,’ 

,'Nonorable'Ray Winder 

:County~ Attor ney 

C,ooke County 

Gainesville. Texas 

DearSIr: opinion NO. o-6579- 

Re: Whether that part of ~:gil;e 

Texoma,into which Bl.ckory 

Creek flows is "a public 

body of surface water (3f 

this State',' within the 

meaning of Article @8b, 

Vernon'8 Annotated Penal 

'Code, prohibiting pcllution of public bodies cf 

surface'water. 

This will acknowledge receipt of your letter dated 

May 9, 1945, requesting fan opinion of this department which 

reads in part as follows: 

," Reference is had to Article 698b, Penal Code 

of the State of Texas, on the subjeot of pollution 

of public bodies of surface water in Texas. 

II . . . . 

%ickory Creek is situated in the Walnut Bend 

Oil Field area of Cooke County. It ia a small creek: 

often dry, but when it ,rains there is sometimes considerable water flowing through it. This creek flows 

into Texoma Lake and I understand this Lake is owned 

by the Federal Government. There is no stream or 

other body of water flowing into Hickory Creek, but 

as aforesaid, Hickory Creek flows into said La'ke 

Texoma. 

"In view of then definition of 'public body of 

surface water of this State', set forth In Sec. 3 c;f 

aaid~Act, and the fact that Hickory Creek is 

not subject to overflow from or into a stream, 

which Is the property of the State of Texas 

or any subdivision thereof, and due to the 

fa~ct that said Hickory Creek overflows into 
- . . 

Honorable Ray Winder, page 2 (0-6579) 

Lake Texoma, which is understood to be the 

property of the United States and not the' 

property of the State of Texas or any subdlvision thereof, your opinion Is desired as to 

whether pollution of Hickory Creek is an 

offense under said law. 

"In this connection your attention Is invited to Article ,4444, Revised Civil Statutes 

of Texas, authorizlnp injunction against persons, corporations, etc., to prevent further 

polluting of public waters. 

"It la the opinion of the writer that by 

reason of the peculiar wording of Sec. 3, Article 698b, Penal Code, no offense is committed 

by reason of the pollution of Hickory Creek in 

Cooke County, and that the only remedy available 

for such pollution in this particular case is by 

injunction under the provisions of Article 4444, 

Revised Civil Statutes, which the case of Goldsmith 

& Powell vs. State, 159 S.W. (2) 534, error refused, 

holds may be granted without a prior conviction 

under the Criminal Statute. 

II II . . . * 

Article 698b, Vernon's Annotated Penal Code, reads 

in part as follows: 

II . . . . 

"'Sec. 2. 'Pollute' is hereby defined to be 

the throwing, discharging, or otherwise permitting 

to reach or to be introduced into any public body 

of surface water of this State any substance, 

material or thing In such 'quantity that the said 

water is thereby rendered unfit for one or more 

of the beneficial uses for which such water was 

fit or suitable prior to the introduction of 

such substance, material or thing, or is thereby 

rendered harmful to public health, game birds, 

or game animals, fish or other edible aquatic 

animals, or endangers any wharf, or endangers or 

hinders the operation of any boat, or renders insanitary or unclean any bathing beach. 
Honorable Ray Winder, page 3 (0-6579) 

“Sec. 3. The term 'public body of surface 

water of this State' shall Include all surface 

creeks, rivers, streams, bayous, lagoons, lake? 

and bodies of surface wrtersthat are fed by a 

stream or.are subject to overflow from or into 

a stream which are the property of the State of 

Texas or any subdivision thereof, and all portions of the Gulf of Mexico within the gulfward 

boundary of the State of Texas and all inland 

waters of the State of Texas in which the tide 

ebbs and flows . . . .' 

We usually accept the facts stated in an opinion 

request as the basis of our opinion. However, as a constitutional officer, the Attorney General, like the Courts, is 

bound to take notice of the territorial extent of the jurisdiction exercised by the government whose laws he administers. 

Accordingly, we must inquire into your statement that Lake 

Texoma "is owned by the Federal Government". Since the United 

States is a sovereign, the extent of the territorial jurisdiction of Texas is involved in the question. 

We accept your statement "that Hickory Creek is not 

subject to overflow from or into a stream, which is the property of the State of Texas or any subdivision thereof." Section 3 of Arbicle 698b provides, however, that "The term 

'public body of surface water of this State' shall include all 

. . . lakes . ..that are fed by a stream or are subject to overflow from . ..a stream which are the property of the State of 

Texas . . . ..'I This statute does not provide that the "lakes" 

be "the property of the State of Texas" but merely that the 

stream which flows into the lake be "the property of the State 

of Texas." However, if Texas has no jurisdiction over that 

part of Lake Texoma into which Hickory Creek i'lows and if that 

part of the Lake is,exclusivelg within the jurisdiction of the 

United States, the:$ower of Texas to denominate such a lake 

a "public ,body of surface water of this State" might well be 

questioned. Your opinion request, therefore, raises two 

questions: first, whether or not Kickory Creek, as a stream, is 

"the property of the State of Texas" and second,whether or not 

that part of Lake Texoma into which Hickory Creek flows is a 

public body of surface water of this State." 

In passing on the first question, it is not necessary 

to determine who owns the bed of Hickory Creek. If that 

stream has an average widt=f 30 feet from its mouth up to any 

given point, such portion of the bed of the stream is the 

property of the State of Texas. 

34 Texas Jurisprudence 86. 

Article 5302, V. A. C. S. 

The State's ownership of the bed 

of statutory navigable streams which are crossed by the lines 
Honorable Ray winder, page 4 (O-6579) 

of the original survey, was relinquished by Article 5414a 

V. A. C. S. to the extent necessary to make up the acreage 

called for in the original grant or patent. State vs. Bradford, 121 Tex. 515, 50 S. W. (26) 1065; Heard vs. Town of 

Refugio, 129 Tex. 349, 103 9. W. (2d) 728. But regardless of 

who owns the bed of Hickory Creek, we are of the opinion that 

the waters of the creek are the property of the State. 

Article 7467, V. A. C. S. provides In part: 

"The waters of the ordinary flow and underflow and 

tides of every flowing river or natural stream, of all 

lakes, bays or arms of the Gulf of Mexico, and the 

storm, flood or rain waters ofevery river or natural 

stream, canyon, ravine, depression or watershed, wlthin 

the State of Texas, are hereby declared to be the property of the State, and the right to the use thereof may 

be acquired by appropriation in the manner and for the 

uses and purposes hereinafter provided, and may be taken 

or divertea fromits natural channel for any of the purposes expressed in this chapter. . . .' 

In construing this statute, the Supreme Court in 

Turner vs. Big Lake Oil Co., 128 Tex. 155, 96 S. W. (2d) 

221, at page 228 said: 

"The contention here is that this article, 

particularly the italicized words, makes the 

water from rainfall while on the watershed, or 

in ravines and draws, and while it is still 

regarded in law and fact as surface water, and 

before it has reached a riparlan or public 

stream. public waters, the pollution of which 

is prohibited by positive enactment. 

"The statute is capable of this construction 

if it alone were to be looked to for its meaning. 

It must he interpreted, however, in the light of 

the Constitution and of the common law and Mexican 

Civil law under which lands have been granted %n 

this State. Miller v. Letzerich, 121 Tex. 248, 

49 S. W. (2d) 404, 85 A.L.R. 451. 

'bnder both the common law and the Mexican 

civil law, the owners of the soil on which rains 

may fall and the surface waters gather are the 

proprie'tors of the water so 1.ong as it remains On 

their land, and prior to it? passage into a natural 

water course to which riparian rights may attach. 

Farnham on Water Rights, vol. 3 .! 883, and cases 
Honorable Ray Winder, page 5 (O-6579) 

cited in 

49 S. W. 

the note; Miller v. 

(2d) 404, 85 A.L.R. 

Letzrich, 121 Tex. 248, 

451; Hall's Mexican Law 

254 256, 

(1865) 

p. 402, 8 1372. 

"No citation of authority is necessary to demonstrate . 

that the right of a laridowner to the rainwater which falls on his 

land is a property right which vested In him when the grant was 

made. Being a property right, the Legislature is without power 

to take it from him or to declare it public property and subject 

by appropriation or otherwise to the use of another. This Is 

so regardless of the question as to whether the grant was made by 

Texas or Mexico. Miller v. Letzerich, 121 Tex. 248, 49 5. W. 

(2d) 404, 85 A. L. R. 451. . a” 

You have not given us many facts as to Hickory Creek but 

from the facts that you give us we believe that under Texas decisions 

it is clearly "a natural water course to which riparian rights 

mav attach." 44 Tex. Jur. 14. 17. Miller vs. Letzerich. 121 Tex. 

~?&, 49 S. W. (26)~ 404, 85 AiL.R'. 451; Mot1 v. Boyd, llj Tex. 

