Untitled Texas Attorney General Opinion ( 1951 )

AUWTIN 11. -,%XAS
PRICEDANIEL
ATTORNEY GENERAL.
August 3, 1951
Hon. B. F. McKee Opinion Eo. V-1230
County Auditor
Hidalgo County Re: Authority of the Com-
Edinburg, Texas mlssloners~ Court to
waive limitations and
pay the County; Judge
for services as a mem-
ber of the Juvenile
Board when the salary
claim would otherwise
be barred by limita-
,. Dear Sir: tions.
You have requested an 'opinion concerning the 1
authority of the commissioners' court to waive limita-
tlons an pay the county judge for se.rvices as a member
of the J %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 corpora-
tion.'
a$:,
"When a county comes into court it
comes as any.other litigant.~ 11 Texi' Jur .pp.
614~615; Brite vi Atascosa County, Tex.Clv.
App. San Antonio,243 S.W. 878 (Writ Dis.);
McKinuey v. Freestone County,, Tex.Com.App.,
291 S.W. 529. And, even though a county is
essentially an instrumentality.of the state,
. .
HOG. B.‘F. McKee, page 2'(V-1230)
~‘the general. limitation statutes are with
certain defined exceptions available in de-
fense of suits by counties:. 1 Hatcher v.
State, 125 Tex. 84, ,81. S .W.2d 499, 501, 98
A.L.R. 1213.
“The ,statute of limitaiiona whi1.e no
longer an odious plea is one which must be
specially pleaded and one which courts do
not go out of their way to sustain. Duck-
vorth v. Fallas County Levee Improvement
Dist. 30. 5, Tex.Civ.App. Austin, 11. S.W.28
263.
“We bel.ieve the tenor of the, law on the
subject of the ‘right of a county to waive a
plea of limitation to be such that no sem-
blance of bad, faith can be attached to the
action of the Commissioners’ Court In ab,id.-
-;ng by the judgment of the. District Court
uphold in,- such right.. “
In Wier v; Silver Bow County; 124 P.2d 1.003,
1005 (Kant. Su?. 19+2), the court, on this question, held:
“The ,etatute of limitations is a per-
sonal ,prisil.ege which may be waived. It
must :he pl.eaded, in order to be’available as
z defense. .~The county c’ommissionere have the
right and power’,‘to direct and control the
prosecuti:on and definsk of, all suits to which
the countg~ is. a. party. V se. 4465.14 Rev.
Codes. It seems clear that the board could
decl!ine to plead the statute of limitations
whenever it was of the opinion that facts
showing the bar of the statute could not be
established. This was the implication of
g$;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
I stipulation tha.t the facts are not such that
the ,plea of the statute of limitations would
be available.”
f
I
:r
Hon. B. F. McKee, page 3 '(V-1230)
it has been held by this office that limita-
tion 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 au-
thorized to waive limitations' and pay the County Judge
of Hidalgo County for services as a member of the Ju-
venile Board when the salary claim based hen Article
3912e-5, V.C.S., would otherwise be barred by limita-
tions.
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 offi-
cer 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 t. Sup. 1942); Att'y ien:
op. V-1165,(1&n
APPROVED: Yours :very truly,
.I
'Bruce Allen PRICE DAEIEL
County Affairs Division Attorney Gpnerel
.
Everett Rutchinson
Executive Assistants
BY &.,.~ ,.I
Charles D. Mathews John Reeves
First Assistant Assistant.
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