
    HEREFORD INDEPENDENT SCHOOL DIST. v. JONES et ux.
    (No. 1114-5375.)
    Commission of Appeals of Texas, Section B.
    Feb. 5, 1930.
    Travis M. Dameron, of Hereford, for appellant.
    Carl Gilliland, of Hereford, for appellees.
   LEDDY, J.

The Court of Civil Appeals for the Seventh District presents the following certificate and question:

“The plaintiff, Independent School District, sued the defendants Jones and wife, to recover delinquent taxes, together with interest, penalty and costs. ■ The taxes, though properly assessed, were unpaid for the years 1918, 1921 and 1924. The District further sued for the foreclosure of the tax lien, on Lots 5 to 11 in Block 15 of the Evants Addition to the Town of Hereford, within the limits of said District.

“The defendants answered by general and special exception and plead the two year statute of limitation.

“A trial to the Court without the intervention of a jury resulted in a judgment that the Independent School District take nothing.

“In view of the holding in the case of American Surety Co. v. Board of Trustees (Tex. Civ. App.) 224 S. W. 292, and of the holding in State for Dallas County Bois D’Arc Island Levee District v. Glenn (Tex. Com. App.) 13 S.W.(2d) 337, and cases therein cited, the members of this Court are not able to agree •upon the issue of law involved, and we therefore certify to Your Honors the following question:

“Did the Trial Court correctly hold that the two years’ statute of limitation applied to the action brought by ithe School District to recover the .taxes, penalties and costs involved?”

The delinquent taxes for the years 1918, 1921, and 1924 were barred by the two years’ statute of limitation .unless some other provision of the statute prevented the plea of limitation being presented as a defense.

It is urged that the provisions of article 7298, R. S. 1925, operated to prevent the plea of limitation from being available in a suit for the recovery of thei taxes by a school district. This article reads as follows: “No delinquent tax payer shall have the right to plead in any court or in any manner rely upon any statute of limitation by way of defense against the payment of any taxes due from him or her either to the State, or any county, city or town.”

The application of the above statute is expressly limited to suits to collect taxes due the ■state, county, city, or toum, and is not, in our opinion, applicable to taxes due to school districts. This being the only statute which we think can be urged as having the effect of preventing the operation of the statute of limitation as to the taxes due for the years 1918 and 1921, we are compelled to hold that the recovery of such taxes by the school district was barred; hence the trial court properly sustained an exception to the petition seeking a recovery therefor.

We conclude, however, that subsequent legislation, effective before the .taxes for the year 1924 became barred, prevents the plea of limitation from being used as a defense against the recovery of such taxes.

Our conclusion is based upon the provisions of the Acts of 1923 (Second Galled Session, e. 13, p. 36) now article 7329, R. S. 1925, and articles 7337 and 7343, R. S. 1925. The first named statute provides:

“There shall be no defense to a suit for collection of delinquent taxes, as provided for in this chapter except:

“1. That the defendant was not the owner of the land at the time the suit was filed.

“2. That the taxes sued for have been paid, or

“3. That the taxes sued for are in excess of the limit allowed by law, but this defense shall apply only to such excess.”

Article 7343 contains the following provision: “All laws of this State for the purpose of collecting delinquent State and county taxes are by this law made available for, and when invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts in so far as such laws are applicable.”

Article 7337, R. S. 1925, reads as follows: “Any incorporated city or town or school district shall have the right to enforce the collection of delinquent taxes due it under the provisions of this chapter.”

We think the adoption of the above articles as a part of >the Revised Statutes of 1925 manifested an intention on the part of the Legislature to adopt by reference the provisions of article 7329 so as to make the terms thereof applicable to suits by districts to enforce the collection of school taxes. American Indemnity Co. v. City of Austin, 112 Tex. 239, 246 S. W. 1019. Under this statute appellees are denied the right to interpose the plea of limitation against appellant’s suit to collect taxes due it for the year 1924.

We therefore answer the question certified that the trial court correctly held the two years’ statute of limitation barred the recovery of taxes by the school district for the years 1918 and 1921, but was in error in holding that the taxes due for the year 1924 were so barred.

CURETON, C. J. The opinion of the Commission of Appeals answering the certified questions is adopted and- ordered certified.  