U.S. SHALE ENERGY II, LLC, Raymond B. Roush, Ruthie Roush Dodge, and David E. Roush, Petitioners, v. LABORDE PROPERTIES, L.P., and Laborde Management, LLC, Respondents

No. 17-0111

Supreme Court of Texas.

Argued February 28, 2018 OPINION DELIVERED: June 29, 2018

Jeffrey D. Small, Katy Ilen Pier Moore, Nicole Sears, Benjamin G. Robertson, Corey F. Wehmeyer, Raymond B. Roush, for petitioners Ruthie Roush Dodge, Raymond B. Roush and David E. Roush.

Forrest M. Seger, III, Andrew L. Kerr, Michael G. Maloney, for respondents Laborde Management, LLC, and Laborde Properties, L.P.

Jeffrey D. Small, Katy Ilen Pier Moore, Nicole Sears, Benjamin G. Robertson, Corey F. Wehmeyer, Laura H. Burney, for petitioner U.S. Shale Energy II, LLC.

Joshua S. Smith, for amicus curiae Wolf Bone Ranch Partners, LLC.

Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, Justice Devine, and Justice Brown joined.

Debra H. Lehrmann, Justice *150We are asked whether the royalty interest reserved to the grantor in a 1951 deed is fixed (set at a specific percentage of production) or floating (dependent on the royalty amount in the applicable oil and gas lease). The trial court concluded it was floating, but the court of appeals disagreed and held it was fixed. In light of the language and structure of the reservation at issue-our sole guide in ascertaining the intent of the parties to this deed-we agree with the trial court that the deed unambiguously reserved a floating 1/2 interest in the royalty in all oil, gas, or other minerals produced from the conveyed property. Accordingly, we reverse the court of appeals' judgment.

**I. Background**

On January 6, 1951, J.E. and Minnie Bryan conveyed by deed all right, title, and interest in a tract of land in Karnes County, Texas, to S.E. Crews. In this deed, the Bryans reserved a nonparticipating royalty interest in the minerals. The reservation in the Bryan deed states:

> There is reserved and excepted from this conveyance unto the grantors herein, their heirs and assigns, an undivided one-half (1/2) interest in and to the Oil Royalty, Gas Royalty and Royalty in other Minerals in and under or that may be produced or mined from the above described premises, the same being equal to one-sixteenth (1/16) of the production. This reservation is what is genaerally [sic] termed a nonparticipating Royalty Reservation ....

Through a series of conveyances, U.S. Shale Energy II, LLC, acquired a share of the Bryans' reserved interest such that, today, the Bryans' heirs and U.S. Shale (collectively, the Bryan successors) own the nonparticipating royalty interest reserved in the Bryan deed. In 2010, Laborde Properties, L.P., acquired all right, title, and interest in portions of the property that is subject to the Bryan successors' nonparticipating royalty interest. At the time Laborde acquired the property, EOG Resources held an oil and gas lease providing for a lessor's royalty of 20%, i.e., 1/5.1

After acquiring the property, Laborde received a division order from EOG reflecting that the Bryan successors were being credited with 1/2 of that 1/5 royalty (for a total of 1/10 of production). Laborde disputed this position, contending that the Bryan successors should be credited with only 1/16 of total production by virtue of the fixed 1/16 royalty reserved in the Bryan deed. After Laborde notified EOG

*151of its disagreement, EOG suspended payments pending resolution of the dispute.

U.S. Shale sued Laborde,2 seeking a declaratory judgment that the Bryan deed reserved a floating 1/2 royalty interest, resulting in a 1/10 royalty under the EOG lease (1/2 of the 1/5 royalty contained in the lease). The Bryans' heirs-Raymond B. Roush, Ruthie Roush Dodge, and David E. Roush-intervened as plaintiffs. Laborde counterclaimed, seeking, in pertinent part, a declaration that the deed reserved a fixed 1/16 royalty.3 The parties filed cross motions for summary judgment as to the declaratory judgment claims. The trial court granted the Bryan successors' motions and denied Laborde's, declaring that the Bryan deed reserved a floating 1/2 royalty interest and, in a separate order, awarding the Bryan successors their attorney's fees.4

The court of appeals reversed. --- S.W.3d ----, ----, 2016 WL 5922404 (Tex. App.-San Antonio 2016). Examining the entire deed, the court determined that no provision other than the reservation itself had significance to the nature of the royalty reserved and held that the language " 'the same being equal to one-sixteenth of the production' ... qualifies, modifies, or clarifies the preceding undivided one-half language, showing an intent to reserve a fixed one-sixteenth (1/16) interest." *Id.* at ----. The court of appeals thus remanded the case to the trial court to reconsider attorney's fees. *Id.* at ----. We granted the Bryan successors' petition for review.

