THE ATTORXEY GENERAL
OF TEXAS
May 20, 1988
Honorable Garry Mauro Opinion No. JM-907
Commissioner
General Land Office Re: Reconsideration of
Stephen F. Austin Building Attorney General Opinion
1700 Worth Congress Ave. JM-364 (1985) (RQ-1292)
Austin, Texas 78701
Dear Mr. Mauro:
You have requested that we reconsider Attorney General
Opinion JM-364 (1985). The issue in Attorney General
Opinion JM-364 was the meaning of the phrase "color of
title" in article VII, section 4A(a)(3), of the Texas
Constitution. Although completely, satisfying
interpretation of subsectionno(a)(3) was suggested,
concluded that your office's interpretation at that tizz
best served the intent behind section 4A. A significant
factor in our decision was the- rule that an agency's
interpretation of a provision it administers is entitled to
deference. See Ex narte Roloff 510 S.W.2d 913 (Tex. 1974).
you have nowasked us to reconsider our interpretation. YOU
inform us that you have changed your interpretation of
subsection (a)(3), and you have provided new information
that lends support to your new interpretation. Relying on
that new information as well as the rule that your agency's
interpretation of the provision is entitled to deference,
we conclude that your current interpretation is the better
one and we overrule Attorney General Opinion JM-364.
The issue before us is the meaning of the phrase "color
of title" in article VII, section 4A, of the Texas
Constitution, which provides in part:
(a) on application to the School Land
Board, a natural person is entitled to
receive a patent to land from the commis-
sioner of the General Land Office if:
(1) the land is surveyed public free
school land, either surveyed or platted
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Honorable Garry Mauro - Page 2 (agO7)
according to records of the General Land
Office;
(2) the land was not patentable under
the law in effect immediately before
adoption of this section;
(3) the oerson accuired the land
without knowledae of the title defect out
of the State of Texas or ReDUkdiC of Texas
and held the land under color of title,
the chain of which dates from at least as
early as Januarv 1. 1932; and
(4) the person, in conjunction with his
predecessors in interest:
(A) has a recorded deed on file in
the respective county courthouse and
has claimed the land for a continuous
period of at least 50 years as of
November 15, 1981; and . . . (Emphasis
added.)
Your specific question in JR-364 was whether your office had
correctly refused to grant applications for patents in two
cases in which there was an irregularity in the transfer of
land from the sovereign as well as a complete break
elsewhere in the chain of title.
Article VII, section 4A(a)(3), provides that a person
is eligible to receive a patent if "the person acquired the
land without knowledge of the title defect out of the State
of Texas or Republic of Texas and held the land under color
of title, the chain of which dates from at least as early as
January 1, 1932." At the time of your original request,
your office interpreted Wolor of title" in section 4A(a)(3)
to have the same meaning as "color of title" in article
5508, V.T.C.S., which provides:
By the term 'title' is meant a regular
chain of transfers from or under the
sovereignty of the soil, and bv 'color of
title' is meant a consecutive chain of such
transfers down to such oerson in nossession,
without being regular, as if one or more of
the memorials or muniments be not registered,
or not duly registered, or be only in
writing, or such like defect as may not
extend to or include the want of intrinsic
‘-- .
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Honorable Garry Mauro - Page 3 (JM-907)
fairness and honesty: or when the party in
possession shall hold the same by a
certificate of headright, land warrant, or
land scrip, with a chain of transfer down to
him in possession. (Emphasis added.)
Under that statute a person cannot show color of title if
there is a complete hiatus in the chain. Thomoson v. Craaq
24 Tex. 582, 596-97 (1859). If the definition of "color of
title" for purposes of section 4A(a)(3) is the same as
"color of title" for purposes of article 5508, then section
4A(a)(3) must be read to require that an applicant show an
unbroken chain of transfers, regular or irregular, going
back to the sovereign. The requirement that the chain
extend back at least to January 1, 1932, would have to be
read as requiring that the attempted transfer from the
sovereign must have occurred at least as early as January 1,
1932.
We concluded in JM-364 that your office was correct in
its interpretation of l'color of title." We explained our
conclusion in part as follows:
The legislative analysis of the proposed
constitutional amendment that became article
VII, section 4A, states:
The purpose of this resolution is to
amend Art. VII of the Texas
Constitution by adding a new Sec. 4a to
remedy title defects in those instances
where such defect initially occurred in
alleged transfer of title from the
sovereign.
House Committee on Constitutional Amendments,
Bill Analysis, Tex. H.J.R. 117, 67th Leg.
(1981). The committee analysis also explains
that the resolution was drafted with a view
to correcting known defective transfers by
the state of title to certain properties in
Leon County. Id. Presumably the drafters
were focusing on the specific problems in
Leon County when they selected the wording of
the proposed amendment and they probably did
not contemplate more complicated situations
such as those in question in which there is
not only a defect in the transfer from the
state but also some other defect in the
applicant's claim to the property in
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I
Honorable Garry Mauro - Page 4 (wgO7)
question. Indeed, in reviewing the proposed
amendment the Texas Legislative Council
pointed out that one of the arguments against
the proposed amendment was that it was drawn
too narrowly:
The proposed amendment discriminates
unfairly. It prescribes rigid eligibility
requirements that would apply to only a
small class of landholders, excluding
other landholders in similar, but not
identical, circumstances who may be just
as worthy of relief.
