Texas Oil and Gas Attorney Blog

The Texas Supreme Court recently decided a case in which an oil company’s withholding of production payments was contested. In Freeport-McMoRan Oil & Gas LLC v. 1776 Energy Partners, LLC, ___ S.W.3d ___, 2023, WL ___ (Tex. May 19, 2023), two oil companies, Ovintiv and 1776 Energy, entered into an agreement to jointly develop and produce minerals from certain leases they owned in Karnes County. Ovintiv  was in charge of distributing production payments.

A third oil company sued 1776 to require it to transfer leases to the third company, and obtained a constructive trust on production payments until the transfer was completed. Because the trust clouded title to the production payments, Ovintiv suspended payments to 1776. 1776 eventually got paid but wanted interest on those payments from Ovintiv.

The Supreme Court held the suspension was authorized by the Texas Natural Resources Code. That Code provides that withholding payments without interest was allowed when a title dispute “would affect distribution of payments.” The Code also states that allows a payor can withhold payments without interest when the payor has reasonable doubt that the payee has clear title to the proceeds. Thus, the Court held 1776 was not entitled to interest.

In Bridges v. Uhl, No. 08-21-00130-CV,  (Tex. App.—El Paso 2022, no pet. h.) the El Paso Court of Appeals added it’s decision to the already substantial volume of court decisions grappling with the question of whether the royalty language in a deed was a fixed or a floating royalty.

The distinction has substantial economic consequences. As the Court describes it: “(A royalty) interest may be conveyed or reserved in one of two ways: ‘as a fixed fraction of total production’ (fractional royalty interest) or ‘as a fraction of the total royalty interest’ (fraction of royalty interest) … A fractional royalty interest is referred to as a fixed royalty because it ‘remains constant’ and is untethered to the royalty amount in a particular oil and gas lease. A fraction of royalty interest is referred to as a floating royalty because it varies depending on the royalty in the oil and gas lease in effect at the time, such that it is calculated by multiplying the fraction in the royalty reservation by the royalty in the (current) lease. Based on interpretation principles, the language used in the conveying or reserving instrument determines whether an interest is fixed or floating.”

In this case, the Court was asked to interpret a 1940 royalty deed that reserved a non-participating royalty interest with this language:

The Texas Supreme Court has just issued an opinion in Point Energy Partners Permian LLC v. MRC Permian Co., ___ S.W.3d ___, 2023 WL ___, (Tex. Apr. 21, 2023) that involves the application of the force majeure language in an oil and gas lease.

Force majeure is a legal doctrine that excuses performance under a lease for certain unforeseen circumstances or “Acts of God”. In this case, the oil and gas lease required the oil company to commence drilling a new well by a certain date in order to prevent the lease from terminating at the end of the primary term. The oil company scheduled the drilling of a well, but for a date three weeks after the primary term of the lease had expired. (Presumably the lease was not being held by production).

The lease had a force majeure clause that said “[w]hen Lessee’s operations are delayed by an event of force majeure,” the lease shall remain in force during the delay with ninety days to resume operations. The oil company sent the lessor a letter invoking the force majeure clause in the lease, stating that they had to use their drilling rig to remedy wellbore instability on another (and unrelated) lease and that this prevented them from drilling the new well before the primary term expired. The problem was that a new oil company executed a new lease with the lessor after the primary term on the original lease expired.

The Texas Supreme Court recently issued an opinion in a case in which royalties were calculated on more than gross proceeds. Specifically, the Court approved royalty language that calculated royalty on the total of gross proceeds (which by definition does not include expenses) and post-sale expenses.

In Devon Energy Prod. Co. v. Sheppard, ___ S.W.3d ___, 2023 WL ___ (Tex. Mar. 2023) [20- 0904], the leases being considered provided for royalty payments based on gross sales proceeds. However, in what is frankly unusual language for leases, the leases stated that if “any reduction or charge for [postproduction] expenses or costs” has been “include[d]” in “any disposition, contract or sale” of production, those amounts “shall be added to the . . . gross proceeds.” (Emphasis added.) In other words, the leases actually required Devon Energy to add postproduction costs incurred by third-party purchasers to the gross proceeds from sale before calculating Sheppard’s royalty.

Devon disagreed that any amount should be added to the gross proceeds. The Court noted that the contracts that were used to determine gross sales proceeds used publish index prices at market centers downstream from the point of sale.

The Texas Supreme Court interpreted yet another confused mineral reservation in a deed in the case of Van Dyke v. Navigator Grp., ___ S.W.3d ___, 2023 WL ___ (Tex. Feb. 17, 2023). The 1924 deed contained a reservation of “one-half of one-eighth” of the mineral estate. The question was: did the grantor reserve a one-half interest in the minerals or a 1/16 interest in the minerals?

