              THE    ATTORXEY          GENERAL
                        OF   TEXAS


                        May 20, 1988




Honorable Garry Mauro                     Opinion No. JM-907
Commissioner
General Land Office                       Re:   Reconsideration of
Stephen F. Austin Building                Attorney General Opinion
1700 Worth Congress Ave.                  JM-364 (1985) (RQ-1292)
Austin, Texas 78701

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 commis-
        sioner of the General Land Office if:

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




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          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


‘--   .

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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




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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
         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                                4


JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General
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