The Texas Supreme Court has remanded an Eastland Court of Appeals decision holding that it didn’t have jurisdiction to consider Defendants’ assertion of the presumed-grant doctrine because the trial court order designating issues for a permissive appeal didn’t explicitly name the issue.
Boren Descendants and Royalty Owners v. Fasken Oil and Ranch, Ltd.; Fasken Land and Minerals, Ltd.; and Fasken Royalty Investments, Ltd. (No. 25-0010; April 24, 2026) and The Mabee Ranch Royalty Partnership, L.P., et al. v. Fasken Oil and Ranch, Ltd.; Fasken Land and Minerals, Ltd.; and Fasken Royalty Investments, Ltd. (No. 25-0012; April 24, 2026) arose from a royalty dispute. Under a 1993 deed, Fasken held a reserved undivided ¼ of the usual 1/8 royalty in oil, gas, and minerals produced from certain land. For eight decades, the parties and their successors treated the deed as reserving a fixed 1/32 royalty interest. But in 2019, Fasken filed suit alleging that the deed reserved a floating ¼ royal interest. The trial court granted Fasken partial summary judgment, finding that defendants didn’t produce any evidence that the presumed-grant doctrine applied. In a permissive appeal, the court of appeals affirmed judgment for Fasken that the deed reserved a floating ¼ royalty interest. But the court held that it didn’t have jurisdiction over the presumed-grant issue because the trial court didn’t add it to the list of issues designated for interlocutory appeal. The court also reversed the trial court’s denial of Defendants’ summary-judgment motion on Fasken’s breach of contract claim. Defendants appealed in two groups. SCOTX consolidated the cases and granted review.
In a per curiam petition, SCOTX reversed and remanded to the court of appeals for further consideration. First, the Court reversed the court of appeals’ jurisdictional ruling on the presumed-grant doctrine. “Once a trial court has authorized a permissive appeal that an appellate court accepts,” the Court instructed, “the appellate court should resolve the appeal ‘according to the same principles as any other appeal, including addressing all fairly included subsidiary issues and ancillary issues pertinent to resolving the controlling legal issue” (citation omitted). The Court determined that since the trial court orders on appeal included the grant of summary judgment to Fasken on the presumed-grant doctrine issue, and that one of the controlling issues of law in the appeal was whether an affirmative defense barred plaintiffs’ claim, the “doctrine, if it applies, would establish that Fasken holds a fixed 1/32 royalty interest.” As the Court observed, “i]t is hard to imagine how a properly lodged presumed-grant-doctrine issue could be severed from an appeal involving the textual analysis of the deed.”
The Court then vacated the court of appeals’ judgment and remanded for consideration of the presumed-grant doctrine. Pointing to Clifton v. Johnson, __S.W.3d__, 2026 WL 705763 (Tex. Mar. 13, 2026), the court reiterated that “when the presumed-grant doctrine clearly applies, ‘a court could dispense with the deed-construction analysis’ altogether” (citation omitted). The Court expressed no opinion as to whether this was actually the case, but sent the case back to Eastland for consideration of the issue.
