                                         February 17,200O



The Honorable Ben W. “Bud” Childers                Opinion No. JC-0182
Fort Bend County Attorney
301 Jackson, Suite 621                             Re: Whether, under Falls County v. Mires, 218
Richmond, Texas 77469-3 108                        S.W.2d 491 (Tex. Civ. App.-Waco 1949, writ
                                                   refd), the two-year statute of limitations bars
                                                   county court at law judges’ claims for unpaid
                                                   annual salaries going back more than two years
                                                   (RQ-0116-JC)

Dear Mr. Childers:

         Section 16.004 of the Civil Practice and Remedies Code establishes a four-year limitations
period for all causes of action based on “debt.” See TEX. CIV. PRAC. & REM. CODE ANN.
5 16.004(a)(3) (Vernon Supp. 2000). In Fulls County Y. Mires, 218 S.W.2d 491 (Tex. Civ.
App.-Waco 1949, writ ref d), the Texas Court of Civil Appeals applied the two-year statute of
limitations, applicable to debt not evidenced by a written contract, to an action by a county treasurer
to recover unpaid salary, where the county had raised the statute of limitations as an affirmative
defense. See id. at 494-95. You ask whether the two-year statute of limitations applied in Mires,
now section 16.003 of the Civil Practice and Remedies Code, see TEX. CIV. PRAC. & REM CODE
ANN. 5 16.003(a) (Vernon Supp. 2000), bars a claim by three county court at law judges for
underpayment of annual salary longer than two years ago. See Letter from Portia Poindexter, First
Assistant, Fort Bend County Attorney, to Honorable John Comyn, Attorney General (Aug. 3 1,1999)
(on file with Opinion Committee) [hereinafter “Request Letter”].

         Your question raises two issues: first, whether a statute of limitations bars the judges from
tiling claims for the entire sums due them, regardless of the date the claims accrued, and second,
whether a two-year or four-year statute of limitations applies. We conclude first that a statute of
limitations does not bar the judges’ claims; rather, the county must raise the statute of limitations
as an affirmative defense if the county wishes a court to apply it. We conclude second that the
applicable statute of limitations is the four-year statute set forth in section 16.004 of the Civil
Practice and Remedies Code, rather than the two-year statute set forth in section 16.003 of the same
code. To the extent Mires determines that a two-year statute of limitations may be raised as an
affirmative defense in an action for back pay, statutory amendments have superseded the case.

       An audit revealed that the three Fort Bend County Court at Law Judges were paid not on an
annual basis but on an hourly basis for several years, although the county budgeted the correct salary
The Honorable Ben W. “Bud” Childers       - Page 2      (JC-C182)




each year. See id. at 1. The Independent Accountants’ Report calculates the salaries the judges
should have received from the date each judge initially took office until December 31, 1998. See
id.; see also Null-Lairson, Certified Public Accountants, Independent Accountants’ Report, to
Ms. Kathy Hynson, Fort Bend County Treasurer (June 21,1999) (on tile with Opinion Committee).
The Report indicates that Judge McMeans was undercompensated in the amount of $1,709.81 from
January 1, 1987, through December 31, 1998; Judge Wagenbach was undercompensated           in the
amount of $3,296.39 from December 8,1990, through December 31,199s; and Judge Lowery was
undercompensated    in the amount of$5,094.57 from November 7,1996, through December 3 1,1998.
Id. at 2.

         Judge McMeans suggests that a statute of limitations prevents the judges from claiming more
than four years’ unpaid salaries. See Memorandum from Honorable Walter S. McMeans, Judge,
County Court at Law No. 2, to Honorable Bud Childers, Fort Bend County Attorney (Aug. 12,1999)
(on tile with Opinion Committee).    Accordingly, you tell us, Judge McMeans believes that “the
calculation of underpayment should begin no earlier thanthe beginning of his term [i]n January[]
 1995.” Request Letter, sup-a, at 1. As we explain below, the judge is correct in part.

         Statutes of limitations are set forth in chapter 16 of the Civil Practice and Remedies Code.
Section 16.003 sets forth a two-year limitations period on suits for injury to, conversion of, or the
taking of personal property. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon Supp.
2000); see also id. $5 16.0045(a), .010(a). Section 16.004 ofthe Civil Practice and Remedies Code
establishes a four-year limitations period for causes of action for “debt.” See id. 5 16,004(l)(3).

        Falls County Y. Mires, which you cite, concludes that the two-year statute of limitations
applied to a claim filed by the Falls County Treasurer to recover insufficient monthly salary from
January 1, 1936, through September 29, 1947. See Mires, 218 S.W.2d at 493. Under the General
Officers Salary Act of 1935, the treasurer should have received an annual salary of $2,000, but the
commissioners court fixed the salary at considerably less than that for the years in question. Id. at
493-94. Nevertheless, the treasurer “made no legal complaint” to the Falls County Commissioners
Court “for its failure to pay him the salary he was entitled to as a matter of law until he filed” on
September 29, 1947, a claim for the sum of $11,426.64 plus interest. Id. at 494. Falls County
argued that the two-year statute of limitations precluded the treasurer from recovering unpaid salary
for more than two years prior to the time the treasurer made his claim. Id. The court agreed:

                         Falls County has pleaded     our two year statute of limita-
               tions. We think it is applicable here; and since it was pleaded, it is
               our duty to apply it, notwithstanding we think it works a hardship on
               plaintiff. Under our system of jurisprudence, all of us are charged
               with the knowledge of the statutory provisions of our law, and
               plaintiff Mires was charged, as a matter of law, that he was entitled
               to receive the sum of $2000 per year as County Treasurer when he
               took office on January 1,1936. He also had actual knowledge ofthe
               fact that the Commissioners Court was paying him less salary than he
The Honorable Ben W. “Bud” Childers       - Page 3       (X-0182)




               was entitled to receive, beginning with his first monthly payment, and
               since he had knowledge of these facts, the foregoing statute of
               limitations began to operate against him at the time he received his
               first payment.

