THE ATTORSEY GENERAL 

OF TEXAS 

.April 10, 1987 

Honorable Gamy Mauro 

Commissioner 

General Laud Office 

1700 North Congress Avenue 

Austin, Texas 78701 

Opinion No. JM-675 

Re: Restrictions on conveyauce of 

particular tracts of land deeded to 

the state for the use and benefit of 

the TlSdS Department of Mental 

Eealth and Mental Retardation 

Dear Mr. Mauro: 

The Asset Management Division of the General Land Office has 

requested au opiniou as co the restrictions. if any, that exist on the 

use or conveyance of surplus land in two tracts chat were conveyed to 

the state of Texas for the use and benefit of the Texas Department of 

Mental Health and Mental Retardation. The deeds conveying these lands 

to the state contain language obligating the state co build facilities 

for the care of the mentally retarded on the respective tracts. The 

facilities have been constructed, and both facilities occupy only part 

of the land conveyed by the deeds. You advise us chat a lease, sale, 

or trade of the excess land will not impair the continued operation of 

either of those facilities. 

A tract in Nueces County was conveyed to the scace by the city of 

Corpus Christi. The other tract. in Tarranc County, was conveyed 

jointly to the state by the Sid W. Richardson Foundation and the Amon 

G. Carter Foundation. 

The city of Corpus Christi deed, entitled Warranty Deed, provides 

in part that the city 

in consideration of the promise and the obligation 

of the State of Texas . . . to plan and construct 

permanent, suitable, substantial, and fireproof 

buildings sufficient in all respects to care 

for mentally retarded persons does hereby Grant, 

Bargain, Sell. and Convey unto the State of 

Texas . . . the following described tract of land, 

situated in Nueces County, Texas, co-wit: 

[description] 

The habendum clause contains language chat the above described 

premises are "for the use and benefit of the Corpus Christi State 

p. 3095 
Eonorable Garry Mauro - Page 2 (JM-675) 

School as a school for the diagnosis, special training, education, 

supervision, treatment, care and control of mentally retarded persons 

of the State of Texas and the city of Corpus Christi." The deed 

contains the further provision that: 

The consideration for this deed being the 

obligation of the state to construct upon said 

grounds prrmanent. suitable. substantial, and 

fireproof buildings sufficient in all respects to 

care for mentally retarded persons, unless said 

school be established by commencement of construccion on or around September 1, 1968, and continue 

thereafter with due diligence, the title to the 

said premises shall automatically revest in the 

grantor, city of Corpus Christi. and this conveyance shall be of no further force or effect. 

Each of the deeds by the two foundations. entitled Deed, provides 

in part that the foundation 

does Give, Grant, and Convey . . . unto the State 

of Texas . . . subject to the special conditions 

referred to hereinafter, a determinable fee 

interest in and to an undivided one-half (l/2) 

interest in and to all that certain tract and 

parcel of a land lying and being situated in 

Tarranc County, Texas, described as follows: 

[description] 

Both the habendum clauses and warranty clauses contain the language 

"subject to the special conditions referred to hereinafter." The 

deeds concain the further provision that: 

This conveyance IS made upon the specific conditions, which Grantee herein by the acceptance of 

this deed agrees to and accepts, that the State of 

Texas, Texas Department of Mental Health and 

Mental Retardation, will construct upon the above 

described property a school for the care of 

mentally retarded persons of the State which 

facility . . . that the construction of such 

school will . . . commence on or before September 

1. 1973, and be thereafter diligently prosecuted 

to completion to the extent authorized by the 

above Act; that the premises and any and all parts 

thereof. together with any and all improvements 

attached or affixed thereto shall forever be used 

for public purposes. 

p. 3096 
Honorable Gamy Mauro - Page 3 (JM-675) 

The goal of a court when construing a deed of conveyance is to 

ascertain the intention of the parties to the conveyance. The cases 

construing deeds involve the courts' interpretations of the language 

of the specific deeds in light of the facts and circumstances under 

which the deeds were executed. See Harkey v. liarkey, 60 S.W.2d 834 

(Tex. Civ. App. - Austin 1933, zt ref'd). Whether the deeds in 

question create covenants, conditions. or determinable fees and 

whether there is substantial compliance with any restrictions requires 

subjective interpretations of the language of the individual conveyances and factual determinations that we can not make with 

certainty in the opinion process. However, we will attempt to offer 

guidance by discussing policies that have been employed by the courts 

in construing deeds and conveyances. 

