                              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
