Permissive-Appeal Jurisdiction Encompasses Fairly Included Subsidiary Issues, Including the Presumed-Grant Doctrine in Double-Fraction Royalty Disputes

Case: BOREN DESCENDANTS AND ROYALTY OWNERS v. FASKEN OIL AND RANCH, LTD.; FASKEN LAND AND MINERALS, LTD.; AND FASKEN ROYALTY INVESTMENTS, LTD. (consolidated with No. 25-0012)
Court: Supreme Court of Texas
Date: April 24, 2026
Disposition: Petitions granted; court of appeals reversed on jurisdiction; merits judgment vacated; remanded.

I. Introduction

This consolidated Texas oil-and-gas dispute arises from a 1933 deed that reserved an “undivided one-fourth (1/4th) of the usual one eighth (1/8th) royalty” in production from certain lands. For roughly 85 years, the parties and their successors treated the reservation as a fixed 1/32 nonparticipating royalty interest (NPRI). In 2019, the Fasken entities sued, asserting the deed instead reserved a floating 1/4 royalty interest under applicable leases.

The litigation raised two intertwined sets of issues: (1) how to interpret “double-fraction” royalty language (fixed vs. floating), and (2) whether long, consistent historical treatment of the interest triggered the presumed-grant doctrine, potentially confirming the fixed 1/32 ownership notwithstanding textual disputes. The trial court permitted an interlocutory appeal on two controlling questions centered on deed construction and various affirmative defenses. The court of appeals decided the deed-construction issues and defenses but refused to reach presumed grant, concluding it lacked jurisdiction because the certification order did not list that doctrine expressly.

The Supreme Court’s per curiam opinion corrects that jurisdictional approach and, in light of its intervening clarification of double-fraction deed law in Clifton v. Johnson, vacates the merits rulings and remands for a fresh consideration that may include both “distinct paths” to ownership: deed construction and presumed grant.

II. Summary of the Opinion

  • Jurisdiction: Once a permissive appeal is accepted, the appellate court may address “all fairly included subsidiary issues and ancillary issues” necessary to resolve the controlling legal issues. The presumed-grant doctrine was such an issue here, because the appealed orders included a no-evidence summary judgment rejecting presumed grant and because presumed grant—if applicable—would establish the very ownership position at the center of the certified questions (a fixed 1/32).
  • Merits: Because the Supreme Court recently clarified the law governing double-fraction deeds in Clifton v. Johnson, the Court vacated the court of appeals’ merits rulings and remanded for reconsideration under the clarified framework, including consideration of presumed grant if properly raised.
  • No ultimate ownership decision: The Court expressed no view on whether the reservation is fixed or floating and no view on whether presumed grant applies; those questions return to the court of appeals on remand.

III. Analysis

A. Precedents Cited

1. Van Dyke v. Navigator Grp. The opinion frames the dispute using Van Dyke v. Navigator Grp., 668 S.W.3d 353, which described two “distinct paths” to establishing present-day mineral/royalty ownership in double-fraction cases: (i) construction of the deed’s text and (ii) the presumed-grant doctrine. The Supreme Court relies on this taxonomy to explain why excluding presumed grant from appellate consideration is often artificial: both paths ultimately answer the same ownership question, but through different legal mechanisms.

The Court also quotes Van Dyke (via Clifton) for the proposition that when presumed grant “clearly applies,” a court “could dispense with the deed-construction analysis” altogether. That observation underscores the practical importance of allowing appellate courts to reach presumed grant when it is fairly included in an accepted permissive appeal.

2. Elephant Ins. Co. v. Kenyon The jurisdictional holding rests primarily on Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137. Elephant rejected a cramped view of permissive-appeal jurisdiction and instructed that appellate courts, once an interlocutory permissive appeal is accepted, should resolve it like any other appeal— including “all fairly included subsidiary issues and ancillary issues” pertinent to resolving the controlling legal issue.

Applying Elephant, the Court reasoned that the jurisdictional inquiry does not end with the face of the trial court’s certified questions. Here, because the appealed orders included a no-evidence summary judgment rejecting presumed grant and because presumed grant directly bears on whether the plaintiffs are barred from claiming an interest “anything other than a fixed 1/32nd,” the issue fell within the permissible scope of review. The Court further stressed the legislative and prudential purpose of permissive appeals—avoiding inefficiency and “half a loaf” adjudication.

3. Clifton v. Johnson Clifton v. Johnson, ___ S.W.3d ___, 2026 WL 705763 is the intervening merits precedent that prompted vacatur. The Court emphasized Clifton’s clarification of “the double-fraction presumption” and its restatement that this presumption “sits alongside the presumed-grant doctrine.” In other words, the law now more explicitly requires courts to recognize that textual interpretation and presumed grant are parallel frameworks that may both be relevant to the same ownership dispute.

Because the court of appeals decided only deed construction (and did so before Clifton), the Supreme Court vacated the merits decision to allow a fresh analysis under the clarified rules and with the presumed-grant issue properly in play.

