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F I S C A L I M P A C T R E P O R T

SPONSOR Robinson

DATE TYPED 2/15/05

HB

SHORT TITLE Sue Texas for Return of Land

SB 555

ANALYST Medina

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

Indeterminate

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General

SUMMARY

Synopsis of Bill

Senate Bill 555 directs the Attorney General to sue the State of Texas for the return of 603,485

acres of land. The bill indicates that this land was erroneously appropriated to the State of Texas

in the drawing of the north-south boundary between Texas and New Mexico. The bill also directs

the Attorney General to seek compensation for mineral rights, oil and gas royalties, property

taxes, and grazing privileges that New Mexico has not realized due to the error in drawing the

boundary.

Significant Issues

According to the Attorney General staff analysis, The bill is based on the theory that the true

border between the two states is the 103

rd

meridian, but the 1859 survey establishing the actual

boundary set the border three miles east. Allegedly, New Mexico's draft constitution in 1910

claimed the border should be on the 103rd meridian as intended. A Congressional investigation

was convened, to which New Mexico, not yet a state, was not invited, and Congress opted to

leave the border in place. Allegedly Texas political forces threatened to scuttle New Mexico’s

bid for statehood if the dispute continued.

Senate Bill 555 -- Page 2

According to the Attorney General staff analysis: “In Oklahoma v. Texas, 272 U.S. 21 (1926),

the United States Supreme Court set forth the criteria for settling border disputes between states:

“It is well settled that governments, as well as private persons, are bound by the practical line

that has been recognized and adopted as their boundary, Missouri v. Iowa, 7 How. 660, 670;

New Mexico v. Colorado,

267 U.S. 30, 40

, 45 S. Ct. 202; and that a boundary line between two

governments which has been run out, located and marked upon the earth, and afterwards recog-

nized and acquiesced in by them for a long course of years, is conclusive, even if it be ascer-

tained that it varies somewhat from the correct course, the line so established taking effect, in

such case, as a definition of the true and ancient boundary, Virginia v. Tennessee,

148 U.S. 503,

522

, 13 S. Ct. 728; Maryland v. West Virginia,

217 U.S. 1, 42

, 30 S. Ct. 268; New Mexico v.

Colorado, supra at page 40 (45 S. Ct. 202).”

The Attorney General’s staff analysis states that if this bill passes, the Attorney General would

have to determine whether such suit has merit. The Attorney General would be constrained by

the New Mexico Supreme Court Rule 16-301 which prohibits bringing frivolous suits. Congres-

sional recognition of the boundary as it exists today could be controlling. Any suit such as the

one proposed in this bill would have to be brought in the United States Supreme Court.

FISCAL IMPLICATIONS

This bill does not include an appropriation for support of the proposed litigation. It is possible

that the litigation proposed in this bill would require additional resources, including FTE attor-

neys and staff.

ADMINISTRATIVE IMPLICATIONS

According to the Attorney General’s analysis, although the Attorney General may be “directed”

by the Legislature to sue Texas, the Attorney General is required, as an independently elected

member of the executive branch, and as an attorney, to determine the merits of any claim against

Texas.

OTHER SUBSTANTIVE ISSUES

This bill implicates the Separation of Powers Doctrine contained Article III section 1 of the New

Mexico Constitution. That doctrine generally prohibits one branch of government from interfer-

ing with the affairs of another.

ALTERNATIVE

The Legislature could propose a memorial requesting the Attorney General review the merits of

any land claims against the State of Texas and report to the Legislature.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The Legislature would not direct the Attorney General to sue the State of Texas over its bound-

ary with New Mexico.

DXM/yr