Id.

          We conclude first, consistently with Mires, that a statute of limitations does not bar the
judges from recovering the full amount the county owes them unless the county raises a limitations
 statute as a defense. See Mires, 218 S.W.2d at 494 (“[Slince it was pleaded, it is our duty to apply
 it.“). A statute of limitations is an affirmative defense that must be asserted in response to a
complaint if the defendant intends to take advantage of it. See also TEX. R. CIV. P. 94 (requiring
party affirmatively to raise, “[i]n pleading to a preceding pleading,” statute of limitations); Woods
 v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988); Southwestern Fire & Cas. Co. v.
Lame, 367 S.W.2d 162, 163 (Tex. 1963). If the county does not affirmatively plead the statute of
 limitations, it waives the defense, see France v. AllstateIns. Co., 505 S.W.2d 789,793 (Tex. 1974);
 50 TEX JUR. 3DLimitation ofActions 3 164, at 634-35 (1986), and the judges may recover all ofthe
unpaid salaries.

          We conclude second that the four-year statute of limitations for causes of action based upon
debt, see TEX. CIV. PFLK. &REM. CODE ANN. 5 16.004(a)(3) (Vernon Supp. 2000) applies to the
judges’ claims rather than the two-year statute of limitations applied in Mires. See Mires, 218
 S.W.2d at 494. At the time Mires was decided, the statutes of limitations distinguished between
 actions for debt not evidenced by a written contract and those founded upon a written contract. The
two-year statute of limitations applied to “[alctions for debt where the indebtedness is not evidenced
by a contract in writing.” See TEX. REV. Crv. STAT. ANN. art. 5526(4), amended by Act of
 May 27, 1979, 66th Leg., R.S., ch. 716, 5 1, art. 5526, 1979 Tex. Gen. Laws 1768, 1768, repealed
 by Act ofMay 17,1985,69th Leg., R.S., ch. 959, § 9(l), 1985 Tex. Gen. Laws 3242,3322; see also
 Act of May 17, 1985,69th Leg., R.S., ch. 959, 5 1, sec. 16.003, 1985 Tex. Gen. Laws 3242,3252
 (codifying section 16.003 of the Civil Practice and Remedies Code). The four-year statute of
 limitations, on the other hand, applied to actions for debt only “where the indebtedness is evidenced
 by or founded upon” a written contract. See TEX. REV. CIV. STAT. ANN. art. 5527(l), amended by
 Act ofMay 27, 1979,66th Leg., R.S., ch. 716, 5 2, 1979 Tex. Gen. Laws 1768, 1769, repealed by
 Act ofMay 17, 1985,69th Leg., R.S., ch. 959, § 9(l), 1985 Tex. Gen. Laws 3242, 3322; see also
 Act ofMay 17, 1985,69th Leg., R.S., ch. 959, § 1, sec. 16.004(a)(3), 1985 Tex. Gen. Laws 3242,
 3252 (codifying section 16.004 of the Civil Practice and Remedies Code). Thus, the Mires court
 applied the two-year statute of limitations because the county treasurer could not have been under
 contract with the county. See Mires, 218 S.W.2d at 494.

        Now, all actions for debt fall within the four-year statute of limitations. Amendments to the
two-year and four-year statutes of limitations in 1979, see Act ofMay 27,1979,66th Leg., R.S., ch.
716, $5 1,2, 1979 Tex. Gen. Laws 1768,1768-69, “eliminated the former distinctionbetween        debts
evidenced by a writing, which were governed by the four-year statute, and debts not evidenced by
The Honorable Ben W. “Bud” Childers       - Page 4       (JC-0182)




a writing, which were governed by the two-year statute.” Mokwa Y. City ofHouston, 741 S.W.2d
142, 149 (Tex. App.-Houston      [lst Dist.] 1987, writ denied). A cause of action premised upon a
county’s statutory liability for back pay is an action for debt subject to section 16.004. See id.
Consequently, the judges’ causes of action may be limited by the four-year statute of limitations
applicable to causes of action for debt rather than the two-year statute of limitations relied upon in
Mires.
The Honorable Ben W. “Bud” Childers       - Page 5      (X-0182)




                                       SUMMARY


                        A county that has paid county court at law judges less annual
               salary than that to which the judges are statutorily entitled may raise
               the four-year statute of limitations for causes of action based upon
               debt, see TEX. REV. Crv. PRAC. CODE ANN. 5 16.004(a)(3) (Vernon
               Supp. 2000) as an affirmative defense to prevent the judges from
               collecting on claims more than four years old. The two-year statute
               of limitations applied in Falls County Y. Mires, 218 S.W.2d 491 (Tex.
               Civ. App.-Waco 1949, writ refd), no longer applies to causes of
               action premised upon statutory liability for back pay.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
