Case Information
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The Attorney General of Texas October 22, 1985 JIM MATTOX
Attorney General Honorable Garry Mauro opinion No. JM-364
Supreme Court Building COtlXltiSSiO*~r P. 0. Box 12548 General Land Office Re: Whether the applicant holds *us!in. ix. x711.2548 512/475-2501 Stephen P. Austin Building land “under color of pur- ~~~~~ 910;874-067 1700 North Congress Avenue suant to article VII, section 4A. Telecopier 5121475-0266 Austin, Texas of the Texas Constitution, when 78701 there has been a break the 714 Jackso".Suite 700 Dallas, TX. 75202.4506 2141742d944 Dear Mr. Hauro:
You have reqrested an opfnion regarding the interpretation
4824 AXwta Ave..Suite 160 phrase “under color in a 1981 amendment to the Texas E, Paso. TX. 79905.2793 constitution. 9151533.3464 Te:r.. Const. art. VII, Section 4A provides, 04A. pertinent part:
1001 Texas. Suite 7M) (a) Cm application to the School Land Board, a kt~uston. TX. 77002.3111 natural person is entitled to receive a patent to 713/223-%56 from the commissioner of the General Laud Off Ice 2.f:: 606 Broadway.Suile 312
Lubbock. TX. 79401.3479 (:.) the land is surveyed public free school 8061747.5238 land:, either surveyed or platted according reco::ds of the General Land Office; 4309 N. Tenth. Suite B McAllen. TX. 78501-1685 (:!:I the land was not patentable under the
5121682~4547 lav in effect immediately before adoption this section; 200 Main Plaza. Suite 400
son Antonlo. TX. 782052797 An ECLal OpportunityI ~lfirmative Action Employer -- -- --a -- under color of title, know L& from .st least as early as January 1, 1932; and o.f Taxas or Republic of Texas and held the land (13) the person acquired ge of the title defect out of the State the chain of vhich dates the land vithout
(4’) the person, in conjunction with his predecessors In interest: (A) has a recorded deed on file respective county courthouse and has claimed the land for a continuous period of at least 50 years as November 15. 1981; and. *2 q . . .
Ronorable Carry Mauro - Pago 2 You ask about the meening of the phrase “under color IO par,;:lcular, you ask about the effect of that subsection (a) (3).
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 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 two applications for patents grounds that the applicants did not hold their property “under color of title.” In doing so, you rely on the definition of “color 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 soil, and by ‘color 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, warrant, or la*& scrip, with a chain of transfer down to him in possession. Id. -
V.T.C.S. art. 5508. The :ourts have interpreted “color of title” mean an unbroken chain of transfers, one or more of which is defective 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. (1878). Under the statute there cannot be
Butchins, 48 Tex. -551 color “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 and must interpret those words as the people generally understand them, Since it is likely that many voters’ I +' , Ronorablc Carry nauro - Pago 3
t the phraao “under color title” was
understanding that it is a legal term of art, is more helpful in this instance to look at what it article VII, section 4A, was intended to remedy and the words the drafters to accomplish that
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 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 Leon County. Presumably the drafters were focusing 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 the trz.n.sfer from the state but also some other Indeed, defect in the applicant’s claim to the property in question.
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 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, 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).
. . .- (3~364) : . L Honorable Carry Mauro - Pa(;a 4 Thus, in our opiniou I:he phraae "under color of title" in article 4A, must be mad in its statutory aenae. The words in VII, aectiou the statute vere vell aui.ted to the specific problems the drafters sought to remedy. We must read those words in light of that 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 'Icolor of title" in article VII, The phrase section 4A. of ,the Texas Constitution. has the same definition as "color title" in article 5508. V.T.C.S.
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
ROBERT GP.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