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JIMMATTOX Attorney General

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# TheAttorney General ofTexas
October 22, 1985

Honorable Garry Mauro COtlXltiSSiO*~r General LandOffice Stephen P. Austin Building 1700North 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: Youhave 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) Cmapplication to the School LandBoard, a natural person is entitled to receive a patent to land from the commissioner of the General Laud OffIce 2.f:: (:.) the land is surveyed public free school land:, either surveyed or platted according to reco::ds of the General LandOffice; (:!:I the land was not patentable under the lav in effect immediately before adoption of this section; (13) the person acquired the land vithout knowL& --a ge of the title defect out of the State o.fTaxas or Republic of Texas andheld 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. 1668Ronorable 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 showa de,ed of trust from one G.G. Gaines. but the records do not showhowG.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 1863to one Francis Stevens. Subsequent records douot showhowFrancis Stevens disposed of the property, but the next document in the chain is a grant from one MaryHcAdamsIn 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:

Bythe term ‘title’ is meantaregular chain of tr,ansfers from or under the sovereimty of the soil, andby ‘color of title’ is mean; a-consecutive chain of sr,ch transfers downto such person in possession, w:fi:houtbeing regular, as if ooe or more of the memorials or munimentsbe not reaistered, or not duly registered, or be only- in writing, or such like defect as maynot extend to or include the ‘want of intrinsic fairness and honesty; or when the party in possession shall hold the sameby a certificate of headright, land warrant, or la*& scrip, with a chain of transfer downto himin possession. Id. (Emphasis added). - V.T.C.S. art. 5508. The :ourts have interpreted “color of title” to meananunbroken 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, 48Tex. -551 (1878). Under the statute there cannot be color of title “where there is a complete hiatus in the chain.” Thompsonv. Cragg. 24Tex. 582, 596-97 (1859). See also Eumphreyv. C.G. JungEducational 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 amendmenta 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 amendmentwere carefully selected and must interpret those words as the people generally understand them, Id. - Since it is likely that manyvoters’ q
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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 morehelpful 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 amendArt. VII of the Texas Constitution by adding a newSec. 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 whenthey 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 drawntoo narrowly:

The proposed amendmentdiscriminates 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 maybejust asworthy 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,nTexas statutory andcase 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 sametime. Travelers’ Insurance Co. v. Marshall. 76 S.W.%d 1007, 1012 (Tex. 1934) (holding that the contract clause in the Twas Constitution had the samemeaninn as the older contract clause in the federal constitution).

p. 1670Honorable Carry Mauro - Pa(;a 4 (3~364) : . - . .-

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Thus, in our opiniou I:hephraae "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. Wemust 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 anunbroken 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 DAVIDR. RICRARDS Executive Assistant Attorney General ROBERT

GP.AT Special Assistant Attome:r General RICKGILPIN Chairman, Opinion Comuittea Prepared by SarahWoelk Assistant Attorney General APPROVRD: OPINIONCOMMITTRE Rick Gilpin. Chairmen Colin Carl Susan Garrison Tony Guillory JimHoellinger Jennifer Riggs NancySutton SarahWoelk

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