                         hy   21,   1958



Honorable Bill Allcorn               Opinion No. Ww-436
Commissioner
General Land Office                  Re: Whether a certain tract
Austin, Texas                            of land In Bosaue Countv
                                         may be patented:under -
                                         Article 5421c, Section
Dear Mr. Allcorn:                        5, V.C.S.
            The opinion request from your office states that
on January 19, 1038, the Board of Land Commissioners of Bastrop
County issued to Thomas H. Maya a headright certificate for
three fourths of a league and one labor of land. Patent was
Issued for three fourths of a league and In 1858 a certificate
for the unlocated balance of one labor was issued.
            The Constitution of 1876, adopted by the voters
on February 15, 1876 provided in Section 2 of Article XIV that
"all unsatisfied genuine land certificates now In existence
shall be surveyed and returned to the Qeneral Land Office with-
in five years after the adopt~lonof this Constitution, or be
forever barred". Subse uent to the expiration of the five year
period, on March 24, 1881, an application under said certifi-
cate was filed with the county surveyor requesting the survey
of a labor of land. County surveyor S.J. Siddall promptly made
the survey and on April 6, 1881, the application, field notes
and certificate were filed in the (feneralLand Office as shown
by the endorsements thereon. An official file on said survey
was set up in the Land Office, belng designated as "File 2060,
Thomas H. Mayes, Mllam 1st Class, 177 acres," and said sur-
vey is shown on the official Land Office map of Bosque County.
            You request our answer to two questions:
            "(1) Is the tract of land still classified
       as a headright survey, or by the Act of February
       23, 1900, did it become Free Public School Land?
            "(2) Can it now be patented under Article
       5421c, Section 5, V.C.S.?"
Honorable Bill Allcorn, page 2 (W-436)

            Article VII, Section 2 of the present Texas Con-
stitution set aside certain lands, Including one half of the
public domain of the State, for a "Perpetual Public School
Fund". Under the Act of February 23, 1900, (Acts, 26th Leg.,
1st C.S., Ch. ll), the balance of the unappropriated public
domain, with the exception of certain lakes, bays and is-
lands, was In turn conveyed to the School Fund. And see Articles
5416 and 5415a, V.C.S.
            Because the certificate was not surveyed and re-
turned within the five years as required by the Constitution,
supra, the survey was ineffective as a headright survey and
the land remained a part of the ublio domain. New York and
Texas Land Company v. Thompson, 13 Tex. 169, 17 S.W. 920 (1891).
Under Article 541b R S    the land in question belongs to the
State Permanent Soiooi %nd. We agree with you that the land
cannot now be patented under the headrlght certificate.
            Section 5 of Article 5421c, V.C.S., provides in
part as follows:
           "Any headright survey . . . heretofore
      awarded . . . whloh survey has been held and
      claimed In good faith by any party for a period
      of ten years prior to the date of application
      for patent and which survey cannot be patented
      under existing laws, may be patented on pay-
      ment of One Dollar ($1.00) an aore to the Land
      Commissioner."
            Under Section 10, General Provisions, Constitution
of the Republic of Texas, each white man who was head of a
family
   .   and who resided In Texas on the day of the Texas Deola-
ratlon of Independence was entitled to a league and labor of
land. By the act of December 14, 1837, 1 (fam.1404, a Board of
Land Commissloners was set up In each county to pass on land
applications and to issue land certificates to those entitled
thereto under such constitutional provision. The certificate
here under consideration was for less than a league and labor
of land. However, certificates for amounts less than that
stated in the Constitution have been upheld as valid. State
v. Sullivan, 9 Tex. 156; Hill v. Moore, 85 Tex. 335, 19.
162.
            Section 5 of Article 5421~ was discussed at length
in Barber v. Glles, 146 Tex. 401, 208 S.W.2d 553 (1948), a
case whose facts are similar in several respects to the facts
YOU resent. Field notes were filed in the beneral Land Office
in 179
    8   under an 1870 law authorizing rants to settlers of
homestead tracts. Article 4171, R.S. 1%95, provided for for-
feiture of such a grant for failure to file an affidavit of
Honorable Bill Allcorn, page 3 (~~-436)

