Co-author Taylor Hall

In MIECO LLC v. Pioneer Natural Resources USA Inc., the U. S. District Court for the Northern District of Texas, on remand from the Fifth Circuit (see our report on that opinion) addressed two questions:

  • Did Winter Storm Uri prevent Pioneer’s delivery of natural gas under the parties’ NAESB Base Contract (Yes, it did), and
  • Did Pioneer use reasonable efforts to avoid the storm’s adverse effects. (Yes, it did).

As with most other Uri cases we recall, the Court concluded that Uri prevented Pioneer’s performance. The storm caused widespread freeze‑offs, outages, and processing failures across the Permian Basin, reducing Pioneer’s production to nearly zero and curtailing deliveries from February 14 through 19, 2021.

Pioneer invoked the contract’s force majeure clause, which covered “weather related events affecting an entire geographic region,” including the freezing or failure of wells or lines, and required reasonable efforts to avoid adverse impacts.

The Court’s conclusion that Pioneer used reasonable efforts pointed to Pioneer’s preparation for Uri: the company undertook winterization measures, adjusted allocations, insulated wells and equipment, and prepared field resources in advance of the storm.

MIECO argued that Pioneer should have purchased third‑party gas to meet its delivery obligations. The court rejected that argument, citing industry practice: after declaring force majeure, a supplier that loses its supply is not expected to procure spot gas. Requiring such purchases would divert producers from restoring production, inflate spot prices during an emergency, and undermine the objective of mitigating the event’s effects by increasing supply in the affected region.

The court also rejected MIECO’s interpretation because it was unreasonable. To agree with MEICO would mean a storm like Uri or other catastrophic event could never prevent performance so long as gas exists somewhere or the seller has the funds to buy it. If Pioneer were required to avoid the adverse impact of Uri by performing its obligations, as MIECO argued, then no performance was being excused.

Because Uri prevented performance and Pioneer used reasonable efforts to mitigate its effects, the Court found Pioneer did not breach the parties’ contract.

Joe Ely, RIP

In EOG. v  CNH Enterprise Holdings, Ltd. the Court denied a Texas Citizens Participation Act motion to dismiss a plaintiff’s claim.

CNH sued EOG for termination of the Hundley lease covering 3,500 acres in McMullen County. The claim that drew EOG’s TCPA ire was CNH’s cause of action (in the alternative and among several others, including terminaton of the lease) for breach of the implied covenant to protect the lease from drainage. CNH alleged that EOG permitted and drilled a well on adjoining acreage in violation of field rules and Rule 37 without notice or consent from CNH or its predecessor lessor, fracked the well causing fractures and injecting proppant into the Hundley lease resulting in damage by draining hydrocarbons from the lease, and then failed to drill an offset well.

EOG’s motion to dismiss alleged that the claim that should be dismissed was based on EOG’s communications with the Railroad Commission in its application for a drilling permit.

The lofty purposes of the TCPA are “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the right of person to file meritorious lawsuits for demonstrable injury.”  

 To prevail on such a motion the movant must first demonstrate that the TCPA applies. This is the only step in the analysis that the Court needed to address (there are two others). The statute requires a connection between the legal action andexercise of the protected right, and the claim must be “based on or in response to exercise of a protected right”.

CNH’s petition referred to EOG’s communications with governmental bodies (The right to petition includes such communications). Was the failure-to-protect claim based on or in response to EOG’s communicztions to the Commission? The Court went to case law and the dictionary in search of the meaning of “based on” or “in response to”, and other words and phrases such as “the gravamen of”, “factually predicated on”, and “main ingredient” (the fundamental part of something, in case you were wondering). That is what the courts do when having to evaluate the meaning of words not defined in the statute (or contract in some cases) under consideration.

