Untitled Texas Attorney General Opinion ( 1946 )

Overruled in part by
o-7286
Honorable Leroy L. Moore
County Attorney.
Houston County
Crockett, Texas
Dear Sir: Opinion No. O-7112
Re: Whether certain county newspapers
meet statutory requirements for
citations by publication.
We have received your letter of February 20, 1946, which, after
citing Rule No. 116 of the new rules of Civil Procedure, pro-
pounds the following questions:
"One of our local newspapers was discontinued during the
time of service of its owner and editor in the recent war.
Would nublication of a citation by publication in that news-
paper be legal notice as required by this Rule?
"Another newspaper here collects the news and sends it to
Houston, Texas, to be typed and printed. This is done
each week. Would citation by publication in that newspaper
be legal notice as required by this Rule?
"Another newspaper in the county suspends its publications
one week in the year. Would citation by publication in that
newspaper be legal notice as required by this Rule?
"One of the local papers in this i:cirnty skipped publication
and circulation during Christmas week.
"Y!ould a citation by publication in a divorce case published
in any one of the three papers mentioned above be legal no-
tice under this Rule?"
Rule 116 of the New Texas Rules of Civil Procedure provides for
the requirement of service of citation by publication in the
following words:
“Rule 116. Service of Citation by Publication
"The citation, ~when Issued, shall be served by the sheriff
or any constable of any county of the State of Texas by
v..
\ -
Honorable Leroy L. Moore, page 2 o-7112
having the samepublished once each week for four (4) con-
secutive weeks, the fir&t publicaticn to be at least twenty-
eight (28) days before the return day of the citation. In
all suits which do not involve the title to land or the
,partltion of real estate, such publication shall be made in
the county where the suit is pending, if there be a newspaper
published in said county, but If not, then in an adjoining
county where a newspaper is published. In all suits which
Involve the title to land or partition of real estate, such
publication shall be made in the cou~nty where the land, or
a portion thereof, is situated, if there be a newspaper in
such county, but if not, then in an adjoining county to,the
county where the land or a part thereof is situated, where
a newspaper is published.”
The Legislature has defined various terms relating to legal pub-
lications and clearly sets forth the minimum requirements of a
“newspaper” in Article 28a, V.A.C.S., which we quote as follows:
“The following terms shall, unless the context indicates
otherwise, have the following res,pective meaning:
“(2) The term ‘newspaper’shall mean any newspaper devoting
not less than twenty-five (25) per cent of its total column
lineage to the carrying of Items of general interest, pub-
lished not less frequently than once each week, entered as
second-class postal matter in the county where published,
and having been publish& regularly and continuously for not
less than twelve (12) months ,prior ‘GOthe making of any
publication mentioned in this .Gct. (As Emended, Acts 1941,
47th T,eg. p. 480, ch. ?C3, ::ec. 1) .‘.
%hen a statute or rule of civil procedure such as Rule 116,
supra, makes provisions with reference to publication in any
“newspap& without defining or explaining same further, then
such “newspaper” must conform to the dcPinltion thereof as set
forth in ~?rticle 28a, above.
Thus, we see by Rule 1.16 that publlc~~~tion of 2. citation shall
be made in a news a er and further by Article %a, that a
newspaper is ?i2Edd+ as one (1) devoting at least 25 percent of
its column lineage to items of general Interest, (2) published
not less than once each week, (3) entered as second-class postal
matter, and (4) published regularly and continucusly ,for not
less than twelve months prior to the making of any publication.
Service by publication is a creature of statutory law, and al-
though we have found no Texas decisions directly in point with
respect to the construction to be placed upon Article 28a,
V.A.C.S., where there is service by publication, there must be
strict and literal compliance with every essential requirement
m statutes in respect thereto. Byrne3 vs. Sampson, 11 S.W.
Honorable Leroy L. Moore, page 3 O-7112
1073; Harris VS. Hill, 117 S.W. 907; Gibson vs. Op enheimer,
154 S.W. 694 (error refused); Lopez vs. Calcado, 2E1 S.W.
324 (error dlsmq%sed); Fisher vs. Jordan, 32 Fed. Sup. 608;
State vs. Ragby's estate, 126 S.W. (2d) 687.
We shall then construe the definition of "newspaper", as defined
by Article 28a, with reference to Rule 116, the citation by
publication statute, and consequently in a strict and literal
manner, pursuant to the prevailing view of strict construction
placed generally by the courts on all statutes dealing with
citation by publication. Whereupon, applying the provisions of
Artj.cle 28a to your questions, in the light of strict construc-
tion and the ex ress and unambiguous language contained therein,
we find that (1 P your county newspaper that was discontinued
and presumably did not resume publication twelve months prior to
the request for citation by publication does not comply with
the statute, (2) that your county newspaper which sus,pends its
publ.ication for one week each year does not comply with the
statute, and (3) that your county newspaper which missed publi-
caMon during this past Christmas week does not comply with the
statute.
With reference to your question regarding the newspaper that
collects the news and sends it to Houston for printing, this
department has previously held in Opinion No. O-566, construing
Arti.cle 2039, V.A. C.S. (now repealed and replaced by Rules
109 and 11.6, Rules of Civil Procedure) that publication within
the county as designated in the statute did not necessarily
require the printing or type- setting to be done within that
county. Thus J where Rule 116 provides that in all suits not
involving title to land or partition, "such publication shall be
made in the county where the suit is ,pending.....,"a publication
is J.egally made in such county when mailed or distributed there-
from even though the type-setting is done elsewhere, provided
that all other statutory requirements are fulfilled as hereto-
fore discussed in this opinion.
Therefore, your local news,paper which sends its news to Houston
for type-setting and, we assume, mails jts copies from your
county, has not disqualified itself thereby under the statutes,
but it must, of course, otherwise comply with the requirements
for a "newspaper" as defined in Article 28a, supra.
We trust that this opinion satisfactorily answers your questions.
Yours very truly
APPROVRDMAR. 22, 1946
GROVERSELLERS ATTORNEY GRN73RAL
OF TEXAS
ATTORNEYGENERrALOF TEXAS BY
Jack K. Ayer
JKA:zd:ml Assistant