The opinion
AVST~N 11. TEXAS
M’lbL wIIsoN
A-rroRNEY GENEXSAL
August 29, 1961
Honorable H. D. Glover Opinion No. WW-1125
County Attorney
Reeves County Re: Whether a newspaper of
Pecos, Texas general circulation in
a county which has been
continuously published
for a period of less than
one year is permitted to
publish notices required
Dear Mr. Glover: by the probate code,
Your request for an opinion concerns The Pecos
Daily News, a new local newspaper, which has recently begun
to publish a daily newspaper of general circulation in
Pecos County. In particular you question whether such news-
paper is qualified to accept for publication legal notices
required by the Texas Probate Code in that said newspaper
has not been regularly and continuously published for twelve
months as specified by Paragraph 2, Article 28a, Vernon's
Civil Statutes, which reads, in part, as follows:
"The term 'newspaper' shall mean
any newspaper e . . having been publish-
ed regularly and continuously for not
less than twelve (12) months prior to
the making 0; any publication mentioned
in this Act.
The publications mentioned in Article 28a are to be found
enumerated in Paragraph 1. This Paragraph states as
follows:
"The term 'publication' shall
mean any proclamation, notice, cita-
tion, advertisement, or other matter
required or authorized by law to be
printed in a newspaper or newspapers
by any institution, board, commission,
department, officer, agent, represen-
tative, or employee of the State or of
any subdivision or department of the
State, or of any county, political
subdivision, or district of whatever
Honorable H. D. Glover, page 2 (WW-1125)
nature within the State, whether to
be paid for out of public,,fundsor
charged as costs or fees.
Paragraph 6 of Article 28a also provides:
"The officer, employee, agency,
or persons charged with the duty of
inserting any publication in a news-
paper or newspapers shall select the
newspaper or newspapers in whith such
publication is to be inserted.
Finally, Paragraph 5 of Article 28a provides:
"The term 'shall' whenever used
in this Act shall be construed as
indicating mandatory provisions in
this Act.
Article 29a, Vernon's Civil Statutes, is entitled
Official Publications. This is a specific statute that
states:
I,
. . in every case where any
law, general or special, requires
the giving of any notice, the making
of any proclamation or advertisement,
or the service of any citation by any
institution, board, commission, depart-
ment, officer, agent, representative,
or employee of the State or of any sub-
division or department of the State or
of any county, political subdivision,
or district of whatever nature within
the State by publication in a newspaper,
the giving of such notice, the making of
such proclamation or advertisement, or
the service of such citation shall be by
publication J~Ja newspaner as defined
i -(Emphasis
in Section J, of this Act.fl
=dr
Thus a county clerk, as an officer of the county, is bound
to comply with the aforesaid Paragraphs of Articles 28a and
29a in regard to the submission of notices, citations, and
a.Articles 28a, 29a, Vernon's Civil Statutes; as amended
1941.
. ,
Honorable H. D. Glover, Page 3 (w-1125)
other such process for publication.
The authority of a county clerk to issue process
in probate matters is well defined in the Texas Probate
Code. Section 33(b) of Vernon's Probate Code provides that:
"The county clerk shall issue
necessary citation, writs, and pro-
cess in probate matters, and all
notices not required to be i;,ued
by personal representatives, . . .'
When it is determined that such process or notice not
required to be issued by personal representatives cannot
issue except by publication, the county clerk must comply
with the procedure set out in Section 33(f)(3) of Vernon's
Probate Code. This subsection provides as follows:
"When a person is to be cited or
notified by publication, the citation
or notice shall be published once in
a newspaper of general circulation &
&& counts in whic$ the proceedings
are pending, . . . (Emphasis added)
We see no conflict between the provisions of
Articles 28a, 29a, Vernon's Civil Statutes, as amended in
1941, and Section 33 of Vernon's Probate Code, as amended in
1957, in regard to the official duties of a county clerk in
submitting required notices to "newspapers" for publica-
tion. Articles 28a and 29a are specific Articles that
zmploy strict statutory la;guage,,todefine the terms,
newspaper," "publication, and official publications,"
and to specifically indicate who shall be bound by such
definitions. On the other hand, Sectlo; 33 of the,,Probate
Code is gene+ in nature in regard to newspapers and
publications in that Section 33(b)(f)(3) requires only
that notice be published 2 2 newspaper of general circula-
tion. The case of St. Louis, B & M 9v. ?%. v. Marcofich,
221 S.W. 582 (Com.App. 1920), held that knowledge of an
existing law relating to the same subject is attributed
to the Legislature in the enactment of a subsequent statute.
State v. Humble Oil and Refining Co., 187 S.W.2d 93 (Civ.
APP. 1945, error ref. w.o.m.) held that where a new
statute is passed dealing with a subject covered by an
old law, if there is no express repeal, the presumption is
that the Legislature intended the old statute to remain in
operation. Finally, Randell v. Randell, 222 S.W.2d 252
(Civ.App. 1949, error dism.), held that in case of conflict
between a general provision and a special provision deal-
ing with the same subject, the former is controlled or
. .
Honorable H, D. Glover, page 4 (WW-1125)
limited by the latter; and this is so, whether the pro-
visions in question are contained in the same act or
different enactments. After careful study of the statutes
and cases citea dbo:e, it is our opinion that in placing
such probate notices or process for publication, the county
clerk{,a county agent, is bound by the definition of "news-
paper as defined by Paragraph 2, Article 28a, Vernon's
Civil Statutes; and, therefore, he can only select a
"newspaper" which has been continuously and regularly
published for the preceeding twelve months.
However, as Section 33(b) of the P,robateCode
indicates, there are certain notices ii.probate matters
that personal representatives, i.e. executors or adminis-
trators are required to issue and therefore may not issue
from the county clerk. When a personal representative is
required to notify a person concerned with a probate matter
and such notice is to be by publication, because personal
service may not be had, the publication must also be in
accord with Section 33(f)(3) of the Code. But here lies the
pertinent question. Is the personal representative in
submitting notices required by the Probate Code to be issued
only by him bound by the definition of "newspaper" as
defined in Paragraph 2> Article 28a, Vernon's Civil Statutes?
It is our opinion he is not. The personal representative
is not an agent or employes of the State or on$ of its
subdivisions, as is a county clerk. The word newspaper"
is defined in Black's Law Dictionary, Fourth Edition, as
follows:
"A publication, usually in sheet form,
intended for general circulation, and pub-
lished regularly at short intervals, con-
taining intelligence of ct)rrentevents and
news of general interest.
After considering this succinct definition, it is our
opinion that it will be sufficient that a personal repre-
sentative choose a newspaper which is of general circulation
and which is in regular publication at the time the probate
notice is submitted for publication.
SUMMARY
A newspaper of general circulation in
a county which has been continuously
published for a period of less than one
year is not permitted to publish notices
required or authorized by the Probate
.
Honorable H. D. Glover, page 5 (W-1125)
Code to be issued by the county clerk.
However, such a newspaper is authorized
to publish all probate notices required
by the Code to be issued by personal
representatives only.
Yours very truly,
WILL WILSON
Attorney General of Texas
I. Raymdnd Williams, Jr.
1RW:mm:lgh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Charles Lind
Glenn Brown
Gordon C. Cass
REVIEWED FOR THE ATTORNEY GENERAL
BY: Howard W. Mays