The Court’s conclusion

Not surprisingly, the Court deemed the gravamen of CNH’s failure-to-protect claim to be that EOG breached its obligation to protect the Hundley lease by failing to drill an offset well to prevent drainage. There was no connection between the legal action and exercise of a protected right, and the claim was not based on or in response to exercise of a protected right.

The lesson?

Whether or not EOG’s goal was to subject CNH to costly and time-consuming satellite litigation, that seems to be the effect of its motion. (This is to NOT to say that was the goal). Regardless, now the parties will be able to address the underlying claims and defenses. 

Raul Malo (think the Mavericks) RIP. And, this being Advent, let’s not forget Joseph.  

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Karli v. Wilson instructs mineral/royalty traders and their scriveners on a surefire way to create title chaos out of what could have been an uncomplicated land transaction. In 1950 the Wilson siblings and spouses executed a warranty deed to the Veterans Land Board for 196.7 acres in Brazos County, Texas. The Karlis now own the VLB’s interest. Each grantor reserved an interest, expressed in three ways (ergo, the chaos):

  • an undivided 1/32nd right title and interest in and to all oil, gas and minerals in and under said lands or that may be produced or saved from said lands … ; (emphasis mine, deemed by the Court to be “odd”)
  • However [grantors] shall not be entitled to receive any rental or bonus money paid for leases;  
  • It being the intention to reserve 1/4th “non-participating interest in the customary one-eighth royalty …”.

Understating the chaos, the Court deemed the clauses to be in conflict.

What do the Wilsons own?

The Court rendered judgment that the Wilson heirs and assigns each own a “¼ non-participating mineral interest, stripped of all attributes aside from the right to receive royalty payments in the amount of ¼ of the lease royalty under the current and any future leases.”

How did the court get there?

 The Court first discussed general contract principles (among others):  

  • The court must determine what the deed language could reasonably have meant to an informed but disinterested speaker at the time the instrument was executed;
  • The court must determine what the plain language in the four corners of the instrument says (You don’t need a lawyer for this one, but if it’s your money riding on the instrument, you will have great difficulty being “disinterested”);
  • What mineral rights an instrument creates or reserves is governed by real property and oil and gas law rather than general contract law;
  • The court must harmonize all provisions of the instrument;
  • The court may invoke the estate misconception theory (to answer what fractional interest the parties own; we skip that analysis here; FYI it was floating).
  • The “bundle of rights” in a mineral estate include five: development, executive, bonus, royalty, rentals;
  • Where deeds grant or reserve minerals expressly including “royalty” and excluding one or more of the other rights, the Supreme Court’ has treated the resulting interest as a “stripped” mineral estate, carrying all the other unmentioned rights.

Examining the instrument

The first portion of the reservation, in isolation, was sufficient to reserve a full mineral estate. But the “or” language reflects an alternative description of an interest in production. On balance the interest was a mineral interest.

The second portion excluded the right to receive rental and bonus money. Was this an intentional “redundancy”? Considering the state of the law and drafting practices in 1950 the Court could not conclude that that mere exclusion of rights apart from royalty established a stripped mineral interest.

The third portion, referring to a 1/4 “non-participating interest” in the customary 1/8 royalty, “almost” coincides with an NPRI.

Harmonizing the clashing provisions, the Court concluded that the reservations “more closely resembles” language the Supreme Court construed as a stripped mineral interest. Case law at the time suggests that “non-participating interest” was “most likely” to exclude executive and development rights.

The practical effect of the decision

Charles Barkley would refer to it as a “jump ball”. Regardless, the Court had to side who gets the possession. The Wilson heirs and assigns own, in effect, floating royalty interests tied to current and future leases. They cannot participate in leasing or development decisions. The Court expressed the interests as ¼ of royalty, not 1/32 of minerals.

A shout out to those who will follow us, Well, perhaps some of us. Now a Christmassy musical interlude

For an example of a case gone wrong in so many ways, look no further than Evans Resources LP et al v. Diamondback E & P.

