              E        QRNEY       GENERAL
                            EXAS




Honorable Robert S. Calvert        Opinion Wo. C-143
Comptroller of Public Accounts
Capitol Station                    RR:    Whether certain notice
Austin, Texas                             Is a sufficient act to
                                         ,prevent running of
                                          limitation under Art.
                                          16.01, Title 122A,
                                          Taxation-General, R.C.S.,
                                          as amended In 1963.
Dear Mr. Calveft:
       You have asked ua It.. . whether the filing of notice
of State's lien under provisions of Articles 1.07, 1.07A  and
1.07B. Tit1.e 122A, Taxation-General, Revised Civil Statutes
of Texas, la an Act which will protect the State's interest In
taxes due, on the transfer of no-par stock." Your inquiry is
predicated upon the Act1 of our last Legislature which, In Its
re~levantportion, states:
       II
              No action shall be commenced or prosecuted
   after'the'exoiration of one hundred and eighty (ItJO)
   days from the effective date of this Act In regard to
   stock transfer taxea accruing on transfers ofllno-par
   shares of stock prior to such effective date.   (under-
   scoring added.).
       Our opinion la that the '. . . action . . . commenced
or prosecuted . . .' contemplated by this Act must be a suit
filed In a court of competent Jurisdiction which seeks pay-
ment of the taxes referred to in the Act. Therefore, the fil-
ing of notice of the State's lien mentioned in your inquiry
would not be a sufficient action to prevent running of the
bar of limitation provided in the Act.
       We quote from the following authorities:
       II     An action is a judicial proceeding, either
   in law or'ln equity, to obtain certain relief at the

   IActs 1963, 58th Leg., Ch. 513, p. 1351, H.B. 668, which
amended Art. 16.01 of Title 122A, Taxation-General, Revised
Civil Statutes of Texas. This Article Imposes a tax upon
the sale and transfer of corporate shares.
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Hon. Robert S. Calvert, page 2 (C-143


   hands of the court . . ." Elmo v. James, 282 S.W.
   835 (Tex. Civ. App. 1926, error dism.).
       II
        . . . To constitute the proceeding 'a suit' or
   'action,' in any legal sense, it is essential that
   it rest In a court, with the power to hear it . . .'
   United ProductIonCorporation-v. Hughes, 137 Tex. 21,
   152 S.W.2d 327 (1941).
Accord: Merchants' Mutual Insurance Co. v. Lacrolx, 35 Tex.
249 (1871-2); Hereford Independent School Diat . v. Jones,
118 !kx. 655, 23 S.W.2d 690 (1930).
          The lien provided by Articles 1.07,,1.07A and 1.07B
is merely security for the tax, and when the tax is barred
by limitation the State is left without any remedy upon the
lien. The following authorities establish this principle
with reference to debts; we hold that this principle is also
aDDliCable
.~.~. ~~~     to the lien wrovislons and the taxes under con-
sideration. Blackwell ;. Barnett, 52 Tex. 326, 332-333
(1879); Hawthork;. :;;tes B;os~O~~O~~,"~~;8s:: (Te'ei3Clv.
App'.1918); 36       .    .   67 -   ,
       The amended act which states, "Nonaction shall be
commenced or rosecuted after the expiration of one hundred
and eighty (180) days;" is a statute of limitations, and to
be available as a defense must be affirmatively pleaded.
Cook v. city of Booker, 167 s.w.2d 232 (Tex. civ. App. 19$2
Attorney Qeneral's Opinion No. O-7303 (1946) and V-39 (1947
       Limitation statutes do not release or extinguish the
debt but merely affect the remedy when Its enforcement is
         Sam Bassett Lumber Co. v. City of Houston, 145 Tex.
;;:~"198 S.W.2d 879 (1947).
       You are therefore advised that filing of notice of the
State's lien pursuant to Articles 1.07, 1.07A and 1.07B of
Title 122A, Taxation-General, R.C.S., is not an action which
will prevent the running of limitation under Article 16.01,
as amended by Acts 1963, 58th Legislature.

                            SUMMARY
            "Filing of notice of the State's lien
            pursuant to Articles 1.07, 1.07A and
            1.07B of Title 122A, Taxation-Oeneral,
            R.C.S., Is not an action whlch~will
            prevent the running of limitation under

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Hon. Robert S. Calvert, page 3 (C-143


          Article 16.01, as amended by Acts 1963,
          58th Legislature.
                                    Very truly yours,
                                    WAGGONER CARR
                                    Attorney General



                                          Allen
                                                 BKW
                                    Assistant Attorney General



APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Joseph Triable
Jack Goodman
J. H. Broadhurst
J. Arthur Sandlin
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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