The evidence in the case reflected that the grantor and the grantees and even third parties for decades had treated the deed as having reserved a one-half interest in the mineral estate to the grantor and conveyed one-half to the grantees. However, in 2013, the grantees filed suit claiming that the grantor had reserved only a 1/16 interest (multiplying 1/2 times 1/8). The trial court granted the grantees’ motion for summary judgment and held that the deed reserved only a 1/16 mineral interest to the grantor and that the grantees received 15/16 of the mineral estate. The Court of Appeals affirmed.

The Texas Supreme Court reversed the decision of the trial court and the Court of Appeals. The Court reasoned that the meaning of the reservation depended on whether the use of the “one-eighth” in the double fraction was meant in a mathematical sense or was due to an estate misconception. The estate misconception happens because people mistakenly used to use the 1/8 fraction as a stand-in for the entire mineral estate, rather than a fractional share of the mineral estate.

Texas oil and gas companies can engage in a variety of procedures as part of their exploratory process before they drill an oil and gas well. One such procedure is seismic testing or a seismic survey. Seismic testing is a process that results in an image of the subsurface of property. The kind of seismic testing done most often in Texas uses a “thumper truck” which contains a large plate in the center of the truck that is thumped on the ground. The shock waves emanating from the thumping result in data that can be collected digitally and result in a map of the subsurface. Seismic testing can also be done by drilling shot holes into the ground, placing dynamite into the holes and then covering the holes over. When the dynamite is set off, the sound waves from the explosions generate data that, when collected, result in a map of the subsurface.

If you own the surface and the minerals, and you have not executed an oil and gas lease for the minerals, you do not have to allow seismic testing. However, if you sign an oil and gas lease, or if you don’t own the minerals and the mineral owner has signed an oil and gas lease, many leases allow for seismic testing. Of course, if you own the minerals and are signing an oil and gas lease, it may be important to limit or eliminate any right by the lessee to do seismic testing when you are negotiating the terms of that lease.

If a seismic test is going to be performed, it’s important to educate yourself about the test. Don’t sign the permit the testing company gives you. Instead, negotiate a permit that provides protections for the property. Things to consider include (but aren’t limited to):

In a case last year before the Texas Supreme Court, BPX Operating Co. v. Strickhausen, 629 S. W. 3d. 189 (Tex. 2021), the Court addressed whether the acceptance of royalty checks by a lessor constituted a ratification of the oil company’s pooling of the leased premises in violation of the anti-pooling clause in the lease.

Margaret Ann Strickhausen signed and oil and gas lease with BPX Operating that specifically prohibited pooling without the express written consent of the lessor. BPX sent her a ratification of pooling which she refused to sign. BPX pooled her property anyway. BPX continued to send her royalty checks, totaling over $700,000, which she deposited. BPX claimed that Ms. Strickhausen had therefore impliedly ratified the pooling of her property.

The Supreme Court stated: “Ratification is the adoption or confirmation by a person with knowledge of all material facts of a prior acts which then did not legally bind him and which he had the right to repudiate”.  In this case, there were a number of objective facts which indicated that Ms. Strickhausen did not agree with or consent to the pooling and that she accepted the royalty checks believing that these were the royalties she was entitled to without the pooling taking place. The Court further stated that “ratification is not a game of ‘gotcha’ ” and ruled that the lessor’s acceptance of royalty checks under these circumstances was not a ratification of the pooling by the BPX.

The Texas Supreme Court recently issued its long-awaited opinion in Terrance J. Hlavinka et al v. HSC Pipeline Partnership, LLC, —S.W.3d— (Tex. May 27, 2022). There were two important issues in this case: (1) whether a pipeline company transporting polymer-grade propylene can be a common carrier with condemnation authority under Texas Business Organizations Code Section 2.105 and (2) whether a property owner may testify during condemnation proceedings about recent arms’-length transactions with other pipeline companies as evidence of the current highest and best use of the property in determining the market value of the new easement.

The Court held that Section 2.105 does grant condemnation authority and that polymer-grade propylene is a qualifying product under that section. That makes sense since propylene is a petroleum by-product. The Court also held that one of the conditions for eminent domain, that the pipeline will be a common carrier for public use, is a legal question for a court to decide, and is not a fact question for the jury.

Finally, the Court held that “a property owner may testify to arms’-length sales of easements to other pipeline companies as evidence of the condemned property’s highest and best use”. (The trial court had excluded this evidence).