The cardinal rule for the construction of deeds is that the 

intention of the parties is co be ascertained and given effect and 

such intention is to be gathered from a consideration of the entire 

instrument, together with the surrounding circumstances, unless such 

intention is in conflict with some unbending canou of construction or 

settled rule of property or is repugnant to the terms of the grant. 

Since the language of a deed is chat of the grantor, if there is any 

doubt as to its construction. it will be resolved against the grantor 

and in favor of the grantee. The largest estate that its terms will 

permit will be conferred on the grantee. See Dilbeck v. Bill Gaynier, 

Inc., 368 S.W.Zd 804 (Tex. Civ. App. -Dallas 1963. writ rrf'd 

ze.); Gex v. Texas Company. 337 S.W.2d 820 (Tex. Civ. App. - 

Amarillo 1960, writ ref'd n.r.e.); Hedick v. Lone Star Steel Company, 

277 S.W.2d 925 (Tex. Civ. App. - Texarkana 1955, writ ref'd n.r.e.). 

It has long been established that the law does not favor forfeitures. The courts will not declare a forfeiture unless compelled 

to do so by language that will admit of no other construction. 

Forfeiture clauses fail in the event they are ambiguously expressed. 

If a provision is ambiguous, chat alone may condemn ic as a forfeiture 

provision. See Link v. Texas Pharmacal Company. 276 S.W.2d 903 (Trx. 

Cl". App. -San Antonio 1955, no writ); W.F. White Land Co. v. 

Christenson, 14 S.W.2d 369 (Tex. Civ. App. - Fort Worth 1928, no 

writ). 

The courts differentiate between types of deed restrictions on 

the use of land. Some are classified as covenants and others as 

conditions. A covenant is a promise on which a conveyance is 

executed, the breach of which gives the grantor a right of injunctive relief or an action for specific performance or damages, but 

not a right of reinvestment of title. See W.F. White Land Co. v. 

Christenson, 14 S.W.2d at 371; see also Rex v. Kotzur, 267 S.W. 759 

(Tex. Civ. App. - San Antonio 1924, no writ); Elliocc v. Elliott, 109 

S.W. 215 (Tex. Civ. App. 1906, writ ref'd). 

A condition, oo the other hand, will have the effect of vesting 

or reinvesting title. A frequent issue involving conditions is 

p. 3097 
Honorable Gamy Mauro - Page 4 (m-675) 

whrcher *the condition is a condition subsequent or whether ic is a 

special limitation and determinable fee. A condition subsequent 

designates a happening that gives the grantor a right to terminate rhe 

estate and. by re-entrv. _ to be reinvested with the title. The reinvestment is-not automatic but requires affirmative action by the 

grantor. See Community of Priests of St. Basil v. Byrne, 255 S.W. 

601. judgmtydopted (Tax. Corn''' App. 1923). An estate subject to a 

special limitation restricting the use of land is created-when the 

language of conveyance provides that the estate is granted so long as 

a designated condition does or does not exist. It is a limitation on 

the duration of the estate. The estate granted is automatically 

terminated by occurrence of the condition. A determinable fee is a 

distinctive name chat has bean given a fee simple estate that is 

subject to a special limitation. See Colby v. Sun Oil Company, 288 

S.W.2d 221 (Tex. Civ. Am. - GalGton 1956. writ ref'd n.r.e.): 

Wampler v. Barringcon, 2bi S.W.Zd 883 (Tex. Civ. App. - Texarkana 

1953, writ ref'd n.r.e.); Daggett v. City of Fort Worth, 177 S.W. 222 

(Tex. Civ. App. - Amarillo 1915, no writ): Williams. Restrictions on 

the Use of Land: Conditions Subsequent and Deceminable Fees, 27 Tex. 

