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 amending Article 28a, 

Vernon’s Annotated Civil 

Statutes. 

Your letter of June 24th contains the following question 

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 requiring that a legal notice must 

be published in a newspaper having been published continuously for a period not less than 12 months prior 

to the publication of such legal notice; is a nevspaper established in January 1941, under Article 28a, 

a legal newspaper and duly authorized by virtue of 

said article 28s to publish legal notices?” 

The particular portion of House Bill 193, 47th Legislature, relating to Legal Publications and defining the term “newsPm==“. material to your question, reads: 

“Section 2. The term ‘newspaper’ shall mean any 

newspaper + + + having been published regularly and 

continuously for not less than twelve (12) month@ 

prior to the making of any publication mentioned in 

this act.” 

By your request you raise the question of 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 newspaper established 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 former Act, :it vaaprovfded that such notices 

shall be given for publication thereof in a nevspaper of general' 

circulation "which has been continuously and regularly publish&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. Hutchinson County, 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, recognizing the basis 

for such requirement, stated and vs quote: 

"We can understand the intent of the Legislature in 

requiring the continuous and regular publication of such 

nevspaper for a period of ar long as tvelve months. This 

vas evidently done to avoid publications of the 'fly-bynight' type which could be published for a period of time 

much less than that to serve a special purpose. Hence, 

vs cannot hold that there vas such a nevspaper published 

in Butchinson County which complied with 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 legislate prospectively; 

and very frequently the courts have held curative or 

validating acts to be constitutional end valid exertions of legislative pover. Where a statute is expressly retroactive, and the object and effect of it 

are to correct an innocent mistake, remedy a mischief, 

execute the intention of 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 requiring publication of legal notices in newspapers established 

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 

statutes vere not unconstitutional as impairing contract obligations; 

that it vas at most a privilege not a right, which the Legislature 

can modify or take away without violating the ConStitUtion. Quoted 

in the court's opinion, is the folloving provision from 46 C.J. 27, 

which reada: 
--.. - 

.- c4, 

Honorable R. C. Marshall, page 3 (G-3749). ; * * . :. .: 

"It is the policy of the lay that notices or~dyertisew&s required to be published by 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 statutory provision TAB attacked as 

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,, 

impairing the obli,&ion of contracts. Tbr: Supreme Court of Georgia, 

in that else said: 

*'ihe part of: the act thus attacked was that which 

declared that no newspaper vhlch had not been publiehed 

for tvo years should be selected as the official organ 

.of any county. Ut fail fo appreciate tbs force of that ._ ,. '. . 

BqJsent. Sheriffs are. public officers. Their duties 

CJP be cwed or aodifled by the. Legislature. :.That 

body can prescribe reasonable qualifications for a 

newspaper before it shallbe selected as a medium LII 

vhich shall be published advertisements of Siieriffta 

sales, citations, l nd other similar advertise~+?nts. : 

The rights of the public may be InJuriously affect 

by the selectIon of an improper medium for givingsuch notices." 

As to ths above quoted portion of Rouse Bill 193, 47th 

Legi,islature, we are .unable t,o set, any violation of the Constitution 

in that ~zticular reqilirenwit by the Legislature that the newspaper be "one publia'bed re@arly and continuously for not less 

than twelve (l2) ~&hs." Such a re;uirement is barfily suggestive 

of any sunopolistir Grant cf publlr advertisirg, bu-. !s mcrr suggestive as a police rreulztion designed to serve a p&lic pwpcse. 

As said is the Wytminy cde, supra,, tne very ne.cessi?.lr.s of thr; 

Gove-& .requir=. *ha* particular pwsons shall he sclsct~d to 

perform p&r?i.~Y :P >ubl:,: s~Fi.ce, a., 71Piit-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 ttipayers and in place cf requlrind t.hs publication to be nade in newspwers, they would require that notice be 

posted upon the door of every school house in the county, could 

the publisher of 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. 

newspaper acts in sn official capacity when publishing a tdx noticr-" 

It is therefore the opinion of this department t.tit. the 

provision in House Bill 193, 47th Legislature, Section 2, which 

among other qusllficrtions, defines "newspaper" as "having heen 

published regularly and continuously for not less than twelve (12) 
. 

Honorable R. C. Marshall, page 4 (O-3749) 

months prior to the making of any publication mentioned in this 

act," is a reasonable qualificatioa and a newspaper established 

in January 1941, cannot meet the statutory requirement 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 

OPIUIOR 

CBY /a/ RUB 

CRAIRMAll