a..,    .




       Honorable Homer Garrison, Jr., Director
       Texas Department of Public Safety
       Camp Mabrg
       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 in receipt of your letter of recent date request-
       ing our opinion on the above captioned matter, which reads as
       follows:
               "We have been requested by Captain H. B. Purvls
            of the Texas Rangers, stationed in Houston, to ob-
            tain from you an opinion determining the boundary of
            the State of Louisiana in relation to the Sabine River.
               "It is Captain Purvis's understanding that the
            State of Louislana has jurisdiction to the west bank
            of the Sabine River through a treaty agreement be-
            tween the two states.
               "Any information that you might be able to give
            us on this subject would be greatly appreciated."
              In order to properly determine the boundary between the
       two states involved, it 1s necessary for us to give a short sum-
       mary of the history of both states.
              The original territory of Louisiana was acquired from
       France In 1803. A portion of this territory comprising part
       of the present State of Louisiana and the area south of lati-
       tude 310 eastward to the Perdido, claimed by the United States
       as part of the Louisiana purchase, was organized into a ter-
       ritorg under the name of Orleans, and the rest of the Louisiana
       purchase was named the District of Louisiana (2 Stat. L. 283).
       This name was changed to the Terrltory of Louisiana by act of
       March 3, 1805, 2d Stat. L. 331 and by act of congress of April
       8, 1812, (2Stat. L. 7O2), effective April 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 Louislana was changed to Missouri terrl-
tory. In the same year the limits of the state were enlarged
on the southeast to their present extent, 2d Stat. L. 708.
The United States claim to the area between the Sabine and
Mississippi was not recognized by Spaln until 1819 (see treaty
between the United States and Spain, 1819).
       The act approved March 26, 1804    (2d Stat. L. 283) defines
the territory of Orleans as:
          "Beginning at the mouth of the river Sablne; thence
       bv a line to be drawn along the middle of said river,
       including all islands, to the thirty-second degree of
       latitude: thence due north. to the northernmost Dart of
       the thirty-third degree 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 said gulf, to the place of beginning, ln-
       eluding all islands within three leagues of the coast."
       (Emphasis added).
       The land enclosed in the above field notes to the terri-
tory of Orleans, was admitted as a State under the name of Louis-
iana.
        Texas declared its independence of Mexico in 1835. In
1836  the   Congress of the Republic of Texas defined the bound-
ary as extending south and west to the Rio Grande and northward
from the source of that river to the 42na parallel, the eastern
and northern limits coinciding with the western boundary of the
United States as laid down In the treaty with Spain in 1819.
This area comprised all of the former Mexican states of Coahuila
and Texas. The boundary as fixed by the treaty of 1819 was
reaffirmed by treaty with Mexico concluded January 12, 1828,
Mexico having in the meantime gained its independence from
Spain. This treaty with Spain became effective February 22,
1821 by presidential proclamation. These boundaries were
formally recognized by 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 Quar-
terly, October 1902 and 3anuary 190 4.
       The Eastern boundary of the Republic of Texas, which
followed the west bank of the Sabine river, was surveyed in
1840 by a joint commission representing the United States and
Texas. From the Gulf to Logans Ferry, the observed latitude
.    .




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


    of which was found to be 31° 581 24" and the longitude 940 00'
    02.4". the initial mark of this survey was a mound of earth
    50 ft. in diameter about 7 ft. high on the shore of the gulf,
    the position of which 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.
           On December 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 eastern boundary so as
         to include within her limits one-half of Sablne Pass, one-
         half of Sabine Lake, also one-half of Sabine River, from
         its mouth as far north as the thirty-second degree of
         north latitude."
           By an act of the Legislature of the State of Texas, ap-
    proved November 24, 1849, the Eastern boundary of Texas was
    fixed in the following language:
            "Be it enacted by the Legislature of the State of
         Texas, that in accordance with 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 in-
         clude within 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-second degree of north
         latitude; and that the several counties of this State,
         bounded by said Sabine Pass, Sabine Lake and Sabine River
         from its mouth as far north as the thirty-second degree of
         north latitude, shall have and exercise jurisdiction over
         such portions of the western half of said Pass, Lake and
         River as are opposite to said counties respectively;"
           The United States entered into a treaty with 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:
            "Article III. The boundary line between the two
         countries; west of the Mississippi, shall begin on Gulph
         of Mexico, at the mouth of the river Sabine, in the sea,
         continuing north, along the western bank of that river,
         to the 32nd degree of latitude; . . . All the islands
         in the Sabine, and the said Red and Arkansas Rivers,
         throughout the course thus described, to belong to the
Honorable Homer Garrison, J'r.,page 4        &7193



   United States; but the use of the waters, and the nesvipe-
   tion 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, shall be common to
   the respective inhabitants of both nations."
       Thus it is seen that in 1819 the western half of .the
Sabine River constituted United States Territory.
       The following rules as to how boundariiesbetween countrfes
and states are established and changed seem to be universallg
recognized:
       1. Boundaries between countries are established by
    treaties made between the sovereign powers concerned. See
Brigham, A.P., Principles in the Determination 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 agreement must be approved by Congress. The United
   States Congress can not change a State boundary without
   the consent of the State, nor can two Sta,tesby mutual
   agreement change their common boundaries without the con-
   sent of Congress.            Ct. Reports, II Wallace, pages
   39-59 (78 U.S. 3g-5~$si4ZIs.   502).

      3.  A boundary between a State and a Territory is
   fixed by joint action of Congress and the State. Bourtdsr~!
                                                             es
   between Territories are fixed by congressional action alone.
   148 U.S.     503.

      4.  If a boundary line described as following the
   middle of the river intersects an island, it is the usual
   policy to give the entire island to the State or Govern-
   ment to which the greater part would fall. 206 U.S. 46;
   259   U.S.    419.

      5. Where running streams are the boundaries 'between
   States, when the bed and channel are changed by 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 old bed and forms a new
   one, by the process known as avulsion, the resulting change
   of channel works no change of boundary, which remains in
   the middle of the old channel (or on one bank as 30 fixed
   b statute) although no water may be flowing in It. (See
    2 5;
       6 U.S.   173).
--    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 the western boundary of Louls-
     iana, Insofar as it relates to the Sabine River, Is the middle
     of said river as it existed in 1804, subject to whatever changes
     that may have occurred by reason of erosion and accretion, and
     that the eastern boundary of Texas, insofar as it relates to
     the Sabine River, is the middle of said river as Ft existed in
     1821, subject to whatever changes that may have occurred by
     reason of erosion and accretion.
            In the absence of proof to the contrary it would be pre-
     sumed that the river's location in 1804, in 1946 and in all ln-
     tervening years was in the same place. Hence, until otherwise
     shown, the middle of said River as it now exists constitutes
     the common boundary line between said States.
            In all statements in which the Sabine River is mentioned,
     such reference is limited to that portion of said river between
     its mouth and the thirty-second degree of latitude.
                                       Yours very truly
                                    ATTORNEY GENERAL OF TEXAS

                                       By W.V. Geppert /s/
                                          W. V. Geppert
                                          Assistant
     WVG:ms:wc
     APPROVED MAY 9, 1946
     s/Carlos C. Ashley
     FIRST ASSISTANT
     ATTORNEY GENERAL
     This Opinion Considered And Approved In Limited Conference
