Honorable Leroy L. Moore          Opinion V-39
County Attorney
Houston County                    Ret .Whetheror not the
Crockett, Texas                       proviso to Art.
                                      7298> Rev, Stat,,
                                      Vernonfe Codifica-
                                      tion, is a statute
                                      of limitationwhich
                                      must be pleaded by
                                      the taxpayer.
Dear Sir:
     We acknouledgereceipt of your letter requesting an
opinion upon the above titled subject matter, such letter
being as follows:
                  "Relative to Article 7298 of VemonTs
            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 t0
            avail oneself of the benefits of it, Ques-
            tion; Would it be necessary to plead the
            ten year statute of limitation a ainat road
            and school taxes under Article 7!3
                                             98 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 brou htp?
            I am wondering if the word shall uset there-
            in is mandatory or merely'directory,w
     Article 7298 of the Revised Civil Statutes9 Vernonjs
Codification,is as follows:
                  "Limitationnot available* That na
            delinquent taxpayer shall have the right to
            plead in any Court or in any manner rely up-
            on any Statute of Limitation by way of de-
            fense against the payment of taxes due from
       Honorable   Leroy   L, Moore - Pago 2


                   him or her to the State, or any county,
                   city, Navigation District, Drainage Dis-
                   trict, Road District, Levee District,
                   town, Reclamation District, Irrigation
                   Dfstriet, ImprovementDistrict, School
                   Distriot and all other Districts; pro-
                   vided, that no suit ehall ba brought for
                   ,thecollection of delinquent taxes of a
                   School Dirtriet or Rood DiaOrict    unless
                   institutedwithin ten years frem the
                   time the ssme shall become delinquent,*
             The Court of Civil Appeals for the 7th Supreme Ju-
       die ,ialDistsfct in Cook vsa City of Booker,   167 SOW, (Zd)
       232'pheld the proviso contained in Article 7298 of the
       St4.tuteato be a statute of liraioa'tiena
                                               to be speei.f%cal-
       ly pleaded in defense, saying: *T&e Caurt erred in suae
       taining the special exccptien of th,eaeheol distlrietto
       Appellant's plea of limitation,,and ermitting it to re-
       cever a judgaent for the item of 8321 0759 a part Of which
       the record shows on its face w&e barred by the 10 years
       statute of limitation,** * ewe
            In Opfnian We, O-449Sa this Department,after qust-
       ing Article 7298, held:
 \
,.                         *We think the proviso of th,eabove-
 ",                cpuot~sdetatuta is, otrictly and properly
                   cmetrued,   a limitation statute, and the
                   rules and decisions $oveming aad appli-
'                  cable t:egeneral statutea ef lMit.atien
                   wouJ,dapply here. Under such, it must be
'..                said that these delinquent school and read
                   district taxes are net remitted, releaeed
                   or discharged by the statute citad and
 : ~               quoted above but same only gees to the re-
                   reedyand furnishes the taxpayer a defense
                   to an action brought for such taxes after
                   the limitatien Period0 The school and
                   road dkstriot taxes in the instant caee
                   are still due and owing to the respective
                   taxing authorities involved, despite the
                   assr$t&on of the taxpayer that he will in-
                   voke the applicabla atatute of limitation
                   WI to a portion ef them, It is oaly the
                   remdy for their collectionwhich may be
                   afferSed by this limitation statute, Li.&Bi*
                   'tationfara defense which muat be slpacially
Honorable Leroy LO Moore - Page 3


          urged9 is personal to the debtor, and may be
          waived by him,”
    The fame holding was made in Opinion lk~a@-569$ which
o inion, In turn, cited Opinion Ho,.O-3315, a-a,
                                               kMln&
6iat the ‘statuteis one ,oflimitation,
    Purthormore,Rule 94 of the Rules of Praetico *aJ
Proceaure in Civil Actions ir in part a* follows*
                 WI pleading to a prezsdtn, p%eo&
          ing, a party shall cot forth aFf f zmbim-
          ly *** statute of l&nitations~,*e~ and ury
          other netter eomtituti       an avoWm6~e 0s
          affirmat ire defense **+ 9Js
                                   I_
     We adhere to the opioiane,  follau the daetrivti *od
rule above quoted, and enewer your quastim to *ha eBkct
that the proviso contained in Ctxtlcle 729$ i8 a statute
of limitations  which must be pleaded by the tarpayer de-
fendant in order to avail himself of t?m tlefeme.


    The proviso appended to Article 7298 of 6he Belied
Cfvil Statutes is a statute of limitationo necessary Co
be plead& affirmatively     by the defendant ta%pwer in
order to avail himelf,    of such defense, cli tau (1(D) years
limitaticmo