    OPFlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN    CORNYN




                                                   May 22,200O



The Honorable Ben W. “Bud” Childers                      Opinion No. JC-0223
Fort Bend County Attorney
301 Jackson, Suite 621                                   Re: What constitutes a “newspaper of general
Richmond, Texas 77469-3 108                              circulation” for the purpose of publishing legal
                                                         notices, and related questions (RQ-0160-K)

Dear Mr. Childers:

        Numerous statutes require a governmental entity to publish notice of an upcoming event or
a proposed action in a “newspaper of general circulation.” See, e.g., TEX. GOV’T CODE ANN.
5 2007.042(a) (Vernon 2000) (requiring political subdivision that proposes to affect private real-
property rights to publish notice); TEX. Lot. GOV’T CODE ANN.$272.001(a) (Vernon Supp. 2000)
(requiring political subdivision to publish offer ofland owned by subdivision for sale); TEX. WATER
CODE ANN. 5 11.175(b) (Vernon Supp. 2000) (requiring Texas Natural Resource Conservation
Commission to publish notice of hearing to cancel water-appropriation permit). You ask
generally how the phrase “a newspaper of general circulation” is defined with reference to
notices a governmental entity, including a county, is required to publish. See Letter from Honorable
Ben W. “Bud” Childers, Fort Bend County Attorney, to Honorable John Comyn, Attorney General
of Texas (Dec. 13, 1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. You
specifically ask seven questions:

                 1. What constitutes a “newspaper of general circulation” as that
                 phrase is used in the requirements for publication of legal notices?

                 2. Is there an objective standard to determine whether a newspaper
                 is one of general circulation in a given county?

                 3. In a county with a population of approximately 325,000, is a
                 weekly newspaper that meets the requirements of Texas Government
                 Code 5 205 1.044 and that has a subscriber base of approximately 200,
                 a newspaper of general circulation?

                 4. In determining whether to award the contract for publication of
                 legal notices to Newspaper “A,” is it permissible to consider the
                 circulation numbers ofNewspaper “B,“even thoughNewspaper “B”
                 would not in and of itself qualify for the award of the contract
The Honorable Ben W. “‘Bud”Childers - Page 2               (JC-0223)




               (because Newspaper “B” is not entered as a Periodicals postal matter
               in Fort Bend County, Texas)?

               5. Is it permissible for Commissioners Court to set the minimum
               number of subscribers a newspaper must have in the bid
               specifications?

               6. Is it permissible for Commissioners Court to base its lowest and
               best bid criteria on the cost per unit or subscriber rather than the price
               per column inch?

               7. Since there are both special and general statutes, each requiring
               a different standard for publication, may Commissioners Court
               require that the newspaper be one of general circulation when it
               determines its bid specifications?

Request Letter, supra, at 2.

         We conclude generally that a newspaper of general circulation is a newspaper 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. We also conclude
that a county commissioners court generally may specify, in a request for bids, the minimum number
of subscribers a newspaper bidding on a contract to publish county notices must have if the
specification relates to the quality of the goods or services the county desires to purchase. And we
conclude that a county must “base its lowest and best bid criteria” on the newspaper’s lowest
published rate for classified advertising.

        The Fort Bend County Purchasing Department recently solicited bids for a term contract for
newspaper publication of legal notices in Fort Bend County. See Request Letter, supra, at 1. In
response, the county has received a bid from a newspaper with paid subscribers that has a sister
publication, produced by the same publisher, that is distributed free of charge:

                       One of the bidding newspapers (Newspaper “A”)[] is a local
               weekly newspaper that has a circulation of approximately 200 paid
               and/or requested mail subscriptions. Slightly less than half of these
               200 subscriptions       are paid/requested outside-county         mail
               subscriptions with the remainder being paid in-county subscriptions.
               Newspaper “A” devotes more than 25 percent of its total column
               lineage to general interest items and has been published regularly and
               continuously at least once each week for a number of years.
               Additionally, Newspaper “A” is entered as a second-class postal
               matter (or “Periodicals” as the U.S. Postal Service now refers to it) in
               Fort Bend County, Texas.
The Honorable Ben W. “Bud” Childers - Page 3              (JC-0223)