286 S. W. 458. Hoefs,V. Short, 114 Texi.501, 273 S. W. 785. 40 

82, 

A. L. R. 833;*International Gieat Horthern &. &. vs. Reagan, 121 

Tex.'233, 49 S. W.,(2d) 414. In Hoefs vs. Short, supratt the 

Supreme Court held that Barilla Creek In Reeves County is a stream 

to which lrrigable rights attach." The Court in that case said: 

$1 . . . . 

"These authorities and others which follow show that, 

while the rule as ordinarily expressed is that a water course 

must have a well-defined channel, bed, and banks, yet there 

may be instances where these are slight, imperceptible, or 

absent, and still a water course exist. 

"All authorites agree that a current of water Is 

necessary, yet the flow of water need not be continuous, and 

the stream may be dry for long perj~ods 9f time. Authorities 

. 1 K nney 

::t"t;aid.) 4 

on Irrigation B 307; Angel1 on Water Courses 

4, 27 Ruling Case Law, pp 1063, 1066, 1067. 

"Mr. Kinney, in the text cited (section 307), says: 

'Those who are acquainted with the streams and water 

courses of the arid Roclq Mountain region of this country, 

draining as they do to steep, mountainous areas, with their 

swift currents running over gravelly and rocky bottoms, know 

that often in the dry summer months many of them are entirely 

drg, at least upon the surface. All of them, nevertheless, 

have well-defined beds, channels, banks, and currents of water, 

at least the greater portion of the year, and are In every 

regpect water courses to which water rights may 
Honorable Ray Winder, page 6 (O-6579) 

attach. But it would be plainly impracticable in 

this western part of the countr:: to require that, 

in order to constitute a water course upon which 

rights may attach, there must be a continuous, uninterrupted, and perennial flow of water during 

the entire year, and from year to year. Hence the 

requirement of the law is that In order to constitute a water course the stream need not flow all of 

the time.' 

"The general rule is that ravines, swales, 

sloughs, swamps and marshes are not water courses, 

and yet they are somet imfe. 

"Again, it is sometimes said that, in order 

to constitute a water course, there must be something more than mere surface drainage over the 

entire face of a tract of land, occasioned by 

unusual freshets or other extraordinary causer. 

The authorities say that this is true in its 

strict sense, but that surface water may collect 

from such a large drainage area and be so continuous in its flow as to constitute s water 

course. 1 Kinney on Irrigation, 3 306, 312, 314, 

315, 317; 27 Ruling Case zaw, p. 1063. . . .' 

It it a fact question as to whether Hickory Creek is 

a "natural stream" within the meaning of Article 7467 and this 

can be determined as a matter of law by proof of the extent of 

the water shed it serves, the character of its bed and banks, 

the length -nd width of the stream and the volume and frequency 

of its flow. The court? will take judicial knowledge of as 

many of these facts of the natural features of the State as it 

can obtain from reliable hourcez but it is well to make such 

facts readily accessible by proving them in the trial. Hoers 

vs. Short, aupra, International Great Northern R. Co. vs. 

Reagan, eupra. 

In Goldsmith & Powell, et al, vs. State, 159 S. W. 

(2d) 534, cited in your opinion request, the court said: 

"The waters of all natural streams of this 

State and of all fish and other aquatic life contained in fresh water rivers, creeks, streams and 

lakes, or sloughs subject to overflow from rivers 

or other streams within the borders of this State, 

are declared to be the property of the State; and 

the Game, Fish and Oyster Commissioner has jurisdiction over and control of such rivers and 

aquatic life. Arts. 4026 and 7467 R.C.S. The ownership is in trust for the people (Hoefe v. Short, 114 
Honorable Ray Winder, page 7 (O-6579) 

i.: 

Tex. 501, 273 S.W. 785, 40 A.L.R. 833); and pollution of streams and water cour3e3 Is condemned by 

both the civil statute@. Art. 4444 and Vernon'e 

Annotated Penal Code Prta. 697, 698, and Art. 

The Constitution of Texae Art. 16 

@zEz: Vernon'3 Ann. St deaLgnater(ki:rlvers and 

rtrenm3 a3 natural re3Zrce3, declare3 that such 

belong to the State, and expressly invests the 

Legislature with the preservation and coneervation 

of 3uch resources . . ." 

We, therefore, conclude that the water3 of Rlckorg 

Creek are "property of the State of Texas" m the meaning ' 

of Section 3 of Article 698a, V. A. P. C. 

The second question Involved in your inquiry is 

whether or not that part of Lake Texoma into which Hickory 

Creek flow3 is a "public body of surface water of this State." 

