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Honorable Homer Garrison, Jr.,Director TexasDepartment of Public Safety CampMabrg Austin 9, Texas

Dear Mr. Garrison:' Opinion No. O-7190

Re: What comprises the boundary of the States of Louisiana and Texas relative to the Sabine River.

We are inreceipt of your letter of recent date requesting our opinion on the above captionedmatter,which reads as follows:

"Wehavebeen requested by CaptainH. B. Purvls of the TexasRangers, stationed inHouston, to obtain fromyou an opiniondetermining the boundary of the State of Louisiana inrelation to the Sabine River.

"It is Captain Purvis's understanding that the State of Louislana has jurisdictionto thewest bank of the SabineRiver through a treaty agreement between the two states.
"Any information that you might be able to give
us on this subjectwould be greatly appreciated."

In order to properlydetermine the boundary between the two states involved, it 1s necessary for us to give a short summary of the history of both states.

The original territory of Louisianawas acquired France In 1803. A portion of this territory comprising of the present State of Louisiana and the area south of tude 310 eastward to the Perdido, claimedby the United from partlatiStatesteras part of the Louisiana purchase,was organized into a ritorg under the name of Orleans,and the rest of the Louisiana purchasewas named theDistrict of Louisiana (2Stat. L. 283). This namewas changed to the Terrltory of Louisiana by act of March 3, 1805, 2d Stat. L. 331 and by act of congress ofApril 8, 1812, (2Stat.L. 7O2), effectiveApril 30, the territory of Orleans, except the area north and east of Lake Pontchartraln,Honorable Homer Garrison, Jr., page 2 O-7190

which was added by a later act, was admitted as a State under the name of Loulsiana and by the act of June 4, 1812 the name of the territory of Louislanawas changed to Missouri terrltory. In the sameyear the limits of the statewere enlarged
on the southeast to their present extent, 2d Stat. L. 708. The United States claim to the area between the Sabine and Mississippiwas not recognized by Spaln until 1819 (seetreaty between the United States and Spain, 1819).

The act approvedMarch 26, 1804 (2dStat. L. 283) defines the territory of Orleans as:

"Beginningat the mouth of the river Sablne; thence bv a line to be drawn along the middle of said river, includingall islands, to the thirty-seconddegree of latitude: thencedue north. to the northernmostDart of the thirty-thirddegree of>north latitude; thence~along the said parallel of latitude to the river Mississippi; thence down the said river to the river Iberville,and from thence along the middle of the said river and lakes Maurepas and Pontchartrain to the Gulf of Mexico; thence, bounded by the saidgulf, to the place of beginning, lneluding all islandswithin three leagues of the coast." (Emphasisadded).

The land enclosed in the above field notes to the territory of Orleans,was admitted as a State under the name of Louisiana.

Texas declared its independenceof Mexico in 1835. In 1836 the Congress of the Republic of Texas defined the boundary as extending south andwest to the Rio Grande and northward from the source of that river to the 42na parallel, the eastern and northern limits coincidingwith thewestern boundary of the United States as laiddown In the treatywith Spain in 1819. This area comprisedall of the formerMexican states of Coahuila and Texas. The boundary as fixed by the treaty of 1819 was reaffirmed by treatywith Mexico concluded January 12, 1828, Mexico having in the meantime gained its independencefrom Spain. This treatywith Spain became effective February 22, 1821 by presidentialproclamation. These boundarieswere formally recognizedby the United States,Act of September 9, 1850. 9 Stat. L. 447. See Spillman,W. J., Adjustments of the Texas Boundary of 18 0; Texas Historical Association Quarterly, October 1902 and 3anuary 1904.

The Eastern boundary of the Republic of Texas,which followed the west bank of the Sabine river, was surveyed in 1840 by a jointcommissionrepresenting the United States and Texas. From the Gulf to Logans Ferry, the observed latitude. .

Honorable Homer Garrison, Jr., page 3 O-7190

ofwhich was found to be 31° 581 24" and the longitude 940 00' 02.4". the initialmark of this surveywas a mound of earth 50 ft. indiameter about 7 ft. high on the shore of the gulf, the position ofwhich was reported as latitude 2p" 41' 27.5" longitude 93' 50' 14.2". See Marshall, T. M. a History of the Western Boundary of the Louisiana Purchase, Chap. 12, Berkeley, Univ. Calif. press, 1914.

OnDecember 29 1845, Texas was admitted as a State. p Stat. L. 108. In 1846 the Eastern boundary of the State wasp extended,as noted in the following extract: (9 Stat. L. 245).

