Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 26, 2011
The Honorable Todd Hunter Opinion No. GA-0838
Chair, Committee on Judiciary and
Civil Jurisprudence Re: Proper compliance of a publication with the
Texas House of Representatives provisions of section 2051.044, Government
Post Office Box 2910 Code, in order to be considered the official
Austin, Texas 78768-2910 newspaper of a municipality (RQ-0907 -GA)
Dear Representative Hunter:
On behalf of the City of Ingleside (the "City"), you request an opinion about the qualification
of a newspaper to be the designated newspaper of the City under section 2051.044 of the
Government Code and ask whether the current designated newspaper complied with the City's
charter.'
Chapter 2051, subchapter C, of the Government Code establishes requirements for
governmental entities to post notice by publication in certain limited circumstances. See TEX. GOV'T
CODE ANN. §§ 2051.041-.053 (West 2008). Relevant to your request, subsection 2051.044(a)(3)
requires that a "newspaper in which a notice is published ... be entered as second-class postal matter
in the county where published."z Id. § 2051.044(a)(3). The City asks whether the current designated
newspaper complies with this requirement. Gray Letter at 5.
The City apparently believes that in order to comply with the literal requirements of section
2051.044(a)(3), its designated newspaper must be entered as second-class postal matter in San
Patricio County, where Ingleside is located, but the designated newspaper has a second-class postal
permit in Aransas County, not San Patricio County. See Gray Letter at 2. However, the plain
language of subsection 2051.044( a)(3) requires only that the newspaper "be entered as second-class
postal matter in the county where published." TEX. GOV'T CODE ANN. § 2051.044(a)(3) (West
2008) (emphasis added). This subsection does not separately require the newspaper to be entered
as second-class postal matter in the county were the governmental body is located.
lRequest Letter (available at http://www.texasattorneygeneral.gov); see Letter from Jim Gray, City Manager
of Ingleside (attachment to Request Letter) [hereinafter Gray Letter].
'The United States Postal Service changed the designation of "second-cIass" to "periodicals," but, as this office
has previously recognized, the renaming did not effect a substantive change. Tex. Att'y Gen. LO-96-084, at 3. Because
the Texas statute uses the language "second-class," we also do so here.
The Honorable Todd Hunter - Page 2 (GA-0838)
A paper is published at the time and place where it is released to the public. Christy v.
Williams, 292 S.W.2d 348,352 (Tex. Civ. App.-Galveston 1956, writ dism'd w .o.j.); see also Tex.
Att'y Gen. Op. No. 0-7112 (1946) at 3 ("publication is legally made in such county when mailed
or distributed therefrom"). Based on the facts presented by the City Manager, the City's designated
paper is released to the public, at least in part, in Aransas County.3 Gray Letter at 2-3. He also
explains that the newspaper possesses a second-class mail permit and is entered as second-class
postal matter in Aransas County. [d. at 2. Thus, based on the facts provided, it appears that the
designated newspaper complies with section 2051.044(a)(3).4
The second question raised by the request asks whether the City's publication of sample
ballots for the general election complies with provisions of the City's charter. Gray Letter at 6. This
office does not determine whether particular actions constitute a violation of a city charter. Tex.
Att'y Gen. Op. No. GA-0431 (2006) at 3; see also Tex. Att'y Gen. Op. No. GA-0648 (2008) at 5
(explaining that this office typically does not construe city charter provisions). Furthermore,
answering this question first requires a finding of certain facts, which we cannot do in an attorney
general opinion. Tex. Att'y Gen. Op. No. GA-0726 (2009) at 3. We therefore decline to answer
your question regarding the City's compliance with its own charter.
'The facts provided also suggest that the newspaper may be published, in part, in San Patricio County. One brief
submitted suggests that a newspaper has only one official publishing location, which is a "known office of pUblication"
under the United States postal regulations, and is "at the location where the original entry for Periodicals mailing
privileges is authorized." U.S. POSTAL SERVICE, DOMESTIC MAIL MANUAL, 707 Periodicals § 4.6.1 (Dec. 6, 2010),
available at http://pe.usps.comltextldmm300/dmm300_landing.htrn; see Letter from Don R. Richards, Attorney for the
Tex. Press Ass'n., at 3 (Sept. 9, 2010) (on file with the Opinion Committee) [hereinafter Richards Letter]. The location
of publication may be so defined for purposes of the federal regulations, an issue we need not decide here. However,
under Texas law and as used in the relevant statute at issue, the location of publication is where the newspaper is released
to the public.
'One brief submitted suggests that the City's newspaper violates other Government Code provisions. Richards
Letter at 1. However, your request concerns "only the [newspaper's] compliance with 2051.044(a)(3)," and our opinion
is limited accordingly. Gray Letter at 2.
The Honorable Todd Hunter - Page 3 (GA-0838)
SUMMARY
Because the City of Ingleside's designated newspaper
publishes in Aransas County and is entered as second-class postal
matter in that same county, it complies with the requirements of
Government Code section 20S1.044(a)(3).
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee