Untitled Texas Attorney General Opinion

r * The Attorney General of Texas JIM MATTOX October 22, 1985 Attorney General Supreme Court Building Honorable Garry Mauro opinion No. JM-364 P. 0. Box 12548 COtlXltiSSiO*~r *us!in. ix. x711.2548 General Land Office Re: Whether the applicant holds 512/475-2501 Stephen P. Austin Building land “under color of title” pur- ~~~~~ 910;874-067 Telecopier5121475-0266 1700 North Congress Avenue suant to article VII, section 4A. Austin, Texas 78701 of the Texas Constitution, when there has been a break in the 714 Jackso".Suite700 chain of title Dallas,TX. 75202.4506 2141742d944 Dear Mr. Hauro: 4824 AXwta Ave..Suite 160 You have reqrested an opfnion regarding the interpretation of the E, Paso. TX. 79905.2793 phrase “under color of title” in a 1981 amendment to the Texas 9151533.3464 constitution. Te:r.. Const. art. VII, 04A. Section 4A provides, in pertinent part: 1001 Texas. Suite 7M) kt~uston.TX. 77002.3111 (a) Cm application to the School Land Board, a 713/223-%56 natural person is entitled to receive a patent to land from the commissioner of the General Laud Off Ice 2.f:: 606 Broadway.Suile 312 Lubbock. TX. 79401.3479 8061747.5238 (:.) the land is surveyed public free school land:, either surveyed or platted according to reco::ds of the General Land Office; 4309 N. Tenth. Suite B McAllen. TX. 78501-1685 5121682~4547 (:!:I the land was not patentable under the lav in effect immediately before adoption of this section; 200 Main Plaza. Suite 400 son Antonlo. TX. 782052797 51212254191 (13) the person acquired the land vithout know --a L& ge of the title defect out of the State o.f -- Taxas or Republic of Texas and held the land An ECLal OpportunityI under -- color of title, the chain of vhich dates ~lfirmative Action Employer from -- .st least as early as January 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). p. 1668 q .. . Ronorable Carry Mauro - Pago 2 (JM-364) You ask about the meening of the phrase “under color of title” in subsection (a) (3). IO par,;:lcular, you ask about the effect of that phrase in two situations in which applicants for patents cannot show an unbroken chain of traosfers. In one situation the applicant’s chain of title shows an att,smpted transfer from the sovereign to the original grantee and then a gap from 1876 until 1921. The deed records for 1921 show a de,ed of trust from one G.G. Gaines. but the records do not show how G.G. Gaines acquired the property. The other situation is similar. There the applicant’s chain of title shows a grant from the sovereign alai au unbroken chain of transfers up to an attempted transfer in 1863 to one Francis Stevens. Subsequent records do uot show how Francis Stevens disposed of the property, but the next document in the chain is a grant from one Mary HcAdams In 1904. You have refused those two applications for patents on the grounds that the applicants did not hold their property “under color of title.” In doing so, you rely on the definition of “color of title” set out in the Texas statutes governing limitations on actions for title to or possession of land: By the term ‘title’ is meant a regular chain of tr,ansfers from or under the sovereimty of the soil, and by ‘color of title’ is mean; a- consecu- tive chain of sr,ch transfers down to such person in possession, w:fi:hout being regular, as if ooe or more of the memorials or muniments be not reais- tered, or not duly registered, or be only- in writing, or such like defect as may not extend to or include the ‘want of intrinsic fairness and honesty; or when the party in possession shall hold the same by a certificate of headright, land warrant, or la*& scrip, with a chain of transfer down to him in possession. -Id. (Emphasis added). V.T.C.S. art. 5508. The :ourts have interpreted “color of title” to mean an unbroken chain of transfers, one or more of which is defective in form. State v. Sueed., 181 S.W.2d 983. 987 (Tex. Civ. App. - Galveston 1944). aff’d, 183 S.W.2d 566 (Tex. 1944); Veramendi v. Butchins, 48 Tex. -551 (1878). Under the statute there cannot be color of title “where there is a complete hiatus in the chain.” Thompson v. Cragg. 24 Tex. 582, 596-97 (1859). See also Eumphrey v. C.G. Jung Educational Center of Houston. 624 ?‘.2d 637 (5th Cir. 1980). You ask whether you are correct in reading this statutory definition of “color of title” into the constitutional provision. In determining the waning of a constitutional amendment a court may look to the evils intended to be remedied and the good to be accomplished. Harkowsky ‘L, Newman, 136 S.W.2d 808. 813 (Tex. 1940). Also, a court must presume that the words of the amendment were carefully selected and must interpret those words as the people generally understand them, -Id. Since it is likely that many voters’ p. 1669 . . . I +' , t Ronorablc Carry nauro - Pago 3 (JM-364) understanding of the phraao “under color of title” was that it is a legal term of art, it is more helpful in this instance to look at what article VII, section 4A, was intended to remedy and the words the drafters selected to accomplish that intent. 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 tl.t.le defects in those instances where such defec.t initially occurred in alleged transfer of title from the sovereign. Rouse Committee on Const.ltutional Amendments, Bill Analysis. Tex. H.J.R. 117, 67th Leg. (19f3.1). 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 problemsin Leon I:ounty when they selected the wording of the proposed amendment and they probably did not contemplate more complicated situations suc‘1 as those in question in which there is not only a defect in the trz.n.sfer from the state but also some other defect in the applicant’s claim to the property in question. Indeed, in reviewing the proposei 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 r:Lgid eligibility requirements that would apply to only a small class of landholders, excluding other landholders in similar, but not identical, circwstances vho may be just as worthy of relief. Analysis of Proposed Constitutional Amendments, prepared by the Texas Legislative Council (1981: , p. 9. Because the proposed amendment focused on defective transfers from the state, not on other title problems, it makes perfect sense that the drafters chose zhe phrase “under color of title.” with its well-established meaning i,n Texas statutory and case lav, .to describe situations to which the provision would be applicable. Also, vhen a constitJtiona1 provision is adopted that already has a fixed meaning, as dt,clared by the courts, the interpretation previously given is adopt,ed at the same time. Travelers’ Insurance Co. v. Marshall. 76 S.W.%d 1007, 1012 (Tex. 1934) (holding that the contract clause in the Twas Constitution had the same meaninn as the older contract clause in the federal constitution). p. 1670 . - . .- Honorable Carry Mauro - Pa(;a 4 (3~364) : . L 3 Thus, in our opiniou I:he phraae "under color of title" in article VII, aectiou 4A, must be mad in its statutory aenae. The words in the statute vere vell aui.ted to the specific problems the drafters sought to remedy. We must read those words in light of that intent. Thus. article VII, section 4A. gives your office authority to issue a patent only in a case in vh:lch the claimant cau ahov an unbroken chain of transfers. SUMMARY The phrase 'Icolor of title" in article VII, section 4A. of ,the Texas Constitution. has the same definition as "color of title" in article 5508. V.T.C.S. JIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney General DAVID R. RICRARDS Executive Assistant Attorney General ROBERTGP.AT Special Assistant Attome:r General RICK GILPIN Chairman, Opinion Comuittea Prepared by Sarah Woelk Assistant Attorney General APPROVRD: OPINION COMMITTRE Rick Gilpin. Chairmen Colin Carl Susan Garrison Tony Guillory Jim Hoellinger Jennifer Riggs Nancy Sutton Sarah Woelk p. 1671