L. Rev. 158 (1948); Walkar. Property Interest Created By Lease, 7 Tex. 

L. Rev. 8 (1929). Still another condition that may arise from an 

instrument of conveyance is a condition precedent, which is a 

condition that must take place before the estate can vest. A 

condition precedent postpones the passage of title from the grantor to 

the grantee until the condition is performed. See City of Dallas v. 

Etheridge. 253 S.W.2d 640 (Tex. 1952); SpinksF. First Christian 

Church of Vera, 273 S.W. 815. judgmt adopted (Tex. Comm'n App. 1925). 

Definitions of the different categories of restrictions are well 

established. The difficulty arises in construing the dead in each 

case. Certain general principles for construing particular instruments have been developed, but it is not always easy to apply the 

principles to a particular case. 

As we previously stated, the largest estate that the terms and 

language of the conveyance will permit will be conferred on the 

grantee. Thr courts construe a provision as a covenant rather than as 

a condition if the terms are susceptible of that interpretation. 

Promises and obligations of the grantee are construed as covenants 

unless the language and circumstances of the conveyance clearly reveal 

an intention to create a conditional estate. If the language has a 

doubtful meaning. the courts have held it to be a covenant rather than 

a condition. Likewise, interpretation as a condition subsequent is 

less objectionable than construction as a special limitation or 

determinable fee. See Lawyers Trust Co. v. City of llouston_, 359 

S.W.Zd 887 (Tex. 1962); Heame v. I sradshaw. ,312 S.W.2d 948 (Tex. 

1958); Zap&a v. Torres, 464 S.W.2d 926 (Tex. Civ. App. - Dallas 1971, 

no writ); Hedick v. Lone Star Steel Co.. 277 S.W.Zd 925 (Tex. Civ. 

APP. - Texarkana 1955, writ ref'd n.r.e.); City of Wichita Falls v. 

Bmner, 165 S.W.2d 480 (Tex. Civ. App. - Fort Worth 1942, writ ref'd). 

As between a condition subsequent and a condition precedent, if the 

p. 3098 
Honorable Gamy Mauro - Page 5 (JM-675) 

language of a conveyance creates doubt as to the nature of a 

condition, the courts hold that the conveyance imposes a condition 

subsequent rather than a condition precedent. Also, the fact chat a 

arancee is entitled to possession and use of the property implies a 

Condition subsequent idstead of a condition precedent. Railroad 

Commission v. American Trading and Production Corp., 323 S.W.2d 474 

(Tex. Civ. App. - Austin), cert. denied, 361 U.S. 886 (1959). 

The courts frequently have found that the use of certain words 

and terms is indicative of the intention of the parties to a 

conveyance, but is not necessarily conclusive. We are not aware, 

however, of a case in which a court has construed the specific 

language and circumstances of the deeds conveying the two tracts in 

question for use by the Texas Department of Mental Health and Mental 

Retardation. 

A mere recital of uses to which granted premises are to be 

applied does not ordinarily create a condition and may not create even 

a covenant. It has long been settled that where a deed contains apt 

language to grant an unconditional fee estate in land, other language 

in the instrument which denotes that the land is granted for a particular purpose is not regarded as implying that the grant is conditional. 1; Texas 6 P. Railway Co. v. Martin, 71 S.W.2d 867 (Tex. 

1934). the court found that a deed where the grantors "granted" land 

"for-depot purposes and uses" conveyed a fee simple title without 

condition. In Hughes v. Gladewater County Line Independent School 

District, 76 S.W.2d 471 (Tex. 1934), the court determined that a deed 

that contained a statement in both the granting clause and the 

habendum clause that the land was to be used for school purposes only 

did oat create either a condition subsequent or a special limitation 

that would have established the duration of the grant and did not 

constitute a covenant. Normally, there must be language of a right 

of re-entry if a condition subsequent is created and language of 

reversion or revesting of the property in the case of a determinable 

fee. See Davis v. Skipper, 83 S.W.Zd 318 (Tex. 1935); Gabert v. 