B. Legal Reasoning

1. The “fairly included” scope of permissive appeals
The key legal move is jurisdictional: the Supreme Court treats the appeal as review of the interlocutory orders themselves, not as a rigidly confined exercise limited to the trial court’s phrasing of certified questions. Under Elephant Ins. Co. v. Kenyon, the appellate court must address issues that are fairly included and necessary to resolve the controlling legal issue.

The presumed-grant doctrine qualified because:

  • The appealed orders included the trial court’s rejection of presumed grant via a no-evidence summary judgment, making it part of what was actually “on appeal.”
  • The certified controlling issue asked whether plaintiffs were barred (by asserted affirmative defenses) from claiming their NPRI was anything other than a fixed 1/32. Presumed grant, if established, would conclusively support the fixed 1/32 position.
  • In double-fraction disputes, deed construction and presumed grant are difficult to sever in a principled way because both answer the same “who owns this property today?” question.

2. Vacatur as a merits “reset” post-Clifton
After restoring jurisdiction, the Court does not decide whether the deed creates a floating or fixed royalty. Instead, it vacates the court of appeals’ merits judgment under TEX. R. APP. P. 60.2(f), allowing the lower court to reevaluate the deed-construction analysis consistent with Clifton and to address presumed grant.

3. Preservation of procedural flexibility on remand
The Court explicitly leaves the court of appeals discretion to (i) render judgment if the case is resolvable as a matter of law, or (ii) remand for additional factual development if needed—particularly relevant to presumed grant, which often depends on long, consistent conduct and other historical indicia.

C. Impact

1. Broader appellate jurisdiction in accepted permissive appeals
The opinion strengthens and operationalizes Elephant Ins. Co. v. Kenyon in the oil-and-gas context: appellate courts should not treat certification orders as jurisdictional straitjackets. Parties should expect that, once a permissive appeal is accepted, any issue fairly included in and necessary to resolve the appealed orders—especially those intertwined with the controlling issue—may be decided.

2. Double-fraction litigation will more routinely present two-track analysis
By highlighting that the “double-fraction presumption sits alongside the presumed-grant doctrine,” the Court signals that deed-text arguments and long-settled-ownership arguments are not mutually exclusive. Future litigants should plead, preserve, and develop evidence for both paths (where available) and anticipate that appellate courts will address both rather than artificially narrowing review.

3. Increased importance of historical course-of-performance evidence
The case’s factual backdrop—85 years of treatment as a fixed 1/32, tax payments on 1/32, and consistent descriptions of the NPRI—illustrates the type of evidentiary record that can make presumed grant dispositive or at least highly significant. Even though the Supreme Court did not decide presumed grant, its remand instruction makes clear that courts should not ignore such evidence when the doctrine is properly raised.

4. Remedial effect: vacatur avoids locking in pre-Clifton reasoning
Vacating the merits decision prevents the court of appeals’ deed-construction approach from ossifying under superseded or incomplete doctrinal framing. Practically, the remand invites a reanalysis that may change outcomes in double-fraction cases where older interpretive heuristics produced “floating” results despite longstanding contrary treatment.

IV. Complex Concepts Simplified

  • Double fraction: Royalty language that expresses a share as one fraction of another fraction (e.g., “1/4 of the usual 1/8 royalty”). Disputes arise over whether the parties meant a fixed mathematical result (1/32) or a fraction that “floats” with whatever royalty rate a lease sets.
  • Fixed vs. floating royalty: A fixed royalty is a constant share of production (e.g., always 1/32). A floating royalty is a fraction of the lease royalty (e.g., 1/4 of whatever the lease royalty is—1/4 of 1/5 equals 1/20).
  • Nonparticipating royalty interest (NPRI): A royalty interest that typically entitles the owner to a share of production or proceeds but does not include the right to sign leases (and often does not include bonus or delay rentals).
  • Presumed-grant doctrine: A doctrine that can recognize or “presume” a missing conveyance or correct title where long, uninterrupted, and consistent ownership and recognition strongly indicate that a grant must have occurred, even if the documentation is not found.
  • Permissive (interlocutory) appeal: An appeal allowed before final judgment, typically certified by the trial court and accepted by the appellate court, to resolve controlling legal questions early. This opinion emphasizes that accepted permissive appeals include “fairly included” subsidiary issues necessary to decide what is truly at stake.
  • Vacatur: An appellate court’s act of setting aside a lower court decision. Here, vacatur clears the way for reconsideration under updated law.

V. Conclusion

The Supreme Court of Texas’ decision makes two points with lasting significance for Texas oil-and-gas litigation. First, in accepted permissive appeals, appellate jurisdiction extends to “all fairly included subsidiary issues and ancillary issues” necessary to resolve the appealed orders—meaning courts should not refuse to decide intertwined doctrines like presumed grant simply because a certification order did not name them. Second, in double-fraction royalty disputes, courts must recognize that deed construction and the presumed-grant doctrine are parallel pathways to the same ultimate question of present-day ownership, and—after Clifton v. Johnson—must be evaluated within a clarified interpretive framework. The remand leaves outcomes open, but it firmly aligns procedure and doctrine to ensure that long-settled ownership evidence and deed text can be evaluated together rather than in isolation.