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, propounds 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 newspaper be legal notice as required by this Rule? 

and sends it to 

This is done 

in that newspaper 

"Another newspaper here collects the news 

Houston, Texas, to be typed and printed. 

each week. Would citation by publication 

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 notice 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) consecutive weeks, the fir&t publicaticn to be at least twentyeight (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 publications 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, published 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 ‘GO the 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 although 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. 

154 S.W. 694 (error refused); Lopez vs. Calcado, 

Op enheimer, 

2 E 1 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, 

Artj.cle 28a to your questions, 

applying the provisions of 

in the light of strict construction 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 publicaMon 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 therefrom even though the type-setting is done elsewhere, provided 

that all other statutory requirements are fulfilled as heretofore 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, 

for a "newspaper" 

otherwise comply with the requirements 

as defined in Article 28a, supra. 

We trust that this opinion satisfactorily answers your questions. 

APPROVRD MAR. 22, 1946 

GROVER SELLERS 

ATTORNEY GENERrAL OF TEXAS 

JKA:zd:ml 

Yours very truly 

ATTORNEY GRN73RAL OF TEXAS 

BY 

Jack K. Ayer 

Assistant