The facts

There were three agreements between several Evans entities and Diamondback for Evans‘ 651 acres in Midland County, Texas: An oil and gas lease allowing pooling with lessor’s consent, a surface use agreement, and a net profits interest agreement. Diamondback was allowed to drill and produce horizontal wells from prior-approved horizontal well pads. Evans’ surface entity Mockingbird received a share of monthly profits from wells drilled on the surface locations.

Diamondback sought permits from the Railroad Commission to drill the horizontal wells and the parties agreed regarding the precise location and configuration of the well pads. Diamondback attempted to reach agreements regarding water, roads and frack pits. Instead of drilling horizontally from the well pads Diamondback drilled three vertical wells on the property to keep the lease alive and ultimately drilled horizontal wells on a tract north of the Evans tract. Those wellbores traversed the Evans tract.

The trial court granted summary judgment for Diamondback on several claims. The remaining claims went to trial.

Breach of the lease – unpaid royalties

The court excluded testimony from Evans’ expert about royalty payments that was based on untimely reports that doubled the amount claimed. The expert’s spreadsheet on interest to be paid on royalties was never disclosed and therefore stricken. Because the jury found that Diamondback did not underpay royalties, the experts’ opinions didn’t matter.

Fraud – reliance not justified

Evans’ witnesses at trial testified that in discussions to allow the original lessee to assign the agreements to Diamondback, Diamondback represented that it would drill wells from the well pads. The court dismissed that fraud claim based on the proposition that reliance on an oral representation directly contradicted by express, unambiguous terms of the written agreement between the parties is not justified as a matter of law.

Breach of the surface agreement

Evans claimed that Diamondback breached the surface agreement by failing to downsize vertical well pads after drilling and by failing to consent to zoning variance requests for setback reductions to be made to the Midland City Council. The claim was rejected. Evans’ expert testimony regarding the variances was excluded because the experts improperly assumed that the variance requests would be granted even though they were never applied for, objected to, or considered by the City Council. The opinions were unreliable because they were based on assumed facts that varied from actual facts.

The court rejected the testimony of Evans principal Jonathan Evans because the amount and method of calculating damages was not timely disclosed and Diamondback was unfairly surprised.

Rule against perpetuities (nerding out on the law)

The Rule: “No interest in property is valid unless it must vest, if at all, within 21 years after the death of some life or lives in being at the time of the conveyance.” This claim was rejected because the lease immediately granted the land for exploring for and producing oil and gas. It was not a perpetual right. The three-year primary term and habendum clause did not violate the Rule. The surface agreement describing the location of the four well pads vested Diamondback with the immediate, fixed right to drill from the well pads. The Rule does not apply to interests that vest immediately.   

Non consent to pool waived

Evans said in open court that they would not put on evidence on their claim that Diamondback failed to obtain their consent to pool the lease. Counsel recant later in the trial but it was too late, said the judge. The original statement constituted a stipulation that limited issues to be considered at trial.

You gotta wonder

For what it’s worth, the jury heard that over the years Evans entities were paid more than $20MM in royalties. How much sympathy was there for Evans for damage claims in far lower amounts?

Jimmy Cliff RIP

Co-author Taylor Hall

In Marathon Oil Co. v. Mercuria Energy America, LLC, the Texas Business Court (11th Division) considered a North American Energy Standards Board (NAESB) contract to buy and sell natural gas. With three opinions to discuss, this post will be longer than usual.

When the storm hit Texas, seller Marathon failed to deliver all of the gas required under the contract and declared force majeure. The parties disputed whether the force-majeure clause excused Marathon’s failure to deliver. The court, having granted in part and denying in part dueling motions for summary judgement, issued this opinion because an opinion would “benefit the parties and the jurisprudence … “.

Reasonable efforts – what is an “alternative Gas supply”?

The court rejected Purchaser Mercuria’s argument that Marathon had a duty to buy replacement gas on the spot market to meet its delivery obligations or to buy back its delivery obligation.

