We acknouledge receipt of your letter requesting an opinion upon the above titled subject matter, such letter being as follows:

"Relative to Article 7298 of VemonTs Revised Civil Statutes of Texas;

"I know in all civil cases where the statute limitation is used as a defense that it is necessary to plead it in order t0 avail oneself of the benefits of it, Ques- tion; Would it be necessary to plead the ten year statute of limitation a ainat road !3 and school taxes under Article 7 98 in order to get the benefit of the plea of limitation where in the provision of said article it is provided 'that no suit shall be brou htp? I am wondering if the word shall use t there- in is mandatory or merely'directory,w Article 7298 of the Revised Civil Statutes9 Vernonjs Codification, is as follows:

"Limitation not available* That na delinquent taxpayer shall have the right to plead in any Court or in any manner rely up- on any Statute of Limitation by way of de- fense against the payment of taxes due from *2 Honorable Leroy L, Moore - Pago 2

him or her to the State, or any county, city, Navigation District, Drainage Dis- trict, Road District, Levee District, town, Reclamation District, Irrigation Dfstriet, Improvement District, School Distriot and all other Districts; pro- vided, that no suit ehall ba brought for ,the collection of delinquent taxes of a School Dirtriet or Rood DiaOrict unless instituted within ten years frem the time the ssme shall become delinquent,* The Court of Civil Appeals for the 7th Supreme Ju- ,ial Distsfct in Cook vsa City Booker, 167 SOW, (Zd) die ^[232] ly pleaded in defense, saying: *T&e Caurt erred in suae St4 'p held the proviso contained in Article 7298 of .tutea to be a statute of liraioa'tiena to the speei.f%cal- be taining the special exccptien of th,e aeheol distlriet to Appellant's plea of limitation,, and ermitting it re- cever a judgaent for the item of 832 1 0759 a part Of which the record shows on its face w&e barred by the 10 years statute of limitation,* * * ewe

In Opfnian We, O-449Sa this Department, after qust- 7298, held: ing Article

\ ,. *We think the proviso of th,e above- ", cpuot~sd etatuta is, otrictly and properly a limitation statute, and the

cmetrued, rules and decisions $oveming aad appli- cable t:e general statutea ef lMit.atien ' wouJ,d apply here. Under such, it must be said that these delinquent school and read '..

district taxes are net remitted, releaeed or discharged by the statute citad and quoted above but same only gees to the re- : ~ reedy and furnishes the taxpayer a defense

to an action brought for such taxes after the limitatien Period0 The school and road dkstriot taxes in the instant caee are still

due and owing to the respective taxing authorities involved, despite the assr$t&on of the taxpayer that he will in- voke the applicabla atatute of limitation WI to a portion ef them, It is oaly the remdy for their collection which may be afferSed by this limitation statute, Li.&Bi* 'tation far a defense which muat be slpacially *3 Honorable Leroy LO Moore - Page 3

urged9 is personal to the debtor, and may be waived by him,”

The fame holding was made in Opinion lk~a @-569$ which o inion, In turn, cited Opinion Ho,. O-3315, a-a, kMln& 6i at the ‘statute is one ,of limitation,

Purthormore, Rule 94 of the Rules of Praetico *aJ Proceaure in Civil Actions ir in part a* follows*

WI pleading to a prezsdtn, p%eo& f ing, a party shall cot forth aFf zmbim- ly *** statute of l&nitations~,*e~ and ury other netter eomtituti an avoWm6~e 0s 9Js affirmat ire defense **+ I_ We adhere to the opioiane, follau the daetrivti *od rule above quoted, and enewer your quastim to *ha eBkct that the proviso contained in Ctxtlcle 729$ i8 a statute which must be pleaded by the tarpayer de- of limitations fendant in order to avail himself of t?m tlefeme.

The proviso appended to Article 7298 of 6he Belied Cfvil Statutes is a statute of limitationo necessary Co be plead& affirmatively by the defendant ta%pwer in order avail himelf, of such defense, cli tau (1(D) years limitaticmo