        I




                       The Attorney              General of Texas
                                              April        27,    1978
JOHN L. HILL
Attorney General


                   Honorable Ernie Tullis                                Opinion No. H- 1159
                   Administrator
                   Texas Employment Commission                           Re: The statute    of limitations
                   Austin, Texas 78778                                   in  the    Texas     Employment
                                                                         Commission Act.

                   Dear Mr. Tullis:

                          You ask three questions about the statute of limitations in the Texas
                   Unemployment Compensation Act. Section 14(b) of the Act, codified as
                   article 5221b-12(b), V.T.C.S., provides in part:

                                  Collections:  If, after notice, any employer defaults
                               in any payment of contributions, penalties or ,interest
                               thereon, the amount due shall be collected by civil
                               action in a District Court in Travis County, Texas, in
                               the name of the State and the Attorney General, and
                               the employer adjudged in default shall pay the costs of
                               such action; provided, however, that no court action
                               shall be begun to collect contributions     or penalties
                               from an employer after the expiration of three (3)
                               years from the due date of such contributions, except
                               that, in any case of a willful attempt in any manner to
                               evade any of the provisions of the Unemployment
                               Compensation Law or Commission rules or regulations
                               promulgated thereunder, such action may be begun at
                               any time.

                           You first ask whether article 5221b-12(b) absolutely prohibits the
                   Commission from filing suit to collect delinquent taxes three years after the
                   due date.    In our opinion, this article establishes a three year statute of
                   limitations for collection of taxes, in the absence of a willful attempt to
                   evade the Act. The language of this section is similar to the language of
                   general statutes of limitation.    See e.    V.T.C.S. arts. 5526, 55264 5527.
                   The predecessor of article 5221b-12-7-F b contained an additional sentence
                   referring to “ItI he three-year period of limitations herein prescribed.” Acts
                   1943, 48th Leg., ch. 339, S 1, at 573; see Acts 1955, 54th Leg., ch. 116, S 10, at




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408 (repealing additional sentence), Thus, the Legislature which enacted the three
year deadline considered it as a statute of limitations, and we do not believe it
should be regarded as an absolute bar on the Commission’s filing suit. ci. Attorney
General Opinion Mll(1967). See also Maher v. Gonxalez, 360 S.W.2d 764 (Tex. Civ.
App. - San Antonio 1964, no writ).e     statute of limitations constitutes a defense
which must be affirmatively pleaded. Southwestern Fire & Casualty Co. v. Larue,
367 S.W.2d 162 (Tex. 1963); Tex. Il. Civ. P.94.     In the absence of pleading, the
defense is waived. Musso v. Cronley, 422 S.W.2d 840 (Tex. Civ. App. - Waco 1967,
no writ).

      Your remaining questions concern the recovery of an overpayment        of benefits
pursuant to article 5221b-14(d), which provides as follows:

               Any person who, by reason of the nondisclosure or
            misrepresentation    by him or by another, of a material fact
           (irrespective of whether such nondisclosure or misrepresen-
            tation was known or fraudulent) has received any sum as
           benefits under this Act while any conditions for the receipt
           of benefits imposed by this Act were not fulfilled in his
            case, or while he was disqualified from receiving benefits,
           shall, in the discretion of the Commission, either be liable to
           have such sum deducted from any future benefits payable to
           him under this Act or shall be liable to repay to the
            Commission for the Unemployment Compensation Fund, a
           sum equal to the amount so received by him, and such sum
           shall be collectible in the manner provided in . . . [article
           5221b-12(b), V.T.C.S.] for the collection of past due contri-
           butions.

You ask whether a suit to collect the overpayment is subject to the three year
statute of limitations.    In our opinion, the statute of limitations is part of “the
manner provided . . . for the collection of past due contributions” under article
5221b-12(b). See American National Insurance Co. v. Hicks, 35 S.W.2d 128 (Tex.
Comm’n App.        1931, jdgmt adopted) (statutes of limitations     regulate method
whereby law is applied).       The three year statute of limitations      is therefore
applicable by reference to suits for collection of overpayment from recipients
under article 5221b-14(d). See Westervelt v. Yates, 194 S.W.2d 395, 398 (Tex. 1946).

       You finally ask whether the three year statute of limitations also bars the
deduction of overpayments from future benefits payable to a claimant.         Article
5521b-14(d) provides two alternative    methods for recovering overpayments.      The
recipient may be liable (1) to have the overpayment deducted from future benefits
or (2) to repay the sum to the Commission.          The Commission can deduct the
overpayment from future benefits without resorting to the collection procedure
given in article 5221b-12(b). A lawsuit is necessary only to recover the excess from
funds the person holds. Since the collection procedure is inapplicable to deductions
 from future benefits, the statute of limitations which constitutes part of that
procedure is also inapplicable.




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Honorable Ernie Tullis   -   Page 3   (H-1159)



                                  SUMMARY

           The three year statute of limitations       for collection of
           unemployment      contributions    under article   5221b-12(b),
           V.T.C.S., does not prohibit the Commission from filing suit
           and may be waived by the defendant.            The statute of
           limitations applies to a suit by the Commission to recover an
           overpayment of benefits under article 522lb-14(d), V.T.C.S.,
           but does not apply to the deduction of overpayments       from
           future benefits.

                                             Very truly yours,




                                             Attorney General of Texas




C. ROBERT HEATH, Chairman
Opinion Committee

jst




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