The standard NAESB form requires any party claiming force majeure to “make reasonable efforts to avoid the adverse impacts of a Force Majeure and to resolve the event or occurrence once it has occurred in order to resume performance.”  The parties modified this provision by adding “the party claiming excuse shall have no obligation to seek alternative Gas supplies in order to satisfy any obligation hereunder.” The court read “hereunder” broadly to encompass the duty to use “reasonable efforts” to avoid the impacts of force majeure.

Relying heavily on – and agreeing with – earlier Winter Storm Uri decisions, the court explained what counts as “alternative Gas supplies”. Supplies that could substitute for the gas the seller could not deliver are typically the seller’s own gas supply. Because spot-market gas is not part of the seller’s gas supply, it is not one of the “alternative Gas supplies” covered by the provision. The modified provision relieved Marathon of an obligation to obtain spot-market gas as a “reasonable effort” under the contract.

No buybacks

The court then turned to buybacks. Buybacks are always possible in gas contracts and simply shift money between the parties. The purpose of a force-majeure clause is to excuse nonperformance. Requiring the seller to buy back its delivery obligation would render force majeure protection meaningless, as it would never excuse a failure to deliver.

Damages

In a subsequent opinion a week later, the court addressed damages, in particlar liquidated damages. The contract’s remedy provision used the “Spot Price Standard,” which measures the difference between the seller’s obligations and the actual quantity delivered, multiplied by the positive difference, if any, between the contract price and the spot price. Marathon argued that the Spot Price Standard was unenforceable because the gap between the spot-price damages and actual damages was too great.

For the liquidated-damages clause to be unenforceable, there must be an “unbridgeable discrepancy” between spot‑price damages and actual damages. Although the parties agreed on several points—such as the contract price and the dates and amounts of the seller’s delivery shortfall—neither party conclusively proved the amount of either spot-price damages or actual damages.

Liquidated damages provisions are typically enforceable but damages are limited to “just compensation for the loss or damage actually sustained.” They cannot operate as a penalty. To decide whether the Spot Price Standard was enforceable, the court first had to determine damage amounts. Neither party established the correct amounts. Marathon’s calculations indicated Mercuria benefited from Marathon’s failure to deliver because Mercuria used gas it had already purchased before the breach. In rejecting this argument the court stated that any unbridgeable discrepancy is measured at the time of breach. Mercuria’s actual damages would be the difference between the market price at the time of breach and the contract price.

The evidence necessary to establish Mercuria’s actual and spot‑price damages was not before the court, so the court could not determine whether the liquidated damages clause was enforceable. This was a summary judgment and the existence of fact issues precluded a final ruling. Those issues will be resolved at trial..

The holdings

  • The extreme weather associated with Winter Storm Uri constituted a force‑majeure event under the contract,
  • Marathon exercised reasonable efforts to mitigate the storm’s effects,
  • Marathon had no duty to buy replacement gas on the spot market to meet its delivery obligations or to buy back that delivery obligation.
  • The court could not determine whether the contract was unenforceable as a matter of law because of an “unbridgeable gap” between Mercuria’s actual and spot-price damages.

A third opinion

The court referred to its opinion issued on September 18, 2025, in which the court determined that several transactional confirmations must be read together with the Base Contract as a single, integrated agreement. The court withheld judgment on how that ruling might affect what was required under the contract.

Caveat

The three opinions together contain 67 pages. If gas sales contracts are your thing, you should read all three opinions. Otherwise, proceed to the musical interludes.

While we are going long, your musical interlude will do the same with cool movie themes.

Pink Panther

High Noon

Jaws

White Star Energy Inc. v. Ridgefield Permian Minerals, LLC is yet another title dispute reiterating that buying minerals that were once the subject of a tax suit foreclosure is fraught with uncertainty regardless of who you buy from.

