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Who? What? Where? When? Why? The Five W’s of Official Newspapers in Texas

Who? What? Where? When? Why? The Five W’s of Official Newspapers in Texas

Is a city in Texas required to designate an “official newspaper,” and if so, would the city would be required to publish notices in a newspaper that has its offices within the city limits? Does the city need to designate an official paper?

It depends, in part, on whether the city is a home rule city.

There is no statute requires a home rule city to designate an official newspaper at all. Numerous statutes require a home rule city to publish notices in newspapers, but there is no statute that specifically requires any publication in a newspaper with its offices or printing press inside the city limits.Legal notices by Texas municipalities can be published in newspapers of their choosing, in some circumstances.

That said, there are distinctions among the types of cities in Texas.

The Texas Local Government Code clearly requires a Type A general law city to designate an official newspaper and to publish notices of certain ordinances in the official newspaper. The Code requires a Type B general law municipality to publish certain notices in “a newspaper that is published in the municipality,” but does not specifically require the designation of an official newspaper. The Code does not make any reference to Type C general law cities regarding official newspapers. However, the Texas Municipal League is of the opinion that the Type A requirement to designate an official newspaper applies to Type B and Type C general law cities through other statutory “borrowing” provisions. In any event, this analysis does not apply to home rule cities.

For home rule cities, Section 52.013 of the Texas Local Government Code provides as follows:

HOME-RULE MUNICIPALITIES.  (a)  The governing body of a home-rule municipality may publish a caption of an adopted ordinance that summarizes the purpose of the ordinance and any penalty for violating the ordinance in lieu of a requirement in the municipality’s charter that the text of the ordinance be published.

(b)  If the charter of a home-rule municipality does not provide for the method of publication of an ordinance, the full text of the ordinance or a caption that summarizes the purpose of the ordinance and the penalty for violating the ordinance may be published at least twice in the municipality’s official newspaper.

Although this section seems to assume that a home rule city will have an official newspaper, it does not require the city to designate an official newspaper nor does it require the city to publish any notices in an official newspaper.

So when must a home rule city publish notices in a newspaper, and in which newspaper? TML has collected what it calls a “sample” of 100 Texas statutes that require a city to publish a notice in a newspaper. I have not reviewed every listing on the chart, but many of the statutes require the notice to be published in “a newspaper of general circulation in the municipality.”

Is a newspaper of “general circulation” the same thing as an “official newspaper?” Not necessarily—several statutes* require the publication of notices “in an official newspaper or a newspaper of general circulation,” strongly indicating that they are not the same thing. Also, the Texas Attorney General has defined a newspaper of general circulation as one “that has more than a de minimis number of subscribers within a specific geographic region, has a diverse subscribership, and publishes some items of general interest to the community.”

Do Texas statutes define “official newspaper” or set out the requirements for a newspaper to be an official newspaper? No, they do not. Chapter 2051, Subchapter C of the Texas Government Code lists four criteria for a newspaper in which certain notices must be published (but not all notices, see below). Such a newspaper must:

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

(2)  be published at least once each 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.

Although these criteria may be a useful guide for cities that wish to designate an official newspaper and a strong argument that a certain newspaper qualifies as an official newspaper, Subchapter C does not require that a city use these criteria in selecting an official newspaper nor does it require a city to designate an official newspaper at all.

It is crucial to note that Subchapter C only applies if the statute requiring publication of a notice in a newspaper “does not specify the manner of the publication.” Therefore and by way of example, any statute that requires publication of a notice in a “newspaper of general circulation” would not require that notice to be published in an “official newspaper” or a newspaper that satisfies the four criteria of Subchapter C. Again, I have not reviewed the 100 statutes that require publication of notices to determine which do specify the manner of publication and which do not.

If the statute does not specify the manner of the publication of the notice, then Chapter 2051, Subchapter C applies. That means that the notice must be published in a newspaper that meets the four criteria listed above, and that if the political subdivision is a city, the following rules also apply:

Sec. 2051.048.  NOTICE OF OTHER POLITICAL SUBDIVISION.  (a)  This section applies only to a political subdivision other than a county or a conservation and reclamation district under Section 2051.047.

(b)  A notice of a political subdivision shall be published in a newspaper that is published in the political subdivision and that will publish the notice at or below the legal rate.

(c)  If no newspaper published in the political subdivision will publish the notice at or below the legal rate, the political subdivision shall publish the 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.

(d)  If no newspaper published in the county in which the political subdivision is located will publish the notice at or below the legal rate, the political subdivision shall post the notice at the door of the county courthouse of the county in which the political subdivision is located.

What does “a newspaper that is published in the political subdivision” mean? According to the Texas Attorney General, a “paper is published at the time and place where it is released to the public,” citing Christy v. Williams, 292 S.W.2d 348, 352 (Tex. Civ. App.–Galveston 1956, writ dism’d w.o.j.). That interpretation of “published” indicates that for the purposes of Texas law, a newspaper is published not just in the building where it is actually printed, but everywhere it is sold or distributed. That same opinion refers to a newspaper that “is released to the public, at least in part, in Aransas County.” That phrase indicates that newspaper can be published in more than one county, further demonstrating that “published,” in a legal sense, does not simply refer to the location of the newspaper’s printing press.

Conclusion: A home rule city, does not have to designate an official newspaper at all; furthermore, there is no circumstance under which the city would be required to publish a notice in a newspaper whose offices/printing press were located within the city limits.

* Texas Local Government Code §§ 211.006, 212.015, 212.0155, 211.021, 241.016, and 241.017.

 

Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.

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