Alvin C. Allen Jr. v. Crown Pine Timber 1, L.P.

• Court: Court of Appeals of Texas
• Decided: June 20, 2024
• Docket: 09-21-00373-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00373-CV __________________

ALVIN C. ALLEN JR., Appellant

V.

CROWN PINE TIMBER 1, L.P., Appellee __________________________________________________________________

On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CV1813827-A __________________________________________________________________

MEMORANDUM OPINION

In a property dispute over who owns 134 1/7 acres of land in

northeastern Liberty County, Crown Pine Timber 1, L.P. (Crown)

brought a trespass-to-try-title action against Alvin C. Allen Jr., who

pleaded not guilty. Crown traces its purchase of the land at issue to a

large tract of timber property that it purchased in 2007, which consists

of over 4,600 acres. Crown argues the 134-acres of land at issue belongs

1 to it because it is inside the borders of its tract, which it traced to an 1894

land patent that conveyed thousands of acres of property within the

borders of the José Delgado Survey to the heirs of José Delgado. It’s

undisputed that the José Delgado Patent is based on rights granted to

José Delgado in a headright certificate from the state, in which he was

granted the right to acquire upon the General Land Office’s approval of

a survey a league and labor of land.

In the opinion, we will refer to the 134 1/7-acre tract at issue in the

dispute as either the 134-acre tract or the Bristley Tract. 1 The parties’

dispute over the 134-acre tract hinges on a decision made by the General

Land Office (GLO) in 1907 to declare the 134 acres vacant land, which

made the land available to the public for sale. The 134-acre tract was

declared vacant following a series of requests the GLO received from

George R.L. Bristley in the early 1900’s claiming that vacant land existed

in the general area where the 134-acre tract is located. After receiving

these requests, the GLO rejected the requests and advised Bristley that

1Sincethe acreage in the tracts referred to in the opinion are approximate, we have rounded the size of the tracts up or down to the nearest whole acre. 2 his requests conflicted with the José Delgado Survey or other surveys.

But in 1907, even though Bristley requested that the GLO recognize a

vacancy of more than 134 acres, the GLO reconsidered its position.

Relying on a survey that Bristley sent the GLO from a licensed surveyor,

the GLO found that a vacancy existed between the José Delgado Survey

(approved by the GLO in 1874) and the William Young League Survey

(approved by the GLO in 1835). After the GLO declared the 134-acre tract

vacant, George Bristley purchased the 134-acre tract as “public land,”

and the governor conveyed the Bristley Tract to him via a land patent,

the Bristley Patent.

In March 2016, Allen bought the Bristley Tract in a tax foreclosure

sale after Bristley’s successors to the Bristley Tract failed to pay the ad

valorem taxes on the tract. In a motion for summary judgment, Crown

claimed that the Bristley Tract was not vacant land in 1907 when the

Land Commissioner declared it vacant, but that instead it was then and

still is part of the much larger tract of timber property that the state

conveyed to the heirs of José Delgado via the Delgado Patent in 1874.

Both Crown and Allen moved for summary judgment on their claims to

the 134-acre tract. In its motion, Crown argued that it has a superior title 3 to that of Allen in the 134-acre tract through a regular chain of

conveyances that it traced from the state to Crown. According to Crown,

under the José Delgado Survey and the resulting Delgado Patent, when

the GLO declared a vacancy in 1907, no room for a vacancy existed

between what Crown contends the evidence conclusively shows in 1894

are the common boundaries of the William Young League and the José

Delgado League Surveys, surveys that it argues share a common border,

excluding the possibility of the existence of vacancy to create a separate

134-acre tract.

For his part, Allen argued that Crown failed to conclusively prove

that no room for a vacancy could have existed within the José Delgado

Survey based on the survey that James G. Minter performed in 1874,

that is the survey that resulted in the state approving the José Delgado

Survey and issuing the Delgado Patent. Allen also argued that because

he bought the Bristley Tract at a tax foreclosure sale, because Crown

failed to timely challenge his tax deeds, and because Crown failed to

comply with other requirements of the Texas Tax Code as a prerequisite

4 to challenging the tax deeds he obtained in the sale, Crown could not

challenge the validity of his title in the 134-acre tract. 2

The trial court granted Crown’s motion for summary judgment and

denied Allen’s. To resolve this appeal we must decide: (1) whether Crown

met its summary-judgment burden to establish that the boundaries of

the tract conveyed to the heirs of José Delgado (the Delgado Patent) are

known with certainty such that a court may determine as a matter of law

that no vacancy exists between the William Young League and the José

Delgado League Surveys; (2) if the burden of proof shifted to Allen,

whether Allen met his summary-judgment burden to show that an issue

of material fact exist about whether a vacancy exists where the 134-acre

tract is located based on mistakes, conjecture, or supposition by James

Minter, the surveyor who performed the José Delgado Survey in 1874;3

2See Tex. Tax Code Ann. § 34.08 (placing a deposit requirement on

the party challenging a tax deed and creating one and two-year statute of limitations defenses to a person’s right to challenge the validity of the title to property purchased in a tax sale); id. § 33.54(a) (providing the one- year limitations period created in section 34.08, but the one-year limitations period is subject to an exception when the party challenging the title “was not served citation in the suit to foreclose the tax lien”). 3Frost v. Socony Mobil Oil Co., 43 S.W.2d 387, 396 (Tex. 1968)

(mistake, conjecture); Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792, 800 (Tex. 1933) (supposition). 5 (3) regardless of whether Crown proved legal title and superior title by

establishing a regular chain of conveyances from the sovereign to Crown,

is the Bristley Patent void; and (4) if the Bristley Patent is void, whether

the affirmative defenses Allen raised under the Texas Tax Code defeat

Crown’s trespass-to-try-title action contesting the validity of Allen’s title

in the 134-acre tract?

Given the call for adjoinder in the José Delgado Survey that ties the

northern border of 134-acre tract to the corner of the William Young

League Survey and T & NO Railway Surveys based on Crown’s

summary-judgment evidence and the call for distance associated with the

northern border from that corner, we conclude that Crown met its

summary-judgment burden to establish that the José Delgado and

William Young League Surveys share a common border. And because

that border may be located on the ground with certainty and is shared,

no room for a vacancy exists between the borders of the two senior

surveys. For that reason, the burden of proof shifted to Allen to present

summary-judgment evidence sufficient to raise a genuine issue of

material fact to show that, James Minter, the surveyor who performed

the 1874 survey, included the call to the corner of the T & NO Railway 6 Survey in his survey that resulted in the José Delgado and the William

Young League Surveys sharing a common border by mistake, conjecture,

or supposition.

