                                  Overruled in part by
                                       o-7286
Honorable Leroy L. Moore
County Attorney.
Houston County
Crockett, Texas
Dear Sir:                     Opinion No. O-7112
                              Re: Whether certain county newspapers
                                  meet statutory  requirements for
                                  citations  by publication.
We have received your letter   of February 20, 1946, which, after
citing Rule No. 116 of the new rules of Civil Procedure, pro-
pounds the following questions:
    "One of our local newspapers was discontinued   during the
    time of service of its owner and editor in the recent war.
    Would nublication  of a citation by publication  in that news-
    paper be legal notice as required by this Rule?
    "Another newspaper here collects  the news and sends it to
    Houston, Texas, to be typed and printed.   This is done
    each week. Would citation   by publication in that newspaper
    be legal notice as required by this Rule?
    "Another newspaper in the county suspends its publications
    one week in the year.   Would citation by publication  in that
    newspaper be legal notice as required by this Rule?
    "One of the local papers in this i:cirnty skipped publication
    and circulation  during Christmas week.
    "Y!ould a citation by publication in a divorce case published
    in any one of the three papers mentioned above be legal no-
    tice under this Rule?"
Rule 116 of the New Texas Rules of Civil Procedure provides for
the requirement of service of citation  by publication in the
following  words:
    “Rule 116.   Service   of Citation   by Publication
    "The citation,  ~when Issued, shall be served by the sheriff
    or any constable of any county of the State of Texas by
                                                               v..
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Honorable   Leroy L. Moore, page 2          o-7112



    having the samepublished once each week for four (4) con-
    secutive weeks, the fir&t publicaticn     to be at least twenty-
    eight (28) days before the return day of the citation.         In
    all suits which do not involve the title      to land or the
    ,partltion of real estate,  such publication    shall be made in
    the county where the suit is pending, if there be a newspaper
    published in said county, but If not, then in an adjoining
    county where a newspaper is published.       In all suits which
    Involve the title  to land or partition    of real estate,    such
    publication  shall be made in the cou~nty where the land, or
    a portion thereof,  is situated,  if there be a newspaper in
    such county, but if not, then in an adjoining       county to,the
    county where the land or a part thereof is situated,       where
    a newspaper is published.”
The Legislature   has defined various terms relating   to legal pub-
lications  and clearly  sets forth the minimum requirements of a
“newspaper” in Article    28a, V.A.C.S., which we quote as follows:
    “The following   terms shall, unless the context indicates
    otherwise,   have the following res,pective meaning:
    “(2) The term ‘newspaper’shall    mean any newspaper devoting
    not less than twenty-five   (25) per cent of its total column
    lineage to the carrying of Items of general interest,     pub-
    lished not less frequently   than once each week, entered as
    second-class  postal matter in the county where published,
    and having been publish&    regularly and continuously  for not
    less than twelve (12) months ,prior ‘GOthe making of any
    publication  mentioned in this .Gct. (As Emended, Acts 1941,
    47th T,eg. p. 480, ch. ?C3, ::ec. 1) .‘.
%hen a statute or rule of civil    procedure such as Rule 116,
supra, makes provisions   with reference   to publication    in any
“newspap&    without defining or explaining    same further,    then
such “newspaper” must conform to the dcPinltion       thereof as set
forth in ~?rticle 28a, above.
Thus, we see by Rule 1.16 that publlc~~~tion of 2. citation    shall
be made in a news a er and further by Article    %a, that a
newspaper is ?i2Edd+ as one (1) devoting at least 25 percent of
its column lineage to items of general Interest,      (2) published
not less than once each week, (3) entered as second-class        postal
matter, and (4) published regularly   and continucusly     ,for not
less than twelve months prior to the making of any publication.
Service by publication       is a creature of statutory  law, and al-
though we have found no Texas decisions        directly in point with
respect to the construction       to be placed upon Article   28a,
V.A.C.S.,     where there is service by publication,    there must be
strict   and literal    compliance with every essential    requirement
m         statutes   in respect thereto.    Byrne3 vs. Sampson, 11 S.W.
Honorable    Leroy L. Moore, page 3            O-7112


1073; Harris VS. Hill,   117 S.W. 907; Gibson vs. Op enheimer,
154 S.W. 694 (error refused);   Lopez vs. Calcado, 2E1 S.W.
324 (error dlsmq%sed); Fisher vs. Jordan, 32 Fed. Sup. 608;
State vs. Ragby's estate,   126 S.W. (2d) 687.

We shall then construe the definition         of "newspaper",   as defined
by Article    28a, with reference    to Rule 116, the citation      by
publication    statute,   and consequently    in a strict  and literal
manner, pursuant to the prevailing        view of strict   construction
placed generally by the courts on all statutes dealing with
citation    by publication.    Whereupon, applying the provisions       of
Artj.cle 28a to your questions,      in the light of strict     construc-
tion and the ex ress and unambiguous language contained therein,
we find that (1 P your county newspaper that was discontinued
and presumably did not resume publication         twelve months prior to
the request for citation      by publication    does not comply with
the statute,     (2) that your county newspaper which sus,pends its
publ.ication   for one week each year does not comply with the
statute,    and (3) that your county newspaper which missed publi-
caMon during this past Christmas week does not comply with the
statute.
With reference    to your question regarding the newspaper that
collects   the news and sends it to Houston for printing,       this
department has previously    held in Opinion No. O-566, construing
Arti.cle 2039, V.A. C.S. (now repealed and replaced by Rules
109 and 11.6, Rules of Civil Procedure) that publication        within
the county as designated in the statute did not necessarily
require the printing or type- setting to be done within that
county.    Thus J where Rule 116 provides that in all suits not
involving   title  to land or partition,   "such publication    shall be
made in the county where the suit is ,pending.....,"a        publication
is J.egally made in such county when mailed or distributed         there-
from even though the type-setting      is done elsewhere, provided
that all other statutory    requirements are fulfilled     as hereto-
fore discussed in this opinion.
Therefore,   your local news,paper which sends its news to Houston
for type-setting   and, we assume, mails jts copies from your
county, has not disqualified    itself  thereby under the statutes,
but it must, of course, otherwise comply with the requirements
for a "newspaper" as defined in Article      28a, supra.
We trust    that this   opinion   satisfactorily       answers your questions.
                                                   Yours very truly
APPROVRDMAR. 22, 1946
GROVERSELLERS                                 ATTORNEY GRN73RAL
                                                              OF TEXAS
ATTORNEYGENERrALOF TEXAS                      BY
                                                 Jack K. Ayer
JKA:zd:ml                                           Assistant
