All are invited to our annual seminar in Austin on May 22. You can register here.
Published on:
Annual GDHM Landowner Seminar May 22
Published on:
Hoffman v. Thomson Revisited: Another Case on Fractional Royalty vs Fraction of Royalty
After the Texas Supreme Court issued its opinion in Van Dyke v. The Navigator Group, 668 S.W.3d 363 (Tex. 2023), setting out presumptions to apply when construing royalty conveyances and reservations that contain so-called double fractions, it considered Thompson’s petition for review of the San Antonio Court of Appeals’ opinion in Hoffman v. Thomson, 630 S.W.3d 427 (Tex.App.–San Antonio 2021) construing another royalty fraction deed. The Supreme Court remanded the case back to the San Antonio court, instructing it to reconsider its decision in light of the Supreme Court’s opinion in Van Dyke. Thomson v. Hoffman, 674 S.W.3d 927 (Tex. 2023). The San Antonio Court has now issued its second opinion, reaffirming the conclusion it reached in its first opinion. 2026 WL 758737, March 18, 2026.
The deed being construed in Hoffman v. Thomson contains the following relevant language:
[T]here is hereby expressly reserved … an undivided three thirty-second’s (3/32’s) interest (same being three-fourths (3/4’s) of the usual one-eighth (1/8th) royalty) in and to all of the oil, gas and other minerals ….
Published on:
The Oil and Gas Lease – Part III Revisited: The Leased Premises
An essential element of any oil and gas lease is a description of the land to be covered by the lease. The test for a legal description is that it must contain, or make reference to recorded documents that contain, a description of the land of sufficient specificity that a surveyor could locate the property on the ground with reasonable certainty.
The lease itself can contain a metes and bounds description from a survey, or (more commonly) it can refer to an earlier recorded document that contains a metes and bounds description of the property. Sometimes descriptions have to be cobbled together from two or more other descriptions. For example: “All of that certain 100 acres of land described in deed from John Doe to Robert Smith recorded at Volume 99, page 99 of the deed records of Karnes County, Texas, save and except 10 acres of land described in deed from Robert Smith to Mary Jones recorded at Volume 100, page 100 of the deed records of Karnes County, Texas.”
There are other ways to adequately describe a tract. The test is whether the surveyor can use the description to locate the property.
Published on:
The Oil and Gas Lease — Part II Revisited: The Primary Term
In Texas, an oil and gas lease grants to the lessee the fee mineral estate in the leased premises for the term of the lease. The lease provides for an initial term during which the lessee need do nothing in order to keep the lease in effect — called the “primary term.” Thereafter, the lease terminates unless the lessee is producing oil or gas or conducting operations in an effort to discover and produce oil or gas. If the lease remains in effect beyond the primary term, the remaining time the lease is in effect is called the “secondary term.” A typical lease will provide that
“This lease shall remain in effect for a term of three (3) years (the primary term) and as long thereafter as oil or gas is produced from the leased premises or operations, as provided herein, are being conducted on the leased premises.”
The primary term can be one month or ten years or more. Today, most leases provide for a three-year primary term. If no production or operations take place during the primary term, the lease terminates automatically and the mineral estate reverts to the lessor.
Published on:
The Oil and Gas Lease Part I- Revisited
I was recently reminded of a series of blog posts I did more than 10 years ago about the oil and gas lease. A law student who had come across one of my posts contacted me, telling me that she was the great-granddaughter off J.A. Heydrick of Oil City, Pennsylvania, who I identified in my post as the author of the first oil and gas lease form, published in 1880.
So, I have decided to republish my blog series on the oil and gas lease. Here is Part I.
The oil and gas lease is the foundational document on which the oil and gas industry in the US is based. Its form and provisions have been modified and shaped over the years to respond to changing industry practices and developments in the law, but its essential form has remained unchanged since the latter half of the 19th century. It is one of the most commonly used and successful legal documents in US commerce.
Published on:
Eileen Fowler and the Texas Unclaimed Mineral Proceeds Commission
Eileen McKenzie Fowler was a lawyer in LaPorte, Texas, until her resignation in lieu of disciplinary action was accepted by the Texas Supreme Court in April of last year following complaints against her. Her resignation reminded me of a post I did several years ago about the Texas Unclaimed Mineral Proceeds Commission.
Descendants of Spanish and Mexican land grants in Texas have long believed that, as descendants, they must be entitled to escheated royalties attributable to production from the grants made to their ancestors. In 2013 the legislature passed House Bill 724, creating the Texas Unclaimed Mineral Proceeds Commission, charging it to study and provide recommendations regarding distribution of unclaimed royalties held in Texas unclaimed property fund. The legislation was in response to these claims by these descendants. The Commission met eight times and took voluminous testimony, producing a 100-page report.
