Texas Supreme Court Provides Additional Guidance On Double-Fraction Deeds

Highlights

The Supreme Court of Texas issued its opinion in Clifton v. Johnson, 69 Tex. Sup. Ct. J. 326, 2026 WL 705763 (Tex. Mar. 13, 2026), a closely watched case about double-fraction deeds. This was the Supreme Court's first double-fraction deed case since Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex. 2023). Van Dyke was the latest in a long line of cases in the Supreme Court about how to construe double-fraction deeds. In that case, for the first time, the Supreme Court recognized a rebuttable presumption that when a deed uses "a double fraction involving "1/8," the "1/8 reflects the entire mineral estate, not just 1/8 of it." 668 S.W.3d at 364.

The Clifton decision is the Supreme Court's first opportunity to provide guidance on how the Van Dyke presumption can be rebutted and on other issues left open in Van Dyke.

Holland & Knight attorneys Greg Binns, Rich Phillips, Julie Kroger, Brad Hancock and David Hornbeak represented several of the petitioners before the Supreme Court, with Mr. Phillips presenting argument, and secured a decision confirming the clients' position that the Van Dyke presumption was rebutted and that the deed at issue granted a fixed royalty interest.

Background

The deed at issue in Clifton was signed in 1951, and the future lease clause provided that the grantees "shall only receive under such subsequent lease or leases a 1/128 (1/16 of the usual 1/8 royalty) part of the oil, gas and other minerals taken and saved under such lease or leases." The successors of the grantees sued the successors of the grantors, arguing that the future lease clause conveyed a floating royalty, rather than the fixed royalty that the grantees' successors were receiving.

The trial court granted summary judgment in favor of the grantors' successors, concluding that the deed conveyed a fixed 1/128 royalty. The El Paso Court of Appeals reversed, finding the Van Dyke presumption applied. The Supreme Court reinstated the trial court's judgment, holding that the deed conveyed a fixed royalty.

Discussion

The Supreme Court's opinion provides helpful guidance about the Van Dyke presumption. First, although not directly addressing it, the opinion indicates that the Van Dyke presumption applies to double-fraction disputes involving royalty interests. The presumption recognized in Van Dyke was about the use of "1/8" in describing a mineral interest. Before the Clifton decision, it was unclear whether or how this presumption would apply to double fractions used to describe royalty interests, though most intermediate courts have assumed that it would apply. The Supreme Court's Clifton opinion does not directly address this issue but instead simply states that "the use of 1/8 in the case's deed implicates the Van Dyke presumption." Thus, although not expressly discussed by the Supreme Court, it appears that for descriptions of royalty interests, the presumption is that "1/8" stands in for the entire royalty provided in the lease.

Second, the Supreme Court addressed whether the presumption is rebutted by other language in the deed at issue and concluded that it is. The Supreme Court noted that both the granting clause and the future-lease clause used "1/128," and reading the future-lease clause to convey a fixed 1/128 royalty ensured that "1/128" was read consistently through the document. The Supreme Court concluded that the deed conveyed a 1/128 interest in the granting clause, conveyed a 1/128 existing royalty on then-current leases, and conveyed a "separate but parallel" 1/128 royalty on future leases.

Third, the Supreme Court provided additional guidance about the presumed-grant doctrine. Although it was not necessary to resort to the presumed-grant doctrine in deciding the case, the Supreme Court observed that the doctrine pointed to the same conclusion – that the deed conveyed a fixed 1/128 interest. This was because the interest had always been treated as fixed. The Supreme Court noted that the presumed-grant doctrine does not play any role in interpreting deeds or other instruments. Instead, the doctrine can apply when "current property ownership is not consistent with what the instrument's text proclaims." If "the doctrine's demanding requirements are met … parsing a complicated text may end up being unnecessary."

Conclusion

There are still a number of open issues after Clifton and Van Dyke. First, the Supreme Court has still not precisely delimited the era to which the presumption applies. For example, would it apply to a double-fraction deed executed in the 1960s? The 1970s? Future cases will have to sort that out.

Second, how exactly would the presumed-grant doctrine be properly invoked and applied? In both Van Dyke and Clifton, the Supreme Court noted that the history and the instrument agreed. What happens when they do not?

Thus, though Clifton is a big step forward on double-fraction deeds, there are still issues that will have to be sorted out in future cases.