three years' occupancy of the homestead tract. The land
having been forfeited for such failure, the long-time pos-
sessor of the land demanded the right to purchase under
Section 5 of Article 5421~.
             In dlsouasing said section, the Court said at
page 554:,
             "The language used, or pa'rtof It, eug-
       gests that the first part of Seotlon 5 IS ln-
       tended as an aot of validation, This Court
       has been generous In upholding legislation
       validating titles. . . . By the terms of the
       Homestead Donation Act, Article 4171, R.S.
       1895, all rights under the original deslg-
       nation and survey terminated and the land
       became vacant, unappropriated public land
       when Callahan or his assignee failed to
       make,satlsfactory proof of three years' oo-
       cupancy of the land; and by the terms of the
       Aot of February 23, 1900,.. . . the land was
       set apart and granted to the public school
       fund. After the land had thus been set apart
       to the pub110 sohool fund the mandate of Sec-
       tion 4 of Article VII of the Oonstitutlon,
       Vernon's Ann.St., forbade Its disposition
       otherwise than by sale. . . The tract of
       land, the subject of oontroversy herein, is
       surveyed land within the definition contained
       in Section 3 of the 1931 Act, field notes for
       it being on file in the General Land Office.
            "The first part of Section 5 of the 1931
       Sales Act may reasonably be construed as au-
       thorizing sales of the land to which it applies,
       giving to the persons who have held and claimed
       the land in good faith for 10 years preference
       rights to buy it at the price named, and thus
       construed it ,ls in our opinion valid. . . Pre-
       ference rights to purchase public school land
       have often been given by acts of the legisla-
       ture to designated classes of persons, and
       such legislation has been sustained as the valid
       exercise of legislative power. 'When and to whom
       the lands shall be sold, is a question of sound
       policy and belongs to the political department'."
            Whether or not the Thomas H. Rays survey was a
"headright" survey heretofore "awarded" is our question. Your
office informs us that in the early practice of the General
Land Office, no formal "award" was made prior to the issuance
                                                          .     .




Honorable Bill Allcorn, page 4 (wW-436)

of a patent.,A location was simply made on vaoant public do-
main and the field notes plus the certificate were filed In
the General Land Office. In Stubblefield v. Hanson, 94 S.W.
406 (Tex.Civ.App. 1906, error
            "No question Is raised as to the vali-
       dity of the warrant, and the survey and loca-
       tion of the land by virtue thereof was not
       controverted. This was sufficient to sever
       the land from the public domain and vest title
       in the owner of the warrant for whom the lo-
       cation and survey was made, and is sufficient
       title to authorize the maintenance of an ac-
       tion of trespass to try title."
            Technically, of oourse, no award of a headright
survey was accomplished because the certificate under which
the survey was made was barred by limitation under the con-
stitutional provision. The survey hence was invalid. Never-
theless, the field notes, along with the headright oertifl-
cate, were received and filed in the Qeneral Land Office, and
they have never been cancelled. Apparently no question as to
the validity of such survey has been raised in over three
quarters of a century. The survey appears on the official
Bosque County map in the General Land Office. It was not the
intention of the statute under consideration to give a pre-
ference right to purchase~a survey previously awarded or sold
when such previous award or sale was made in aocordance with
law in all respects. To the contrary, Section 5 specifically
states that It applies only to surveys which "cannot be
patented under existing laws". This presupposes a flaw in the
title of the buyer or awardee of such serious proportion as
to prevent the issuance of a patent.
            The purpose of Section 5 was to grant a preference
right to purchase for a dollar an acre to one who in good faith
reliance upon the survey had held and claimed the land for 10
years. Our Supreme Court in Barber v. Qiles, supra, refers to
Section 5 as an "act of validation" and says that said court
"has been generous In upholding legislation validating titles",
citing cases upholding the Relinquishment Act and the Small
Bill, respectively. Giving the statute a liberal construction,
as appears to be authorized by the above statement, we hold
that the Rays Survey may be patented upon a compliance with
the terms of Section 5, Article 5421c, not because the head-
right survey was valid but because such invalid survey, when
combined with 1O~years good faith possession thereunder, gives
to the good faith claimant the right to buy at the stated price
the land he had long thought that he owned.
Honorable Bill Alloorn, page 5 (w-436)

                            SUMMARY
              The Texaa Constitution provides that existing
         land oertifioates surveyed more than five years
         after the adoption of the Constitution are for-
         ever barred. A survey under an 1858 headright
         certificate filed in the Land Office after the
         expiration of said five year period Is lneffec-
         tlve, and the land remains a part of the public
         domain, being dedicated to the'State Permanent
         School Fund under Article 5416, R.S. The land
         may, however, be patented under Section 5,
         Article 54210, V.C.S.
                                  Yours very truly,
                                  WILL WILSON,
                                   Attorney General of Texas



                                       J. Arthur Sandlln

JAS:bh
APPROVED:
OPINION COMMITTEE
Gee. P. Blackburn, Chairman
J.C. Davis, Jr.
Milton Richardson
Edward Cazares
REVIEWEDFORTHEA'P'PORNEY QENERAL
BY:
        W.V. Qeppert
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