Untitled Texas Attorney General Opinion

The Attorney General of Texas
October 31, 1977
JOHN L. HILL
Honorable Jerry W. Woodlock Opinion No. ~-1081
District Attorney
Cooke, Jack & Wise Counties Re: Whether legal notices
Gainesville, Texas 76240 may be published in papers
entered as third class post-
al matter.
Dear Mr. Woodlock:
You inquire whether a city may use a publication qualified
only as third class postal matter for the publication of legal
notices. Article 29a, V.T.C.S., provides that where any law
"requires the giving of any notice, the making of any procla-
mation or advertisement, or the service of any citation by
any . . . political subdivision . . . by publication in a news-
paper" the publication should be made in a newspaper as defined
in article 28a. Article 28a provides in part:
The following terms shall, unless the
context indicates otherwise, have the
following respective meanings:
. . .
(2) The term "newspaper" shall mean
any newspaper devoting not less than
twenty-five per cent (25%) of its total
column lineage to the carrying of items
of general interest, published not less
frequently than once each week, entered
as second-class postal matter in the
county where published, and having been
published regularly and continuously for
not less than twelve (12) months prior
to the making of any publication men-
tioned in this Act, except that any weekly
newspaper shall be allowed to omit two
12) publication issues in twelve (12)
months and still retain its status as a
newspaper eligible to make any publica-
tion mentioned in this Act.
p. 4425
Honorable Jerry W. Woodlock - Page 2 (H-1081)
(3) The term "political subdivision"
shall include cities, towns, and villages,
but this definition shall not be exclusive.
Article 1025, V.T.C.S., requires the city council to contract
"with a public newspaper of the city as the official paper
thereof," and to publish therein all notices required to be
published by title 28, V.T.C.S. You wish to know whether a
city may adopt as its official paper a newspaper that does not
comply with article 28a, in that it is entered as third class
postal matter, instead of second class.
In Christy v. Williams, 292 S.W.2d 348 (Tex. Civ. App. --
Galveston 1956) writ dism'd, w.o.j., 298 S.W.2d 565 (Tex.
1957). the tour; considered the validity of notice of a special
election, which was published in a newspaper that met all-r-e-
quirements of article 28a (2), except that it was entered at
third class postal matter. The court stated that there must
be substantial compliance with the laws requiring notice of a
special election, and held that notice given in that case con-
stituted substantial compliance.
We do not believe Christy v. Williams authorizes a city to
ignore the clear language of article 28a. Even if the substantial
compliance standard might save an improper notice after the fact,
we do not believe it authorizes a governmental body to ignore the
specific requirement,of the statute. When the substantial com-
pliance standard is applicable, whether it has been met depends
on the facts of each case. See Pena v. Salinas, 536 S.W.Zd 671
(Tex. Civ. App. -- Corpus Christi 1976, no writ); Trussel v. Fish,
154 S.W.Zd 587 (Ark. 1941). Thus, we cannot predict in advance
that notice by publication in a newspaper entered as third class
matter will in fact substantially comply with a particular notice
statute.
Although Attorney General Opinion C-514 (1965) stated on
the authority of Christy v. Williams that the provision of
article 28a (21, V.T.C.S.. on second-class matter was directory
only, that statement must.be limited to its context. The news;
paper discussed in C-514 in fact strictly complied with the
requirements of article 28a. See also Tex. Att'y Gen. Op.
No. 2993-C (To Honorable Herman Price, Jan. 7, 1937), 1936-1938
Tex . Att'y Gen. Bien. Rep. 24.
SUMMARY
Unless the context indicates otherwise,
a newspaper used for legal notices must
meet the requirements of article 28a,
including entry as second class postal
matter in the county of publication.
p. 4426
Honorable Jerry W. Woodlock - Page 3 (H-1081)
truly yours,
General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
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