We 3re concerned here with the question of the territorial 

limLt3 of the State ?nd if any part of Lake Texoma is subject 

to the political jurisdiction of Texas, whether or not that 

part of the lake 13 navigable in fact. 

In Oklahoma vs. Texas, 258 u. s. 574, 42 sup. ct. 

406, 66 L. Ed. 771, the Supreme Court held that no part of 

Red River in Oklahoma is navigable in fact and a3 a ncn-navlgable 3tream the ownership of the bed remained in the UnFted State3 

qnd did not pa33 to the State of Oklahoma upon the admlssion 

of thatState into the union, on November 16, 1907. In other 

opinion3 In the 3ame ca3e the Supreme Court fixed the boundary 

cf Texa3 a3 the foot of the Texas Bluff3 on the South bank of 

Red River or on and along the cut bank of the river on the 

south side "at the mean level of the water when it waahea the 

bank without overflowing it." 252 U. S. 372, 40 Sup. Ct. 353, 

64 L. Ed. 619, 260 U. S. 606, 43 Sup. Ct. 221, 67 L. Ed. 426. 

The North boundary of Texa~a wa3 fixed and marked pureuant to 

the aeveral decision3 rendered in Oklahoma v3. Texas and such 

boundary ia the present boundary of Texas. Texas atill ha3 

jurizdiction over that part of Lake Texoma within it3 pre3ent 

boundaries, unlese it ha3 loat it3 jurisdiction by a deed of 

c?aaion to the United States. 

When the Federal Government constructed the dam at 

Denison, the water3 of Red River which were impounded by the 

dam covered the line which had been marked a3 the boundary of 

Texaz . When the water3 of Lake Texoma reach the spillw3y, (an 

elevation of 640 feet) they will inundate 41,000 acre3 of land 

in Texas, Hickory Creek 1.n Cooke County flow3 into this part 

of the Lake. Our inquiry here Is whether thl.3 part of Lake 

Texoma i.3 part of the State of Texas and subject to its pollti- 
Honorable Rag Winder, page 8 (o-6579) 

cal jurisdiction. 

The case of Curry va. State, 12 9. W. (2d) 796 is 

declcive of thle question no far aa your inquiry la concerned. 

In that case, the appellant wa3 convicted of the offense of 

unlawfully seining within certain prohibited water3 in Nueces 

County. It was shown that the offense wa3 committed within 

the United State3 reservation at Port Aranaa3, Texas. "This 

land on the date of the alleged offense wa3 shown to be a United 

State3 Military reservation, in use a3 such and being in the 

actual custody and control of the War Department of the United 

States Government." In a well reasoned opinion the Court of 

Criminal Appeal3 affirmed the conviction and held that Texas had 

nearer lost jurisdiction over the land 3Ftuated in the reservirtlon. The Court pointed out that "there is neither constitutional nor statutory inhibition again3t ownership of land by 

the United State3 government Fn Texas" but it held that the 

only mean3 by which the United State3 government could acquire 

constitutional jurisdiction over the land 30 acquired, to the 

exclusion of Texas jurisdiction, wa.s by procuring a deed of 

cession from the Governor of Texas, pursuant to Article 5247 

V.A .c .s. The court in that case took judicial notice of the 

fact that no deed or ce asion had been made to the land included 

in the United State3 re3ervation at Port Aranaaa. 

We have examined the record3 of the office of the 

Secretary of State and fFnd no deed of cession to the land in 

Texas which ie presently covered by the water3 of Lake Texoma. 

That part of the Lake i3 therefore at111 subject to the jurladiction of the State of Texa3. Fort Leavenworth R. Co. vc. bwe, 

114 U. S. 525. 5 Sup. Ct. 995, 29 L. Ed. 264, Surplus Trading 

Company vs. Cook, 309 U. S. 104, 60 s. ct. 436, 84 L. Ed. 603. 

There 3till remain3 the question of whether or not that 

part of Lake Texoma which ia subject to the political jurirdictlon of Texas 13 "a public body of surface water". In Texas, 

the question of whether a lake is a public or private body of 

water is determined by whether or not it ia navigable in fact. 

Welder v3. State, 196 S. W. 868, error refused; Taglor~Fishing Club vs. Hammett, 88 5. W. (2d) 127, error diamizsed. 

This is the rule at common law and the rule with reference to 

public waters of the United States. United State3 v3. Halt 

State Bank, 270 u. S. 49, 46 sup. Ct. 197, 70 I,. Ed. 465; 

yr;in ;J~ Jordan, 140 0. 9. 371, 11 5. ct. 808, 838; 35 

. . . From the data available to us it appear3 that the 

reservoir of Lake Texoma ia the 3ixth large3t In the Unlted 

State3 and V& the lake is full it will have Inundated 26,000 

acre3 in Texas 9 69,000 acre3 in Oklahoma. This total3 approximately 140 square miles. This ia based on elevation at 

617 feet which i3 the normal pool. At elevation of 640 feet 
Honorable Ray Winder, page 9, (O-6579) 

.” 

(spillway crest), reservoir will inundate 41,000 acres in 

Texas and 105,000 acres in Oklahoma for approximately 220 

square milea. It appears that Lake Taxoar, is a navigable lake 

in fact and In the authorities aJove cited. Welder 

v3. State, aupra, nited States v3. Holt State Bank, supra. 

We assume that the Federal Government has purchased 

from the various owners thereof all of the land presently covered by that part of Lake Texoma which is situated in Texas. 

The fact of ownership of this land In a proprietary capacity 

does not, under State law, destroy the public character of the 

water which overlays the land. Diversion Lake Club vs. Heath, 

126 Tex. 129, S 6 S. W. (2d) 441. In that ca3e the fact3 were 

that a dam was constructed across the Medina River causing the 

waters of the river to form Diversion Lake which covered the 

land3 owned by the Diversion Lake Club. The Club contended that 

it was a private and not a public lake and that the public had 

no right to fish in it. In holding that the watera of the lake 

were public waters, the Supreme Court said: 

"Plaintiff in error insists that, even if defendant3 in error should be accorded the right to fish in 

the water3 of the lake above what waz the bed of the 

river, they would in no event he entitled to fish in 

that part of the water above 30 much of the bed of the 

1a':e a3 is owned by plaintiff in error. This position 

Is untenable, because the water of the lake, notwithstanding the fact that most of ik3 bed is privately 

owned, 13 still public water. It is a part of the flood 

water of Medina river which the irrigation company ha3 

the right to impound and divert for irrigation. The 

permit acquired by the irrigatFon company carried with 

it the incidental right to cotztruct and maintain the 

dam and the lake. It gave no title to the water, but 

nnly the right to divert and use 30 much of the water 

appropriated a3 might be necessarily required when 

beneficially used for the purposr for which it wa3 

appropriated. R. 5. 1925, arts. 7467, 7468, 7473, 7476, 

7492, 7515 and 7543; Mot1 v. Boyd, 116 Tex. 82, 125, 

126, 286 S. w. 458. It gave no title to the fish in 

the water of the lake, no exclusive right to take 

the flab from the lake, and no right to interfere 

with the public Ln their use of the river and its 

water3 for navigation, fishing, and other lawful 

purposes further than interference necessarily resulted from the construction and maintenance of the 

dams and lake3 in zuch manner a3 reasonably 

to accompli3h the purpose of the appropriation. 
Honorable Ray Winder, page 10 (O-6579) 

"When the Irrigation company, plaintiff in 

error's predecessor in title, constructed the 

dam across the rLver, it caused by its voluntary 

act the flood watera of the river, public waters, 

to spread over the land which it had acquired, 

submerping and in effect destroying a portion of 

the river bed, and gFving to the public waters a 

new bed. This artificial change tn 'ha river and 

its bed did not affect the public nature of the 

waters and did not take away the right of the 

public to uze them for fishing. Dcuglaa v. 

Bergland, 216 Mich. 380, 185 N. W. 819, 20 A.L.R. 

197; Mendota Club v. Anderson, 101 Wia. 479, 78 

N. W. 185; Pewaukee v. Savoy, 103 Wia. 271, 79 N.W. 

436, 50 L.R.A. 836, 74 Am. St. Rep. 859; 27 R.C.L. 

p. 1205, S 122. . . ." 

There Fs no question here of any conflict between 

State and Federal regulations with reference to the use of the 

waters of Lake Texoma. We hold only that until a deed of cession 

is made by the Governor of Texas to the United States ceding the 

land in Texas covered by the waters of Lake Texoma, that such 

waters constFtute a "public body of ourface water of this State." 

We are, therefore, of the opinion that the pollution 

of Hickory Creek Fe an offense under Article 698a, Vernon's 

Ann. Penal Code. 

APPROVED JUN 4, 1945 Yours very truly, 

/i/ Grover Sellers ATTORNEY GENERAL OF TEXAS 

ATTORNEY GENERAL OF TEXAS 

APPROVED 

OPINION 

COMMITmEE 

g.&!$~ 

By /s/ Fagan Dickson 

Fagan Dickson 

Asaiatant 

FD:rt-dhs