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committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

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

SPONSOR Robinson

ORIGINAL DATE

LAST UPDATED

2/26/07

3/1/07 HB

SHORT TITLE Sue Texas for Return of Land

SB 1068

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

No Responses Received From

Attorney General’s Office (AGO)

SUMMARY

Synopsis of Bill

Senate Bill 1068 directs the Attorney General’s Office to sue the State of Texas for the return of

land. Due to an error in drawing the north-south boundary between New Mexico and Texas,

603,485 acres belong to New Mexico.

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

attorneys and staff.

SIGNIFICANT ISSUES

The bill seeks compensation for subsurface mineral rights, oil and gas royalties and income,

property taxes and grazing privileges due to the boundary error.

The bill, according to LFC files, 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

Senate Bill 1068 – Page

2

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.

“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

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

ascertained 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)."

LFC files 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. Congressional 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.

ADMINISTRATIVE IMPLICATIONS

LFC files cite the Attorney General’s analysis from 2005 that 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

interfering with the affairs of another.

ALTERNATIVES

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

boundary with New Mexico.

EO/nt