Honorable R. C. Marnhall

County Attorney co&ran county Morton, Texas
Dear sir: opinion no. O-3749 Re: Whether a newspaper established in January 1941, is a legal newspaper and its status in relation to House Bill go. 193, 47th Legislature amendingArticle 28a, Vernon’sAnnotated Civil Statutes.
Your letter of June 24th containsthe followingquestion upon which you request the opinion of this department:

“In view of the pasnege of iiouse Bill No. 193 of the present Legislature, which amends Article 28a, V.A.T.S., thereby requiringthat a legal notice must be published in a newspaperhaving been published continuously for a period not less than 12 months prior to the publicationof such legal notice; is a nevspaper establishedin January 1941, under Article 28a, a legal newspaperand duly authorized by virtue of said article 28s to publish legal notices?” The particularportion of House Bill 193, 47th Legislature, relating to Legal Publications and definingthe term “newsPm==“. material to your question,reads:

“Section2. The term ‘newspaper’ shall mean any newspaper + + + having been published regularlyand continuouslyfor not less than twelve (12) month@ prior to the making of any publication mentioned in this act.” By your request you raise the questionof the reasonableness of the above quoted qualification for a “newspaper”

as defined in the Act and as to itn constitutionality as an ex post facto law should it operate to prohibit a newspaperestablished January 1941, **from** meeting such qualification.Honorable PI. C. Marshall,page 2 (O-3749)

., .: , Substantially

this..sw@;xaqufz!empnt was imposed in Article : 28, R.c.s., 1925 prior to its repeal by the Acts of 1929, 41st Legislature. In the formerAct, :itvaaprovfded that such notices shall be given for publicationthereof in a nevspaper of general' circulation "which has been continuously and regularlypublish&l for a period of not less than one year, in the county in which said act or proceeding is to **occur** * * l ". Thin provision came under review by the Court of Civil Appeals,Amarillo, in the case of W. L. Pearson b Co. vs. HutchinsonCounty, 52 S.W. (26) 509. In that case a **newspaper** was published in the county of the action but same had not been published for twelve (12) months at the time of the questioned

publication. The court, recognizingthe basis for such requirement,stated and vs quote:

"We can understandthe intent of the Legislaturein requiringthe continuous and regularpublicationof such nevspaper for a period of ar long as tvelve months. This vas evidentlydone to avoid publications of the 'fly-bynight' type which could be published for a period of time much less than that to serve a specialpurpose. Hence, vs cannot hold that there vas such a nevspaperpublished in ButchinsonCounty which compliedwith the requirements of the statute."
In 9 Texas Jurisprudence, Para. 104, page 539, it is said: "The legislature

has the seae power to enact laws retrospectively

as it has to legislateprospectively; and very frequentlythe courts have held curative or validatingacts to be constitutional end valid exertions of legislative pover. Where a statute is expressly retroactive, and the object and effect of it are to correctan innocent mistake, remedy a mischief, **execute** the intentionof parties or promote justice, then, both as a matter of right and of public policy effecting the peace and welfare of the community,the law should.be sustained. * * *'
In the case of In n Gillette Dal1 Journal, (Sup. Ct. of Wyo.) 11P. (2d) 265, Supplemental Opinion 17 P. (26) 665, a statute requiringpublicationof legal notices in newspapersestablished for one year yes held a general law of uniform operation, in that the clasBification vas reasonable. .The court held among other things that the legislature**ham** the right, in exercising **the State**  **’ s**  **police** pover, to amke regulations **aB** to legal notices and in doing so, such statutesvere not unconstitutional as impairingcontract obligations; that it vas at most a privilegenot a right, which the Legislature can modify or take away without violatingthe **ConStitUtion.** Quoted in the court's opinion, is the follovingprovision from 46 C.J. 27, which reada:--.. -
.- c4,

HonorableR. C. Marshall,page 3 (G-3749). ; * *

. :. .:

"It is the policy of the lay that notices 

### or~dyertisew&s requiredto be publishedby law Bhcjuld.be.published _: : in newspapers

which have been.dn existence long enough $0. i be of d perslanent

and substantial

chara&er."
. A somswh@ similar statutoryprovision**TAB** attackedas being unconstitutional in the case of Dollar, Sheriff, et al., vs. Wind, 7CS.R. 335, **011 the**  **loud that**  **it VaB**  **a** X-&ZOWtiVc? **h,,** impairingthe obli,&ion of contracts. Tbr: Supreme Court of Georgia, in that else said:

*'ihe part of:

the act thus attackedwas that which declared that no newspapervhlch had not been publiehed for tvo years shouldbe selectedas the officialorgan .of any county. Ut fail fo appreciatetbs force of that ._ ,. '. . BqJsent. Sheriffsare. public **officers.** Their duties CJP be cwed or aodifledby the. Legislature.

:.That body can prescribereasonablequalifications for a newspaper

before it shallbe selectedas a medium LII vhich shall be publishedadvertisements of **Siieriffta** sales, citations,l nd other similaradvertise~+?nts. : The rights 

### of the public may be InJuriously affect by the selectIonof an impropermedium for givingsuch notices."
As to ths above quoted portion of Rouse Bill 193, 47th Legi,islature,

we are .unable

t,oset, any violation of the Constitution in that ~zticular reqilirenwit by the Legislaturethat the news

### paper be "one publia'bed

re@arly and continuously for not less than twelve (l2) ~&hs." Such a re;uirementis barfily suggestive of any sunopolistir Grant cf publlr advertisirg, bu-.!s mcrr suggestive as a police rreulztiondesigned to serve a p&lic pwpcse. As said is the Wytminy cde, supra,, tne very ne.cessi?.lr.s of thr; Gove-& .requir=. *ha* particularpwsons shall he sclsct~dto perform p&r?i.~Y

:P >ubl:,:

s~Fi.ce,a.,

71 Piit-ause

such solrctions are made, nob&i rs conpl&n for :o una?irnablr. right. is +.akf.n away. The coutyt

furt>er said an3 we:quote: "Suppose,if you please, tine

1eJsLltu.u:

would c:hange

the manner of 8ervIc~. of notice upon the ttipayersand in place cf requlrindt.hspublication to be nade in newspwers, they would require that notice be posted upon the door of every school house in the county, could the publisherof any newspaper complain that the law was unccnstitutional, or took &way from him to that extent bis swans of livelihood? It has been held in outzerous cases that the publisher of J. newspaperacts in sn official capacitywhen publishinga tdx noticr-"

It is thereforethe opinion of this departmentt.tit. the provision in House Bill 193, 47th Legislature,Section 2, which among other qusllficrtions, defines "newspaper" as "havingheen published regularlyand continuouslyfor not less than twelve (12).

HonorableR. C. Marshall,page 4 (O-3749)

months prior to the **making** of any publication mentioned in this act," is a reasonablequalificatioa and a newspaper established in January 1941, cannot meet the statutoryrequirement until January 1942.
Yours very truly
ATTORNEY GEIVERAL

OF TEXAS
By /B/W& J. R. King

Wm. J. R. King Assistant
WRK:eaw: lm

APPROVED JUL 28, 1941 /s/ Grover Sellers
FIRLFARRImm ATl!tXtUEY

CeaERAL

APPROVRD OPIUIORCBY /a/ RUB CRAIRMAll