0lcoct.m S.W.985 (Tex. 1893); Gahagan v. Texas 6 P. Railway Co., 231 

S.W.2d 762 (Tex. Civ. App. - Dallas 1950, writ ref'd n.r.e.); Toole v. 

Christ Church, Houston, 141 S.W.Zd 720 (Tex. Civ. App. - Galveston 

1940, writ ref'd); Harris v. Rather, 134 S.W. 754 (Tex. Civ. App. 

1911. writ ref'd). 

Words of re-entry or forfeiture are not indispensable to the 

creation of a condition but are important'as evidence of au intention 

to impose one of the conditions on an estate. Where an express 

reversionary clause in a deed to school trustees evidenced the intencion of the parties that the land would revert to the grantor if the 

land ceased to be used for school purposes, the court couscrued the 

reverter clause as entitling the grantor to a recovery of the laud in 

case it was abandoned for school purposes. See Dickenson v. Board of 

Trustees, 204 S.W.Zd 418 (Tex. Civ. App. -Fort Worth 1947, &it 

ref'd). 

p. 3099 
Honorable Garry Mauro - Page 6 (JM-675) 

The use of the technical words "coudition" or “covenant” in a 

deed is not totally determinative of the character of the provision to 

which it refers. While the words "on condition" in a deed are apt 

words to create a condition, they do not necessarily do so. See 

Dilbeck v. Bill Gaynier, Inc., 368 S.W.2d at 807. The use of the wa 

"if" traditionally has been a strong indication that the parties 

intended a condition subsequent, although it is not conclusive. - See 

Lawyers Trust Co. v. City of Houston, 359 S.W.2d at 890. We are not 

aware of a case in which a court addressed the significance of the use 

of the technical words "determinable fee interest" in the granting 

clause of a deed as was done in the conveyance of the Tarranc County 

tract. However, in Waters v. Ellis, 312 S.W.2d 231 (Tex. 1958), the 

Texas Supreme Court stated that “it is a recognized rule of construcdon that where there is a 'necessary repugnance' of clauses in a 

conveyance. the granting clause prevails over the other provisions of 

the deed.' In another case, an agreement by a grantee to care for the 

grantor was found to be a covenant, and not a condition, even though 

the habendum clause was followed by the phrase "subject to the terms 

and conditions hereinafter provided." Sisk v. Bandon, 70 S.W.2d 689 

(Tex. 1934). A recitation of a grantee's promise as consideration for 

a conveyance, especially in the absence of language reserving the 

right to terminate the estate, does not in itself indicate an 

intention to convey a conditional estate. - See Zapata v. Torres, 464 

S.W.2d at 929. 

If a deed is for valuable consideration' as distinguished from a 

deed of gift or deed for nominal consideration, a court will lean more 

strongly away from a construction that creates a condition. See Toole -- 

v. Christ.Church, Houston. 141 S.W.2d at 720; Texas h P. Railway Co. 

v. Martin, 71 S.W.2d at 870; Gabert v. Olcott. 23 S.W. at 987. In 

Community of Priests v. Byrne, w 

maintenance of a school without 

ra, land was conveyed for 

any other consideration. The court 

found that where the language manifested only an agreement to reconvey 

if the school was not maintained, the agreemept was only a covenant 

and title vested in the grantee without condition subsequent or 

special limitation. 

It has been suggested that where there has been substantial 

compliance with a covenant or condition in a deed, a transfer of part 

of the estate or a use other than that called for in the deed does not 

subject the estate to termination or give rise to a cause of action 

for damages. We agree that substantial compliance with the terms of a 

conveyance probably will prevent forfeiture of title or damages. See 

Boyt v. Geist. 364 S.W.2d 461 (To%. Civ. App. - Eouston 1963,o 

writ); Wanton v. City of San Antonio' 207 S.W. 951 (Tex. Civ. App. - 

San Antonio 1918, writ rrf'd). As previously stated, however, what 

constitutes substantial compliance involves subjective interpretations 

of conveyances and determination of facts chat are not appropriate in 

the opinion process. 

p. 3100 
Honorable Carry Mauro - Page 7 (JM-675) 

A finding by a court that there has been substantial compliance 

with a condition generally has prevented a forfeiture. In McCarthy v. 