**II. Discussion**

**A. Interpretation Principles and Contextual Overview**

As is often the case, the parties here agree the deed in question is unambiguous but diverge on its proper interpretation. *See, e.g.* , *Luckel v. White* , 819 S.W.2d 459, 461 (Tex. 1991) ; *Garrett v. Dils Co.* , 157 Tex. 92, 299 S.W.2d 904, 907 (1957). "When construing an unambiguous deed, our primary duty is to ascertain the intent of the parties from all of the language within the four corners of the [instrument]." *Wenske v. Ealy* , 521 S.W.3d 791, 794 (Tex. 2017). "We examine the entire [instrument] and seek to harmonize and give effect to all provisions so that none will be meaningless." *Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London* , 327 S.W.3d 118, 126 (Tex. 2010) ; *Luckel* , 819 S.W.2d at 462 (noting that, in construing a deed, we attempt to harmonize provisions that "appear contradictory or inconsistent" so as "to give effect to all of its provisions"). Recently, in *Hysaw v. Dawkins* , we reaffirmed "our commitment to a holistic approach aimed at ascertaining intent from all words and all parts" of the deed. 483 S.W.3d 1, 13 (Tex. 2016). Further, we consider the words used in light of "the facts and circumstances surrounding the [instrument's] execution." *Sun Oil Co. v. Madeley* , 626 S.W.2d 726, 731 (Tex. 1981). We may consider such circumstances to the extent they "inform, rather than vary from or contradict, the [instrument's] text." *URI, Inc. v. Kleberg County* , 543 S.W.3d 755, 767 (Tex. 2018).

*152In this case, questions arise about the intent of the parties to the deed with respect to the nature of the royalty interest reserved to the grantor. A royalty interest "is a nonpossessory interest in minerals that may be separately alienated." *Luckel* , 819 S.W.2d at 463. It may be conveyed or reserved in 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)." *Hysaw* , 483 S.W.3d at 9 (quoting *Luckel* , 819 S.W.2d at 464 ). 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. *Id.* 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 and is calculated by multiplying the fraction in the royalty reservation by the royalty in the lease. *See id.* The language used in the conveyance instrument determines whether the interest is fixed or floating. *See**id.* at 11-13 ; Christopher Kulander, *Fixed vs. Floating Non-Participating Oil & Gas Royalty in Texas: And the Battles Rage On ...* , 4 TEX. A & M L. REV. 41, 44-46 (2016).

Disputes over whether a conveyance or reservation reflects a fixed or floating royalty interest are common when a deed contains multiple fractions.5 These so-called double- and restated-fraction cases frequently involve multiples of 1/8, which was "the usual royalty provided in mineral leases" at the time the Bryan deed was executed. *Garrett* , 299 S.W.2d at 907 ; *see also**Hysaw* , 483 S.W.3d at 9. The ubiquity of the 1/8 landowner royalty led many landowners to presume that the landowner royalty would remain 1/8 in perpetuity. *See**Hysaw* , 483 S.W.3d at 10 ; *Luckel* , 819 S.W.2d at 462. We have thus recognized that, "[t]hough not inexorably so, the reality is that use of 1/8 (or a multiple of 1/8) in some instruments undoubtedly embodies the parties' expectation that a future lease will provide the typical 1/8th landowners' royalty with no intent to convey a fixed fraction of gross production." *Hysaw* , 483 S.W.3d at 11.

**B. Analysis**

The Bryan deed reserved "an undivided one-half (1/2) interest in and to the Oil Royalty, Gas Royalty and Royalty in other Minerals in and under or that may be produced or mined from the above described premises, the same being equal to one-sixteenth (1/16) of the production." Read independently, the sentence's first clause reserves a floating royalty interest equal to one-half of the royalty contained in the oil and gas lease in effect. *See**id.* at 9 (describing a floating royalty "as a fraction of the total royalty interest" (quoting *Luckel* , 819 S.W.2d at 464 ) ); *see also**Schlittler v. Smith* , 128 Tex. 628, 101 S.W.2d 543, 544-45 (1937). The issue is whether the second clause-"the same being equal to one-sixteenth (1/16) of the production"-indicates an interest fixed at 1/16 of production despite the language in the first clause tying it to the royalty. Of course, as long as the landowner's royalty provided in a lease agreement governing the minerals is set at 1/8, the reservation has the exact same effect regardless of whether the reserved interest is classified as fixed or floating. However, in the event that the royalty deviates from 1/8, as it does in the EOG lease in this case, the classification becomes significant.

