Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 6,2005
The Honorable Joe Black Opinion No. GA-0380
Harrison County Criminal District Attorney
Post Office Box 776 Re: Whether a county commissioners court must
Marshall, Texas 7567 l-0776 determine whether a publication is a newspaper
of general circulation (RQ-0356-GA)
Dear Mr. Black:
Because there are now two newspapers in your county that claim to be newspapers of general
circulation, you pose three questions relating to the determination of whether a newspaper is one of
general circulation.’ Your first question is:
In determining whether a newspaper is a newspaper sufficient to be
considered a newspaper of “general circulation” for the purposes of
publishing certain County notices, must the Harrison County
Commissioners Court determine whether the newspaper meets the
objective criteria contained in section 205 1.044 of the Government
Code as well as determine the subjective factually based questions of
whether: 1) the newspaper has more than a de minimis number of
subscribers in a specific geographic region; and 2) whether the
subscribership of the newspaper is diverse[?]
Request Letter, supra note 1, at l-2. Contingent upon our answer to your first question, you next
inquire:
If the Commissioners Court must make such a factually based
determination, does the Commissioners Court have the power to hold
an evidentiary hearing to determine the objective criteria of section
205 1.044 and the questions of whether a particular newspaper has
more than a de minimis number of subscribers and whether the
subscribership is diverse[?]
Id. at 2. You finally ask, contingent upon our answer to your second question:
‘Letter from Honorable Joe Black, Harrison County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (June 24,2005) (on file with Opinion Committee, also available at http:l/www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Joe Black - Page 2 (GA-0380)
If the Commissioners Court has the power to hold an evidentiary
hearing to make such a determination, what procedures, if any, must
the Court follow for conducting the hearing[?]
Id.
Texas statutes do not define “newspaper of general circulation.” In Attorney General
Opinion JC-0223, this office said that a “newspaper of general circulation” is a newspaper as defined
by section 205 1.044, Government Code,2 that has “more than a de minimis number of subscribers
among a particular geographic region, [and] a diverse subscribership.” Tex. Att’y Gen. Op. No.
JC-0223 (2000) at 2, 10. In that opinion, this office recognized that the factors constituting a
newspaper under the Government Code could be determined on an objective basis, see id. at 6, but
that the “general circulation” criteria involving subscribership were subjective and involved factual
considerations to be resolved by the body that is to arrange for publication of the notice. See id.
at 7.
By your first question we understand you to inquire, in essence, whether the determination
about a newspaper of general circulation must be made at all. Your second question is contingent
upon our answer to this fundamental question and your third question contingent upon our answer
to the second.
There is no express statutory or judicial requirement that directs a governmental body to
make a formal determination regarding a newspaper of general circulation. The statutes that mandate
notice be published in a newspaper of general circulation do not place an affirmative obligation on
a governing body to formally determine whether a given publication is in fact a newspaper of general
circulation.4 Moreover, the statutory definition of “newspaper” does not require or define a process
2A “newspaper” is a publication that:
(1) devote[s] not less than 25 percent of its total column lineage to general interest
items;
(2) [is] published at least once each week;
(3) [is] entered as second-class postal matter in the county where published; and
(4) [has] been published regularly and continuously for at least 12 months before
the governmental entity or representative publishes notice.
TEX. GOV’T CODE ANN. 9 205 1.044(a) (Vernon Supp. 2005).
3Attomey General Opinion JC-0223 also said that a newspaper of general circulation is one that publishes “some
items of general interest to the community.” Tex. Att’y Gen. Op. No. JC-0223 (2000) at 2. This criteria is duplicative
of item (1) in the definition of “newspaper.”
4See, e.g., TEX. EDUC. CODE ANN. 5 11.1541(a)-(b) (V emon Supp. 2005) (“The board of trustees . . . gives
notice of the [donation of surplus property] hearing by publishing in a newspaper having general circulation .“);
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The Honorable Joe Black - Page 3 (GA-0380)
by which to ascertain whether a publication is a newspaper, see supra note 2, and the legislature has
failed to define “general circulation.” Thus, we do not even find an express requirement for a formal
determination on a given publication in the definitions. Without an express statutory or judicial
directive requiring a formal determination that a given publication is a newspaper of general
circulation, we are unable to conclude that a governmental body has a legal obligation to make such
a determination.
We do not mean to say here that a governmental body failing to make such a determination
necessarily does so without consequence. A political subdivision such as a county that takes an
action for which notice must be published is subject to having that action challenged,5 and possibly
voided, because a required notice was not published in a newspaper of general circulation.6 A
commissioners court order that contained findings of fact concerning the objective criteria
concerning a newspaper and the “general circulation” subjective criteria discussed in Attorney
General Opinion JC-0223 (2000) and an ultimate determination that a publication was a newspaper
of general circulation would be evidence for a court and support for the county in such a challenge.
Moreover, orders of a commissioners court are subject to judicial review only if the commissioners
court acts beyond its jurisdiction or clearly abuses its discretion.7 See Comm ‘rs Court of Titus
TEX. ELEC.CODEANN. 8 4.003(a)(l)(B) (Vernon 2003) (“notice of an election may be given by any one or more of the
following methods: . . . in a newspaper of general circulation”); TEX. GOV’T CODEANN. $0 25.0172(J) (Vernon 2004)
(“Before raising a salary the commissioners court must publish notice . . . in a newspaper of general circulation . . .“),
125 1.003(d)(2) (Vernon 2000) (“notice of the [bond] election shall be given by . . publishing notice of the election in
a newspaper of general circulation”), 2007.042 (Vernon 2000) (“A political subdivision shall provide . . . notice .