We conclude, however, that the evidence Allen filed in response to

Crown’s motion fails to raise an issue of material fact to demonstrate that

a vacancy exists between those borders when the evidence presented in

the summary-judgment motions conclusively establishes that the

William Young League and José Delgado Surveys share a common

border. As explained in detail below, the unsworn declaration on which

Allen relies, even though it is from a licensed surveyor, is unreliable as

summary-judgment evidence because for the reasons we explain below

“there is simply too great an analytical gap between the data [the expert]

relied on and the opinions that [the expert] proffered.” 4

As to Allen’s motion for summary judgment and his claims that

Crown cannot maintain a trespass-to-try-title action to challenge his tax

deeds under the defenses that he raised to its claim under the Tax Code,

we hold that the Tax Code provisions on which Allen relies don’t prevent

4Helena Chem. Co. v. Cox, 664 S.W.3d 66, 74 (Tex. 2023) (cleaned

up). 7 Crown from challenging Allen’s deeds to the 134-acre tract. The tax deeds

that Allen acquired, which were signed by Liberty County’s Sheriff,

conveyed no greater interest in the property than the interest that was

held by Allen’s predecessors in the Bristley Tract. In the trial court, Allen

did not allege or present any summary-judgment evidence to show that

any of the prior owners of the Bristley Tract acquired legal or equitable

title to the Bristley Tract superior to that of Crown’s or to any of Crown’s

predecessors in title. Thus, since Allen’s tax deeds conveyed an interest

to him of nothing more than the interest owned by the tract’s prior

owners, Allen failed to establish that his ownership interest in the 134-

acre tract was superior to that of Crown’s. And because Crown’s

ownership interest in the 134-acre tract isn’t traced to the “Bristley

Survey” and the Bristley Patent, Allen failed to show that his affirmative

defenses under the Tax Code are applicable as against Crown and its

trespass-to-try-title claim.

Based on the above conclusions which we more fully explain below,

we will affirm the trial court’s judgment granting Crown’s motion and

denying Allen’s.

8 I. Background

This suit involves competing claims to a 134-acre tract of

timberland. The tract’s location is depicted in the hatched rectangular

box, shown below. 5

5The diagram shows only a portion of the José Delgado Survey’s

borders, but the diagram captures the entire area of the land at issue in the dispute. The hatched portion of the diagram is intended to depict the location of the Bristley Survey.

9 The 134-acre tract is in the northeastern part of Liberty County.

Crown claims that the 134-acre tract lies within the northeastern corner

of a much larger tract that it now owns. The property that Crown

purchased consists of all the acreage in the José Delgado Survey, which

consists of over 4,600 acres. Crown bought the tract in 2007 from TIN,

Inc. TIN, Inc. was previously known as Temple-Inland Forest Products

Corporation.

In the trial court, Crown moved for summary judgment and

provided the trial court with evidence tracing its title to the land it

bought from TIN to the sovereign through each of TIN’s predecessors in

title. The summary-judgment evidence shows that the boundaries of

Crown’s approximately 4,600-acre tract are based on a corrected survey,

the José Delgado Survey, approved by the GLO in 1874. The Delgado

Survey describes the property the state conveyed in a land patent signed

by the governor that same year, the Delgado Patent. The Delgado Patent

conveyed the land within the boundaries of the José Delgado Survey to

“the Heirs of José Delgado.” The Delgado Patent references a headright

certificate, which granted José Delgado the right to “[o]ne league and one

10 labor of land.” 6 Before the GLO agreed to approve the survey in 1874, the

record shows that its Office required the surveyor who submitted the

survey, James G. Minter, to submit corrections to the Land Office. That

said, the records of the GLO show that it approved Minter’s corrected

survey in August 1874.

In September 2019, Crown moved for summary judgment on its

trespass-to-try-title claim. In its motion, Crown alleged that its

summary-judgment evidence proves that its title in the 134-acre tract is

superior to Allen’s based on the Delgado Patent, a senior land patent to

the Bristley Patent, issued over thirty years later in 1907. According to

Crown, when the state patented the 134-acre tract, the 134-acre tract

that the state declared vacant did not exist as vacant land. And since the

land wasn’t vacant but instead was owned by the Delgado heirs, Crown’s

motion argues, the state did not have the right to declare the land vacant

and then sell it since the state did not own the 134-acres that it declared

vacant and sold as the 134-acre Bristley Tract.

6Crown’s summary-judgment evidence includes the affidavit of a

land surveyor, Nedra Townsend, who states she resurveyed the area in dispute. According to Townsend, a league and labor of land consists of 4,605.54 acres. 11 Under Crown’s theory, the calls for adjoinder in the José Delgado

Survey clearly define the boundary for the northeastern corner of the

large tract conveyed to the Delgado heirs by the state in 1894, the same

tract that it purchased in 2007. The calls in that survey identify a point

tied to the T & NO Railway Survey #95 and the William Young League

Survey as the northeastern corner of the José Delgado Survey in the area

at issue in the dispute and call for a line from that point to go for a called

distance west along the southern border of the William Young League

Survey, resulting in a line that forms the northern border for the José

Delgado Survey in the area at issue in the dispute.

Focusing on the calls in the area at issue in the dispute, Crown

concludes that based on the calls in the survey the GLO approved that

are tied to the 1894 Delgado Patent, no room for a vacancy existed

between the William Young League and the José Delgado Surveys’

borders for a 134-acre vacant tract. Because Crown established title to

the sovereign through a regular chain of conveyances, Crown argued, and

established that no room for a vacancy existed in the northeastern corner

of its tract, Crown’s concludes in its motion that its summary-judgment

evidence establishes it has superior title to the 134 acres at issue in the 12 dispute that lies in the northeastern corner of the tract, the same

property Allen claims that he purchased at the tax sale.

Turning to Allen’s tax deeds, Crown argued that because the GLO

had no authority to declare the tract vacant, the state had no authority

to sell land that it did not own, and the Bristley Patent is void. For that

reason, Crown argues, Allen’s claim is based on deeds purporting to

convey ownership interests under a conveyance by the state that is void,

meaning an instrument that did not convey legal title in the 134-acre

tract to the grantee of that instrument. Crown argues that it would be

contrary to the public policy of the state and the Tax Code to prevent it

from claiming it holds superior title to the 134 acres at issue when its

claim is traced to a valid land patent conveying the property to the

Delgado heirs when Allen’s claim is traced to a void instrument, which

Crown argues did not convey legal title in the 134-acre tract to George

R.L. Bristley as the grantee of the Bristley Patent.

Crown’s summary-judgment evidence included: (1) deeds and other

instruments, which Crown argued establish it has superior title to the

tract through a regular chain of conveyances, which it traced to the

sovereign; (2) the Bristley Survey and the Bristley Patent; (3) the tax 13 deeds signed by the Liberty County Sheriff to convey the 134-acre tract

to Allen; (4) an affidavit from Frank Hyatt, an employee of a consulting

company responsible for managing timber properties owned by Crown,

including the property in the José Delgado Survey; (5) affidavits with

attachments from Anthony Brown, Crown’s lead counsel; and (6) an

affidavit, survey, and report from Nedra Foster Townsend, a licensed

professional and state land surveyor, who resurveyed the José Delgado

Survey at Crown’s request. In her report, Townsend states that she “was

asked to determine the boundaries of the surveys in the vicinity of the

José Delgado Survey, Abstract No. 177 in Liberty County, Texas,” and

that she was asked to “offer opinions based upon [her] fieldwork and

expertise regarding the George R.L. Bristley Survey.”

Townsend’s report and affidavit reflect that in performing the field

work for Crown, she resurveyed the boundaries of the Delgado Patent,

which were approved by the GLO as corrected by James Minter in 1874.

In resurveying the tract, Townsend located the natural and artificial

monuments for the lines and corners of the northeastern corner of the

José Delgado Survey, and she tied the north-eastern corner at issue in

the dispute and boundaries relevant to whether Bristley tract existed to 14 the boundaries of the José Delgado Survey. In her report, Townsend

concludes that the 134-acre Bristley Survey, which the state patented in

1907, “is located within the boundaries of the Delgado Patent and does

not exist as a separate parcel of property.”