Analysis of Proposed Constitutional
Amendments, prepared by the Texas Legislative
Council (1981), p. 9.
Attorney General Opinion JM-364, 3 (1985).
You now argue that the phrase "color of title, the
chain of which dates from at least as early as January 1,
1932," should be interpreted to require that an applicant
show an unbroken chain of transfers dating back to at least
January 1, 1932, but that he need not show an unbroken chain
extending back to the sovereign. See aenerally Howth v.
Farrar, 94 F.2d 654, 658, cert. denied, 305 U.S. 599 (1938)
(meaning of "color of title" in Texas statute is different
from meaning of %olor of title" in other jurisdictions):
see also Humnhrev v. C.G. Juna Educational Center, 624 F.2d
637 (5th Cir. 1980). In your brief you support your
argument by pointing out that the one person to whom section
4A was clearly intended to apply could not have received a
patent had your office interpreted "color of title" in
section 4A to be coextensive with "color of title" in
article 5508.
You demonstrate that one of the purposes of article
VII, section 4A, was to enable a claimant named Jesse
Johnson to obtain a patent to 120 acres out of the Thornton
P. Kuykendall Survey in Leon County. You provide the
following facts:
On July 31, 1838, Thornton P. Kuykendall
received Donation Certificate 486 for 640
acres of unsurveyed public domain for having
been detailed to guard the baggage at
Harrisburg on April 21, 1836. A land
certificate is an obligation of the
government entitling the owner to secure a
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Honorable Garry Mauro - Page 5 of-907)
.
,-
specific quantity of land by following the
law. . . . Certificate 486 was returned to
the general land office on September 29,
1854, and applied toward a 320 acre survey in
Freestone County. On April 18, 1857,
patent was issued on this 320 acre Freeston:
County tract. Since only 320 acres were
applied against Certificate 486, the land
office issued Unlocated Balance Certificate
116 6/120 for 320 acres on April 18, 1857.
On February 28, 1859, field notes for the 320
acre Kuykendall Survey in Leon County were
received in the land office. These field
notes purport to have been made pursuant to
the unlocated balance of Donation Warrant
486; however, Unlocated Balance Certificate
116 6/120 was not filed with these field
notes and was never applied toward this
survey. This 320 acre Kuykendall Survey in
Leon County includes the 120 acre tract
claimed by Jesse Johnson. One December .29,
1874, field notes for a 221 acre survey in
Young County, made pursuant to Unlocated
Balance Certificate 116 6/120, were filed in
the land office. Unlocated Balance
Certificate 116 6/120 was also filed in the
land office on December 29, 1874, and was
applied to this 221 acre survey in Young
County. This Young County survey was
patented on February 26, 1890. The remaining
99 acres of the unlocated balance certificate
were never applied to any survey.
Since the unlocated balance certificate or
any other land certificate was not returned
to the land office with the field notes of
the Leon County tract and no certificate was
ever applied to that tract, those field notes
were void and a patent could not be issued. .
. . Even if the remainder of the unlocated
balance certificate had been applied to the
Leon County tract, the certificate would have
been 221 acres short. Even as applied only
to Mr. Johnson's portion, the certificate
would have been 22 acres short. Mr. Johnson
,/-
had no interest in this Leon County tract
other than what could be traced back through
a chain of title to Thornton P. Kuykendall.
(Citations omitted.)
p. 4493
Honorable Garry Mauro'- Page 6 (JM-907)
General Land Office brief in support of reconsideration of
Attorney General Opinion JM-364, 3-4. Your office issued a
patent to Mr. Johnson when he applied for one. YOU now
realize, however, that because there was no transfer from
the state at all to Mr. Kuykendall, Mr. Johnson would not
have been able to show color of title as defined by article
5508. Therefore, if your office had uniformly interpreted
B*color of title" in section 4A to be the same as "color of
title" in article 5508, the person section 4A was intended
to help would have been ineligible for a patent under
section 4A.
We conclude, therefore, that q'color of title" in
section 4A cannot have been intended to be as narrow as
"color of title" in article 5508. Consequently, we believe
that section 4A requires an applicant to show an unbroken
chain of transfer dating back at least as far as January 1,
1932, but that an applicant need not show an unbroken chain
of transfers back to the sovereign.
SUMMARY
Section 4A(a)(3) of ,article VII of the
Texas Constitution requires an applicant for
a patent to land under that section to show
an unbroken chain of transfers dating back to
January 1, 1932, but does not require an
applicant to show an unbroken chain of
transfers dating back to the sovereign. This
opinion overrules Attorney General Opinion
JM-364 (1985).
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General 4
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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