THE ATTORXEY GENERAL 

OF TEXAS 

May 20, 1988 

Honorable Garry Mauro 

Commissioner 

General Land Office 

Stephen F. Austin Building 

1700 Worth Congress Ave. 

Austin, Texas 78701 

Opinion No. JM-907 

Re: Reconsideration of 

Attorney General Opinion 

JM-364 (1985) (RQ-1292) 

Dear Mr. Mauro: 

You have requested that we reconsider Attorney General 

Opinion JM-364 (1985). The issue in Attorney General 

Opinion JM-364 was the meaning 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 a provision it administers is entitled to 

deference. See Ex narte Roloff 510 S.W.2d 913 (Tex. 1974). 

you have nowasked us to reconsider our interpretation. YOU 

inform us that you have changed your interpretation of 

subsection (a)(3), and you have provided new information 

that lends support to your new interpretation. Relying on 

that new information as well as the rule that your agency's 

interpretation of the provision is entitled to deference, 

we conclude that your current interpretation is the better 

one and we overrule Attorney General Opinion JM-364. 

The issue before us is the meaning of the phrase "color 

of title" in article VII, section 4A, of the Texas 

Constitution, which provides in part: 

(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 

p. 4489 
Honorable Garry Mauro - Page 2 (agO7) 

according to records of the General Land 

Office; 

(2) the land was not patentable 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 of Texas or ReDUkdiC of Texas 

and held the land under color of title, 

the chain of which dates from at least as 

early as Januarv 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.) 

Your specific question in JR-364 was whether your office had 

correctly refused to grant applications for patents in two 

cases in which there was an irregularity in the transfer of 

land from the sovereign as well as a complete break 

elsewhere in the chain of title. 

Article VII, section 4A(a)(3), provides that a person 

is eligible to receive a patent if "the person acquired the 

land without knowledge of the title defect out of the State 

of Texas or Republic of Texas and held the land under color 

of title, the chain of which dates from at least as early as 

January 1, 1932." At the time of your original request, 

your office interpreted Wolor of title" in section 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' is meant a regular 

chain of transfers from or under the 

sovereignty of the soil, and bv 'color of 

title' is meant a consecutive chain of such 

transfers down to such oerson in nossession, 

without being regular, as if one or more of 

the memorials or muniments be not 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 

‘-- . 

p. 4490 
Honorable Garry Mauro - Page 3 (JM-907) 

fairness and honesty: or when the party in 

possession shall hold the same by a 

certificate of headright, land warrant, or 

land scrip, with a chain of transfer down to 

him in possession. (Emphasis added.) 

Under that statute a person cannot show color of title if 

there is a complete hiatus in the chain. Thomoson v. Craaq 

24 Tex. 582, 596-97 (1859). If the definition of "color of 

title" for purposes of section 4A(a)(3) is the same as 

"color of title" for purposes 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 to January 1, 1932, would have to be 

read as requiring that the attempted transfer from the 

sovereign must have occurred at least as early as January 1, 

1932. 

We concluded in JM-364 that your office was correct in 

its interpretation of l'color of title." We explained our 

conclusion in part as follows: 

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 title defects in those instances 

where such defect initially occurred in 

alleged transfer of title from the 

sovereign. 

House Committee on Constitutional Amendments, 

Bill Analysis, 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 the wording of 

the proposed amendment and they probably did 

not contemplate more complicated situations 

such as those in question in which there is 

not only a defect in the transfer from the 

state but also some other defect in the 

applicant's claim to the property in 

p. 4491 
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Honorable Garry Mauro - Page 4 (wgO7) 

question. Indeed, in reviewing the proposed 

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 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 

as worthy 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 the phrase "color of title, the 

chain of which dates from at least as early as January 1, 

1932," should be interpreted to require that an applicant 

show an unbroken chain of transfers dating back to at least 

January 1, 1932, but that he need not show an unbroken chain 

extending back to the sovereign. See aenerally Howth v. 

Farrar, 94 F.2d 654, 658, cert. denied, 305 U.S. 599 (1938) 

(meaning of "color of title" in Texas statute is different 

from meaning of %olor of title" in other 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 one person to whom section 

4A was 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 a patent 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 of unsurveyed 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 

p. 4492 
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Honorable Garry Mauro - Page 5 of-907) 

specific quantity of land by following the 

law. . . . Certificate 486 was returned to 

the general land office on September 29, 

1854, and applied toward a 320 acre 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 320 acres on April 18, 1857. 

On February 28, 1859, field notes for the 320 

acre Kuykendall Survey in Leon County were 

received in the land office. These field 

notes purport to have been made pursuant to 

the unlocated 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. One December .29, 

1874, field notes for a 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 6/120 was also filed in the 

land office on December 29, 1874, and was 

applied to this 221 acre survey in Young 

County. This Young County survey was 

patented on February 26, 1890. The remaining 

99 acres of the unlocated 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 field notes of 

the Leon County tract and no certificate was 

ever applied to that tract, those field notes 

were void and a patent could not be 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 

to Mr. Johnson's portion, the certificate 

would have been 22 acres short. Mr. Johnson 

had no interest in this Leon County tract 

other than what could be traced back through 

a chain of title to Thornton P. Kuykendall. 

(Citations omitted.) 

p. 4493 
Honorable Garry Mauro'- Page 6 (JM-907) 

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 to Mr. Kuykendall, Mr. Johnson would not 

have been able to show color of title as defined by article 

5508. Therefore, if your office had uniformly interpreted 

B*color of title" in section 4A to be the same as "color of 

title" in article 5508, the person section 4A was intended 

to help 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 as narrow as 

"color of title" in article 5508. Consequently, we believe 

that section 4A requires an applicant to show an unbroken 

chain of transfer dating back at least as far as January 1, 

1932, but that an applicant need not show an unbroken chain 

of transfers back to the sovereign. 

SUMMARY 

Section 4A(a)(3) of ,article VII of the 

Texas Constitution requires an applicant for 

a patent to land under that section to show 

an unbroken 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 

LOU MCCREARY 

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 

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