### THE ATTORXEY GENERAL OF TEXAS

May20,1988

Honorable Garry Mauro Commissioner General Land Office Stephen F.Austin Building 1700Worth Congress Ave. Austin, Texas 78701 Opinion No. JM-907

Re: Reconsideration of Attorney General Opinion JM-364 (1985) (RQ-1292)

DearMr. Mauro:

You have requested thatwe reconsider Attorney General Opinion JM-364 (1985). The issue in Attorney General Opinion JM-364 was themeaning 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 aprovision itadministers isentitled to deference. See Exnarte Roloff 510 S.W.2d 913 (Tex. 1974). you have nowasked us to reconsider our interpretation. YOU informus that you have changed your interpretation of subsection (a)(3), andyou have provided new information that lends support to your new interpretation. Relying on that new information aswell as the rule thatyour agency's interpretation of the provision isentitled to deference,
we conclude that your current interpretation isthe better one andwe overrule Attorney General Opinion JM-364.

The issuebefore us isthemeaning of the phrase "color of title" in article VII, section 4A, of the Texas Constitution, which provides inpart:

(a) on application to the School Land Board, a natural person is entitled to receive a patent to land from the commissioner of the General Land Office if:

(1) the land is surveyed public free school land, either surveyed or platted

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according to records of the General Land Office;
(2) the landwas notpatentable 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 ofTexas orReDUkdiC of Texas andheld the landunder color of title, the chain ofwhich dates from at least as early asJanuarv 1. 1932; and
(4)the person, inconjunction with his predecessors in interest:

(A)has a recorded deed on file in the respective county courthouse and has claimed the land fora continuous period of at least 50 years as of November 15, 1981; and . . . (Emphasis added.)

Your specific question inJR-364 waswhether your office had correctly refused togrant applications forpatents in two cases inwhich there was an irregularity inthe transfer of land from the sovereign as well as a complete break elsewhere inthe chain of title.

Article VII, section 4A(a)(3), provides that a person iseligible to receive apatent if "theperson acquired the landwithout knowledge of the title defect out of the State ofTexas orRepublic ofTexas andheld the land under color of title, the chain ofwhich dates fromat least as early as January 1, 1932." At the time of your original request, your office interpreted Wolor of title" insection 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' ismeant a regular chain of transfers from or under the sovereignty of the soil, andbv 'color of title' ismeant a consecutive chain of such transfers down to suchoerson in nossession, without being regular, as ifone ormore of thememorials ormuniments benot 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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fairness andhonesty: orwhen theparty in possession shall hold the same by a certificate of headright, land warrant, or land scrip,with achain of transfer down to him inpossession. (Emphasis added.)

Under that statute a person cannot show color of title if there isacomplete hiatus inthe chain. Thomoson v. Craaq 24Tex. 582, 596-97 (1859). Ifthedefinition of "color of title" for purposes of section 4A(a)(3) isthe same as "color of title" forpurposes 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 toJanuary 1, 1932, would have to be read as requiring that the attempted transfer from the sovereign must have occurred at least as early asJanuary 1, 1932.

We concluded inJM-364 thatyour officewas correct in its interpretation of l'colorof title." We explained our conclusion inpart as follows:

The legislative analysis of the proposed constitutional amendment that became article VII, section 4A, states:

Thepurpose of this resolution is to amend Art. VII of the Texas Constitution by adding anew Sec. 4a to remedy title defects inthose instances where suchdefect initially occurred in alleged transfer of title from the sovereign.

House Committee on Constitutional Amendments, BillAnalysis, 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 thewording of the proposed amendment and they probably did not contemplate more complicated situations such as those in question inwhich there is not only a defect inthe transfer from the state but also some other defect in the applicant's claim to the property in

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question. Indeed, inreviewing the proposed amendment the Texas Legislative Council pointed out that one of the arguments against the proposed amendment was that itwas drawn too narrowly:

The proposed amendment discriminates unfairly. Itprescribes 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
asworthy 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 thephrase "color of title, the chain ofwhich dates from at least as early asJanuary 1, 1932," should be interpreted to require that an applicant show anunbroken chain of transfers dating back to at least January 1,1932, but that he need not show anunbroken chain extending back to the sovereign. See aenerally Howth v. Farrar, 94F.2d 654, 658, cert. denied, 305U.S. 599 (1938) (meaning of "color oftitle" inTexas statute is different frommeaning of %olor of title" inother 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 oneperson towhom section 4Awas 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 apatent 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 ofunsurveyed 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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specific quantity of land by following the law. . . . Certificate 486was returned to the general land office on September 29, 1854, and applied toward a 320acre 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 320acres on April 18, 1857. On February 28, 1859, fieldnotes for the 320 acre Kuykendall Survey in Leon County were received in the land office. These field notes purport tohave beenmade pursuant to theunlocated 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. OneDecember .29, 1874, field notes fora 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 6/120was also filed in the land office on December 29, 1874, and was applied to this 221acre survey in Young County. This Young County survey was patented on February 26, 1890. The remaining 99 acres of theunlocated 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 fieldnotes of the Leon County tract andno certificate was ever applied to that tract, those field notes were void and apatent could notbe 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 toMr. Johnson's portion, the certificate would have been 22acres short. Mr. Johnson had no interest in this Leon County tract other thanwhat could be traced back through
achain of title to Thornton P.Kuykendall. (Citations omitted.)

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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 toMr. Kuykendall, Mr. Johnson would not have been able to show color of title as defined by article 5508. Therefore, ifyour office had uniformly interpreted B*colorof title" in section 4A tobe the same as "color of title" inarticle 5508, the person section 4Awas intended tohelp 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 asnarrow as "color of title" inarticle 5508. Consequently, we believe that section 4A requires an applicant to show an unbroken chain of transfer dating back at least as far asJanuary 1, 1932, but that anapplicant need not show anunbroken chain of transfers back to the sovereign.

SUMMARY
Section 4A(a)(3) of ,articleVII of the Texas Constitution requires an applicant for
apatent to land under that section to show
anunbroken 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

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, opinion Committee
Prepared by Sarah Woelk Assistant Attorney General p*4494 4