Relying in part on Townsend’s report and affidavit, Crown argued

that “the Bristley Survey is not separate and distinct from the Delgado

Survey. There were no ‘gaps’ because the Delgado Survey adjoins those

other earlier surveys.” In her affidavit, Townsend swore that she

resurveyed the property conveyed to the Delgado heirs via the Delgado

Patent “using generally accepted professional surveying techniques.”

For his part, Allen has never disputed Crown’s claim that the

Delgado Patent is the senior patent. Instead, on appeal he argues the

trial court erred in granting Crown’s motion because: (1) its summary-

judgment evidence doesn’t “demonstrate an unbroken chain of title from

the sovereign;” (2) the summary-judgment evidence demonstrates that a

genuine issue of material fact exists about whether “the Delgado

Property encompassed the Bristley Property;” and (3) Crown could not

challenge the validity of his title under the Tax Code because it waited

too long under the Tax Code to do so and failed to deposit the tax debt 15 and other amounts the Tax Code requires as a prerequisite to the filing

of its suit into the registry of the court.

Allen also moved for summary judgment on his affirmative defenses

to Crown’s suit. Allen’s motion is based on his theory that Crown’s

trespass-to-try-title action is barred by the Tax Code, which he claimed

applied to Crown’s right to challenge whether he obtained valid title to

the 134-acre tract through the tax deeds used to convey the property to

him. 7 On appeal, Allen argues he is entitled to have the judgment

reversed and one rendered in his favor because: (1) the summary-

judgment evidence establishes that his title is superior to Crown’s even

though Crown wasn’t a party to the tax foreclosure suits; (2) even if it’s

true that the boundaries of the Bristley Patent conflict with those of the

Delgado Patent, the fact that the boundaries conflict would make the

Bristley Patent voidable, not void; (3) Crown’s claim is barred on grounds

of public policy because public policy disfavors invalidating land titles

that have been filed of record for years and relied on by third parties; (4)

7See Tex. Tax Code Ann. §§ 33.54(a), 34.08.

16 the trial court erred in granting summary judgment without requiring

Crown to first deposit the tax debt and other amounts required by the

Tax Code into the court’s registry as a prerequisite to proceeding with its

action; and (5) the one and two-year statutes of limitations provisions in

the Tax Code bar Crown’s trespass-to-try title action because Crown did

not sue it within either the one or two-year periods required by the Tax

Code and those limitation periods are intended to protect the rights of

purchasers at tax foreclosure sales.

In the trial court, the parties did not dispute that Crown’s title is

based on the boundaries conveyed to the Delgado heirs in the Delgado

Patent. Crown’s summary-judgment evidence traces its October 2007

purchase of the tract through various deeds, which show that Crown

purchased all the property within the limits or boundaries of the Delgado

Survey from TIN, Inc. Frank Hyatt, a land use forester employed by

Forest Resource Consultants, Inc. and whose affidavit is included in

Crown’s summary-judgment evidence reviewed corporate records dating

to 1927 from the companies that have owned the property within the José

Delgado Survey. Hyatt states in his affidavit that these records show that

17 “the Delgado Survey has been used exclusively for timber production

since 1927.”

There is no dispute that in March 2016, Allen bought whatever

interest he acquired in the 134-acre tract in a tax foreclosure sale. The

record shows that Crown wasn’t a party to these two tax foreclosure suits.

One of the suits involved two defendants who owned a 75% undivided

interest in the 134-acre tract. The other tax suit was against a group of

defendants who owned the other 25% undivided interest in the 134-acre

tract. On March 1, 2016, Allen bought both the 75% and 25% undivided

interests in the 134-acre tract. The Liberty County Sheriff conveyed the

tract to Allen in two tax deeds, both of which describe the property as

“Tract 1, C.R.L. Bristley Survey, Abstract 907, more fully described in

Vol. 1180, Page 206 of the Deed Records of Liberty County, Texas.” 8

The tax deeds both identify the property transferred to the deeds’

grantees as the property in the Bristley Survey. In the Bristley Patent,

Governor T.M. Campbell also referred to the Bristley Survey as “Sur. No.

52. Geo. R.L. Bristley,” which he signed after the GLO determined that

8The Sheriff signed the deeds on March 21, 2016, and they were

recorded in the deed records of Liberty County, Texas on April 29, 2016. 18 the 134-acre tract was vacant land. When Bristley sought to purchase

vacant land from the state, he was seeking to purchase land the

legislature was authorized to sell as public land appropriated for use by

the public schools. 9 The summary-judgment evidence shows that under

applications Bristley sent before 1907, that in 1903 and 1904 the GLO

had rejected surveys Bristley submitted claiming that a vacancy existed

in the areas surrounding the José Delgado Survey, including the general

area at issue here. According to the letters from the GLO to Bristley and

Liberty County’s Surveyor, the GLO rejected Bristley’s application

9See Tex. Const. art. VII, § 2 (establishing a perpetual school fund);

art. VII, § 5a (establishing a permanent school fund). Currently, the procedures for locating selling and leasing vacant and unsurveyed public- school land are prescribed by the Texas Natural Resources Code, which defines a “vacancy” as “an area of unsurveyed public school that: (A) is not in conflict on the ground with land previously titled awarded or sold; (B) has not been listed on the records of the land office as public school land; and (C) was not, on the application commencement date: (i) subject to an earlier subsisting application; (ii) subject to a vacancy application denied with prejudice; (iii) the subject of pending litigation relating to state ownership or possession of the land; or (iv) subject to a previous vacancy application that has been finally adjudicated by the commission or a court of this state or the United States.” Tex. Nat. Res. Code Ann. § 51.172(6). 19 because the boundaries proposed by Bristley’s survey conflicted with the

José Delgado Survey. 10

In January 1907, the GLO changed its position and decided that,

subject to a specific surveyor resurveying and correcting his field notes,

that office would recognize a vacancy to exist between the José Delgado

Survey and the William Young League Survey of around 130 acres. The

GLO’s January 5, 1907, letter to George Bristley states:

[T]his department has gone into this matter again, and we find after a more thorough examination that a vacancy can be recognized to the extent of about 130 acres.

10Crown’s summary-judgment evidence established that the GLO’s

position about Bristley’s application changed over the three-year period in which it considered Bristley’s application, his initial survey, and the subsequent corrections to the initial survey that Bristley submitted regarding the vacancy in the area at issue here. In letters dated in the months of May and October 1904, the GLO rejected Bristley’s application based on the initial survey that Bristley filed to support a claimed vacancy in the area. In a letter in May 2004, addressed to George Bristley, the GLO advised Bristley that “[i]nasmuch as the José Delgado has open calls for the corresponding lines and corners of the W.W. Young survey and T & NO Ry survey No. 95, no vacancy will be admitted for this, and the same is hereby rejected.” In a letter in October 1904 addressed to the County Surveyor, Liberty County, General Land Commissioner John Terrell wrote: “It would appear to me that this is rather an excess than a vacancy and could likely be held under the calls of the Delgado, and that Mr. Bristley, the applicant, when acquainted with the situation, will have no cause for complaint[.]”

20 The summary-judgment evidence shows the GLO approved the Bristley

Survey as if it had received the corrections that it requested from

Bristley’s surveyor. Even so, according to Nedra Townsend’s report,

nothing in the GLO’s files shows the GLO received the fieldwork from the

surveyor that it said it would require before it approved the Bristley

Survey.

