Untitled Texas Attorney General Opinion

Ronorable 'AL11Crow
County Attorney
Hemphill'County
Canadian, Texas
Dear Sir: opinion No. a-6603
Res &der the faots sulmitted, is
the Henphill Couuty Psws a newspaper
in which legal notioss may be pub-
liahsd as required by law?
Ikr ars in receipt of your oomunioatioa of tioeat date requesting the'
opinion of this department oa the above stated mattsr. Ik, quote from your bt-
ter a* follows:
‘As County Attorney of Hemphill County, Texas, I desire PIPopinion from your
offioe'asto whether or not the. VZWRILL CWJKTI'~' published im Hamphil
County, Texas, and at Canadiaa, H-phi11 County, Texas, is a legal neprapapsr
in which legals oould be published, such aa citations by publioation, on
defendants who have to be cited by puhlioation in some newspaper.
"The fact8 are that the Hsmphill County News has beea published for the past
5 years here im Cauadiau, Texas, axd it has no geaeral paid subsoriptionoir-
oulatiba, aad it has no Postal Mailing pennit, to be entered as second olass
matter, with the U. 8. Postal Departmant, as this paper ,ispublished nSekly
and goes Auto simulation on Friday of each wsek, and is mailed to Box Holders
gerienally,save-and exbept where it has same paid subscribers who live out of
R~mphill County, Texas, aad then the regular oiroulatioa postal charges are
paid on each paper, the 883111)
as an individual would pay in mailing such paper
to saneone.
“At this time ths Heuphill County Bsws is the only paper being published ia
Hcmphill County asthe Canadiaa Record is now suspeuded oa aooount of bsing
unable to obtain the setioes of aa expert printer to operate its equi&amt.
"1 herswith hand you a copy of this newspaper, and also a oopy of'the opinik
on, dated February 6, 1945 by Mahor E* J. Cussen, Atttoney;Pt-LaPr, Canadian,
Tsxas, and will appreoiate your answering the ona questioa, to-wit: Isthis
newspaper a legal papsr for publishing legal6 In; such as citations by publi-
cation, aad notioes of final aooounts in estates, and other legal notices~now
required by law to be published in the administrations of estates of deoe-
deuts."
-.
Honorable lsll Cruw-- page 2 (O-6603)
Also we hava carefully oonsidered Major E. J. Cussen's exaellent
brief in oonneationwiththis matter which aooampanied your letter.
&Mole 26a, Vernon'8 Annotated Civil Statutes, in part provides:
*The following terms ahall, unless ths oontext indicates otherwise, hava the
followlag re8paotive me8niag8,
s(1) The tams +ublioatioa* shall mean aw proolamation, notioe
oitation, advertisement, or-other matter required or authorized
by law to be printed in a newspaper or newspaper8 by q institu-
tion, board, cemmi8sion, departmsnt, officer, agent, repressnta-
tire, or anployee of the State or of any subdivision or deprlrnent
of the State, or of w oounty, politioal subdicision, or distriot
of whatewr nature w,thin the State, whether to be paid for out of
publio fund8 or oharged a8 costs or fees.
"(2) The term 'newspaper* shall meanany newspaper devotimg .lot
less than twenty-five (25) per oent of its total colxm~lineage to
fhs oarrying of itaas of gemeral``interest,published not less frs-
quently than on08 eaoh week, entered a8 seaond-class postal matter
in the oouaty where published, and having been published regularly
and oomtinuou8ly for not less than teelve (12) months prior to the
making of any publioatioamentioned inthis Aat.'
Artfole 29, B.A.C.S., in part prooids8r Rherewi any pblicaticm. a-
publioation is defined in Seotion 1 hereof, is authorized or required trJr
ar5r
law, general or speoial, to bs inserted in a newspaper, the le rate &i.&
suoh newspapar shall charge for suoh publication shall bs Two F2) Csnts p er
llordfor the first insertion of suah plblioation, and One Cent per unrd for
eaah subsequent insertion, or suoh newspaper shall be entitled to charge for
suah publication at a rate equal to lut not in exoess of the l&e& published
word or line rate of that aewspapsr for olassified advertising. . . '.
"Rithout intended to exclude ary other publiaation towhich this Aot applies,
it is specially provided that this Aot shall apply to all citations or notices
which are required to be publ%shed or maybe published in aalinquont tax suits
and to notioes of sale of real estate under execution, order of sale, or any
othsr judicial sale provided for ia Artiolas 3603, 4203, 7276, and 73’72 of the
Revised CL-z11Statutes of T-8, 1925. As amended hots 1941, 47th Leg., p.
480, oh. 303 8 1.s
Artiole 29a, V.A.C.S., in part prooides: 'After the effeotive date
of this Aot, insvery case where amy law, general or special, requiras the
giving of any notiae, ths making of as51proolsuuationor advertisement, or the
serrioe of any oitatioa by amy institution, board, oonmissioa, deparhsent,
offlosr, agent, representative, or employee of the state or of p9y subdivfsi-
on or deparhnent of the State or of aw county, political subdivisi.o~,dis-
trict df whatever nature within the state by publioatioa~in a newspaper, the
giving of such notice, the maMag of suoh proclsmation or advertisement, or
the servioe of suoh citation shall be by publioatioa in a newspaper, a8 defined
.-,,
Honorable WI11 Crow - page 3 (04803)
in Seotion 1 of this Aot. If pn~ 8taohlaw or law8 spsoifie8 the msnner
Of publioation of mob notise, proolamation, advertismueat, or citation
iJla nsaspaper, 8uoh hW or &am 8h11 g8rern the m&ner.of publisatfon
of 8Ush BOtio8, proolamation, adv8rtir8aent, or oitation. If the manner
of FUbliQfioJl Of suoh aotioe, proolamation, advertissmaf,,or oitation
i8 not presorib8d by law requiring suoh not&e to be glwn, such Angola-
mation or adverti6amat to b8 made, or suoh citation to be 88rv8d, then
publioation of 8uoh notioe, proolpaatioa, advertisement, or OitatiOn
shall be made in a nerspaper~ subject to the follw&&g restrlotions and
requirements:
“. . l
“In ewrg oa8e where the se*08 of urg oitation or notio8 in my sa8e,
oontroversy, suit, or prooeeding in Amy of the Courts of the Stat8 ia r&
quirsd to be by publioation Under the provision8 of any geaes&l or spbs-
iti law of thi8 State, such publioation shall 'b8publlsh8d a8 required w
the general or speoial law providing for ruoh notioe by publisat1oB.s
The L8gi8lakWe has the pewer to define'uords 8mploy8d in the
statutes (Sppstein v. State, 143 8-W. 144), and in Title 1 of th8 General
&misions, ktiole 28a, supra, the Legislatur8 ha8 defined the w8rd
“aewqxtper ." A olear and unambi~guo~sdefinition of aterm or a word %y
th8 kgislattU% is binding upon the oOUrt8 a8 an edpr888iOn of legislative
intent, regardless of the meaning of the word in oo88uoBparlanod or in
other OoBllaOtiOB8. (State V. Frost, Civ. App. 18 S.W. (2d) 331; Eppstein
v. State, supra.) A statute will k construed with referenoe to the gent
ral system ef legislation of which it form8 a part. (pltshall v. State,
138 S.W. 759). Ordinarily a 8tatUtOry proViSiOn Will bs given an inter-
pretatioa in oonformanoe withthe Aubjeot matter of the code in whioh it
is found. (Briggs v. Bucker, Civ. App. 19 5.X (2d) 190). Also it is res-
ognised as a oorr8ot rule of oonsthtotion that whew a statute nuke8 a
general provision amreatly for all case8 and a speoial prwision or
exception for a partioular oa8e or OlaSS, the general provision yfelds
and the speoial provision or 8xxoeptioaprevails in so far as the porti
ular class or ease is ocnoerned. (F'ererv* Peres, 59 TBXO 322: Balfour V.
