What can a Texas city do if no local newspaper qualifies to publish its legal notices?

Plain-English summary

Texas governments have to publish many official notices (elections, tax rates, ordinances) in a newspaper, and the Government Code sets standards for which papers qualify. The City of Eagle Pass had a problem: the newspaper it historically used had closed, and the City believed no remaining local paper met all the legal requirements. The Maverick County Attorney asked the Attorney General what the City's options were.

The governing rule is Government Code chapter 2051. When other law requires a notice to be published but does not say how, chapter 2051 controls the choice of newspaper. Section 2051.044 lists what a qualifying paper must do: devote at least 25 percent of its column space to general-interest items, publish at least weekly, hold a second-class (now "periodicals") postal permit in the county where it is published, and have published regularly for at least 12 months. The opinion clarified that the postal-permit requirement is satisfied as long as the paper holds the permit in the county where it is released to the public, even if that is not the county where the notice must run.

The City wanted to use a paper without the postal permit and to notify residents through their water bills. The Attorney General would not say that plan was lawful, because section 2051.049 requires that publication under section 2051.048 be in a paper meeting section 2051.044. The opinion also rejected the argument that a 1950s case excused prospective use of a non-qualifying paper; that case only declined to undo an election after the fact and did not authorize knowingly ignoring the statute going forward. Where no qualifying paper in the city will publish at the legal rate, section 2051.048 points to a county paper, and failing that, to posting the notice at the county courthouse door. Some specific notice statutes carry their own alternatives. Beyond all of that, the opinion said, filling any remaining gap is a job for the Legislature.

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 and other political subdivisions (as the opinion held for them): The opinion told them the paper they use for official notices must meet section 2051.044, including the second-class postal permit, and that a non-qualifying paper could not be substituted at will. It pointed them to the section 2051.048 fallbacks, a county newspaper or, failing that, posting at the courthouse door, and to any alternative built into a specific notice statute.

Newspapers seeking to carry official notices (as the opinion described it): Under the opinion, a paper satisfies the postal-permit requirement by holding its second-class permit in the county where it is released to the public, regardless of the county where the notice must appear.

On the limit of the opinion (what the AG would not do): The opinion declined to advise that Eagle Pass's specific plan to use a non-compliant paper, with notice through utility bills, was lawful, and noted the Legislature may need to provide additional publication methods.

Common questions

What does a newspaper need to publish a city's legal notices?
The opinion explained section 2051.044 requires at least 25 percent general-interest content, weekly publication, a second-class postal permit in the county of publication, and at least 12 months of regular publication.

Can a city just pick any paper if none qualifies?
No. The opinion concluded the paper must satisfy section 2051.044, and it would not advise that using a non-qualifying paper was lawful.

What if no qualifying newspaper will publish at the legal rate?
The opinion pointed to section 2051.048, which directs the city to a county newspaper, and if none qualifies, to post the notice at the county courthouse door.

Does the postal permit have to be in the county where the notice runs?
No. The opinion concluded a paper meets the requirement if it holds its second-class permit in the county where it is released to the public.

Background and statutory framework

Government Code chapter 2051 controls the selection of a newspaper where other law requires distribution of official notices but does not specify the manner of publication. Tex. Gov't Code Ann. § 2051.042(a) (West 2008). A qualifying newspaper must devote at least 25 percent of its column lineage to general-interest items, publish at least weekly, hold a second-class postal permit in the county where published, and have published regularly for at least 12 months. Tex. Gov't Code Ann. § 2051.044(a). Publication required under section 2051.048 must be in a paper meeting section 2051.044. Tex. Gov't Code Ann. § 2051.049 (West 2008).

If no newspaper in the political subdivision will publish at or below the legal rate, the subdivision must publish in a county newspaper that will charge the legal rate or lower, and if none will, it must post the notice at the county courthouse door. Tex. Gov't Code Ann. § 2051.048(c)-(d) (West 2008). Some notice statutes provide their own alternatives. Tex. Elec. Code Ann. § 4.003(a)(1)(B) (West 2010); Tex. Tax Code Ann. § 26.06(c) (West Supp. 2010). A prior case declined to invalidate an election after the fact where notice ran in a paper that only substantially complied with a predecessor statute, but did not endorse prospective use of a non-qualifying paper. Christy v. Williams, 292 S.W.2d 348 (Tex. Civ. App.-Galveston 1956), writ dism'd w.o.j., 298 S.W.2d 565 (Tex. 1957).

