Where does a city's official newspaper need its second-class postal permit in Texas?

Plain-English summary

Texas cities have to publish certain legal notices in an official, designated newspaper. The City of Ingleside got into a dispute over whether its designated newspaper actually qualified. The catch was a postal-permit rule. Section 2051.044(a)(3) of the Government Code says the newspaper has to be "entered as second-class postal matter in the county where published." Ingleside sits in San Patricio County, but its designated newspaper held its second-class postal permit in neighboring Aransas County. The city worried that meant the paper did not qualify, and a state representative asked the Attorney General to sort it out.

The Attorney General read the statute literally. It requires the second-class postal entry to be in the county where the newspaper is published, not in the county where the city is located. Those are two different things, and the statute only demands the first. A newspaper is "published" where it is released to the public. Based on the facts the City Manager provided, Ingleside's designated paper was released to the public, at least in part, in Aransas County, and it held its second-class postal permit there too. So the paper lined up with section 2051.044(a)(3) and complied.

The request also asked whether the city's publication of sample ballots for the general election violated the city's own charter. The Attorney General declined that question. It does not decide whether particular actions violate a city charter, and the question would require finding facts, which an attorney general opinion cannot do.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Cities designating an official newspaper (as the opinion held for them): The opinion told them the controlling test under section 2051.044(a)(3) is whether the newspaper is entered as second-class postal matter in the county where it is published, not in the county where the city is located.

On what "published" means (what the opinion clarified): Under the opinion, a newspaper is published where it is released to the public, so the county of publication is determined by where the paper is released, not by the city's location or the newspaper's federal "known office of publication."

On the city-charter question (what the opinion declined): The opinion expressly declined to decide whether the city's sample-ballot publication violated the city charter, because the Attorney General does not construe city charters and the question would require fact-finding outside the scope of an opinion.

Common questions

Does a city's official newspaper have to be mailed from the city's own county?
No. The opinion concluded the statute requires only that the newspaper be entered as second-class postal matter in the county where it is published, not in the city's county.

How do you know which county a newspaper is "published" in?
The opinion explained a newspaper is published where it is released to the public.

Did Ingleside's designated newspaper qualify?
On the facts provided, yes. The opinion concluded the paper publishes in Aransas County and is entered as second-class postal matter there, so it complied with section 2051.044(a)(3).

Did the Attorney General decide whether the city followed its own charter?
No. The opinion declined that question because the Attorney General does not construe city charters and it would require finding facts.

Background and statutory framework

Chapter 2051, subchapter C of the Government Code sets requirements for governmental entities to post notice by publication in certain limited circumstances. Tex. Gov't Code Ann. §§ 2051.041-.053 (West 2008). Subsection 2051.044(a)(3) requires that a newspaper in which a notice is published be entered as second-class postal matter in the county where published. Id. § 2051.044(a)(3) (West 2008). By its plain language, the subsection does not separately require the newspaper to be entered as second-class postal matter in the county where the governmental body is located. (The Postal Service later renamed "second-class" to "periodicals," but the renaming made no substantive change.)

A paper is published at the time and place where it is released to the public. Christy v. Williams, 292 S.W.2d 348, 352 (Tex. Civ. App.—Galveston 1956, writ dism'd w.o.j.). Based on the facts the City Manager provided, Ingleside's designated paper is released to the public, at least in part, in Aransas County and is entered as second-class postal matter there. So, on those facts, the Attorney General concluded the designated newspaper complies with section 2051.044(a)(3). The Attorney General declined the separate question whether the city's ballot publication complied with the city charter, because it does not determine whether particular actions violate a city charter and the question requires fact-finding.

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 2051.041-.053 (West 2008)
• Tex. Gov't Code Ann. § 2051.044(a)(3) (West 2008)

Cases:

• Christy v. Williams, 292 S.W.2d 348, 352 (Tex. Civ. App.—Galveston 1956, writ dism'd w.o.j.)

