Honorable J. R. Singleton 

Executive Director 

Texss Parks and Wildlife Department 

John H. Reagan Building 

Austin, Texas 78701 

Opinion No. M-465 

Dear Mr. Singleton: 

Re: Requirements for 

Permit to dredge 

bay materials in 

Qulf area alleged 

to be privately 

owned. 

Your request for our opinion sets out the following 

questions: 

1. 

2. 

3. 

4. 

When a bay bottom Is shown to be privately-owned 

property, is a permit from the Parka and Wildlife 

Department required before bay bottom materials 

can be taken? 

If a permit is required Sor removal of bay bottom 

materials from privately-owned bay bottoms, Can 

our Department make a charge for the material removed? 

Can the burden of proof as to the private ownership of a bay bottom area be placed upon the 

owner? 

IS the permlttee falls to provide reasonable proof 

of ownership to the satisfaction of our Department, 

can the Parks and Wildlife Commission charge for 

the removal of all bay bottom material from the 

entire area for which the permit Is Issued upon a 

presumption that all of the bay bottom area not 

shown to be the private property of the permittee 

is State-owned? 

-2307- 
Hon. J. R. Singleton, page 2 (M-465) . 

You have advised us that you 

cation for a permit to dredge the 

have a pending appllbottom or sedimentary 

Galveston Bay, which . . -- _ 

materials from under a portion of 

applicant contends is privately ownea suomergea Lana. 

You further advised us that this problem is one of considerable future consequence In handling dredging permits. 

In view of the future importance to your department, we shall examine in some detail the nature Of the:; 

interest and ownership of'submerged tidal lands. 

As a general principle, all parts of the Qulf of 

Mexico, including its bays and Inlets, within the State 

of Texas are the property of the State of Texas. The 

lenal history and vertlnent statutes are clearly set out 

135 Tex& 319, 143 s.W.2d 

"It is pertinent here to review briefly the 

legal history of the State's ownership of the 

waters and submerged lands of the oulf of 

Mexico. On December 19, 1836, It was enacted 

by the Senate and the House of Representatives 

of the Republic of Texas that from and after 

the passage of that Act, the civil and political 

jurisdiction of the Republic! was declared to extend to the following boundaries, to wit: 'Beginning at the mouth of the Sablne river, and 

,running west along the Gulf of Mexico three 

leagues from land, to the mouth of the Rio Ctrande, 

thence up the principal stream of said river to 

its source, thence due north to the forty-second 

degree of north latitude, thence along the boundary line as defined in the treaty between the 

United States and Spain, to the beginning,' 

Qamelts Laws of Texas, vol. 1, p. 1193. In the 

Resolution of the Congress of the United States 

pertaining to the Annexation of the Republic of 

Texas as a State into the Federal Union, of date; 

March 1, 1845, 5 Stat. 797, it was provided that 

the Republic retained for the State ‘all the vacant 

and unappropriated lands lying within Its limits,' 

subject only to the superior rights of navigation 

of the Federal government In the navigable waters 

of the State. Article 4026, R.C.S. 1925, which Is 

a re-enactment of a prior statute, provides, In 

,part, as follows: 'All of the public rivers, 

-2308- 
. . 

Hon. J. R. Singleton, page 3 (M-465) 

bayous, lagoons, creeks, lakes, bays and inlets 

in this State, and all that part of the Qulf of 

Mexico within the jurisdiction of this State, 

together with their beds and bottoms, and all 

of the products thereof, shall continue and remain the property of the State of'Texas, except 

in so far as the State shall permit the use of 

said waters and bottoms, or permit the taking 

of the products of such bottoms and waters, 

* * **I 

Article 7467, R.C.S. 1925, provides, in part, 

as follows: '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 of every river or natural stream, 

canyon, ravine, depression or watershed, within 

the State of Texas, are hereby declared to be 

the property of the State, * * *,I 

(4) This Court in many important declslons 

has zealously guarded and enforced the rights of 

this State to the public lands of the State as 

provided and guaranteed to it in the foregoing 

resolutions of the Republic of Texas, the resolutions of the United States Congress appertaining 

to the annexation of the Republic of Texas, and 

In the Acts passed by the Legislature of the State 

of Texas. And by virtue of Article 5416, R.C.S. 

1925, Vernon's Ann.Civ.St. art. 5416, which is a 

re-codification of an older statute, this Court 

latest expressions of th C t on that subject 

is contained In the caseeofozie State of Texas 

et al v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 

1069, where, in an opinion written by Sharp, J., 

then a member of the Supreme Court Commission 

and now a member of this Court, It was said: 

'The rule long has been established in this state 

that the state is the owner of the soil underlying 

-2309- 
. . 

