Did the Texas Constitution's 'color of title' requirement allow a land patent when the claimant's chain of title contained a complete gap?

Texas AG Opinion JM-364: Color of Title for Land Patents

Plain-English summary

The General Land Office asked whether applicants held land “under color of title” for purposes of article VII, section 4A of the Texas Constitution when their chains of title contained complete gaps. The two applications described in the opinion each traced back toward a sovereign grant but lacked records connecting later grantors to earlier owners. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

JM-364 concluded that the constitutional phrase carried the established meaning used in former article 5508 and Texas case law. Under that meaning, “color of title” required a consecutive, unbroken chain of transfers; defects in the form or recording of a transfer could be tolerated, but a complete hiatus in the chain could not. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

The opinion reasoned that section 4A was narrowly designed to remedy defective transfers from the sovereign, particularly known defects affecting property in Leon County, rather than unrelated breaks elsewhere in a claimant's title. It therefore concluded that the Land Office could issue a patent under section 4A only when the claimant showed an unbroken chain of transfers. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

JM-364 was expressly overruled by Attorney General Opinion JM-907, so its conclusion should not be treated as the Attorney General's later position. Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0364

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. JM-364 was expressly overruled by Attorney General Opinion JM-907.

Common questions

What did JM-364 mean by “color of title”?

It adopted former article 5508's meaning: a consecutive chain of transfers from the sovereign that may contain defects in particular instruments but may not contain a complete gap. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

Could an unrecorded or improperly recorded document still support color of title?

Potentially yes. The statutory definition allowed defects such as a transfer instrument not being registered or duly registered, provided the claimant still had a consecutive chain and the defect did not involve a lack of intrinsic fairness and honesty. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

Why did JM-364 reject chains with missing transfers?

It relied on Texas decisions interpreting the statutory term to require an unbroken chain and stating that color of title cannot exist where there is a complete hiatus. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

Is JM-364 still the Attorney General's position?

No. The official landing page identifies JM-364 as overruled by JM-907. Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0364

Background and legal framework

Article VII, section 4A allowed a natural person to seek a patent for surveyed public free school land when several conditions were met. Among them, the applicant had to acquire the land without knowledge of the defect in the purported sovereign title and hold the land under color of title through a chain dating at least to January 1, 1932; the applicant and predecessors also had to have a recorded deed and claim the land continuously for at least 50 years as of November 15, 1981. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

JM-364 used former article 5508 and decisions including State v. Sneed, Veramendi v. Hutchins, Thompson v. Cragg, and Humphrey v. C.G. Jung Educational Center of Houston to interpret “color of title.” It also relied on Markowsky v. Newman and Travelers Insurance Co. v. Marshall for constitutional-interpretation principles. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

Citations and references

• Tex. Const. art. VII, §4A
• V.T.C.S. art. 5508
• State v. Sneed, 181 S.W.2d 983 (Tex. Civ. App.—Galveston 1944), aff'd, 183 S.W.2d 566 (Tex. 1944)
• Veramendi v. Hutchins, 48 Tex. 531 (1878)
• Thompson v. Cragg, 24 Tex. 582 (1859)
• Humphrey v. C.G. Jung Educational Center of Houston, 624 F.2d 637 (5th Cir. 1980)
• Markowsky v. Newman, 136 S.W.2d 808 (Tex. 1940)
• Travelers Insurance Co. v. Marshall, 76 S.W.2d 1007 (Tex. 1934)
• House Committee on Constitutional Amendments, Bill Analysis, Tex. H.J.R. 117, 67th Leg. (1981)
• Texas Legislative Council, Analysis of Proposed Constitutional Amendments (1981), p. 9
• Attorney General Opinion JM-907 (overruling JM-364)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0364
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0364.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

October 22, 1985

Honorable Garry Mauro
Commissioner
General Land Office
Stephen F. Austin Building
1700 North Congress Avenue
Austin, Texas 78701

Opinion No. JM-364

Re: Whether the applicant holds land “under color of title” pursuant to article VII, section 4A, of the Texas Constitution, when there has been a break in the chain of title

Dear Mr. Mauro:

You have requested an opinion regarding the interpretation of the phrase “under color of title” in a 1981 amendment to the Texas Constitution. Tex. Const. art. VII, §4A. Section 4A provides, in pertinent part:

(a) On application to the School Land Board, a natural person is entitled to receive a patent to land from the commissioner of the General Land Office if:

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

You ask about the meaning of the phrase “under color of title” in subsection (a)(3). In particular, you ask about the effect of that phrase in two situations in which applicants for patents cannot show an unbroken chain of transfers. In one situation the applicant's chain of title shows an attempted transfer from the sovereign to the original grantee and then a gap from 1876 until 1921. The deed records for 1921 show a deed 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 and an unbroken chain of transfers up to an attempted transfer in 1863 to one Francis Stevens. Subsequent records do not show how Francis Stevens disposed of the property, but the next document in the chain is a grant from one Mary McAdams 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 transfers from or under the sovereignty of the soil, and by ‘color of title’ is meant a consecutive chain of such transfers down to such person in possession, 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 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. Id. (Emphasis added).

V.T.C.S. art. 5508. The courts have interpreted “color of title” to mean an unbroken chain of transfers, one or more of which is defective in form. State v. Sneed, 181 S.W.2d 983, 987 (Tex. Civ. App.—Galveston 1944), aff'd, 183 S.W.2d 566 (Tex. 1944); Veramendi v. Hutchins, 48 Tex. 531 (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 Humphrey v. C.G. Jung Educational Center of Houston, 624 F.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 meaning of a constitutional amendment a court may look to the evils intended to be remedied and the good to be accomplished. Markowsky v. 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' understanding of the phrase “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 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 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.

Because the proposed amendment focused on defective transfers from the state, not on other title problems, it makes perfect sense that the drafters chose the phrase “under color of title,” with its well-established meaning in Texas statutory and case law, to describe situations to which the provision would be applicable.

Also, when a constitutional provision is adopted that already has a fixed meaning, as declared by the courts, the interpretation previously given is adopted at the same time. Travelers Insurance Co. v. Marshall, 76 S.W.2d 1007, 1012 (Tex. 1934) (holding that the contract clause in the Texas Constitution had the same meaning as the older contract clause in the federal constitution).

Thus, in our opinion the phrase “under color of title” in article VII, section 4A, must be read in its statutory sense. The words in the statute were well suited 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 which the claimant can show an unbroken chain of transfers.

SUMMARY

The phrase “color 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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk