 r        *




                                              The Attorney            General of Texas

JIM MATTOX                                                       October    22, 1985
Attorney             General


Supreme             Court Building           Honorable Garry Mauro                       opinion    No. JM-364
P. 0. Box 12548                              COtlXltiSSiO*~r
*us!in.       ix.     x711.2548              General Land Office                         Re: Whether the applicant     holds
512/475-2501                                 Stephen P. Austin Building                  land “under color   of title”  pur-
~~~~~ 910;874-067
Telecopier5121475-0266
                                             1700 North Congress Avenue                  suant to article  VII, section 4A.
                                             Austin, Texas    78701                      of the Texas Constitution,     when
                                                                                         there has been a break in the
 714 Jackso".Suite700                                                                    chain of title
 Dallas,TX. 75202.4506
 2141742d944
                                             Dear Mr. Hauro:

 4824 AXwta             Ave..Suite     160         You have reqrested an opfnion regarding the interpretation    of the
 E, Paso. TX. 79905.2793                     phrase “under color         of title”  in a 1981 amendment to the Texas
 9151533.3464                                constitution.       Te:r.. Const. art. VII, 04A. Section 4A provides,   in
                                             pertinent     part:
  1001 Texas.           Suite 7M)
  kt~uston.TX. 77002.3111                                  (a)  Cm application to the School Land Board, a
  713/223-%56                                          natural person is entitled   to receive a patent to
                                                       land from the commissioner of the General Laud
                                                       Off Ice 2.f::
  606 Broadway.Suile                 312
     Lubbock.        TX. 79401.3479
     8061747.5238                                              (:.) the land is surveyed public free school
                                                           land:, either surveyed or platted    according to
                                                           reco::ds of the General Land Office;
     4309 N. Tenth. Suite B
     McAllen. TX. 78501-1685
     5121682~4547
                                                               (:!:I the land was not patentable   under the
                                                           lav in effect     immediately before  adoption of
                                                           this section;
     200 Main Plaza. Suite 400
     son Antonlo.          TX. 782052797
     51212254191
                                                                (13) the person acquired                the land vithout
                                                           know
                                                           --a    L&   ge  of  the    title      defect   out of the State
                                                           o.f
                                                           --  Taxas      or  Republic      of   Texas   and held the land
     An ECLal OpportunityI                                 under
                                                           --        color    of   title,      the   chain  of   vhich dates
     ~lfirmative Action Employer                            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
                                                                                    q .. .
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- consecu-
            tive 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 reais-
            tered,     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’


                                        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

 TOMGREEN
 First Assistant     Attorney   General

 DAVID R. RICRARDS
 Executive Assistant Attorney       General

 ROBERTGP.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




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