Anne Mounts Bradford owned minerals in Reagan County.  Apparently abandoning the dream of mailbox money without having to actually work, she failed to pay her property taxes.

In 1999 the taxing authorities sued her along with many other owners in a single suit, effected service solely by posting, and obtained a default judgment.  At that time the tax rolls showed an address for her. White Star purchased Ms. Bradford’s foreclosed interests by a sheriff’s deed in 1999.  In 2021 Ridgefield purchased Ms. Bradford’s remaining interests, if any, from her heirs.

Ridgefield sued contending:

  • It had superior title because the tax suit judgment was void; her due process rights were violated because service by posting was not sufficient notice; and
  • No Tax Code requirements apply to claims because the judgment was void.

 White Star responded:

  • Ridgefield lacked standing to assert that Bradford’s due process rights were violated; and
  • Ridgefield was barred under several provisions of the Tax Code, including the one-year statute of limitations in §33.54a.

Due diligence in a tax suit

Ridgefield did not dispute that it filed suit more than 20 years after White Star’s acquisition. Rather, it argued that to prevail on its trespass to try title claim White Star had to first make a prima facie showing of good title from a common source (Bradford) to shift the burden to Ridgefield to show that it had superior title. Ridgefield maintained that White Star could not carry its burden of proof by invoking the statute of limitations.

In reversing summary judgment in favor of Ridgfield, the appellate court referred to Gill v. Hill, a 2024 Texas Supreme Court decision rendered after the trial court’s judgment holding that citation by publication or posting violates due process when the address of a known defendant is readily ascertainable from public records and there is evidence that the former property owner could have been reached and notified of the foreclosure suit. In this case, Ridgefield failed to present particularized evidence that Bradford could have been reached and notified at her address. Thus, it is impossible to determine whether Bradford’s due process rights were violated.

Gill held that the appropriate level of diligence needed to satisfy due process is an individualized inquiry. If the evidence shows that the Bradford was nowhere to be found after diligent inquiry, alternative service by posting may have sufficed.

Who had the burden of proof?

Ridgefield claimed that it was White Star’s burden to prove superior title as a matter of law. However, as non-movant on White Star’s summary judgment motion, Ridgefield carried the burden of proof to show that limitations did not apply before the court could consider the limitations defense.

The result

The trial court should not have denied White Star’s motion for summary judgment based on its limitations affirmative defense and should have denied Ridgefield’s motion.

The court vacated the trial court judgment and remanded the case for further proceedings. It did not reverse and render because the interests of justice required the trial court to have a second look at the law and evidence.

Justice Palafox promised a dissent but has not released it.

Your musical interludes:

Ann Peebles

Sierra Hull

Sierra Hull … again, its worth it

Co-author Gunner West

In Byrne Oil Co. v. Walraven, a court of appeals held that a surface owner/lessor cannot bury his lessee’s pipelines and recover costs when adequate time exists to pursue judicial remedies, even after years of operator delay.

The oil and gas lease required the lessee to “bury pipeline[s] below plow depth” when requested. Walraven purchased the surface in 2016 and immediately requested burial of over 10,000 feet of above-ground flow lines. Lessee Byrne Oil (successor-in-interest of the original lessee) refused, claiming improper notice under the lease’s breach-notification provision. Byrne Oil sued for declaratory relief in 2019; Walraven counterclaimed for breach of the lease and sought an injunction.

Eighteen months into litigation, Byrne Oil buried most lines for a cost of $7,385. Apparently not a believer in comparison shopping, Walraven later hired a third party to bury the remaining 1,300 feet, which cost him $60,240. The trial court awarded Walraven $30,000 as partial reimbursement, finding the full amount he paid excessive. Byrne Oil appealed.

 Judicial remedy not exclusive

The appellate court rejected Byrne Oil’s first argument that the lease’s notice provision limited Walraven to judicial remedies. The court explained that the 60-day notice requirement protects lessees from forfeiture by allowing time to cure defaults—it does not establish an exclusive remedy structure. The lessee could propose such a provision, but it goes without saying that not many lessors would find that to be in their best interest. 