When Allen responded to Crown’s motion, he provided the trial

court with the sworn declaration and “Preliminary Report” of a licensed

land surveyor, Carr B. Thomson. In Thomson’s declaration, Thomson

explains that the report he attached to his declaration was preliminary

and that he had not “yet reached final conclusions or formed final

opinions” because he had only recently been asked by Allen’s attorney to

reduce his preliminary opinions to writing for the purpose of responding

to Crown’s motion. Thomson states he was asked to review documents

and maps provided to him by Allen and Allen’s attorney, and he stated

that he had reviewed documents that he found on the GLO’s website. In

his report, Thomson asks: “Do we honor the course and distance in the

original survey or do we honor the calls for adjoinder[]?” Based on the

21 calls for a league and labor of land in Delgado’s headright certificate,

Thomson notes that Delgado was supposed to receive a tract with

“4605.63 acres of land,” but that under Norma Townsend’s “resurvey of

the Delgado[,]” which he had reviewed, “the Delgado contains 5404.64

acres, an excess of 799 acres.” 11 That said, except for relying on the calls

for adjoinder over the calls for distance, Thomson didn’t state he had

other reasons to criticize Townsend’s resurvey. For example, in his

Declaration, Thomson expressed no opinions criticizing Townsend

regarding where she located the Pine Island and Willow Marsh Bayous

or the artificial objects that she tied to the José Delgado Survey, such as

marked trees, monuments, and objects found in several of the survey’s

corners. Instead, his opinion appears to be that mistakes must have been

made by James Minter in 1874 because using the calls for adjoinder in

his survey would produce a conveyance with more than the “acreage

identified in the certificate,” implying that the call to the corner for the T

& NO Railway Survey and William Young League must have been a

11Thomson provided no explanation to identify how he calculated

the total acreage. Townsend’s affidavit and report do not include a calculation for a total reported acreage. 22 mistake because the grant contained more than a league and labor of

land.

Thomson’s reverse logic is clear as his opinion states that the GLO

“properly recognized” . . . and “properly patented to G.R.L. Bristley [the

134-acre tract] as a distinct tract of land.” He then concluded that

Townsend was “mistaken” in relying on the calls for adjoinder in reaching

her conclusion that “the Bristley Survey is encompassed by the Delgado

Survey’s boundaries.” Under the circumstances of his preliminary

review, Thomson concluded that,

the calls for adjoinder at issue should yield to [the] calls for course and distance because [in the survey the GLO approved], perhaps among other reasons, the adjoinder calls were very clearly based on much mistake, conjecture and supposition by the manner in which the field notes were written [by the state surveyor who described the tract by using calls for adjoinder without the benefit of resurveying the calls for distance by performing another survey in the field.]12

12Crownfiled written objections to Thomson’s Declaration and report complaining that nothing in Thomson’s Declaration or report showed that Thomson had applied the standards applicable to professional surveyors in reaching his opinions or conducted a survey of the property at issue in the suit. Crown also complained that Thomson’s Declaration and report represent that his opinions were preliminary, not final. The appellate record, however, does not demonstrate that Crown obtained rulings on its objections. 23 In September 2019, Allen moved for partial summary judgment on

his affirmative defenses. Allen alleged that even if one assumed the

Bristley Survey’s boundaries were encompassed within the boundaries of

the Delgado Survey, Crown’s trespass-to-try title claim was barred by

public policy and the Tax Code. To support his motion, Allen included:

(1) the petitions, judgements, and orders of sale from the two tax

foreclosure suits; (2) documents from the GLO’s files on the Bristley

Survey; (3) an affidavit from Lana McCarty, a registered professional

appraiser for the Liberty County Central Appraisal District; (4) an

affidavit from Richard L. Brown, the Liberty County Tax Assessor; (5) an

affidavit from Rebecca Leopard, an employee for the Liberty County

District Clerk’s Office; (6) Crown’s answer to a request for admission in

which Crown admitted it not did pay the tax debts and associated costs

for the tax accounts tied to the 134-acre tract; and (7) the citations and

returns of citation from the Tax Suit on the case involving the taxpayers

who owned the 25% interest in the 134-acre tract. The citation served in

the tax case involving the taxpayers who owned the 25% interest in the

tract shows that the citation was posted on the courthouse door for “at

least 28 days before the return day.” The citation commands the 24 “unknown owner or owners of” land described in the citation as an

“undivided 25% interest in the 134.34 acres, more or less, Tract 1, G.R.L.

BRISTLEY SURVEY” to appear and defend the suit by April 13th,

2015. 13

In November 2021, the trial court conducted a hearing on the

parties’ motions for summary judgment. Following the hearing, the trial

court granted Crown’s motion and denied Allen’s. Because the motions

did not address all issues and claims, the trial court also signed an Order

Granting Severance, which made the judgment final as to the issues the

parties raised in their motions for summary judgment. 14 In its judgment,

the trial court declared:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Patent issued by the State of Texas to

13The citations and returns on the first tax case, which involved the

defendants that owned the 75% interest in the tract, are not in the appellate record. In his appellate brief, Allen states that “the parties agreed there was no service in the First Tax Case (as to the undivided 75% interest)” on Crown. As to the Second Tax Case, Crown argues the Tax Code provisions do not apply to it because, for among other reasons, it paid its taxes on the property within the boundaries of the Delgado Survey, including the 134-acre tract at issue and because the tax foreclosure suits and resulting tax deeds don’t identify the property that was the subject of those suits as property in the José Delgado Survey. 14The trial court severed the claims that are relevant to this appeal

into Trial Court Cause No. CV1813827-A. 25 George R.L. Bristley dated July 29, 1907, and filed for record in Volume 23, page 542 in the Deed (Patent) Records of Liberty County Texas, and also identified as Abstract 907, Liberty County Texas, and purportedly consisting of approximately 134 1/7 acres (referred to hereafter in this Judgment as the “Bristley Survey”), is HEREBY DECLARED TO BE LEGALLY INVALID AND VOID. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Bristley Survey is located completely within the property included in Headright Certificate No. 191 issued to José Delgado, which was subsequently conveyed in a Patent issued by the State of Texas to the Heirs of José Delgado dated August 22, 1874 and filed for record under Volume M, Page 15 of the Deed (Patent) Records of Liberty County, Texas, and which is also identified as Abstract 177 in Liberty County, Texas (referred to hereafter in this Judgment as the “Delgado Survey”), and that the Bristley Survey DOES NOT EXIST as a separate parcel of real property. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff Crown Pine Timber 1, L.P. is the sole owner of the Delgado Survey. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the property purportedly conveyed to Defendant Alvin C. Allen, Jr. in the Deed Under Order of Sale in Tax Suits filed for record under Instrument Numbers 2016007 191 and 2016007192 in the Official Public Records of Liberty County, Texas DOES NOT LEGALLY EXIST, and therefore said Deeds did not convey any real property to Defendant Alvin C. Allen, Jr.

The judgment also recites: “All relief sought in the Motion and not

granted here is denied.” 15

15Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).

26 II. Standard of Review

We review appeals challenging rulings on motions for summary

judgment de novo. 16 “To prevail on a traditional motion for summary

judgment, the movant must show no material fact issues exist and that

it is entitled to judgment as a matter of law.” 17 We take as true all

evidence favorable to the respondent, and we indulge every reasonable

inference and resolve any doubts in favor of the non-movant. 18 If the

moving party produces evidence entitling it to a summary judgment,

the burden shifts to the nonmovant to present evidence that raises a fact

issue. 19

“When both parties move for summary judgment and the trial court

grants one motion and denies the other, . . . we review both sides’

summary judgment evidence and render the judgment the trial court

should have rendered.” 20 We review the summary judgment record in the

16Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 218 (Tex.