Citations

Statutes:

• Tex. Gov't Code Ann. § 2051.042(a) (West 2008)
• Tex. Gov't Code Ann. § 2051.044(a)
• Tex. Gov't Code Ann. § 2051.049 (West 2008)
• Tex. Gov't Code Ann. § 2051.048(c)-(d) (West 2008)
• Tex. Elec. Code Ann. § 4.003(a)(1)(B) (West 2010)
• Tex. Tax Code Ann. § 26.06(c) (West Supp. 2010)

Cases:

• Christy v. Williams, 292 S.W.2d 348 (Tex. Civ. App.-Galveston 1956), writ dism'd w.o.j., 298 S.W.2d 565 (Tex. 1957)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0856
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0856.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

April 28, 2011

The Honorable Ricardo Ramos Opinion No. GA-0856
Maverick County Attorney
208 Converse Street Re: Municipality's selection of a local newspaper
Eagle Pass, Texas 78852 for the purpose of publication of official notices
(RQ-0919-GA)

Dear Mr. Ramos:

You pose several questions concerning the publication of legal notices by the City of Eagle Pass ("City") in view of the recent closure of the newspaper historically used for this purpose.[1]

Chapter 2051 of the Government Code controls the selection of a newspaper where other law requires distribution of official notices in this manner but does not specify the manner of publication. TEX. GOV'T CODE ANN. § 2051.042(a) (West 2008). Section 2051.044 provides that a newspaper used to convey official notices must as a general matter:

(1) devote not less than 25 percent of its total column lineage to general interest items;

(2) be published at least once a week;

(3) be entered as second-class postal matter in the county where published; and

(4) have been published regularly and continuously for at least 12 months before the governmental entity or representative publishes notice.

Id. § 2051.044(a). The immediately following sections set the legal rate for publication of the notice as the lowest published rate offered for classified advertising, and add and subtract requirements depending on the governmental entity attempting to convey notice. Id. §§ 2051.045, .046, .048, .051, .052. Notice published by a city is governed by section 2051.048 and, because this subchapter applies only where other law has not specified a manner of publication,[3] may be subject to additional statutory requirements, depending on the subject matter of the notice involved. E.g., TEX. ELEC. CODE ANN. § 4.003(a)(1) (West 2010) (mandating notice by newspaper "published in the territory that is covered by the election" or in a "newspaper of general circulation in the territory if none is published in the jurisdiction").

Because the City believes it no longer has access to a newspaper that would fully satisfy the requirements of section 2051.044, it proposes to select as its official newspaper a local paper that has no second-class postal permit, and to inform City residents of this selection through the City's water and wastewater bills. See Request Letter at 2, 4-5. You ask about the City's options for publishing notices in the absence of a newspaper that satisfies section 2051.044. Id. at 1.

Under the express terms of chapter 2051, publication required under section 2051.048 must be in a newspaper that meets the requirements of section 2051.044. See TEX. GOV'T CODE ANN. § 2051.049 (West 2008). We cannot advise you that the City's proposal to use a paper that does not satisfy section 2051.044 would be lawful. See Tex. Att'y Gen. Op. No. H-1081 (1977) at 2 (declining to predict in advance about notice that did not fully satisfy section 2051.044).

Citing Christy v. Williams, you suggest that publication of a notice in a paper that only substantially complies with section 2051.044 might nonetheless be lawful. See Request Letter at 4; see also Christy v. Williams, 292 S.W.2d 348 (Tex. Civ. App.-Galveston 1956), writ dism'd w.o.j., 298 S.W.2d 565 (Tex. 1957). Christy v. Williams, however, presented the question whether the results of an election would be invalidated after the fact on account of notice having been published in a newspaper that only substantially complied with section 2051.044's predecessor statute. See Christy, 292 S.W.2d at 350-52. While the court of appeals refused to invalidate the election, it did not consider (let alone endorse) the prospective validity of a notice knowingly published in a newspaper that did not satisfy the statutory requirements of a newspaper. Thus, the case does not serve to excuse prospective noncompliance with section 2051.044. See Tex. Att'y Gen. Op. No. H-1081 (1977) at 2 (stating that Christy v. Williams does not authorize "a city to ignore the clear language" of section 2051.044's predecessor).

You assert that no newspaper in the county fully satisfies all of the requirements in subsection 2051.044(a), noting in particular the requirement that the newspaper have a second-class postal permit in the county where published and ask what options the City has for publishing its notices. See Request Letter at 1, 5. We note that a newspaper satisfies subsection 2051.044(a)(3) so long as the newspaper holds its second-class postal permit in the county in which the newspaper is released to the public, irrespective of the county in which the notice is required to be published.[4] See generally Tex. Att'y Gen. Op. No. GA-0838 (2011) (discussing compliance with section 2051.044); see also Christy, 292 S.W.2d at 352 ("A paper is published at the time and place where it is released to the public ....").

Accepting your conclusion as to the unavailability of a newspaper that would satisfy the remaining requirements of subsection 2051.044(a), section 2051.048 provides some guidance in that subsections 2051.048(c) and (d) direct a political subdivision where to publish if there is "no newspaper published in the political subdivision" that will publish the notice at the required rate. TEX. GOV'T CODE ANN. § 2051.048(c)-(d) (West 2008).

If there is no newspaper in the political subdivision that will publish the notice at or below the legal rate, subsection 2051.048(c) directs the political subdivision to publish its notice in a "newspaper that: (1) is published in the county in which the political subdivision is located; and (2) will charge the legal rate or a lower rate." Id. § 2051.048(c). If the county in which the political subdivision is located has no newspaper that will publish at the specified rate, subsection 2051.048(d) instructs the political subdivision to "post the notice at the door of the county courthouse of the county in which the political subdivision is located." Id. § 2051.048(d). Irrespective of rates, if there is no paper or publication in the political subdivision or county that meets the requirements of section 2051.044, then, by the express language of both of these provisions, there is no "newspaper published in the political subdivision [or county that] will publish the notice" as required. Id. § 2051.048(c)-(d) (emphasis added). Absent a newspaper described in subsections 2051.048(c) and (d), a political subdivision could avail itself of the alternative publication methods.

In addition, other statutes requiring the publication of specific notices expressly provide an alternative publication method. See TEX. ELEC. CODE ANN. § 4.003(a)(1)(B) (West 2010) (requiring notice of election to be given by publication in a newspaper published in the territory or "in a newspaper of general circulation . . . if none is published in the jurisdiction of the authority responsible for giving the notice"); TEX. TAX CODE ANN. § 26.06(c) (West Supp. 2010) ("The notice . . . may be delivered by mail to each property owner in the unit, or may be published in a newspaper."). If the City is required to publish a notice under such a statute, the City should follow the publication alternative in that particular statute. Absent other statutory alternatives, the Legislature may be called upon to provide additional publication methods.

SUMMARY

A paper used for the publication of a political subdivision's notices must satisfy the requirements of section 2051.044, Government Code. We cannot advise you that the City's proposal to use a paper that does not satisfy section 2051.044 would be lawful.

Beyond the express publication alternatives provided in section 2051.048, Government Code, and other particular notice statutes, the Legislature may provide additional publication methods.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Ricardo Ramos, Maverick County Attorney, to Honorable Greg Abbott, Attorney General of Texas at 1-5 (Sept. 17, 2010), http://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] The United States Postal Office changed the designation of "second-class" to "periodicals," but, as this office has previously recognized, the renaming did not effect a substantive change. See Tex. Att'y Gen. LO-96-084, at 3. Because section 2051.044 still uses the language "second-class," we also do so here.

[3] See TEX. GOV'T CODE ANN. § 2051.042 (West 2008) (limiting applicability of subchapter).

[4] For example, assuming the San Antonio Express-News is released to the public in Bexar County, so long as it holds its second-class postal permit in Bexar County, it meets the requirement of subsection 2051.044(a)(3) for any county.