Untitled Texas Attorney General Opinion ( 1985 )

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
p. 1671