Oil and Gas Lawyer Blog
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 ….
Hoffman … shall receive a full three thirty-second’s (3/32’s) portion thereof as his own property[.]
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 …
In its prior opinion the San Antonio Court of Appeals concluded that Hoffman had reserved 3/4ths of the royalty, not a fixed 3/32nd royalty. In its second opinion the court, after reviewing the criteria for construction of such deeds set out in Van Dyke, again concluded that the reservation was of a floating 3/4ths of the royalty.
The Court in Van Dyke laid out the following presumption:
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.
The Court made clear that this presumption may be rebutted by other language in the instrument evidencing a different intent. But there need not be other language in the instrument supporting the presumption (as there was in Hysaw) for the presumption to apply. “The use of a double fraction in this deed, combined with the lack of anything that could rebut the presumption, is precisely why we can conclude as a matter of law that this deed did not use 1/8 in its arithmetical sense but instead reserved to the Mulkey grantors a ½ interest in the mineral estate.”
Thomson argued that the Van Dyke presumption should not apply to its deed because the later use of 3/32nds fixed fraction in the deed rebutted the presumption. The court disagreed. It concluded the parenthetical “(three-fourths of the usual one-eighth royalty)” defined the meaning of “three thirty-seconds” in the deed, so the later use of three thirty-seconds in the deed was consistent with a floating royalty. “Van Dyke instructs that to rebut the presumption, the remainder of the instrument must be ‘sufficiently clear that, as a matter of law, the double fraction can only be held to require simple multiplication.’ 668 S.W.3d at 365. The two additional instances of ‘3/32’ in the 1956 Deed do not accomplish this.”
Thomson argued that the Van Dyke presumption should not apply because the double fraction is in a parenthetical. Again the court disagreed. Van Dyke does not allow ignoring the double fraction just because it is in a parenthetical.
Thomson argued that the Van Dyke presumption should not apply to a reservation made in a deed dated in 1956, when it was well known that lease royalties could and often did exceed 1/8th. Again the court disagreed: “there is nothing in the text of Van Dyke that limits the application of the presumption to instruments of a certain era.”