The report of the commission spends a good deal of time discussing the testimony and claims of Eileen McKenzie Fowler. Ms. Fowler dedicated her practice to representing descendants of the grantees of original Spanish and Mexican land grants in Texas. She had her own website where she posted information about Spanish and Mexican land grants, and a brochure containing information about Heirs Enforcing Inheritance Rights (HEIRS), a membership organization she promoted. Ms. Fowler agreed to represent heirs in suits to determine heirship – legal proceedings in which she proved the lineage of descendants of land-grant grantees. According to the report, Ms. Fowler said she charges “$300 per client, and in some cases as much as $375 per client. If true, she has collected millions of dollars in legal fees from the descendants. To date, she admits she has not recovered any mineral proceeds for her clients.” The Commission goes to some length to disprove some legal claims made by Ms. Fowler. One statement on Ms. Fowler’s website is that “in the case of land grants, if no mention is made of the minerals or the transference of minerals by sale or conveyance of the land, the minerals are retained by the seller and pass to his or her heirs.” In other words, when the original grantee of the land grant sold his land, the deed did not pass title to the minerals unless it specifically so provided. All Texas attorneys know that this is not the law. A deed of land passes title to all minerals owned by the grantor unless those minerals are specifically reserved in the deed. The Commission concluded:
Published on:
Constitution Day
Today is Constitution Day, the day in 1787 when 39 of the 55 members of the Constitutional Convention signed the new constitution they had penned. Today the entire original constitution will go on display for the first time in the National Archives Museum. Today reminded me of a quote of President Eisenhower I saw this summer when I toured the Eisenhower Library and Museum in Abilene, Kansas. It is a prayer.
Published on:
Texas Supreme Court agrees to hear easement-by-estoppel case
Today the Supreme court accepted the petition for review in Boerschig v. Rio Grande Electric Cooperative, No. 24-0213, a case in which the trial court granted an easement by estoppel based on a jury verdict.
In 2002 Boerschig purchased the 6,397-acre U-Bar Ranch. At the time there was a 1.6 mile distribution line with wooden poles carrying four wires, constructed in 1947. Boerschig was unable to locate any recorded easement for the line.
In 2012 RGEC bulldozed the 1947 line and began construction of a new line with more, larger poles carrying seven wires, for a new compressor station to be operated by Lone Star NGL Pipeline. Boerschig objected to the line, and litigation followed. After a jury trial, the jury found that RGEC failed to obtain a prescriptive easement, but that it did acquire an easement by estoppel, and that the new line constructed by RGEC was within the scope of that easement. The trial court rendered judgment on the verdict and awarded RGEC its legal fees.
Published on:
Supreme Court denies petition in Basic Energy Services v. PPC Energy
Today the Texas Supreme Court denied PPC’s petition for review in PPC Energy v. Basic Energy Services, No. 25-0061. I wrote about the opinion of the El Paso Court of Appeals, which reversed and remanded a trial court judgment of $13 million against Basic after jury trial . Basic operates disposal wells, and the jury found that its wells had damaged PPC Energy’s producing wells. The El Paso court held that the trial court had erroneously failed to submit a requested jury charge on the prudent operator standard and remanded for retrial.
Published on:
Clifton v. Johnson — Another fixed vs. floating royalty case lands in Texas Supreme Court
Today the Texas Supreme Court agreed to decide another dispute over whether a conveyance is of a fixed or floating royalty. No. 23-0671, Clifton v. Johnson. The El Paso Court of Appeals held that the instrument in question conveyed a floating royalty – a fraction of the royalty. 2023 WL 444316. The Petitioners argue, among other things, that the Van Dyke presumption (Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex 2023)) should not apply to conveyances and reservations of royalty interests. The deed in Clifton refers to the interest being conveyed as “1/128 (1/16 of the usual 1/8 royalty).” The Supreme Court said in Van Dyke:
When courts confront a double fraction involving 1/8 in an instrument, the logic of our analysis in Hysaw [v. Dawkins, 483 S.W.3d 1 (Tex. 2016)] requires that we begin with a presumption that the mere use of such a double fraction was purposeful and that 1/8 reflects the entire mineral estate, not just 1/8 of it. … Our analysis in Hysaw thus warrants the use of a rebuttable presumption that the term 1/8 in a double fraction in mineral instruments of this era refers to the entire mineral estate. Because there is “little explanation” for using a double fraction for any other purpose, this presumption reflects historical usage and common sense.
Note that the devise construed as a floating royalty in Hysaw v. Dawkins was a devise of a royalty interest, not a mineral interest.