City of Houston, 389 S.W.2d 159. 163 (Tex. Civ. App. - Corpus Christ1 

1965, writ ref'd n.r.e.). the court stated that “before a court should 

declare a reverter of a fee title under a condition subsequent. the 

facts should be such as to show a definite violation or breach of the 

condition subsequent." Where a restriction required the grantee to 

use land solely for gin purposes and the property was used for gin and 

additional purposes, the court held that the restriction did not 

preclude the use of the property for the other purposes so long as a 

gin was operated on the premises. While the deed provided that the 

property was to be used solely for gin purposes, it made no provision 

for a reversion in case the property was used for a purpose in 

addition to gin purposes. The court said that the use for other 

purposes that did not interfere with use for gin purposes did not 

operate as a reversion of title. See Gleghorn v. Smith, 62 S.W. 1096 

(Tex. Civ. App. 1901, writ ref'd), In Davis v. Skipper, supta, the 

deed in question conveyed property to be used for church purposes only 

and provided that title would revest in the grantor if use as a church 

was abandoned. The court found a conveyance of a determinable fee to 

the grantees and determined that so long as the property was used for 

church purposes, there was no intention to restrict its physical use, 

provided it was not used for some other inconsistent business or 

enterprise. In so finding, the Davis court quoted from an Indiana 

case as follows: 

The owner of a determinable fee in real estate 

has all the right of an owner in fee simple in 

regard to the use or disposal of the real estate; 

he may use it in any way. may cut and sell the 

trees growing upon the land, strip the sod and 

clay from its surfsce. take out the minerals from 

underneath, sell it without restriction; his 

rights being equivalent to those of an owner in 

fee simple, save that his fee is liable to be 

defeated at any time by the occurrence of the 

contingency by which it is determined. and. if he 

should sell, his purchaser would also take a 

determinable fee. 

Hillis v. Dils, 100 N.E. 1047, 1049 (Ind. App. Ct. 1913). See also 

Hamman v. City of Houston, 362 S.W.2d 402 (To%. Civ. App. -' Fort Worth 

1962, writ ref'd n.r.e.1 (part of tract' conveyed to city for park 

purposes condemned by state for highway purposes). 

Texas courts have adopted the general policy that, where there is 

ambiguity in restrictions concerning the use of real property or 

substantial doubt as to the meaning of a restriction, the ambiguity 

and doubt will be resolved in favor of the free use of the land. See 

Baker v. Brackeen. 354 S.W.2d 660 (Tax. Civ. App. - Amarillo 1962.T 

p. 3101 
Honorable Garry Mauro - Page 8 (JM-675) 

writ) ; Burkhart v. Christian, 315 S.W.2d 668 (Tex. Civ. App. - Waco 

1958, writ ref'd n.r.e.). 

SUMMARY 

In construing deeds of conveyance, the courts 

ascertain the intentions of the parties co the 

deeds by interpreting the language of the specific 

deeds in light of the circumstances under which 

the deeds are executed. The courts have resolved 

doubt as to the construction of deeds in favor of 

grantees and have declared forfeitures of an 

interest in property only when the language of a 

deed permits no other construction. Where reacrictions exist, the courts have resolved doubt 

in favor of a covenant rather than a condition and 

tend to find that a condition is a condition 

subsequent instead of a special limitation and 

determinable fee. Substantial compliance with a 

covenant or condition in a deed probably will 

prevent damages or a forfeiture of title. Whether 

specific deeds cream covenants, conditions, or 

determinable fees, and whether there is substantial compliance with a restriction, requires 

subjective interpretation of the language of the 

deed and factual determinations for which the 

article 4399 opinion process was not intended. 

Very truly yours J & 

JACK HIGHTOW!B 

First Assistant Attorney General 

MARYEELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLIIT 

Special Assiacant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

JIM MATTOX 

Attorney General of Texas 

p. 3102 

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