Permissive-Appeal Scope Includes Fairly Included Issues Like the Presumed-Grant Doctrine in Double-Fraction Royalty Disputes

I. Introduction

This Supreme Court of Texas per curiam opinion arises out of a long-running ownership dispute over a nonparticipating royalty interest created by a 1933 deed affecting the Mabee Ranch. The petitioners (including the “Boren Descendants and Royalty Owners” and the Mabee Ranch-related entities and representatives) oppose the respondents (Fasken Oil and Ranch, Ltd.; Fasken Land and Minerals, Ltd.; and Fasken Royalty Investments, Ltd.).

The deed reserved to Fasken an “undivided one-fourth (1/4th) of the usual one eighth (1/8th) royalty.” For roughly 85 years, the parties’ conduct treated that reservation as a fixed 1/32 (0.03125) royalty. In 2019, however, Fasken sued contending the deed actually reserved a floating 1/4 royalty (i.e., a fraction of the royalty provided by future leases).

The trial court granted partial summary judgment for Fasken on deed construction, rejected (on no-evidence grounds) the opposing side’s reliance on the presumed-grant doctrine, and permitted an interlocutory (permissive) appeal identifying controlling questions about (1) whether the deed created a floating 1/4 royalty or a fixed 1/32 royalty and (2) whether various affirmative defenses barred Fasken’s claim. The court of appeals addressed deed construction and affirmative defenses, but refused to consider presumed grant because it was not expressly listed in the certification order.

The Supreme Court’s central contributions here are (a) a jurisdictional holding about the scope of issues reachable in a permissive appeal and (b) a remand directive in light of the Court’s intervening clarification of Texas “double-fraction” jurisprudence in Clifton v. Johnson.

II. Summary of the Opinion

  • Jurisdiction: The Supreme Court held the court of appeals did have jurisdiction to consider the presumed-grant doctrine, even though the trial court’s permissive-appeal order did not expressly list it, because it was a “fairly included subsidiary” or “ancillary” issue necessary to resolve the controlling legal issues.
  • Merits disposition: The Supreme Court vacated the court of appeals’ merits judgment (including its deed-construction rulings) and remanded for “fresh consideration” in light of Clifton v. Johnson, which clarified how courts should approach double-fraction deeds and the relationship between deed construction and the presumed-grant doctrine.
  • No merits view: The Supreme Court expressly stated it expressed “no view” on the correct outcome under either deed construction or presumed grant.

III. Analysis

A. Precedents Cited

1. Van Dyke v. Navigator Grp., 668 S.W.3d 353 (Tex. 2023)

Van Dyke supplies the organizing framework: in double-fraction royalty disputes there are “two ‘distinct paths’” to determining ownership: “the construction of the original deed and the presumed-grant doctrine.” The Court invokes that dichotomy to show the case inherently implicates both paths.

The opinion also quotes Van Dyke for the proposition that “when the presumed-grant doctrine clearly applies, ‘a court could dispense with the deed-construction analysis’ altogether.” That quote matters because it underscores why excluding presumed grant from the interlocutory appeal would be artificial and inefficient—presumed grant can be dispositive.

2. Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137 (Tex. 2022)

Elephant Ins. is the core jurisdictional authority. It holds that once a permissive appeal is accepted, the appellate court resolves it “according to the same principles as any other appeal,” including “all fairly included subsidiary issues and ancillary issues” needed to resolve the controlling legal question.

The Supreme Court uses Elephant Ins. to reject a rigid, checklist-style approach to certified issues. Even if a trial court’s order does not name a doctrine, an appellate court may still reach it if it is embedded in the orders under review and is pertinent to resolving the certified controlling issues.

3. Clifton v. Johnson, ___ S.W.3d ___, 2026 WL 705763 (Tex. Mar. 13, 2026)

Clifton is the intervening merits clarification that drove the Supreme Court to vacate and remand. The Court reiterates Clifton’s key structural point: “the double-fraction presumption sits alongside the presumed-grant doctrine,” and “[b]oth prongs, albeit in entirely distinct ways, ask the same question: who owns this property today?”

By anchoring the remand in Clifton, the Court signals that any renewed merits analysis must properly account for both: (i) modern rules for interpreting double fractions in deed text and (ii) the separate, historically grounded presumed-grant pathway when properly raised.

B. Legal Reasoning

1. The jurisdictional error: permissive-appeal scope is not limited to expressly enumerated labels

The court of appeals believed its jurisdiction was confined to the issues expressly listed in the trial court’s permissive-appeal certification order. The Supreme Court corrects that by reframing the inquiry: the question is whether the omitted matter is a “fairly included subsidiary” or “ancillary” issue to resolving what was certified.

Applying that standard, the presumed-grant doctrine fell within appellate jurisdiction for multiple reasons:

  • The interlocutory orders actually under review included the trial court’s grant of Fasken’s no-evidence motion rejecting presumed grant. Thus, the doctrine was part of the appealed summary-judgment package, not an external add-on.
  • The controlling certified question asked whether Fasken was barred from asserting anything other than a fixed 1/32 by various defenses. If presumed grant applies, it establishes a fixed 1/32 interest as a matter of settled ownership, directly affecting that controlling inquiry.
  • Functionally, excluding presumed grant would “giv[e] the parties half a loaf,” undermining the Legislature’s goal in authorizing permissive appeals: efficient resolution of controlling legal issues without wasteful piecemeal litigation.

2. Why double-fraction cases heighten the need to address both “paths” together

The Court emphasizes the “legal context” of double-fraction royalty disputes. Because Clifton and Van Dyke describe deed construction and presumed grant as parallel routes to the same endpoint (current ownership), it will often be impractical to sever presumed grant from a deed-construction appeal. The Court states it is “hard to imagine” how a properly lodged presumed-grant issue could be severed from an appeal involving textual deed analysis.

3. Remedy: reverse on jurisdiction, vacate on merits, remand for a “fresh consideration”

Rather than decide the royalty question itself, the Supreme Court: (i) reverses the court of appeals’ jurisdictional limitation, (ii) vacates the merits judgment under Texas Rule of Appellate Procedure 60.2(f), and (iii) remands so the court of appeals can reconsider the case under the clarified framework of Clifton, including both deed text and presumed grant if properly raised.

The Court also highlights a sequencing principle from Clifton/Van Dyke: if presumed grant “clearly applies,” a court may be able to “dispense with the deed-construction analysis” altogether. The Court leaves it to the court of appeals to decide whether this is such a case and, even if so, whether resolving deed text would still provide useful guidance.

C. Impact

1. Appellate practice: broader, pragmatic issue reach in permissive appeals

The opinion reinforces (and operationalizes) Elephant Ins. Co. v. Kenyon in a high-stakes property setting: appellate courts may address unlisted doctrines in permissive appeals when those doctrines are “fairly included” in the certified controlling questions or are necessary to resolve the appealed orders. Practically, litigants should:

  • brief subsidiary and ancillary issues that bear on certified questions, even if not expressly named in the certification order;
  • ensure the interlocutory orders themselves clearly encompass the doctrines they want reviewed (as occurred here with the no-evidence ruling on presumed grant).

2. Oil-and-gas litigation: post-Clifton recalibration and renewed attention to presumed grant

By vacating the merits and requiring reconsideration under Clifton, the Court signals that older approaches to “double fractions” must be reassessed. The remand invites a more integrated analysis: deed text (including any double-fraction presumption rules) plus, where properly raised, the presumed-grant doctrine—which may resolve ownership based on long-continued recognition and treatment of an interest.

The factual posture noted by the Court—85 years of consistent treatment of the reservation as a fixed 1/32, tax reporting at 1/32, and no historical descriptions above 1/32— illustrates why presumed grant can be pivotal in disputes that arise long after the original deed execution.

3. Procedural economy: discouraging “half measures” in interlocutory review

The Court’s “half a loaf” critique serves as a caution against artificially narrowing interlocutory appeals where doing so would simply defer intertwined dispositive issues to later stages. The ruling thus promotes fuller resolution of the real legal drivers of a dispute at the interlocutory stage, when the trial court has certified controlling questions and the appellate court has accepted review.

IV. Complex Concepts Simplified

Double fraction
A deed that expresses an interest using two fractions (e.g., “1/4 of the usual 1/8 royalty”). The interpretive question is often whether the interest is a fixed mathematical fraction (1/4 × 1/8 = 1/32) or a fraction that “floats” with the royalty rate in future leases (1/4 of whatever the lease royalty is).
Fixed vs. floating royalty
Fixed means the deed grants/reserves a constant share of production (e.g., always 1/32). Floating means the share is tied to (and changes with) the royalty fraction negotiated in future oil-and-gas leases (e.g., always 1/4 of the lease royalty, whether that royalty is 1/8, 3/16, 1/5, etc.).
Presumed-grant doctrine
A doctrine that can recognize an ownership interest based on long, consistent, and adverse (or otherwise qualifying) historical treatment and recognition of property rights, even when the original documentation is missing or disputed. In the double-fraction context, it can “lock in” an interest consistent with decades of settled practice.
Permissive (interlocutory) appeal
An appeal taken before final judgment, allowed only if the trial court certifies controlling legal questions and the appellate court accepts the appeal. Once accepted, the appellate court may consider not only the stated questions but also “fairly included” subsidiary or ancillary issues needed to resolve them.
Vacate vs. reverse
Reverse sets aside a lower court’s ruling as incorrect (here, on jurisdiction). Vacate nullifies the judgment so it has no continuing effect (here, the merits ruling), typically to allow reconsideration under corrected legal standards.

V. Conclusion

The Supreme Court of Texas establishes a clear procedural rule with practical bite: in a permissive appeal, an appellate court’s jurisdiction is not limited to doctrines expressly named in the trial court’s certification order; it extends to “all fairly included subsidiary issues and ancillary issues” necessary to resolve the controlling questions, including the presumed-grant doctrine when intertwined with double-fraction deed disputes.

Substantively, the Court does not decide whether the 1933 reservation is fixed or floating. Instead, it vacates the merits judgment and remands for renewed consideration consistent with Clifton v. Johnson and the two-path framework of Van Dyke v. Navigator Grp., ensuring the court of appeals can evaluate both deed construction and presumed grant as alternative routes to the same ultimate determination: who owns what interest today.