                        The publisher of Newspaper “A” also ,publishes another
               weekly newspaper (Newspaper “B”). Newspaper “B” is a local
               weekly that has a press run of approximately 56,000 newspapers and
               is distributed free to homes and businesses in Fort Bend County.
               Like Newspaper “A”, Newspaper “B” devotes more than 25 percent
               of its total column lineage to general interest items and has been
               published regularly and continuously at least once each week for a
               number of years. However, Newspaper “B” is not entered as a
               Periodicals postal matter in Fort Bend County, Texas.

                        It has been proposed that, if the contract for publication of
                legal notices is awarded to Newspaper “A”, then Newspaper “B” will
                also print the legal notices in its newspaper at no additional charge to
                the county. Newspaper “B” cannot in and of itself be awarded the
                contract since it is not entered as a Periodicals postal matter and as
                such does not meet the requirements of Texas Government Code
                § 205 1.044.

Request Letter, supra, at l-2.

         You first ask what constitutes a newspaper of general circulation for the purpose ofnumerous
statutes that require a governmental entity, including a county, to publish notice of a public hearing,
a request for proposals, or other announcement in “anewspaperof general circulation.” See Request
Letter, supra, at 2. For example, neither a county nor a municipality may issue bonds that are to be
paid from ad valorem tax revenues unless the issuance has been approved in an election following
the publication of notice in a newspaper of general circulation “published in the county or
municipality holding the election.” TEX. GOV’TCODEANN. $125 1.003(d)(2) (Vernon 2000); see
also TEX.ELEC.CODEANN.5 4.003(a)(l)(B) (V emon Supp. 2000). And a county generally may not
sell or exchange its real property unless it has notified the general public of the offer of the land for
sale or exchange, “published in a newspaper of general circulation in either the county in which the
land is located or, if there is no such newspaper, in an adjoining county.” See TEX. LOC. GOV’T
CODE ANN. 5 272.001(a) (Vernon Supp. 2000); see also, e.g., TEX. ALCO. BEV. CODE ANN.
$ 11.392(b) (Vernon Supp. 2000) (requiring applicant for a private club permit renewal to publish
notice of renewal application in “newspaper of general circulation”); TEX.LOC.GOV’TCODEANN.
5 54.035(b) (Vernon 1999) (requiring municipal building and standards commission to publish
notice of proceedings before commission in “newspaper of general circulation” in municipality);
TEX. TRANSP.CODE ANN. § 314.022(d) (Vernon 1999) (requiring municipal condemnation
commission to publish notice of condemnation hearing “in a newspaper of general circulation in the
county in which the property is located”).

        As commonly defined, see TEX.GOV’TCODEANN.5 3 11,011 (Vernon 1998) (directing that
statutory words and phrases generally should be construed consistently with common usage or
The Honorable Ben W. “Bud” Childers - Page 4             (JC-0223)




accepted meaning), the phrase “newspaper of general circulation” describes a newspaper that has
more than a de minimis number of subscribers, has a diverse audience, and contains some news of
general interest to the community. See generally 66 C.J.S. Newspapers 5 4 (1998). After studying
the decisions available to it, the Iowa Supreme Court, in a case cited by a Texas court of appeals,
devised two criteria for considering whether a newspaper is one of “general circulation”: “First,
   a newspaper of general circulation is not determined by the number of its subscribers, but by the
diversity of its subscribers. Second,       even though a newspaper is of particular interest to a
particular class of persons, yet, if it contains news of a general character and interest to the
community, although the news may be limited in amount, it qualifies as a newspaper of ‘general
circulation.“’ Buruk v. D&on, 229 N.W. 227,228 (Iowa 1930) (cited in City of Corpus Christi v.
Jones, 144 S.W.2d 388,393 (Tex. Civ. App.-San Antonio 1940, writ dism’d judgm’t car.)). The
Supreme Court of North Carolina examined cases from several jurisdictions and devised a similar
four-pronged test:

               First, it must have a content that appeals to the public generally.
               Second, it must have more than a de minimis number of actual paid
               subscribers in the taxing unit. Third, its paid subscriber distribution
               must not be entirely limited geographically to one community, or
               section, of the taxing unit. Fourth, it must be available to anyone in
               the taxing unit who wishes to subscribe to it.

Great S. Media, Inc. Y.McDowell County, 284 S.E.2d457,467 (N.C. 1981); see Ala. Att’y Gen. Op.
No. 28 (1997), 1997 WL 1054022, *1 (discussing Great Southern Media’s four-prongedtest). Thus,
a newspaper of general circulation “circulates among all classes and is not confined to a particular
class or calling in the community” and includes some general-interest items, so that the newspaper
is one upon which the general public will rely “to be informed of the news and intelligence of the
day, editorial opinion, and advertisements.” 66 C.J.S. Newspapers $4, at 19-20 (1998).

         We believe a Texas court would analyze the issue using criteria similar to those adopted in
the Iowa and North Carolina cases. First, more than a de minimis number of subscribers within the
bounds of a certain geographic region, see Great S. Media, Inc., 284 S.E.2d at 467, is necessary to
serve the common-sense purpose of notifying people within the region. See Dale R. Agthe,
Annotation, What Constitutes Newspaper of “General Circulation” Within Meaning of State
Statutes Requiring Publication of Official Notices and the Like in Such Newspaper, 24 A.L.R. 4th
825 (1983) (stating that “primary purpose of the printing of legal notices is to give the widest
publicity practicable”). Second, the Court of Civil Appeals has underlined the importance of the
diversity of a newspaper’s readership: it determined that a daily paper in the City of Dallas with a
circulation of about 1,000 “in the different walks of life” was a newspaper of general circulation.
Robinson v. State, 143 S.W.2d 629,633 (Tex. Civ. App.-Dallas 1940, writ dism’d judgm’t car.).
Third, in City of Corpus Christi v. Jones the court relied upon the general contents of a newspaper
in determining that it was a newspaper of general circulation. See City of Corpus Christi, 144
S.W.2d at 393. The court noted the following characteristics: “[IIt had a circulation of about 4000
in a city of about 45,000 population;    . about 1200 copies were delivered to paid subscribers, and
The Honorable Ben W. “Bud” Childers - Page 5             (JC-0223)




although it featured church and Corpus Christi news, it was not dedicated to any private enterprise.
    The paper contained news items of general interest, editorials and advertisements.” Id.; cf Meyer
v. Opperman, 13 S.W. 174, 176 (Tex. 1890) (finding, in action on deed of trust, that Galveston
Civilian may, as matter of law, be a newspaper sufficient for notice despite its limited circulation);
Hurt v. Cooper, 63 Tex. 362,367 (1885) (same).

        We accordingly conclude that, to be a newspaper of general circulation, a newspaper must
have more than a de minimis number of subscribers within a particular geographic region; must have
a diverse subscribership; and must contain some news, editorials, and advertisements of a general
character and interest to the community. See Burak, 229 N.W. at 228; Moore v. Alaska, 553 P.2d
8, 21 (Alaska 1976). Whether a particular newspaper is a newspaper of general circulation is a
question of fact that cannot be determined in the opinion process. See, e.g., Tex. Att’y Gen. Op.
Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027
(1999) at 3 (stating the questions of fact cannot be addressed in attorney general opinion); X-0020
(1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion
process).

         Section 205 1.044 of the Government Code is relevant to determine whether a particular
publication is a newspaper in which a governmental entity may publish notice. Section 205 1.044
lists four criteria of a newspaper in which a notice must be published:

                The newspaper in which a notice is published 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.

TEX. GOV’TCODEANN. 9 2051.044(a) (Vernon 2000).

         A brief received in connection with your request suggests that a newspaper that has obtained
 Periodical mailing privileges (f/k/a “second-class postal matter,” see id. § 205 1.044(a)(3); see also
 UNITEDSTATESPOSTALSERVICE,DOMESTICMAIL MANUAL,Issue 55, reg. E211.1.0 (4/6/00)
 [hereinafter “Domestic Mail Manual”] (“Effective July 1, 1996, second-class mail was renamed
 Periodicals.“)), and therefore satisfies section 205 1.044(a)(3) of the Government Code, should be
 presumed to be a newspaper of general circulation. See Brief from Don R. Richards, McWhorter,
 Cobb & Johnson, L.L.P., Attorneys at Law, on behalf of Texas Press Ass’n, to Honorable John
The Honorable Ben W. “Bud” Childers - Page 6             (JC-0223)




Comyn, Attorney General (Jan. 24, 2000) (on tile with Opinion Committee) [hereinafter “TPA
Brief’]. According to the TPA Brief, the holder of Periodical mailing privileges must produce a
“general publication” that is “‘published to disseminate information of a public character’ or is
otherwise devoted to matters of social public concern such as ‘literature, the sciences, art or some
special industry.“’ Id. at 4 (quoting Domestic Mail Manual, supm, reg. E212.1.2). The TPA Brief
asserts that the holder of Periodical mailing privileges also must devote at least twenty-five percent
of the publication’s overall content to noncommercial, “news-type matters of general public
interest.” Id.; cf TEX. GOV’T CODE ANN. 5 205 l.O44(a)( 1) (Vernon 2000) (defining “newspaper”
as publication that, among other things, devotes at least twenty-five percent of total column lineage
to general interest items).

        Even assuming that the TPA Brief properly characterizes United States Postal Service
regulations, the holder of Periodical mailing privileges is not entitled to a presumption that the
holder publishes a newspaper of general circulation. An analysis of whether a newspaper is one of
general circulation requires not only an examination of the newspaper’s content, but also a
determination that the newspaper’s subscribership is more than de minimis and is diverse. It does
not appear that obtaining Periodical mailing privileges requires a consideration of these factors.

        Nor is a newspaper, as defined in section 205 1.044 of the Government Code, necessarily a
newspaper of general circulation. See TEX. GOV’T CODE ANN. 4 2051.044(a) (Vernon 2000).
Nothing in section 205 l.O44(a)‘s definition requires an examinationofthe diversity of a newspaper’s
subscribership or a determination that the newspaper serves more than a minimal number of
subscribers. Consequently, a newspaper, as defined in section 2051.044(a), is a newspaper of
general circulation only if it has more than ade minimis number of subscribers and its subscribership
is diverse.

        Conversely, a newspaper of general circulation must be a newspaper for the purposes of
section 205 1.044, in addition to having more than a de minimis number of subscribers and a diverse
subscribership. To the extent a general or special law does not specify a contrary “manner of
publication,” section 205 1.044, as part of chapter 205 1, subchapter C, governs the publication of a
notice in a newspaper by a governmental entity. See id.

        In response to your second question, whether there is an objective standard that may be used
to determine whether a newspaper is one of general circulation, we conclude there is not. Whether
a particular publication is a newspaper under section 205 1.044(a) of the Government Code can be
determined objectively by calculating the publication’s percentage of general-interest material; by
determining the number of times the publication is published each week; by ascertaining whether
the publication has been approved for Periodical mailing privileges; and by considering whether it
has been published regularly and continuously for at least twelve months prior to the publication of
the governmental entity’s notice. See id. The remaining components used to determine whether a
particular newspaper is of general circulation, the proportion of subscribers compared to the general
population and the diversity of the audience, cannot be determined by applying an objective
standard. “There is       no fixed number of readers or ratio of readers to the population necessary
The Honorable Ben W. “Bud” Childers - Page 7              (JC-0223)




for a newspaper to be considered one of general circulation.” Gannett Co. v. Delaware, 1993 WL
19714, *4 (Del. Ch. 1993) (citing Great S. Media, Inc., 284 S.W.2d at 467); see also Ark. Att’y Gen.
Op. No. 90-134,199O WL 358833, *3 (and cases cited therein) (summarizing cases determining de
minimis distribution). Whether a newspaper has more than a “trifling” or “minimal” number ofpaid
subscribers so that the notice may serve to notify the public, as it is supposed to do, is a question of
fact to be determined by the public offtcial or body that is required to cause the notice to be
published. See Tex. Att’y Gen. LO-97-036, at 3 n.3 (stating that determining whether particular
consideration is “significant” or “de minimis” requires resolution of fact questions); Va. Att’y Gen.
Op. No. 372 (1982), 1982 WL 175548, * 2 (same); BLACK’SLAWDICTIONARY                443 (7th ed. 1999)
(defining “de minimis”).

         Whether a newspaper serves a diverse subscribership also requires a factual examination of
whether the newspaper serves a “special or limited” audience, such as a “medical, literary, religious,
scientific or legal journal,” see Great S. Media, Inc., 284 S.E.2d at 464 (quoting Lynn v. Allen, 44
N.E. 646, 647 (Ind. 1896)), or whether it “circulates among all classes and is not confined to a
particular class or calling in the community.” Id. (quoting People v. South Dearborn Street Bldg.
Corp., 24 N.E.2d 373, 374 (Ill. 1939)).

        You next ask whether, in a county with a population of approximately 325,000, a weekly
newspaper, as defined by section 2051.044 of the Government Code, with a subscriber base of
approximately 200 is a newspaper of general circulation. “[IIt is not at all essential, to constitute a
newspaper one of ‘general circulation’   , that the newspaper be read by all the people of a county,
township, or other community in which it circulates.” Dale Agthe, Annotation, What Constitutes
Newspaper of “General Circulation ”within Meaning ofState Statutes Requiring Publication of
Official Notices and the Like in Such Newspaper, 24 A.L.R. 4th 822, 826 (1983). Whether a
particular newspaper has more than a de minimis number of subscribers within a county must be
determined by the county commissioners court, the body that is to arrange for the publication of
county notices. See Va. Att’y Gen. Op. No. 372,1982 WL 175548, at *2.

        Fourth, you ask whether, “[i]n determining whether to award the contract for publication of
legal notices to Newspaper ‘A,“’ the governmental entity may “consider the circulation numbers of
Newspaper ‘B,’ even though Newspaper ‘B’would not in and of itself qualify for the award of the
contract.” Newspaper A has paid subscribers, while its sister publication produced by the same
press, Newspaper B, is distributed free of charge to homes and businesses within the county. See
Request Letter, supra, at 1-2. A governmental entity may not include the circulation numbers of
Newspaper B in determining whether Newspaper A is a newspaper of general circulation. The
additional circulation may, however, be a factor in determining which bid is “the lowest and best.”
See TEX.Lot. GOV’TCODEANN. 8 262.027(a)( 1) (Vernon 1999) (directing county commissioners
court normally to award contract to “responsible bidder who submits the lowest and best bid”); cf:
Tex. Att’y Gen. Op. No. JM-88 1 (1988) at 3 (explaining that county is not required to accept lowest
bid, but “lowest and best” bid).
The Honorable Ben W. “Bud” Childers - Page 8              (JC-0223)




         You ask fifth whether a commissioners court may set the minimum number of subscribers
a newspaper must have in the bid specifications. A county may specify the characteristics of the
goods or services it desires to purchase. See TEX.Lot. GOV’TCODEANN.5 262.025(b)(l) (Vernon
1999); Tex. Att’y Gen. Op. No. JC-0124 (1999) at 2. But specifications must be definitely and
objectively related “to matters of quality and competence or.         adopted” in accordance with clear
legislative authority. See Tex. Att’y Gen. Op. No. DM-113 (1992) at 7; see also Texas Highway
Comm ‘nv. Texas Ass ‘nofSteel Importers, Inc., 372 S.W.2d 525,529 (Tex. 1963) (recognizing state
agency’s authority to specify quality of goods); Tex. Att’y Gen. Op. No. JC-0124 (1999) at 2
(discussing Texas Ass’n of Steel Importers, Inc.); Tex. Att’y Gen. Op. No. JM-1215 (1990) at 3
(same). While we believe an argument can be made that a specification regarding the minimum
number of subscribers is related to the effectiveness of published public notices, whether a certain
specification is in fact directly related to the quality of item to be purchased is a fact question. See
Tex. Att’y Gen. Op. No. JM-1215 (1990) at 4.

        In answer to your sixth question, we conclude that a county commissioners court may not
“base its lowest and best bid criteria on the cost per unit or subscriber rather than the price per
column inch.” Request Letter, supra, at 2. Section 205 1.045 of the Government Code sets the legal
rate for publication of notice in a newspaper: “The legal rate for publication of a notice in a
newspaper is the newspaper’s lowest published rate for classified advertising.” TEX.GOV’TCODE
ANN.9 2051.045 (Vernon 2000). Consequently, acountymust “base its lowest and best bid criteria”
on the newspaper’s lowest published rate for classified advertising. The statute does not specify that
the rate must be articulated as a “price per column inch,” but the statute does not permit the county
commissioners court to require a newspaper to compete on a rate system other than that it normally
uses.

         Finally, you ask whether a county commissioners court may require in its bid specifications
that the newspaper be one of general circulation, although “there are both special and general
statutes, each requiring a different standard for publication.” Request Letter, supra, at 2. You do
not indicate what statutes you mean, nor have you provided any briefing. Consequently, we can
offer only the most general advice.

         A county may not publish notice in a newspaper of general circulation if such a newspaper
would be inconsistent with the specific statute requiring the notice. See TEX. GOV’TCODEANN.
5 3 11.026 (Vernon 1998) (stating that specific statute normally controls over inconsistent general
statute). Publishing notice in a newspaper of general circulation may not, in certain circumstances,
satisfy specific statutory requirements regarding the location of publication. Section 202.043 of the
Agriculture Code requires the governing board of a wind erosion conservation district, the
boundaries ofwhich must be coextensive with county boundaries, to publish notice of an assessment
hearing “in a newspaper of general circulation” that is published in the county. See TEX. AGRIC.
CODEANN. 5 202.043(c) (Vernon 1982); see Christy Y. V’iNiams, 292 S.W.2d 348,352 (Tex. Civ.
App.Galveston 1956), writ dism’d, 298 S.W.2d 565 (Tex. 1957) (defining “published”) (quoting
Tex. Att’y Gen. Op. No. C-7286 (1946) at 3). Under such a statute, a wind erosion conservation
The Honorable Ben W. “Bud” Childers - Page 9              (X-0223)




district could not publish its notice only in a newspaper of general circulation that is not published
within the county.
The Honorable Ben W. “Bud” Childers - Page 10           (JC-0223)




                                      SUMMARY

                      A newspaper of general circulation is a newspaper that has
              more than a de minimis number of subscribers among a particular
              geographic region, that has a diverse subscribership, and that
              publishes some items of general interest to the community. See also
              TEX. GOV’T CODE ANN. 5 2051.044(a) (Vernon 2000) (defining
              “newspaper”). Whether aparticularnewspaper is generally circulated
              is a question of fact. In determining whether a particular newspaper
              is a newspaper of general circulation for the purposes of publishing
              official notices, a governmental entity may not combine the
              subscriber numbers of that newspaper with the circulation numbers
              of a separate newspaper that is sent out free of charge to
              nonsubscribers.

                       So long as the specification relates to the quality of the goods
              and services a county desires to purchase, the commissioners court
              may specify, in a request for bids, the minimum number of
              subscribers a newspaper bidding on a contract to publish county
              notices must have. A county must “base its lowest and best bid
              criteria” on the newspaper’s lowest published rate for classified
              advertising. See id. 5 2051.045. A county may not publish notice in
              a newspaper of general circulation if such a newspaper would be
              inconsistent with the specific statute requiring the notice.




                                              Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

 Kymberly K. Oltrogge
 Assistant Attorney General - Opinion Committee
