The Honorable Anna Beth Merten                Opinion No.    H- 77
County Auditor,  Wailer County
P. 0. Box 966                                 Re:    Is a Road and Bridge
Hempstead,   Texas 77445                             Warrant Coupon dated
                                                     April 10, 1939, a valid
                                                     claim and should it be
Dear Ms.   Merten:                                   approved for payment?

    You have asked us if the .County Auditor of Waller County is obligated
to pay a claim based upon a $50 coupon issued April 10, 1939, which became
due of April 10, 1940.  The coupon represented   the interest due on a warrant
which was a part of the Series 1939’Waller  County Road and Bridge Warrants.
The coupon is now 33 years past due.

     As early as 1881 the Texas Supreme Court held that the statute of
limitation on a coupon begins to run from the date when the coupon is due.
City of Galveston V. P. J. Loonie,   54 Tex. 517 (1881). TheCourt   denied
recovery   on coupons which had been due over four years at the date of the
institution of the suit.

    Article 5527, V. T. C. S. , governs the period of time during which
an action on this coupon could have been brought.    It reads:

            “There shall be commenced     and prosecuted
       within four years after the cause of action shall
       have accrued,   and not afterward,   all actions or
       suits in court of the following description:

           “1.   Actlms for debt where the indebted-
                 ness is evidenced by or founded upon
                 any contract in writing. ”

     The right to recover on the coupon accrued on.April 10, 1940.    Therefore,
it is our opinion that the Office of the County Treasurer of Waller County is
not ‘obligated by law to pay the bearer of the coupon when it is presented




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The Honorable    Anna Beth Merten,       page 2      (H-77)




thrity-three  years after its due date.   Rockwall County v. Roberts County,
128 S. W. 369 (Tex. 1910); Hidalgo County v. Jackson,      119 F. 2d 108 (CCA 5th,
1941); Mullens v. Baily,    374 S. W. 2d 455 (Tex. Civ. App.,   Corpus Christi,
1964); Davis v. Dennis,   448 S. W. 2d 495 (Tex. Civ.App.,     Tyler,  1969).

    If suit is instituted   in the collection    of the past due coupon and the
statute of limitation is plead by Waller County, no recovery        can be had.
It should be noted however,     that the defense of limitation  may   be waived,
and should Waller County wish to acknowledge the claim it may do so.
Article  5539, V. T. C. S. The right of a county to waive the statute of limit-
ation is acknowledged    in Falls County v. Mires,     218 S. W. 2d 491 (Tex. Civ.
APP. 3 1949, err. ref’d. ); and in Hidalgo County, Texas v. Jackson,        119 F. 2d
108, (CCA 5th, 1941).

                              SUMMARY

            Wailer County may refuse to honor the coupon
        now 33 years past due because the claim is subject
        to the plea that is barred by the statute of limitation
        provisions  of Article  5527, V. T. C.‘S. ) or it may
        acknowledge the claim and waive the limitation.

                                             Very   truly yours,




                                             Attorney   General    of Texas


APPRRVED:




DAVID M. KENDALL,            Chairman
Opinion Committee


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