2022). 17Id.; Tex. R. Civ. P. 166a(c). 18Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003). 19Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). 20Endeavor Energy Res., L.P. v. Energen Res. Corp., 615 S.W.3d 144,

147-48 (Tex. 2020). 27 light most favorable to the non-movant, “indulging every reasonable

inference and resolving any doubts against the motion.” 21

III. Analysis

A. Did Crown Meet its Burden of Proof on its Motion for Summary Judgment?

For convenience, we address Allen’s third issue before addressing

his first and second issues. In his third issue, Allen argues that Crown’s

summary-judgment evidence is insufficient to conclusively establish that

Crown’s title in the 134-acre tract is superior title to his because Crown

did not conclusively trace its deed through a regular chain of conveyances

to the sovereign and did not conclusively prove that its title was superior

to his based on a regular chain of conveyances from a common source.

When addressing Allen’s first issue, however, we will not include or

discuss Allen’s arguments that his title to the tract is superior to Crown’s

based on the strength of his claim to the property under his tax deeds.

Our discussion about the arguments that Allen and Crown raise about

how the Tax Code applies in this case are addressed in the Court’s

discussion of Allen’s first and second issues.

21City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

28 According to Allen, the trial court erred in granting Crown’s motion

for two reasons. First, there is a gap in its chain of title because one of

the deeds that Crown attached to its motion, a deed from Manuela

Delgado Guerra and others as grantees conveying the property in the

José Delgado Survey (the Delgado Patent) to the Southwestern

Development Company, was “unsigned by any of the grantees or their

attorney[.]” Second, Allen argues that the unsworn declaration and

report of Carr Thomson, the licensed surveyor he attached to his response

along with the other summary-judgment evidence attached to his

response reveal that there are questions about whether the boundaries

established by the calls for adjoinder in James Minter’s 1874 survey are

calls based on mistake, conjecture, or supposition sufficient to raise

material issues of fact as to where the boundaries of the José Delgado

Survey are located.

We turn first to Allen’s evidentiary complaint about the lack of

signatures by grantors and the attorney-in-fact on the Southwestern

Development Company deed. The record neither shows that when Allen

was in the trial court, that Allen objected to the absence of the signature

page from that deed, nor does it show that he obtained a ruling on any 29 objections to the admissibility of the authenticity the Southwestern

Development Company deed or any other deeds in Crown’s chain of title

before the trial court ruled on the competing motions for summary

judgment. Consequently, Allen may not now complain about the lack of

signatures on a deed that Crown relied on to support its motion for

summary judgment when Allen neither filed a timely objection to the

admissibility of Crown’s summary-judgment evidence complaining in

which he complained that the deeds were lacking anyone’s signature nor

did he provide Crown with an opportunity to correct any defects in its

summary-judgment proof before the trial court ruled on Crown’s

motion. 22 We hold that Allen waived his objection to the absence of some

of the grantors’ signatures on the Southwestern Development Company

deed.

Next, we turn to Allen’s argument that the summary-judgment

evidence he attached to his response raises a fact issue on the issue of

22Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial

court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); see also Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164 (Tex. 2018) (holding that the rules of error preservation apply to summary-judgment proceedings). 30 whether a vacancy existed in 1907 in the northeastern area of the José

Delgado Survey when the GLO determined that the 134-acre tract was

public land which prior grants had not conveyed.

Allen suggests that whether a vacancy existed must be decided by

deciding whether the boundaries of the José Delgado Survey should be

measured by the calls for distance or the calls for adjoinder. He relies on

the opinion of Carr Thomson to support that conclusion, and Thomson’s

report is attached to Allen’s response. According to Carr Thomson, if the

calls for adjoinder control the property conveyed to the Delgado heirs, the

borders of the Delgado Survey encompass more than a league and labor

of land, a gain of “799 acres to which José Delgado was never entitled

under the land certificate” and “under the circumstances presented here.”

So, since the calls for distance would more closely track the league and

labor of land, Thomson asserts (without having performed a survey in the

field), and recognizing the calls for adjoinder result in the survey

conveying “5,494.65” rather than “the patented acreage” of what José

Delgado was entitled to,” the “calls for adjoinder at issue should yield to

the calls for course and distance” based on Mr. Minter’s survey, calls that

he “based on much mistake, conjecture, and supposition[.]” 31 Yet Thomson’s conclusions were reached without doing any work in

the field. The statements he made in his report and his unsworn

declaration also do not expressly state that the opinions he expressed are

based on generally accepted surveying principles or techniques. Instead,

in his unsworn declaration, he notes that he had a “short amount of time”

to prepare it, that his “report is preliminary[,]” that he had not “yet

reached final conclusions or formed final opinions about all matters

essential to my ultimate conclusions and opinions.” The report Thomson

provided shows it was prepared just two days before he signed the

unsworn declaration. Thomson couched his opinions about what Minter

did in 1874 as his “belief.” The opinions that Thomson expressed in his

report and unsworn declaration are not stated in terms of reasonable

probability, and Thomson did not represent that he followed generally

accepted surveying principles in reaching what are categorized as the

“beliefs” expressed in the declaration and report.

As we see it, the issue in the case is whether Crown met its burden

to establish that its title is superior to Allen’s in the area at issue, which

we have referred to in the opinion as either the Bristley Tract or the 134-

acre tract. The 134-acre tract—which is the same property as the Bristley 32 Tract—is located just south of the William Young League Survey in

Liberty County. Even though Thomson’s premise appears to be that with

respect to Minter’s survey mistakes were made and therefore there might

be a boundary mistake as to the 134-acre tract, as we see it the issue in

the trial court was not whether Minter might have made mistakes

somewhere within a 4,600-acre survey performed in 1874 in some of his

calls that are not directly relevant to the location of the borders of the

small number of acres in the area at issue in the dispute. Rather, the

issue was whether a fact issue existed as to whether Minter made a

mistake in calling for the border of the José Delgado Survey to adjoin the

corner of the William Young League Survey and the T & NO Surveys, as

that’s the call directly at issue in the dispute, or whether Minter made

that call for adjoinder based on conjecture or supposition.

In Texas, “it is firmly established that the rules for the construction

of grants, and for ascertaining their boundaries, which have from time to

time been announced by the court and have been acted on in establishing

their lines, are all designed for the purpose of carrying out the intention

33 of the grantor.” 23 Over one-hundred years ago the Beaumont Court of

Appeals explained that, when determining the intention of the grantor,

natural objects, as called for in the field notes, can be actually found and identified on the ground as showing the footsteps of the surveyor, both course and distance, when inconsistent therewith, must give way and be disregarded. The courts of this state have undertaken to grant the dignity of calls in field notes, and to attach to them different degrees of importance. The first in importance are natural objects, such as streams, hills, mounds, nature of soil, etc. Next in importance are artificial objects, such as stakes, mounds, marked trees, etc., and the least of all, course and distance. This classification and grade of calls, however, is only a rule of evidence. The primary purpose in all cases of the kind is to locate the survey as it was intended to be located on the ground by the original surveyor, and if this can be accomplished with more certainty under the circumstances of the case by the calls for course and distance, they will control. It has been determined, however, that only when the natural or artificial objects called for in the field notes can be found and identified on the ground with reasonable certainty will they control calls for course and distance. 24

The Texas Supreme Court follows the same rules of priority when

construing deeds. In 1978 that Court explained: “It is an established rule

that the footsteps of the surveyor shall, if possible, be followed, and

23John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90

S.W.3d 268, 282 (Tex. 2002). 24W.T. Carter & Bro. v. Collins, 192 S.W. 316, 321 (Tex. Civ. App.—

Beaumont 1916, writ ref’d) (internal quotations and citations omitted); see Stafford v. King, 30 Tex. 257, 270-76 (1867). 34 natural or artificial monuments are to be accepted as controlling over

calls for course and distance.” 25 We recognize, of course, that as the party

moving for summary judgment, Crown had the burden to conclusively

prove that, in the northeastern corner of its large tract, no vacant land

existed when the GLO approved a survey finding a vacancy lying south

of the border of the William Young Survey.