The suit was for nuisance, not trespass

The court then characterized Walraven’s claims as nuisance rather than trespass. Because the unburied pipelines interfered with Walraven’s use and enjoyment of the surface (not his exclusive possession given that the mineral estate is the dominant estate), the violation constituted a nuisance. The court recognized three remedies for private nuisances: damages, injunctive relief, and self-help abatement; however, not all are available in every case.

The court relied on Martin v. Martin, 246 S.W.2d 718 (Tex. App.—Fort Worth 1952), which held self-help abatement unavailable “where there is time and opportunity for the interposition of an adequate legal remedy.” The court emphasized that self-help exists only for injuries requiring immediate remedy that cannot wait for the ordinary forms of justice. If there is sufficient time to seek legal process, the privilege fails.

Here, the lawsuit had been pending for more than two years when Walraven hired the third-party contractor. Walraven had already pleaded for injunctive relief. The court found this timeframe provided adequate opportunity for judicial remedy, distinguishing cases where plaintiffs sought court orders rather than acting unilaterally.

Policy reasons for the limitation

The court reinforced this holding with oil-and-gas-specific policy: the lessee, as owner and operator of production equipment, “is better suited to either perform the work of relocating production equipment or retain a third party to perform such work.” Allowing surface owners to move equipment risks “disturbing mineral production as well as creating an environmental risk in the event of an accident.” While acknowledging Walraven’s frustration after five years of delay, the court held that “frustration [] cannot justify self-help when the legal remedies of damages and injunctive relief were available.”

The court reversed the $30,000 self-help award but affirmed $1,869.32 for Walraven’s costs to establish his enforcement right. The $125,000 attorneys’ fee award in Walraven’s favor was reversed and remanded for reconsideration.

Your musical interlude, as the appellants say to the trial court (straight out of Bakersfield?).

Lula Eades once owned minerals in Loving County, Texas. In 2000, in a single lawsuit the Wink-Loving ISD and Loving County foreclosed on the mineral and royalty interests of more than 80 owners, including Lula. In Ridgefield Permian Minerals et al v. DOH Oil Company, plaintiff Ridgefield alleged that it acquired Lula’s interests in 2022 by deeds from Lula’s successors. Defendant DOH claimed that in July 2001, after the foreclosure, DOH acquired minerals formerly owned by Lula by a Sheriff’s Tax Deed.

Ridgefield’s suit was to quiet title. One assertion was that the liens in the 2000 tax suit only extended to interests in production under a specific lease which had reverted and therefore could not be foreclosed. In response, DOH asserted res judicata (more about that later) and other defenses.

In 2010 Endeavor interpleaded funds in a Midland County suit to resolve rival claims for minerals that were originally owned by Abbott and were also foreclosed in the 2000 Loving County tax suit. A judgment in the Midland County suit, agreed by DOH and Abbott’s successors, declared that DOH acquired the interests of Abbott and his heirs in a corrected Sheriff’s Tax Deed.

DOH asserted that this case arises from “the same nucleus of operative facts” as the 2010 Midland suit and therefore the judgment declaring that DOH had valid title to Abbott’s interests bars Ridgefield’s challenge to other interests that were subject to the 2000 foreclosure (Lula’s interests, to be specific). Ridgefield’s response: (1) the interests at issue in this case were not derived from Abbott and his successors and (2) Ridgefield did not have notice of the Midland County judgment because it was not filed in Loving County; therefore Ridgefield was a bona fide purchaser.

The trial court agreed with DOH. The appellate court reversed, agreeing with Ridgefield. (We will ignore the question whether the trial court order met the requirements for a permissive appeal.)

