r * 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

*us!in. ix. x711.2548 

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~~~~~ 910;874-067 

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An ECLal OpportunityI 

~lfirmative Action Employer 

The Attorney General of Texas 

October 22, 1985 

Honorable Garry Mauro 

COtlXltiSSiO*~r 

General Land Office 

Stephen P. Austin Building 

1700 North Congress Avenue 

Austin, Texas 78701 

opinion No. JM-364 

Re: Whether the applicant holds 

land “under color of title” pursuant to article VII, section 4A. 

of the Texas Constitution, when 

there has been a break in the 

chain of title 

Dear Mr. Hauro: 

You have reqrested an opfnion regarding the interpretation of the 

phrase “under color of title” in a 1981 amendment to the Texas 

constitution. Te:r.. Const. art. VII, 04A. Section 4A provides, in 

pertinent part: 

(a) Cm application to the School Land Board, a 

natural person is entitled to receive a patent to 

land from the commissioner of the General Laud 

Off Ice 2.f:: 

(:.) the land is surveyed public free school 

land:, either surveyed or platted according to 

reco::ds of the General Land Office; 

(:!:I the land was not patentable under the 

lav in effect immediately before adoption of 

this section; 

(13) the person acquired the land vithout 

know L& --a ge of the title defect out of the State 

o.f Taxas or Republic of Texas and held the land 

-- 

under color of title, the chain of vhich dates 

-- 

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 
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- consecutive 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 reaistered, 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’ 

q . . . 

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 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICRARDS 

Executive Assistant Attorney General 

ROBERT GP.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