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
RWF:db/ldw

APPROVEDMAY ;I:!,:+1
s/ GROVERSELLERS
FIRST ASSISTANT
ATTORNGiGENERAL

APPROVEDOPINIONCOMMITTEE
BY B. W. B.
CHAIRMAN