"That this Congress consents that the Legislature of the State of Texas may extend her easternboundary so as to includewithin her limits one-half of Sablne Pass, onehalf of Sabine Lake, also one-half of Sabine River, from itsmouth as far north as the thirty-seconddegree of north latitude."

By an act of the Legislature of the State of Texas, approvedNovember 24, 1849, the Eastern boundary of Texas was fixed in the following language:

"Be it enactedby the Legislature of the State of Texas, that in accordancewith the consent of the Congress of the United States, given by an act of said Congress, approved July 5th, 1848, the Eastern Boundary of the State of Texas be, and the same is hereby extended so as to includewithin the limits of the State of Texas, the western half of Sabine Pass, Sabine Lake and Sabine River from its mouth as far north as the thirty-seconddegree of north latitude;and that the several counties of this State, bounded by said Sabine Pass, Sabine Lake and Sabine River from itsmouth as far north as the thirty-seconddegree of north latitude, shall have and exercise jurisdictionover suchportions of the western half of said Pass, Lake and River as are opposite to said countiesrespectively;"

The United States entered into a treatywith Spain on February 22, 1819. The third article in this treaty defines the boundary between the United States and the Spanish possession in the Southwest as follows:

"ArticleIII. The boundary line between the two countries;west of the Mississippi, shallbegin on Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along thewestern bank of that river, to the 32nddegree of latitude;

. . .All the islands in the Sabine, and the saidRed and ArkansasRivers, throughout the course thus described, to belong to theHonorableHomer Garrison, J'r., page 4 &7193

United States; but the use of thewaters, and the nesvipetion of the Sabine to the sea, and of the said :rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shallbe common to the respective inhabitantsof both nations."

Thus it is seen that in 1819 thewestern half of .the Sabine River constitutedUnited States Territory.

The followingrules as to how boundariies between countrfes and states are establishedand changed seem to be universallg recognized:

1. Boundaries between countries are established by treatiesmade between the sovereignpowers concerned. See Brigham, A.P., Principles in theDetermination of Boundaries: Geog. Rev., Vol VII p. 201-219, 1919.

2. Boundaries between two States of the United States may be changed by agreement of the State legislatures,but this agreementmust be approvedby Congress. The United States Congress can not change a State boundarywithout the consent of the State, nor can two Sta,tes by mutual agreement change their commonboundaries without the consent of Congress. Ct. Reports, IIWallace, pages 39-59 (78 U.S. 3g-5~$si4ZIs. 502).

3. A boundary between a State and a Territory is fixed by jointaction of Congress and the State. Bourtdsr~! es between Territoriesare fixedby congressionalaction alone. 148 U.S. 503.

4. If a boundary line described as following the middle of the river intersectsan island, it is the usual policy to give the entire island to the State or Government towhich the greater partwould fall. 206 U.S. 46; 259 U.S. 419.

5. Where running streamsare the boundaries 'between States,when the bed and channel are changedby the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream (See 265 U.S. 499);while if the stream from any cause, natural or artificial, suddenly leaves its oldbed and forms a new one, by the process known as avulsion, the resulting change of channelworks no change of boundary,which remains in the middle of the old channel (or on onebank as 30 fixed b statute)although no water may be flowing in It. (See 2 6 U.S. 173). 5;-- 1

Honorable Homer Garrison, Jr., page 5 o-7190

By applying the above rules of law, to the facts as above set forth, it is our opinion that thewestern boundary of Loulsiana, Insofarasitrelates to the Sabine River, Is the middle of said river as it existed in 1804, subject towhatever changes that may have occurredby reason of erosionand accretion, and that the easternboundary of Texas, insofaras itrelates to the Sabine River, is the middle of said river as Ft existed in 1821, subject to whatever changes that may have occurredby
reason of erosion and accretion.

In the absence of proof to the contrary itwould be presumed that the river's location in 1804, in 1946 and in all lnterveningyearswas in the sameplace. Hence, until otherwise shown, the middle of saidRiver as it now exists constitutes the commonboundary line between said States.

In all statements inwhich the Sabine River ismentioned, such reference is limited to that portion of said river between itsmouth and the thirty-seconddegree of latitude.

Yours very truly

ATTORNEYGENERAL OF TEXAS

By W.V. Geppert /s/ W. V. Geppert Assistant

WVG:ms:wc

APPROVED MAY 9, 1946 s/CarlosC. Ashley FIRST ASSISTANT ATTORNEY GENERAL
This Opinion ConsideredAnd Approved In Limited Conference