“Res judicata”

Res judicata bars claims that have already been litigated or that “arise out of the same subject matter and that could have been litigated in the prior action”.  The doctrine bars a suit if there is proof of these elements:

  1. A prior final judgment on the merits by court of competent jurisdiction;
  2. The identity of parties or those in privity with them;
  3. The second action is based on the same claims as were raised or could have been raised in the first action.

The first element was satisfied. To resolve the third element – and the case – the court didn’t look at the claims in each suit, but whether both claims arose from the same subject matter. The claims in this suit did not involve the same subject matter as the 2010 Midland County suit. The claims in Midland were over mineral interests in Section 14 Block C-26; the claims in this case were over Section 3 Block C-27. Recall that real property is unique; the two properties are not the same subject matter. The interests in the property here were not litigated and determined in the Midland County suit. The court rejected DOH’s argument that, if one of Ridgefield’s predecessors challenged the foreclosure then Ridgefield cannot challenge the foreclosure any other of his predecessors.

The result

The mineral interests in this lawsuit were not adjudicated in the 2010 Midland County suit; thus res judicata did not bar Ridgefield’s suit. Reversed and remanded to the trial court to consider Ridgefield’s claims.

Your musical interlude

Co-author Gunner West

Once again, a Texas court has barred a lawsuit because the plaintiff waited too long to file. And once again, perhaps, the suit was a Hail Mary after alternatives failed.

In Hobson v. Commissioners Court of Palo Pinto County, a court of appeals affirmed a judgment against a landowner because his declaratory judgment and injunction claims against a county commissioners court* were time-barred.  Also, a commissioners court cannot adjudicate private rights by “declaring” a road public and lacks authority to create a neighborhood road where the route is partly in another county.

The facts

Hobson’s family acquired the “Hobson Tract” in 1978. The access road to the tract (the red line on the map) crosses the Ezell Tract to a highway; 60 to 70% of the road lies in Palo Pinto County, while the Hobson Tract is entirely in Parker County. The Ezells’ predecessor blocked Hobson’s use of the road. The road remained blocked after the Ezells purchase.

In 2017, Hobson sued the Ezells in Parker County for a prescriptive easement. The trial court granted summary judgment aginst Hobson.

In 2021, Hobson asked the Palo Pinto Commissioners Court to declare the route public or, alternatively, create a neighborhood road. The Commissioners denied the application.

In 2022, Hobson sued the Commissioners alleging they failed to maintain a public road and sued had abused their discretion in denying his neighborhood-road request, and the Ezells to stop their obstruction of access to his property. The trial court denied Hobson’s claims against the Ezells and the claims against the Commissioners.

Limitations

The court applied Texas’ four-year residual statute of limitations. Because Hobson knew of the blockage no later than his January 2017 Parker County suit, his 2022 claims against the Ezells were untimely.

Continuing tort did not save the claims.

The Texas Supreme Court has “neither endorsed nor addressed” the continuing-tort doctrine; once injury and cause are known, the time within which the plaintiff must sue begins to accrue. Further, the statute of limitations exemption for suits against state and political subdivisions did not apply to a private plaintiff.

Commissioners had no authority

A commissioners court has implied power to make an administrative determination of a road’s public status only as a foundation for authorized county action, such as maintenance. That authority does not include resolving private rights, which must be adjudicated in a court of law.

Applying those principles, the court held the Palo Pinto Commissioners Court lacked jurisdiction and authority to declare the road public in order to resolve Hobson’s dispute with the Ezells; the proper vehicle is a declaratory judgment suit in a court of law.

No cross-county neighborhood road power

Because a commissioners court’s control is over roads in its own county, Palo Pinto County could not create a neighborhood road on a route that crosses into Parker County and serves property located entirely in Parker County.

Hobson presented an alternative interlocal-agreement theory (Trans. Code § 251.059; Gov’t Code ch. 791) that did not change the result. His application did not establish the authority to order creation of such a road, and the district court could not compel the Commissioners to do so.

