.hlr. D. W. Porter 

Chief Engineer 

Department ,of Agriculture 

Austin, Texas 

Opinion No. O-156 

Dear Mr. Porter: 

Re: What Constitutes a Navigable 

State Owned Stream in Texas. 

This acknowledges receipt of and is in reply to 

your letter of January 16, 1939, in which you req.~est an 

opinion on the extent of open waters on the Guadalupe 

River in Kerr County, and an opinion as to what the minimum length of such areas must be in order for the same 

to constitute a State owned stream. 

In your letter you state that the cut banks of 

the stream in question are from 50 to.100 feet apart and 

that there are a number of areas in the stream containing 

holes of water 50 to 100 feet in width and from one-fourth 

to one mile in length, but that in many portions of the 

stream the holes of water are only 10 to 15 feet wide and 

in some instances narrow enough to step across. 

By Statute, Article 5302, R.C.S., the State of 

Texas defines a navigable stream as follows: 

"All streams so far as they retain an average 

width of 30 feet, from the mouth up, shall be considered navigable streams within the meaning hereof." 

In writing this opinion we assume that the 

average width of the bed of the stream in question, from 

the mouth up, is at least 30 feet. The term "Bed of a 

Stream" has been defined by the Texas courts as follows: 

The bed of a stream is that portion of its 

soil which is alternately covered and left bare as 

there ma7 be an Increase or diminution in the supply 

of water, and,whiah is adequate to contain it at its 

average and mean state during sn entire year, without 

reference to the extra freshets of the winter or 

spring of the extreme drouths of the summer or autumn." 
Mr. D. W. Porter, February 6, 1939, page 2, O-156 

Mot1 v. Boyd, 286 S.W. 458. 

If the bed of the stream to wilS.ch you refer retains an average widthfrom the mouth up of at least 30 

feet, then such stream is a navigable stream, and the title 

thereto is owned by the State of Texas whether or not such 

stream is navigable in fact end whether or not the flow of 

waters in such stream in ordinary seasons is less than 30 

feet. State vs. Bradford, 56 S.W. (2) 1065. 

The fact that the stream in question does not 

have a continuous current of water is immaterial, provided, 

however, that the stream be such that rain, springs, or 

other sources of water supply will, at recurring intervals, 

produce a flow of water, and provided that such conditions 

recur with some degree of regularity so that they establish 

and maintain a running stream for considerable periods of 

time though such periods are intermittent and brief. Hoers 

vs. ihort, 273 S.W. 785. 

It has been held, withrespect to the North Fork 

of the Red River in Texas, that such stream is a navigable, 

state owned stream, notwithstanding the fact that there is 

no permanent flowing water on the surface of the bed of such 

stream, and although such stream had no springs or sources 

of water other than rain fall, such rain fall coming but 

occasionally, and although the water in such stream ran in 

a current for only one to ten hours after every substantial 

rain, and no more frequently than four or five times a year, 

the water thereafter standing in holes from 10 to 20 days, 

where it is also shown that the distance from cut bank to 

cut bank, from the mouth up, was at least 30 feet. State 

vs. Bradford, 56 S.M. (2) 1065; Heard vs. Town of Rem, 

103 S.W. (2) 728. 

In the light of the statute and decisions quoted 

from above we answer your inquiry as follows: 

If the Guadalupe River in Kerr County retains an 

average width from cut bank to cut bank, from the mouth up, 

of at least 30 feet, and if suoh river has a permanent but 

not necessarily continuous source of water supply, which 

water when flowing is retained in a well defined channel, 

then such river, insofar as it retains such characteristics, 

is a navigable, state owned stream. 

You, of course, will understand that before we 

can ?ender >(A:, adefinite, unconditional opinion upon 

whether or not the Guadalupe River in Kerr County is or is 

not a navigable, state owned stream, it will be necessary 

for you to furnish us with specific facts and figures with 

reference to the average width of the bed of such stream, 
Mr. D. W. Porter, February 6, 1939, Page 3,~ O-156 

the frequency with which it contains flowing waters, the 

source of its water supply, the aondition of its channel, 

and suoh other data which is relevant to the determination 

of the character of the area in question. If this opinion 

is not suffioient for your purposes we shall be glad to 

amplify it upon receiving from you the specific facts and 

figures referred to. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

s/ Robert E. Kepke 

BY 

Robert E. Kepke 

Assistalh 

REK:LM-ag 

APPROVED: 

S/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS