Appellant's plea of limitation, and permitting it to recover a judgment for the item of $322.75, a part of which the record shows on its face was barred by the 10 years statute of limitation." * * *". In Opinion No. 0--4495, this Department, after queting Article 7298, held:

"We think the

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