. . in a notice published in a newspaper of general circulation . . . .“); TEX. Lot. GOV’T CODE ANN. $0 43.0561(c)
(Vernon Supp. 2005) (“The municipality must post notice of the [annexation] hearings . . . in a newspaper of general
circulation. . . .“), 272.001(a) (Vernon Supp. 2005) (“before land . may be sold or exchanged . . notice . . must be
published in a newspaper of general circulation”); TEX. TRANSP.CODEANN. 9 3 14.022(d) (Vernon 1999) (“Notice of
the [condemnation] hearing shall be given by publication . . in a newspaper of general circulation .“).
‘Seegenerally Walker v. City of Georgetown, 86 S.W.3d 249 (Tex. App.-Austin2002, pet. denied) (challenging
City’s action in leasing City park in part based on lack of notice under sale or exchange of land provision); City of Bells
v. Greater Texoma Util. Auth., 790 S.W.2d 6 (Tex. App.-Dallas 1990, writ denied) (challenging city annexation based
in part on lack of notice of annexation).
6Seegenerally City of Wichita Falls v. Vogtsberger, 526 S.W.2d 618 (Tex. Civ. App.-Fort Worth 1975, rev’d,
533 S.W.2d 927 (Tex. 1976)) (challenging annexation ordinance in part on grounds that newspaper in which annexation
ordinance was published was not newspaper ofgeneral circulation in proposed annexation territory); FoxDev. Co. v City
ofSan Antonio, 459 S.W.2d 670,672 (Tex. Civ. App.-San Antonio 1970), aff’d, 468 S.W.2d 338 (Tex. 1971) (same);
Christyv. Williams, 292 S.W.2d 348,350-5 1 (Tex. Civ. App.-Galveston 1956, writ dism’d) (challenging electionnotice
because notice notpublished innewspaper ofgeneral circulation); City of Corpus Christi v. Jones, 144 S.W.2d 388 (Tex.
Civ. App.-San Antonio 1940, writ dism’d judgm’t car.) (challenging zoning ordinance in part because ordinance not
published in newspaper of general circulation).
‘The jurisprudence of article V, section 8 of the Texas Constitution often equates abuse of discretion review
with arbitrary and capricious review. See Labrado v. Coulzty ofE1 Paso, 132 S.W.3d 58 1,596 (Tex. App.-El Paso 2004,
no pet.) (“As a general rule, a district court’s supervisory control. is limited to determining whether the commissioners
court has abused its discretion or acted illegally or arbitrarily.“); see also Cameron County Good Gov’t League v.
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The Honorable Joe Black - Page 4 (GA-0380)
County v. Agun, 940 S.W.2d 77, 80 (Tex. 1997) (“A party can invoke the district court’s
constitutional supervisory control over a Commissioners Court judgment only when the
Commissioners Court acts beyond its jurisdiction or clearly abuses the discretion conferred upon the
Commissioners Court by law.“); see also Vondy v. Comm ‘rs Court of Uvalde County, 714 S.W.2d
417,420 (Tex. App.-San Antonio 1986, writ ref d n.r.e.). Thus, while it is not legally required for
a governmental body to make a determination regarding local publications, a county could
nonetheless benefit by undertaking some method or process to examine the various facts of a
particular publication against the objective and subjective criteria.
The commissioners court is the governing body of the county, see TEX. CONST.art. V, 0 18
(“County Commissioners Court, which shall exercise such powers and jurisdiction over all county
business”), with discretion over the conduct of county business. See Guynes v. Galveston County,
861 S.W.2d 861,863 (Tex. 1993) (citing Canales v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948));
see also Tex. Att’y Gen. Op. No. GA-0353 (2005) at 4. “Discretion implies the absence of a hard
and fast rule.” Tex. Att’y Gen. Op. No. GA-0353 (2005) at 4 (quoting The Steamship Styria v.
Morgan, 186 U.S. 1, 9 (1902)). In Opinion GA-0353, this office noted that discretion has been
defined as “the act or the liberty of deciding according to the principles ofjustice and one’s ideas of
what is right and proper under the circumstances.” Id. In the absence of a legal requirement to make
the determination, much less a mandate as to how to do so, we conclude that should the Harrison
County Commissioners Court decide to determine whether one or both of the newspapers in
Harrison County is a newspaper of general circulation it has discretion to decide the particular
method by which to make the determination that best suits the needs of Harrison County. For
instance, the Harrison County Commissioners Court could choose to conduct a proceeding in the
nature of a formal evidentiary hearing, but we believe it could also conduct a fact-finding inquiry in
an informal public hearing, in a regular meeting of the commissioners court, or in a study conducted
by county staff, with the resulting findings incorporated into an adopted order of the commissioners
court.
Because we do not conclude that the Harrison County Commissioners Court must make the
determinations regarding a newspaper of general circulation, we do not need to address your
additional contingent questions.
‘( . . continued)
Ramon, 619 S.W.2d 224, 230 (Tex. Civ. App.-Beaumont 1981, writ refd n.r.e.) (“[IIn determinations of fact and in
discretionary determinations, judicial review of acts of the Commissioners’ Court is limited to finding the existence of
substantial evidence or to ascertain whether the action taken was arbitrary or capricious.“); Agq 940 S.W.2d at 80.
The Honorable Joe Black - Page 5 (GA-0380)
SUMMARY
There is no express statutory or judicial mandate placing a
legal obligation on the Harrison County Commissioners Court to
determine whether a publication is a newspaper of general circulation.
Because county actions are subject to challenge based on defects
in notice, the Harrison County Commissioners Court could benefit
by engaging in some method or process by which to make the
determination with regard to one or both of the newspapers in
Harrison County.
The Harrison County Commissioners Court has broad
discretion in the conduct of county business and may decide from
among many options what method or process by which to make the
determination that best serves the needs of Harrison County.
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee