"TPA Hotline" by Ed Sterling, TPA Member Services Director
CORRECTION/CLARIFICATION: Last month, in response to a hotline question, I wrote that a Texas attorney general opinion “holds the force of law” — a choice of words that might lead to questions in the minds of readers.
Tim Burnett, Rockwall County News, noticed what I wrote and forwarded a link to a statement by Attorney General Greg Abbott’s office that appears on a Web page where his weekly columns are posted. Here are two paragraphs from the statement:
1. “Although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled by a statute, a judicial decision, or a subsequent Attorney General Opinion. While an Attorney General Opinion is deemed to correctly state the law, ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.”
2. “Opinions cannot create new law, nor can they change undesirable aspects of a law. Only the state legislature can create or change Texas laws. An Attorney General Opinion does not reflect the Attorney General’s personal opinion or view on a particular matter, nor is it a ‘ruling.’ It is strictly an unbiased interpretation of existing law.”
To read the whole statement, go to: http://tinyurl.com/bw6jkja
The Texas State Library and Archives Commission, on the other hand, in a statement posted on March 2, 2011, quotes AG opinion No. 0-7234-A (1946), which says: “The opinions of the Attorney General have not the force of law and are legally binding on no one.
They may be highly persuasive to the courts but apparently only in those cases where they coincide with the court’s view of the law.”
Furthermore, the commission states, “Attorney General Opinions are not binding on the courts; however, they are persuasive and the courts may give them great weight. Since the Attorney General is constitutionally and statutorily charged with interpretation of the law upon request by certain persons, reasonable reliance upon an Attorney General Opinion would constitute an affirmative defense to criminal prosecution.”
The commission also points out that caution is wise because the Legislature may “pass a law which would render a previously issued opinion inoperable; while more recent opinions may overrule part or all of previous opinions. In addition, opinions are responses to specific, factual situations in point of time, which may or may not be the same as those of the reader. An attorney should be contacted if you seek further advice.”
Q: A small town in my county wants to establish its very own newspaper. Movers and shakers there asked me to publish a weekly for them and insert it as a separate publication with its own volume and issue number in my main paper, which is the county seat paper. Is it O.K. for me to do that?
A: If you are thinking about mailing to subscribers and/or requestors, please see the U.S. Postal Service Domestic Mail Manual, chapter 707 online by plugging USPS DMM 707 into your web browser or by going to http://pe.usps.com/text/dmm300/707.htm
Q: For as long as anyone can remember, our readers have enjoyed the reliability and convenience of finding county election notices on our pages. Now, for the first time in history, the gentleman who is now our county judge says he is thinking about publishing the required notices of election only in the county seat newspaper. My newspaper is not the county seat paper. Tell me this is just a bad dream.
Scroll down to section 3.4, titled “Impermissible Mailpiece Components.”
Regardless of preparation or characteristics, the materials described in 3.4.2a through 3.4.2e are not eligible for Periodicals prices.
3.4.2 Prohibited Material
Material that contains any one of the following printed items or that is referred to in a component of the Periodicals mailpiece (by the use of one of these items) is ineligible to be mailed at Periodicals prices:
a. A separate price or subscription instructions different from those of the host publication.
b. The word “catalog.”
c. A First-Class Mail, Standard Mail, Parcel Select, or Package Services permit imprint.
d. An ISBN (International Standard Book Number).
e. An ISSN (International Standard Serial Number) or USPS number different from that of the host publication.
A: In this non-lawyer’s reading of the law, it appears that the county judge could choose not to publish the county’s election notices in your newspaper if he causes them to be published in the county seat newspaper. That said, citizens generally find it disorienting, to say the least, when something as important as election notices get moved somewhere else or disappear entirely. The county judge might want to consider that before initiating changes.
Now, let’s look at the wording of the relevant part of the law, Election Code § 4.003. METHOD OF GIVING NOTICE. (a) Except as provided by Subsection (c), notice of an election must be given by any one or more of the following methods:
(1) by publishing the notice at least once, not earlier than the 30th day or later than the 10th day before election day:
(A) in a newspaper published in the territory that is covered by the election and is in the jurisdiction of the authority responsible for giving the notice; or
(B) in a newspaper of general circulation in the territory if none is published in the jurisdiction of the authority responsible for giving the notice.