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. Wehave received your letter of February 20, 1946, which, after citing Rule No. 116 of the newrules of Civil Procedure, propounds the following questions: "Oneof our local newspapers wasdiscontinued during the time of service of its owner andeditor in the recent war. Wouldnublication of a citation by publication in that newspaper be legal notice as required by this Rule? andsends it to This is done in that newspaper "Another newspaper here collects the news Houston, Texas, to be typed andprinted. each week. Wouldcitation bypublication be legal notice as required by this Rule? "Another newspaper in the county suspends its publications one week in the year. Wouldcitation by publication in that newspaper be legal notice as required by this Rule?
"Oneof the local papers in this i:cirnty skipped publication and circulation during Christmas week. "Y!oulda citation by publication in a divorce case published in any one of the three papers mentioned above be legal notice under this Rule?" Rule 116of the NewTexas 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, ~whenIssued, shall be served by the sheriff or any constable of any county of the State of Texas byv.. \ -

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 donot involve the title to land or the ,partltion of real estate, such publication shall be madein the county where the suit is pending, if there be anewspaper published in said county, but If not, then in anadjoining county where anewspaper is published. Inall suits which Involve the title to land or partition of real estate, such publication shall be madein the cou~ntywhere the land, or a portion thereof, is situated, if there be a newspaper in such county, but if not, then in anadjoining county to,the county where the land or apart thereof is situated, where a newspaper is published.” TheLegislature has defined various terms relating to legal publications and clearly sets forth the minimumrequirements of a
“newspaper” in Article 28a, V.A.C.S., which wequote as follows:

“The following terms shall, unless the context indicates otherwise, have the following res,pective meaning:

“(2) Theterm ‘newspaper’shall meanany 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, andhaving been publish& regularly and continuously for not less than twelve (12) months ,prior ‘GOthe makingof any publication mentioned in this .Gct. (As Emended, Acts 1941, 47th T,eg. p. 480, ch. ?C3, ::ec. 1)

.‘

. %hena statute or rule of civil procedure such as Rule 116, supra, makesprovisions with reference to publication in any
“newspap& without defining or explaining samefurther, then such “newspaper” must conform to the dcPinltion thereof as set forth in ~?rticle 28a, above. Thus, wesee by Rule 1.16that publlc~~~tionof 2.citation shall bemadein a newsa er and further by Article %a, that a newspaper is ?i2Edd+ as one (1) devoting at least 25percent 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 makingof anypublication. Service by publication is a creature of statutory law, andalthough wehave found noTexas 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 mustbe strict andliteral compliance with every essential requirement m statutes in respect thereto. Byrne3vs. Sampson, 11 S.W.Honorable Leroy L. Moore, page 3 O-7112

1073; Harris VS. Hill, 117S.W. 907; Gibson vs. 154 S.W. 694 (error refused); Lopez vs. Calcado, Openheimer, E 2 1 S.W. 324 (error dlsmq%sed); Fisher vs. Jordan, 32Fed. Sup. 608; State vs. Ragby's estate, 126 S.W. (2d) 687. Weshall 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 andliteral 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 andthe ex ress andunambiguous language contained therein, wefind that (1Pyour county newspaper that wasdiscontinued andpresumably did not resumepublication twelve months prior to the request for citation bypublication 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 weekdoes not comply with the statute. With reference to your question regarding the newspaper that collects the newsand sends it to Houston for printing, this department has previously held in Opinion No. O-566, construing Arti.cle 2039, V.A. C.S. (nowrepealed andreplaced by Rules 109and 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. ThusJwhere Rule 116 provides that in all suits not involving title to land or partition, "such publication shall be madein the county where the suit is ,pending.....,"a publication is J.egally madein such county whenmailed 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,paperwhich sends its newsto Houston for type-setting and, weassume, 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. Wetrust that this opinion satisfactorily answers your questions.

APPROVRD

MAR.22, 1946 GROVER

SELLERS ATTORNEY

GENERrAL

OFTEXAS JKA:zd:ml Yours very truly ATTORNEY

GRN73RAL

OFTEXAS BYJack K. Ayer Assistant