ColliB~, 25 S.W. (2d) 804~ 39 Tex. Jur. Sec. 114, PO 213.).
born the fact8 stated by you, it is apparent that the "Hsmphill
cotiy m~8” does not oonfonn to the 8tafatory requimmsnt of a."newspapsr"
a8 defined in the General Pro~i~i0~8, Title 1, lrtiole 28a, supr8, aad in _
rier of th8 foregoing authorities with referenoe tu the rules of statutory
construction, it is our opinion thatwhenev8r a statuts or a rule of oiv-
ilprocedurs, adopted aBd promulgated in oonf8ti~ with, and in obsdienoe
to a Legislative enaotrment,(H.B. 108, oh* 25, pp. 201-203, dot8 Reg. Ses-
sion 46th Lsg., 1939) makes provisions with referenc8 to pUVlioatioZi in
8ny %wspaper, " suoh narrspapermust oonfolm!to the definition of a
"Bcnrspapersas set forth in Article 26a, unless the 1anguagQ of the statute
or rule SX~S8~lUthOriaeS suoh publioation ia a *new8pap8rw which do88
BOt oonfolnlto ths foregoing deftiitione The question submitted by you
-.. . ._
Hon. Wiil Crow - page 4 (o-6603)
with reference to legal publication is very broad and general. To determine
whether the printing of any partioular kind of publication in the newspaper
in question would meet the requiraaents of law rould be dependent upon the
language of the particular rule or statute requiring or authcrizing that
particular kind of notice or publication, andwe shall not herain attempt to
discuss each of the statutes or rules with reference,tc the puUioation of
legal notices, etc. Rowever, in view of the foregoing, it is our opinion
that the statutory definition of a "newspaper" would be applicable in connec-
tion with eny statute or rule requiring or authoriring publication of legal
notices about which you may have any question, unless there is a clear excep
tion indicated in the language of such statute or rule.
Although the Legislature has the power to define a term or word em-
ployed in the statutea, and it has defined the lord "nmpapr" in Article 26a,
yet such term or word as used in the Constitution is not necessarily limited
by the legislative definition. We note that Article 17, Section 1, Constitu-
tion of Texas, provides for the publication of proposed constitutional amend-
mentB inthefollewlngl=@ager
'The Ugislatul), at aw biennial session, by a vote of two-thirds of all the
members elected to each House, to bs entered by yeas and nays on the journals,
may propose ammubaauts to the Constitution, to be voted upoa by the qualified
electors for me&are of the Legislature, which proposed amendments shall be
duly published once a nsek for four weeks, caamencing at least three months
before om election, the time of which shall Im specified by the Legislature,
in one weekly newspaper of each county, invhich suoh a newspapermay be pub-
lsfhed: . . ."
The foregoing constitutional provision ms originally adopted in 1845 and car-
ried forward in the present constitution, while Article 26a, V.A.C.S., was
effective in 1941. Also, we note that the foregoing constitutional prevision
~8 adopted prior tc the Act of Congress of 1679 authorizing second clue mail-
ing permits for nemspapers,while the statutory definition of a newspaper,
which includes the requirermentthat a newspaper hpprea second class mailing
penait,was enaoted subsequent to said Act of Congress of 1879. mth reference
to the meaning of words as used in a constitutional provision, words must be
understood to have been used in their ordinary signification unless the context
indicates a different meaning. (Er Parte Rart, 56 S.W. 341; Sugg V. Smith,
(Civ. App.) 205 S.W. 363). Rae unable to find any indication in aw oonsti-
tutional provision wherein the term "newspapere is limited in the precise
manner that said term is limited or defined in the statutesi thus, a "newspaper"
ccmplying with the ordinary,sig$aifioationof the tens would meet the require-
me&s of the foregoing oonstitutional provision. In viewof this, it is our
opinion that the publication of proposed constitutional amamdments in a news-
paper of the character of,the "Hemphill County News" muldbe in ccmplianoe with
Article 17, Gection 1, of the Constitution.
JAE~ddtrsgw
Yours VerytFuly
APPROVED JDNR 6, 1946
/*I Grover Selliwrs ATTORREY GEN6RAL OPBXAS
ATTORRW GENRRAL OFTEXAS
By /a/ J. A. Ellis
Assistant