The question is Crown’s evidence establishes José Delgado Survey

call for adjoinder for the Delgado Survey to adjoin the T & NO Railway

and William Young League Surveys in the area at issue in the dispute. If

it does, that border based on the call for distance from the point, which is

not disputed, creates a shared border between the William Young League

and the José Delgado Surveys that leaves no room for a vacant strip of

land, a strip the GLO recognized (and that Crown challenges as

improper) as the Bristley Tract.

The parties take different positions about whether a shared

northern border between the William Young League and the José

Delgado Surveys may be located with certainty from the calls in Minter’s

25Howland v. Hough, 570 S.W.2d 876, 882 (Tex. 1978) (emphasis

added). 35 1874 survey. Even though Allen argues that his summary-judgment

evidence reveals questions exist about whether the William Young

League and José Delgado Surveys share their border in the area at issue,

we note that Allen’s surveyor, Carr Thomson, didn’t conduct a survey in

the field when he formed what he characterized as the “beliefs” he

expressed in his report and his unsworn declaration. On the other hand,

Crown’s licensed surveyor, Norma Foster Townsend, performed a field

survey before reaching the conclusions that she expressed in her affidavit

and report. In her affidavit, Townsend expressly states that she

“performed all of these activities [referring to her report] using generally

accepted professional surveying techniques.”

Besides conducting a field survey of the northeastern corner of the

José Delgado Survey to define the border between the William Young

Survey and the José Delgado Survey, Townsend also performed field

work “to locate natural and artificial monuments in retracing the lines

and corners of the area at issue[,]” explaining the work took “several

months.” In her work, Townsend prepared a plat based on a resurvey that

she performed in the field of the José Delgado Survey. The plat that she

36 prepared lays out the northern, eastern, southern, and western

boundaries of the José Delgado Survey.

The tract Allen purchased in the tax foreclosure sale is described in

the tax deeds as “134.00 Acres, more or less, Tract 1, C.R.L. Bristley

Survey, Abstract 907.” Townsend’s plat of the Delgado Survey shows that

the northern border of 134-acre tract that Allen claims he owns shares a

border with the William Young League Survey, which is to its north.

Townsend’s border for the 134-acre tract is shown as a common border

between the William Young League and José Delgado Surveys, and

Townsend’s opinion aligns with the call for adjoinder in James Minter’s

1874 survey.

What’s more, Townsend’s report explains that the William Young

League Survey replaced an earlier land grant, the Lucinda Dyches Grant,

which Townsend said is considered void “because of the disturbance in

land titles cause by the [Texas] Revolution.” According to Townsend, the

revolution caused authorities to stop issuing land grants between

November 1835 through January 1838, and for that reason Townsend

stated that, in her opinion, “it is correct [for Minter in his survey notes]

to allow [the T & NO Railway] Survey [#]95 to join the [William] Young 37 [League A-60 Survey]” since the William Young League A-60 Survey

replaced the Lucinda Dyches Grant. 26 Thomson fails to discuss or account

for these statements in his unsworn declaration or his preliminary

report.

The conclusions Townsend expressed in her affidavit are based on

the survey she conducted in the field, her review of the information from

the GLO, which she tied to that GLO’s approval of Minter’s corrected

survey, information from the GLO relating to its approval of the Bristley

Survey in 1907, and the surveys surrounding the José Delgado Survey.

Townsend stated that, based on her review and field work:

[I]t is my opinion that the Bristley Survey was located and patented in 1907 on property already included in the Delgado Survey in its 1874 patent. As a result, the Bristley Survey is located within the boundaries of the Delgado Survey, and does not exist as a separate parcel of property.

For his part, when Allen was in the trial court, he did not contend

that in 1874, the Delgado Survey the GLO approved did not include open

calls to the corners to the William Young League and T & NO Railway

Surveys. Instead, Allen argued that by following the calls for distance

26Townsend noted that in Minter’s correction of the Delgado Survey,

“he called to adjoin these T&NO Survey’s.” 38 rather than the calls to the corners in the 1874 José Delgado Survey from

a fixed marker that Townsend located in the Alpheus Rice Survey, a

marker around two and one-half miles to the southwest of the Bristley

tract, the steps that Townsend followed would fall short of the

northeastern corner of the northern corner where the William Young

League and T & NO Railway Survey #95 Survey intersect by

“approximately 200 varas[,]” the equivalent of about 556 feet. 27 Allen also

argued that if one were to give priority to the calls for adjoinder over the

calls for distance, Thomson’s report states that if Townsend’s boundaries

of the Delgado Survey are followed, it shows the state conveyed a tract to

the Delgado heirs that included around 900 acres more than the state

intended when it granted José Delgado a headright certificate and

granted him one league and labor of land (4,605.5 acres).

27Even if one were to assume that the calls for distance that Thomson “believed” Minter intended should control, the resulting strip of vacant land created by recognizing a vacancy would be less than half the 134-acre tract that the GLO recognized when, in its 1907 about face, the GLO failed to honor the open calls for adjoinder to the William Young League and T & NO Railway Surveys, calls it had previously recognized in rejecting Bristley’s prior surveys requesting the GLO recognize a vacancy existed in same area at issue here. 39 In our view, the issue is not what acreage is in the whole tract but

rather whether Crown carried its burden to establish that the calls in the

survey for the Delgado Patent left no room for vacancy in the area that is

at issue in this dispute. If the call to adjoinder for the T & NO Railway

Survey, the William Young League Survey (f/k/a Lucinda Dyches Grant),

and Jose Delgado Survey are followed, the border between the William

Young League Survey and the José Delgado Survey is clearly defined

given the call for distance that goes west from the northwestern corner

of the T& NO Railway Survey #95 where those three surveys join.

Minter’s call for those surveys to adjoin is based on a headright survey

performed in 1860 by a surveyor named T.C. Turner, whose survey

Thomson wholly fails to address. Turner’s survey calls for the Delgado

Survey to adjoin surveys that existed in the area. The T & NO Railway

Survey #95 was laid out in 1870, and it was corrected by a surveyor

named James F. Weed in 1890. As to the corner at issue, the Delgado

Patent recites that the line is “in the line of the William Young League”

and to “stake at corner with the Northwest corner of the swamp N.O. RR

Survey No. 9’s.” In her report, Townsend explains how Turner’s survey

and subsequent survey by another licensed surveyor, James F. Weed in 40 1890 are relevant to the numbering of the tracts carved from the T & NO

Railway Surveys, which were granted to the T & NO Railway and

identified as T & NO Railway Surveys in Turner’s 1860 survey. In his

unsworn declaration and report, Thomson did not address Turner’s

survey, Weed’s survey, or the statements that Townsend made about

them in her report.