*In Texas, the governing body of a county is the commissioners court. It is not a ”court” and they are not judges even though the head of the government is the “county judge”, who is not really a “judge” but exercises a judge’s jurisdiction … sometimes. Go figure! Its like Shohei Ohtani isn’t the second coming of Babe Ruth, but he acts like it … sometimes.

Your musical interludes:

Pertinent to the content,

Lagniappe .. not pertinent but good.

Co-author Gunner West

Ambiguity is handy for office-seekers intending to walk back “promises” they later say they really didn’t make. It doesn’t work so well for the stability of land titles. In Thagard Mineral Partnership, LP v. Cass v. RIM, LLP, a Texas court of appeals resolved a dispute over whether vague exhibits in two assignments limited broad granting language.

The first assignment transferred all interests in oil and gas leases, including overriding royalty interests, even though no leases were listed. The second assignment conveyed the mineral fee to all depths even though depth limitations appeared in one section of the exhibit.

Thagard-to-Cass Assignment

Thagard executed an assignment to Cass conveying “all of [Thagard’s] right, title, and interest” in the lands and leases in and to the subject lands “listed and to the extent described on Exhibit A.” Exhibit A identified sections of land but listed no leases. Scriveners and title examiners, see the opinion for details. The rest of us can get by with this summary.

Did the assignment unambiguously transfer all right, title, and interest, including an override? Yes, Cass prevails.

Thagard argued that the assignment was “subject to” a missing document. A circular reference to a “subject to” clause was inartful drafting but was not evidence of a missing document.

Thagard also argued ambiguity: The assignment referenced “leases listed” in Exhibit A but no leases appeared. Said Thagard, where an exhibit is referenced to describe property being conveyed, the description of the interest in the exhibit controls over the scope of the grant, regardless of broad granting language. The court disagreed: “… an instrument of conveyance of real property passes whatever interest the grantor has … , unless it contains language expressing the intention to grant a lesser estate.” Exhibit A had no exceptions.

The court distinguished the requirement of Piranha Partners v. Neuhoff that override conveyances identify underlying leases. Piranha was of an override only, whereas Thagard granted “all” his interests. The property description sufficiently identified the land, allowing location of associated leases and production data.

Cass-to-Plains Assignment

Shortly after the Thagard assignment, Cass assigned interests now owned by RIM LLP. The exhibit had two parts: a table of “Proved Developed Producing Properties” labeled in bold, underlined, all-caps as “MICHAEL L. CASS’ PERSONAL INTEREST INCLUDING HIS O.R.R.I. & MINERAL INTEREST”, showing percentages but no depth limitations—and a “Leases Covering” section in the second part of Exhibit A listing specific leases “from the surface to 8700 feet … .”

Did the assignment unambiguously transfer Cass’s entire mineral fee interest to all depths? Yes. RIM prevails.

Cass argued depth limitations in the “Leases Covering” section applied to everything in Exhibit A. The counterargument: The structure of Exhibit A is relevant to its interpretation; depth limits applied only to leases, not mineral interests.

The court rejected Cass’s position, emphasizing Exhibit A’s deliberate segregation. The table explicitly addressed Cass’s “PERSONAL INTEREST INCLUDING . . . MINERAL INTEREST” with emphatic labeling but no depth language. The “Leases Covering” section listed specific leases with 8,700-foot limitations.

Section IV of the assignment shed further light on the meaning of Exhibit A by disclaiming decimal interests as limitations. They were “for informational purposes only” and stated the intent to convey “the entire right, title and interest” in the properties.

The assignment negated the one potential limitation in a “Producing Properties” table showing WI and NRI percentages and was silent about depth restrictions. If depth limits applied to mineral fee interests, they could have appeared in the table or been addressed in Section IV.

The depth limitations applied only to the leases, not Cass’s personal mineral fee. 

Your stress-free musical interlude.