AG opinions referenced:

• Tex. Att'y Gen. LO-96-084
• Tex. Att'y Gen. Op. No. O-7112 (1946)
• Tex. Att'y Gen. Op. No. GA-0431 (2006)
• Tex. Att'y Gen. Op. No. GA-0648 (2008)
• Tex. Att'y Gen. Op. No. GA-0726 (2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0838
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0838.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 26, 2011

The Honorable Todd Hunter Opinion No. GA-0838
Chair, Committee on Judiciary and
Civil Jurisprudence Re: Proper compliance of a publication with the
Texas House of Representatives provisions of section 2051.044, Government
Post Office Box 2910 Code, in order to be considered the official
Austin, Texas 78768-2910 newspaper of a municipality (RQ-0907-GA)

Dear Representative Hunter:

On behalf of the City of Ingleside (the "City"), you request an opinion about the qualification of a newspaper to be the designated newspaper of the City under section 2051.044 of the Government Code and ask whether the current designated newspaper complied with the City's charter.[1]

Chapter 2051, subchapter C, of the Government Code establishes requirements for governmental entities to post notice by publication in certain limited circumstances. See TEX. GOV'T CODE ANN. §§ 2051.041-.053 (West 2008). Relevant to your request, subsection 2051.044(a)(3) requires that a "newspaper in which a notice is published ... be entered as second-class postal matter in the county where published."[2] Id. § 2051.044(a)(3). The City asks whether the current designated newspaper complies with this requirement. Gray Letter at 5.

The City apparently believes that in order to comply with the literal requirements of section 2051.044(a)(3), its designated newspaper must be entered as second-class postal matter in San Patricio County, where Ingleside is located, but the designated newspaper has a second-class postal permit in Aransas County, not San Patricio County. See Gray Letter at 2. However, the plain language of subsection 2051.044(a)(3) requires only that the newspaper "be entered as second-class postal matter in the county where published." TEX. GOV'T CODE ANN. § 2051.044(a)(3) (West 2008) (emphasis added). This subsection does not separately require the newspaper to be entered as second-class postal matter in the county where the governmental body is located.

A paper is published at the time and place where it is released to the public. Christy v. Williams, 292 S.W.2d 348, 352 (Tex. Civ. App.—Galveston 1956, writ dism'd w.o.j.); see also Tex. Att'y Gen. Op. No. O-7112 (1946) at 3 ("publication is legally made in such county when mailed or distributed therefrom"). Based on the facts presented by the City Manager, the City's designated paper is released to the public, at least in part, in Aransas County.[3] Gray Letter at 2-3. He also explains that the newspaper possesses a second-class mail permit and is entered as second-class postal matter in Aransas County. Id. at 2. Thus, based on the facts provided, it appears that the designated newspaper complies with section 2051.044(a)(3).[4]

The second question raised by the request asks whether the City's publication of sample ballots for the general election complies with provisions of the City's charter. Gray Letter at 6. This office does not determine whether particular actions constitute a violation of a city charter. Tex. Att'y Gen. Op. No. GA-0431 (2006) at 3; see also Tex. Att'y Gen. Op. No. GA-0648 (2008) at 5 (explaining that this office typically does not construe city charter provisions). Furthermore, answering this question first requires a finding of certain facts, which we cannot do in an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0726 (2009) at 3. We therefore decline to answer your question regarding the City's compliance with its own charter.

SUMMARY

Because the City of Ingleside's designated newspaper publishes in Aransas County and is entered as second-class postal matter in that same county, it complies with the requirements of Government Code section 2051.044(a)(3).

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Request Letter (available at http://www.texasattorneygeneral.gov); see Letter from Jim Gray, City Manager of Ingleside (attachment to Request Letter) [hereinafter Gray Letter].

[2] The United States Postal Service changed the designation of "second-class" to "periodicals," but, as this office has previously recognized, the renaming did not effect a substantive change. Tex. Att'y Gen. LO-96-084, at 3. Because the Texas statute uses the language "second-class," we also do so here.

[3] The facts provided also suggest that the newspaper may be published, in part, in San Patricio County. One brief submitted suggests that a newspaper has only one official publishing location, which is a "known office of publication" under the United States postal regulations, and is "at the location where the original entry for Periodicals mailing privileges is authorized." U.S. POSTAL SERVICE, DOMESTIC MAIL MANUAL, 707 Periodicals § 4.6.1 (Dec. 6, 2010), available at http://pe.usps.com/text/dmm300/dmm300_landing.htm; see Letter from Don R. Richards, Attorney for the Tex. Press Ass'n., at 3 (Sept. 9, 2010) (on file with the Opinion Committee) [hereinafter Richards Letter]. The location of publication may be so defined for purposes of the federal regulations, an issue we need not decide here. However, under Texas law and as used in the relevant statute at issue, the location of publication is where the newspaper is released to the public.

[4] One brief submitted suggests that the City's newspaper violates other Government Code provisions. Richards Letter at 1. However, your request concerns "only the [newspaper's] compliance with 2051.044(a)(3)," and our opinion is limited accordingly. Gray Letter at 2.