The call for adjoinder in the Delgado Patent conveying the property

to the heirs of José Delgado is defined in the surveys. It defines a point

from which based on a call for distance a line may be drawn to create a

clearly defined border, a border shared by the William Young League and

the Delgado Surveys in 1894. In Booker v. Hart, 77 Tex. 146, 12 S.W. 16,

19 (1889), when addressing a vacancy case, the Texas Supreme Court

explained that when the evidence indisputably fixes one corner of a

survey as a shared border of a tract, the corner “gives us the disputed

line, a common boundary of [the tracts involved], dispelling the idea of

any vacancy between them.” We apply that principle here. If the open

calls for adjoinder tie the José Delgado and William Young League

Survey’s together such that they have a common border, a reasonable

jury could reach just one conclusion—no vacant land existed when the 41 GLO found a 134-acre vacancy existed between the borders of the

William Young League and José Delgado Surveys. 28

Ultimately, the question about whether Allen’s evidence raises an

issue of material fact boils down to whether Thomson’s report and

unsworn declaration is reliable as summary-judgment proof. At the

summary-judgment stage, the unreliable opinion of an expert is not

competent evidence, and since it is not competent evidence it will not

create a fact issue that precludes a court from granting a motion for

summary judgment. 29 That’s because unreliable testimony “is no more

than subjective belief or unsupported speculation.” 30 In the case of an

expert, when “the expert brings only his credentials and a subjective

opinion, his testimony is fundamentally unsupported and therefore is of

28The length of the border in the northeastern section of the Delgado Survey wasn’t in dispute. The dispute was whether as it relates to the 134-acre tract the Delgado Survey and the William Young League Survey share a border or whether a vacancy existed in 1907 between the William League and José Delgado Survey’s borders of about 134 acres. 29Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 410 n.23 (Tex. 2016)

(“Unreliable expert testimony is legally no evidence.”); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997) (“If the expert’s scientific testimony is not reliable, it is not evidence.”). 30E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557

(Tex. 1995) (cleaned up). 42 no assistance to the jury.” 31 The Texas Supreme Court has explained why

incompetent expert testimony amounts to no evidence this way:

The mere ipse dixit of the expert—that is, asking the jury to take the expert’s word for it because he is an expert—will not suffice. Instead, an expert’s conclusions must have a reliable basis other than the expert’s say-so. And if no basis for the expert opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence. 32

When assessing an expert’s reliability, “courts must consider not

just whether the expert’s methods are grounded in science, but also

whether the data to which the expert applies his methods are reliable.”33

Experts may not base opinions on data drawn from data that is

unreliable. 34 “[A]n expert’s testimony is unreliable even when the

underlying data are sound if the expert draws conclusions from that data

based on flawed methodology. A flaw in the expert’s reasoning from the

data may render reliance on a study unreasonable and render the

31Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 801 (Tex.

2006). 32Helena Chem. Co. v. Cox, 664 S.W.3d at 73 (internal quotations

and citations omitted). 33Id. at 73-74. 34Merrell Dow Pharms., Inc., 953 S.W.2d at 714.

43 inferences drawn therefrom dubious.” 35 Likewise, “if an expert’s opinion

is based on certain assumptions about the facts, we cannot disregard

evidence showing those assumptions were unfounded.” 36

Expert testimony may also become too unreliable to serve as

evidence when there is too “great an analytical gap between the data and

the opinion proffered.” 37 When courts are asked to examine the testimony

of an expert, they do not “ignore fatal gaps in an expert’s analysis or

assertions that are simply incorrect.” 38 “Analytical gaps may include

circumstances in which the expert unreasonably applies otherwise sound

principles and methodologies, the expert’s opinion is based on assumed

facts that vary materially from the facts in the record, or the expert’s

opinion is based on tests or data that do not support the conclusions

reached.” 39

35Id. 36City of Keller, 168 S.W.3d at 813. 37Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013). 38Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex.

2004). 39Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 349 (Tex.

2015) (citations omitted). 44 We conclude that Thomson’s analysis about whether a vacancy

existed prior to 1907 between the borders of the William Young League

and José Delgado Surveys in the area at issue is analytically flawed for

these three reasons. First, at the outset of his report Thomson expressly

recognized that his opinions were based on data that wasn’t complete:

“The report is preliminary in that I haven’t reached final conclusions or

formed final opinions about all matters essential to my ultimate

conclusions and opinions.” He signed the unsworn declaration just two

days later, and nothing in his unsworn declaration shows that he had

reviewed any additional material or that the data he reviewed was

complete. We recognize that Thomson states that he has “seen enough”

to form an opinion that the GLO “properly recognized” the Bristley

Survey as a vacancy. But his statement that another office found a

vacancy proper is no more than ipse dixit, as the explanation doesn’t

explain why if there were mistakes as he claimed why the vacancy that

he claims occurred would have occurred in the location at issue within a

4,600-acre tract as opposed to somewhere else. And importantly,

Thomson’s unsworn declaration and report fail to explain why room for a

vacancy could exist when the calls for adjoinder in Minter’s 1874 survey 45 and Turner’s 1860 survey include open calls for adjoinder to the T & NO

Railway Surveys, calls that created a common border in the area at issue

in this dispute, and calls that leave no room for a vacancy between the

common border shared by the William Young League Survey and the José

Delgado Survey, tying the borders of those two surveys to the T & NO

Railway Survey.

Second, unlike Thomson, Townsend performed work in the field and

prepared a plat to support her opinion that the Bristley Survey is located

within the boundaries of the José Delgado Survey. Because the 134-acre

tract lies within the José Delgado Survey’s borders, the Bristley Survey

never existed as a “separate parcel of property” when the GLO declared

it vacant. Thomson also failed to address all the natural and artificial

monuments that Townsend found when performing her work in the field

to support the opinion she expressed in her report, and he didn’t explain

why those calls don’t offer further support for Townsend’s opinion that

the call for adjoinder at issue to the T & NO Railway Surveys have

priority over the calls for course and distance in Minter’s 1874 survey as

they relate to the boundary at issue.

46 Third, Thomson failed to explain why, even if Minter’s survey

conveys more than one league and labor of land, that the excess land

conveyed to the Delgado heirs would result in a 134-acre vacancy in the

area at issue in the dispute. Stated another way, Thomson doesn’t

explain why T.C. Turner, who surveyed the property in 1860 for the

headright certificate, or James Minter, who surveyed the property in

1874 to update surveys performed after 1860, would have intended to

create a strip of vacant land between two existing senior surveys when

they described the borders of the José Delgado Survey, or why Minter

would not have known where the boundaries were of the senior surveys

to the José Delgado Survey when including the calls for adjoinder to the

corners of existing senior surveys.

We hold that Allen’ response to Crown’s motion fails to present

sufficient evidence to raise an issue of material fact to meet his burden of

proof to overcome Crown’s evidence that Crown has superior title to the

134-acre tract at issue in the parties’ dispute. Allen’s third issue is

overruled.

47 B. Do Allen’s tax deeds give him superior title in the 134-acre tract to that of Crown?

Next, we must decide whether the tax deeds conveying the tract to

Allen is void as against Crown’s claim that it has superior title to the

tract. To decide that question, we must determine whether the

Commissioner of the GLO had the authority to authorize the sale of

property that, in 1907, the state did not own.

In 1907, the year the Land Commissioner recognized the vacancy

at issue, the Commissioner of the GLO had the authority to declare a

vacancy between “older surveys” under the two conditions: (1) if the 134

acres at issue was “unappropriated public domain remaining in the State

of Texas” as of February 23, 1900 under the Public Domain—School

Lands Act; 40 and (2) if the land was, on or after April 15, 1905, either still

unsurveyed or vacant under the Lands, School and Asylum Act. 41 As we

40Act of February 23, 1900, 26th Leg., 1st C.S., ch. IX, § 1, 1900 Tex.