Hon. J. R. Singleton, page 4 (~-465) 

the navigable waters, such as navigable stresms, 

as defined by statute, lakes, bays, Inlets, and 

other areas within tidewater limits within its 

borders.'" (Emphasis added.) 

The line on shore between private and state ownership 

is fixed at the mean higher high tide. Luttes v. State, 

159 Tex. 500. 324 S.W.2d 167 (1958). A change in the tide 

line inlaid causes the private owner to lose-his land without redress. State v. balli et al, 144 Texas 195, 190 S. 

W. 2d 71 (1944‘) and Luttes v. State, supra. 

Therefore, in order for a private owner of land on the 

shore line of the Gulf of Mexico, or one of its bays or inlets, to successfully claim land under tide waters, he must 

satisy you of his ownership from the sovereign. 

Qm 

city Of 

supra. 

We are aware that a certain area on the east end of, 

Qalveston Island within the.R. C. Trlmble and William 

Lindsey survey includes "the flats running to and bordering on the channel". City of Galveston v. Menard 

23 Tex. 349 (1859). We understand this area stoppedat 

the present 57th Street, whereas the applicant’s tract 

lies between 65th and 67th Street. In any event the 

affidavit furnished you, and Included with your,request, 

is insufficient. It fails to Include any survey plat'.and~ ' 

proof of title from the sovereign, among other reasons. 

You are within your right to preslPne that all the beds 

of a bay up to the line of mean higher high tide belong to 

the State; and you have jurisdiction over the materials 

therein under Articles 4053 and 4053d, Vernon's Civil Statutes. 

(196i'), 

Attorney (feneral Opinion Nos. WW-151, (1957), ~-84, 

and M-368, (1969). 

The subject of this opinion deals with tidewater or 

"salt water" islands, reefs, bars, lakes and bays. Article 4051, V.C.S., makes a distinction between lands within tidewater limits and those under fresh water. 

"All the islands, reefs, bars, lakes, and 

bays within the tidewater limits from the most 

interior point seaward co-extensive with the 

jurisdiction of this State, and such of the 

fresh water islands, lakes, rivers, creeks 

and bayous within the interior of this State 

-2310- 
Hon. J. R. Singleton, page 5 (M-465) 

as may not be embraced in any survey of private 

dt th ith 11 th 

*er%l %ze, 

1 d d f 

azd allet~sh%ls~a&d~heU 

or gravel of whatsoever kind that may be in or 

upon any island, reef, or bar, and in or upon 

the bottoms of any lake, bay, shallow water, 

rivers, creeks and bayous and fish hatcher~les 

and oyster beds, within the jurisdiction and 

territory herein defined, are include~d within 

the provisions of this chapter, and are hereby 

placed under the management, con;f;rol and protection of the Commissioner . . . . . 

(Emphasis added.) 

An exclusion was made for those private lands embraced in any "survey of prLvate land" under or within 

"fresh water". A.permit would, therefore, not be required where fresh water is Involved as distinguished 

from tidewater or salt water. 

In view of the foregoing, we will summarize our 

answer: 

To ,Question 1, our answer Is "yes". Article 4051, 

Vernon's Civil Statutes, et seq., requires that you determine whether or not the proposed operation will have 

any injurious effect to oysters, oyster beds or fish in 

those or adjacent waters. 

To Question 2, our answer Is "no". 

To Question 3, our answer Is "yes". City of ffalveston v. Mann, supra. 

To Question 4, our answer is "yes". All ba bottom 

is presumed to be State-owned. Articles 4026, 5 % 16 and 

7467. 

SUMMARY 

All dredging of bay bottoms requires a 

permit from Texas Parks and Wildlife 

Department. Ownership of bay bottoms 

is in the State and burden of proof of 

-2311- 
Hon. J. R. Singleton, page 6 (~-465) 

private ownership Is upon the claimant. 

Owners of land under freeh water, as 

distinguished from tidewater, are not 

required to apply for a permit, under 

the exclusion of Article 4051., 

y General of Texas 

Prepared by Vince Taylor 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

Qeorge Kelton, Vice-Chairman 

Louis Q. Neumann 

Houghton Brownlee 

James M. Mabry 

Malcotn Quick 

MEADE F. GRIFFIN 

Staff Legal Assistant 

EAWTHORNE PHILLIPS 

Executive Assistant 

NOLA WRITE 

First Assistant 

-2312-