On December 2, 2025, the Texas Supreme Court issued its opinion in Clifton v. Johnson, No. 23-067. This is the first Supreme Court case on fixed vs. floating since its decision Van Dyke v. The Navigator Group, 668 S.W.3d 363 (Tex. 2023), its effort to clarify how double-fraction conveyances and reservations should be construed.
The reservation construed in Van Dyke was a mineral reservation:
It is understood and agreed that one-half of one-eighth of all minerals and mineral rights in said land are reserved in grantors … and are not conveyed herein.
The Court concluded that this language reserved one-half of the minerals, not one-sixteenth of the minerals. The Court created the following rule (the Van Dyke presumption) when construing instruments with double fractions:
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 I 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.
In Clifton v. Johnson the Court construed the following royalty reservation:
It is understood and herein stipulated that said land is under oil and gas leases providing for a royalty of 1/8 of the oil and certain royalties or rentals for gas and other minerals and that Grantees herein shall received [sic] one-sixteenth (1/16) of the royalties provided for in said lease insofar as the same cover the above described land, but Grantees shall have no interest in or be entitled to nor be entitled to receive any part of any rentals paid under said leases, nor shall the Grantees have any interest in any bonus money received by the Grantors, their heirs or assigns, in any future lease or leases given on said land or any part thereof, and it shall not be necessary for the Grantees to join any such subsequent lease or leases so made; that Grantees shall only receive under such subsequent lease or leases a 1/128 (1/16 of the usual 1/8 royalty) part of all of the oil, gas and other minerals taken and saved under such lease or leases and Grantees shall receive same out of the royalty provided for in such lease or leases.
The Court, reversing the Court of Appeals, held that this reservation was of a fixed one-sixteenth royalty, despite the fact that the reservation included a double fraction involving 1/8.
The Court’s opinion cites its language in Van Dyke that the Van Dyke presumption can be rebutted if the deed contains “express language distinct provisions that could no be harmonized if 1/8 is given the term-of-art usage …, or even the repeated use of fractions other than 1/8 in ways that reflect that an arithmetical expression should be given to all fractions within the instrument.” The Court concluded that the language of this deed rebutted the presumption.
The deed here, by contrast, contains language in both the granting clause and the future-lease clause that expressly uses “1/128”—the product of two fractions. In the granting clause, 1/128 stands alone, without an attached double fraction. But in the future-lease clause, 1/128 is followed by a parenthetical containing two fractions (1/16 and 1/8) that, multiplied together, produce 1/128. The deed thus uses the double fraction to show its work. By expressly multiplying the fractions to arrive at a single fraction, in other words, the parenthetical containing the double fraction explains how the parties reached their 1/128 future-royalty figure. If the double fraction were omitted, the deed would read, “a 1/128 part of all of the oil, gas and other minerals.” The explanatory parenthetical should not be given greater weight than the single-fraction product, especially because the same figure is expressed alone in the granting clause. If possible, the 1/128 figure should be read consistently throughout the document.
That consistency is readily achievable here. The granting clause provides for a 1/128 interest. The present-lease clause stipulates the existence of a current 1/8 royalty and provides the grantees “one-sixteenth (1/16) of the royalties provided for in said lease.” Multiplying those two fractions yields 1/128, the amount specified in the future-lease clause that directly follows. Thus, we read the text to mean that a 1/128 royalty was to be conveyed on future leases, separate but parallel to a 1/128 existing royalty on then-current leases and the 1/128 interest conveyed in the granting clause. The terms harmonize and the Van Dyke presumption is necessarily rebutted.
In some ways, therefore, this case is a photographic negative of Van Dyke. There, we identified nothing in the text that could rebut the presumption. Id. at 359, 366. Here, what is missing is not textual indicia that press against the presumption but a plausible basis to read the text as doing anything except rebutting the presumption.
The universe of double-fraction cases includes many variations, including cases far more complex than either Van Dyke or this case. For all such cases, though, our direction from Van Dyke remains applicable: that courts “begin” with the double-fraction presumption, id. at 364, and then carefully and meaningfully assess any textual provisions asserted by a party as inconsistent with the presumption, id. at 364–66. If no such indicia exist, or if they are readily harmonized with the presumption, then courts will deem the presumption unrebutted. The operative terms in the deed in this case, however, clearly establish a “textually demonstrable basis to rebut the presumption,” id. at 365, so we hold that the deed conveys a 1/128 future-royalty interest.
The terms of the deed also make clear that the future-royalty amount is fixed, not floating. The future-lease clause grants a 1/128 portion of future royalties “given on said land or any part thereof,” not on the fraction of the land given to the grantees in the granting clause. Because the future-royalty conveyance comes from the entire original tract, it must be read separately from the granting clause, as an independent conveyance.
I recently wrote about the San Antonio Court of Appeals’ decision in Hoffman v. Thompson, another fixed-vs-floating case. That opinion was dated March 18, 2026, after the Supreme Court’s opinion in Clifton v. Johnson, but the court in Hoffman did not discuss or mention Clifton. (The opinion in Clifton does mention, but does not discuss, Hoffman.) The language construed in Hoffman was:
SAVE AND EXCEPT HOWEVER, and there is hereby expressly reserved and retained unto the grantor, Peter Hoffman, herein, his heirs or assigns, 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, in to and under or that may be produced from the land herein conveyed, the same to be paid or delivered unto the grantor herein, his heirs or assigns, as his own property free of cost from royalty oil, gas and/or other minerals, together with the right of ingress or egress at all times for the purpose of storing, treating, marketing and removing the same therefrom. Said interest in and to said oil, gas and/or other minerals hereby reserved is a nonparticipating royalty interest, and the grantors herein, their heirs or assigns shall not participate in the bonus paid for any future oil, gas and/or mineral lease covering said land, nor shall they participate in the money rentals which may be paid to extend the time within which a well may be begun under the terms of any future lease covering said land, nor shall it be necessary for the grantors herein, their heirs or assigns to join in the execution of any future oil, gas or mineral lease covering said land.
PROVIDED HOWEVER, that in the event oil, gas and/or other minerals are produced from said land then the grantor herein, Peter Hoffman, his heirs or assigns shall receive a full three thirty-second’s (3/32’s) portion thereof as his own property, to be paid or delivered to him, free and clear of all operating and development costs; and it is the intention of the grantors and grantee that the grantor, Peter Hoffman, shall own and be entitled to receive three thirty-second’s (3/32’s) of the gross production of all oil, gas and other minerals produced and saved from the properties hereinbefore described.
The court construed the above language as reserving a floating royalty, 3/4ths of the royalty reserved in any lease, applying its view of the Van Dyke presumption. The court did not view the reference to 3/32nds in the second paragraph above as rebutting the presumption.
I expect the Hoffman court will hear about Clifton in Hoffman’s motion for rehearing, and the case is sure to land back in the Supreme Court.