                                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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