Gen. Laws, 29, 31, repealed by Act of June 21, 1969, 61st Leg., R.S., Ch. 889, section 15.01(a), 1969 Tex. Gen. Laws 2735, 2798-99 (current version at Tex. Educ. Code Ann. § 43.001(a), which with exceptions not relevant here provides that the permanent school fund consists of “all of the unappropriated public domain remaining in this state”). 41Act of April 15, 1905, 29th Leg., R.S., ch. 103, § 8, 1905 Tex. Gen.

Laws 159 (repealed 1969). Currently, the School Land Board is the body

48 have already concluded that when the GLO declared the vacancy in 1907

that the 134 acres involved had already been conveyed to the Delgado

heirs, we conclude the Commissioner of the GLO was not authorized to

declare the 134 acres vacant. In 1907, the 134 acres—put simply—was

not “unappropriated public domain.” 42

Our holding follows the Texas Supreme Court’s holding in State v.

Bradford, 121 Tex. 515, 552, 50 S.W.2d 1065, 1080 (1932). There, the

Bradford Court explained that a fact issue existed about whether land,

where a stream was located, was navigable because if it wasn’t, the

Commissioner of the Land Office was not authorized to declare it vacant,

explaining:

So long as the patents and awards issued by the State, through its

proper officers . . . remain uncancelled, the Land Commissioner has no

authority to annul them. To annul patents and awards is not a

having the authority to approve tracts of public land owned by the state for sale (except for the state’s mineral interest in the tract) under the provisions that are in sections 11.084 and 51.011 of the Texas Natural Resources Code. Tex. Nat. Res. Code Ann. §§ 11.084, 51.011 (Supp). Allen did not argue in the trial court, and he does not argue in the appeal that these provisions applied to Crown. 42Id.

49 ministerial duty and under the law no such duty in this respect rests

upon the land Commissioner. This requires the exercise of judicial

authority. . . The patents and awards issued by the proper officers stand

as a barrier to [selling the rights issued under those patents or awards to

others]. 43

When something is void, it is “[o]f no legal effect, null.” 44 In Texas,

it has long been settled that,

a patent which has been issued contrary to law is void. It is too firmly settled by the whole current of judicial decisions on the point to be now questioned, that the issuance of a patent is a ministerial act, and must be performed according to law; if it is issued against law it is void. Such is the character of the defendant’s title. His location was made upon land which had been reserved from location, and which was not liable to be thus appropriated; and this was the case when the patent issued. It was, therefore, issued contrary to law, and is consequently void. It is an elementary principle not to be touched, that an act, in order to be valid, must be legal. An act which is done contrary to law must be held void. 45

43State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1080 (1932). 44Void, Black’s Law Dictionary 1798 (9th ed. 2009). 45Sherwood v. Fleming, 25 Tex. 408, 427 (1860) (internal citations

omitted). 50 Allen’s title to the 134-acre tract is tied to the deeds he obtained in

March 2016 following a tax foreclosure sale. To be sure, Allen has deeds

to the 134-acre tract that he obtained in a tax sale, but the only interest

a purchaser in a tax sale obtains in property acquired in a tax sale is the

interest that is owned by the defendant or defendants on whom the taxing

entities foreclosed. 46 Tax Code section 34.01(n) provides that a tax deed

“vests good and perfect title in the purchaser or the purchaser’s assigns

to the interest owned by the defendant in the property subject to the

foreclosure.” 47 Thus, the tax deeds gave Allen no better title than his

predecessors in the 134-acre tract. And as we have explained, the land

patent the governor signed in 1907 conveying the 134-acre tract to

George R.L. Bristley is void because when the state issued the 1907

patent it did not own the 134-acre tract.

In his remaining arguments, Allen claims that Crown cannot

challenge the validity of his title to the 134-acre tract because the Tax

Code has a one and two-year statute-of-limitation defense that applies to

Crown and that Crown failed to deposit the tax debt and other amounts

46Tex. Tax Code Ann. § 34.01(n). 47Id.

51 required by the Tax Code to be deposited in the registry of the court as a

prerequisite to challenging his deeds. 48 These claims lack merit because

Allen acquired the same interest his predecessors in title had to the 134-

acre tract. As against Crown’s claim, a claim traced to the Delgado

Patent, Allen’s claim is unenforceable. 49

In Johnson v. Liberty County, No. 09-15-00410-CV, 2016 WL

4040143, at *10 (Tex. App.—Beaumont July 28, 2016, no pet.) (mem. op.),

we held that the prescriptive periods of limitations and restrictions in the

Tax Code do not apply when the tax deed at issue is void. Several of our

sister courts of appeal that have considered the issue have reached the

same conclusion, holding that tax deeds that are void are subject to

48See id. § 34.08, 33.54(a). 49See Bradford, 50 S.W.2d at 1080 (“It is not the public policy of this

State to place public lands upon the market for sale where they have already been sold and are held by patents and awards or other conveyances regularly issued by the officers of this State, and claimed and occupied by those who hold ‘under color of title from the sovereignty of the State.’”); Guenther v. Robison, 118 Tex. 485, 17 S.W.2d 765, 766 (1929) (orig. proceeding) (Comm. Section A) (“No law can be found which undertakes to authorize the Land Commissioner, except at the instance of patent holders in cases specified in the statutes, to annul any patent which has been fully executed by the proper officials. This requires the exercise of judicial authority. No such authority appertains to his office, and no duty in this respect rests upon him. The patent in question stands as a barrier to the issuance of the permit sought by the relator.”). 52 collateral attack. 50 Additionally, a plaintiff may challenge a tax deed that

is void and the challenge is not subject to the affirmative defenses that

are in the Tax Code. 51 Accordingly, we overrule Allen’s first and second

issues.

IV. Conclusion

Having overruled Allen’s issues, we hold that Crown’s summary-

judgment evidence establishes that it has superior title to the property

at issue in the suit to that of Allen—property that Allen’s tax deeds

describe as 134 acres, more or less, tract 1, G.R.L. Bristley Survey,

Abstract 907, more fully described in volume 1180, page 216 of the deed

records of Liberty County, Texas. 52 We also hold the trial court correctly

granted Crown’s motion for summary judgment and denied Allen’s.

50Cuanto Antex Mejor, L.L.C. v. EOG Resources, Inc., No. 04-17- 00504-CV, 2018 WL 1733174, at *5 (Tex. App.—San Antonio Apr. 11, 2018, no pet.) (mem. op.); Sec. State Bank & Trust v. Bexar Cnty., 397 S.W.3d 715, 723-24 (Tex. App.–San Antonio 2012, pet. denied); Hays v. Butler, 295 S.W.3d 53, 57-58 (Tex. App.–Houston [1st Dist.] 2009, no pet.); Mem’l Park Med. Ctr., Inc. v. River Bend Dev. Grp., L.P., 264 S.W.3d 810, 813-17 (Tex. App.–Eastland 2008, no pet.). 51Id. 52The deed that purports to convey Allen a 75% interest in the 134-

acre tract misspells “Bristley,” spelling it “Bristly.” 53 The trial court’s judgment is affirmed.

AFFIRMED.

HOLLIS HORTON Justice

Submitted on August 31, 2023 Opinion Delivered June 20, 2024

Before Golemon, C.J., Horton and Wright, JJ.