*153The parties agree, and the court of appeals recognized, that apart from the single sentence reserving the royalty interest, no other provisions in the Bryan deed contain language that might shed light on the parties' intent. --- S.W.3d at ----. We therefore must harmonize the language in the reservation based on the structure of the provision itself. The court of appeals held that the second clause (the same being equal to 1/16 of production) modified the first (1/2 of the royalty), "showing an intent to reserve a fixed one-sixteenth (1/16) interest." *Id.* at ----. We disagree and hold that the deed reserved a floating 1/2 royalty interest.

First, as noted, the language used in the first clause clearly indicates that the parties intended to reserve an amount that would "float" with the governing lease. By using the phrase "one-half (1/2) interest in and to the Oil Royalty," the parties expressed their intent to tie the reservation to the royalty rate that was in effect at any given time. While this rate was typically 1/8 in 1951 (which, as discussed below, explains the language "the same being equal to one-sixteenth (1/16) of the production"), the record contains no evidence that a lease was in effect when the deed was executed. The parties could not have intended to tie the reservation to something that simply did not exist. The dissent opines that, rather than tying the reservation to a nonexistent royalty, the parties intended to limit the reservation to 1/8 because that was the rate commonly used at the time. However, the deed contains no language indicating that the parties intended to limit the reservation in this way. Rather, the language quite plainly reserves 1/2 of the "[r]oyalty," which must refer to a royalty that could come into being at some point in the future.

We impliedly recognized as much in *Schlittler v. Smith* . The grantor in *Schlittler* reserved "an undivided one-half interest in and to the royalty rights on all of oil and gas and other minerals in, on and under or that may be produced from the land." 101 S.W.2d at 544. We held that the reservation entitled the grantor to "one-half of such royalty as may be reserved in any oil, gas or mineral lease which may be executed by the [grantee]." *Id.* at 545. In so holding, we disagreed with the trial court that the language reflected an intent to reserve one-half of "not less than the usual one-eighth royalty," even though "very likely neither of the parties thought [the royalty] would be less" than one-eighth. *Id.* at 544-45. The language in the first clause of the deed's reservation in this case is quite similar to the reservation language in *Schlittler* , and we read it the same way: to entitle the grantor to "one-half of such royalty as may be reserved in any oil, gas or mineral lease which may be executed." *Id.* at 545.

Turning to the effect of the second clause, we cannot conclude, consistent with our rule of construction mandating that no language be rendered meaningless, that "the same being equal to one-sixteenth (1/16) of the production" somehow modifies the plain meaning of the first clause. To that end, if a lease agreement provides for any royalty rate other than 1/8 (such as the 1/5 royalty currently in effect), in order for the reserved royalty interest to remain consistent with 1/16 of production, that interest would necessarily deviate from 1/2, rendering the 1/2 interest clause meaningless.6 Thus, we conclude the only reasonable way to reconcile these clauses is to read the second clause, "the same being equal to one-sixteenth (1/16) of the production," to clarify, as an incidental factual *154matter, what a 1/2 interest in the royalty amounted to when the deed was executed.

So construed, neither clause is rendered meaningless because both continue to be given effect in the face of leases departing from what was once a "ubiquitous" 1/8 royalty. This is demonstrated by applying the two proposed interpretations. As noted, the current lease on the property at issue provides for a 1/5 royalty. If we construe the deed to reserve a floating royalty interest, entitling the Bryan successors to 1/10 of production (i.e., 1/2 of the 1/5 royalty), it continues to be true that (1) the deed reserved a 1/2 interest in the royalty (which is now 1/5), and (2) that 1/2 interest amounted to 1/16 of production when the deed was executed in 1951 (though, under the current lease, it amounts to 1/10 of production). Because the second clause simply describes the effect of the first, the percentage of production will necessarily change based upon the royalty in effect at any given time. As such, both clauses are given effect regardless of the terms of any applicable lease agreement. By contrast, if the Bryan successors are entitled to only a fixed 1/16 of production, the statement in the deed purporting to reserve a 1/2 interest in and to the royalty is no longer true when the royalty deviates from 1/8.

The sentence's grammatical structure further bolsters our interpretation. We note that "the same being equal to one-sixteenth (1/16) of the production" is offset by a comma, indicating a nonrestrictive dependent clause. Such a clause "gives additional description or information that is incidental to the central meaning of the sentence" and "that could be taken out of the sentence without changing its essential meaning." BRYAN A. GARNER, THE REDBOOK: A MANUAL ON LEGAL STYLE § 1.6(a), at 6 (3d ed. 2013); *accord* BRYAN A. GARNER, THE ELEMENTS OF LEGAL STYLE 140-41 (1991). The court of appeals' emphasis on this clause improperly makes it essential to the sentence rather than incidental. To be clear, we do not imply that the use of a single comma is the dispositive consideration here. We simply recognize that the sentence's grammatical structure is consistent with the interpretation that gives effect to all of its parts.

The dissent criticizes our "foundational conclusion" that the first clause, read independently, reserves a floating royalty interest equal to one-half of the royalty contained in the oil and gas lease in effect. *Post* at ----. The dissent notes that a clause "expressing a single fraction with a reference to a 'royalty,' can describe either a fixed or a floating royalty interest" and argues that we resolve the first clause's meaning "without any analysis." *Id.* at 157 (footnote omitted). To the contrary, in accordance with well-settled interpretation principles, we analyze the specific language the parties chose.7

As discussed, the parties chose to tie the reserved interest to the royalty, generally defined as "the landowner's share of production, free of expenses of production." *Heritage Res., Inc. v. NationsBank* , 939 S.W.2d 118, 121-22 (Tex. 1996) ; *see also**State Nat'l Bank v. Morgan* , 135 Tex. 509, 143 S.W.2d 757, 761 (1940). In turn, the royalty rate necessarily depends on the terms of the oil and gas lease in effect. The dissent is "certain that the Bryans understood the first clause's reference to 'the Oil Royalty' to refer to a 1/8 royalty," and "[n]o other language indicates *155... that they intended the reserved amount to change if a future lease provided for a different royalty." *Post* at 159.8 But this construction ignores the fact that the parties reserved 1/2 of the "[r]oyalty" with no language indicating that the parties intended to limit the rate to the 1/8 that was commonly used at the time. *See**Schlittler* , 101 S.W.2d at 544-45. We recognized in *Hysaw* that "the possibility that the parties were operating under the assumption that future royalties would remain 1/8 will not alter clear and unambiguous language that can otherwise be harmonized." 483 S.W.3d at 10. Again, interpreting the deed to reserve a floating royalty interest harmonizes both clauses of the reservation, while the dissent's view would render the first clause meaningless when the applicable lease agreement provides for any royalty other than 1/8.

The dissent's reliance on the absence of language indicating that the parties believed the royalty could change in the future is misplaced for two additional reasons. First, although the deed does not contain explicit language indicating that the *royalty rate* might change, neither does it contain language indicating that the reserved *1/2 interest* might change. Yet, the reserved interest would have to change (here, from 1/2 to 5/16) in order to remain consistent with 1/16 of production. Thus, the absence of such language simply does not support either construction. More importantly, because the deed's language clearly tied the interest reserved to the royalty itself, an explicit statement that the percentage of production owed would change along with the royalty would have been superfluous. Rules of construction do not require enunciation of the obvious.

In sum, the court of appeals' interpretation-that the deed reserved a fixed royalty-improperly ignores the parties' choice to link the reserved interest to the royalty in effect at any given time. Further, it allows one clause of the reservation to render the other meaningless. By contrast, construing the deed to reserve a floating royalty interest properly harmonizes the deed's pertinent language.9 Under this interpretation, neither clause of the reservation is nugatory because both are given proper grammatical and practical effect. We therefore hold that the Bryan deed reserved a floating 1/2 royalty interest.

**III. Conclusion**

Because the Bryan deed unambiguously reserved a floating 1/2 royalty interest, the trial court correctly granted summary judgment for the Bryan successors. Accordingly, we reverse the court of appeals'

*156judgment and reinstate the judgment of the trial court.

Justice Boyd filed a dissenting opinion, in which Justice Johnson and Justice Blacklock joined.

Justice Boyd, joined by Justice Johnson and Justice Blacklock, dissenting.

The Court holds that the deed at issue reserved a "floating" interest of 1/2 of whatever royalty might one day be paid on minerals the property produces, rather than a "fixed" interest of 1/2 of the then-standard 1/8 royalty. Yet the deed expressly and unambiguously states the grantors' intent to reserve a royalty equal to "1/16 of production." And nothing in the deed indicates that the grantors intended that amount to change if a future lease provided a royalty other than the then-standard 1/8 royalty. Because I agree with the court of appeals that the deed reserved a fixed 1/16 royalty interest, I respectfully dissent.

We recently addressed a similar fixed-or-floating-royalty issue in *Hysaw v. Dawkins* , 483 S.W.3d 1 (Tex. 2016). Rejecting "mechanical rules of construction that offer certainty at the expense of effectuating intent," we "reaffirm[ed] our commitment to a holistic approach aimed at ascertaining intent from all words and all parts of the conveying instrument." *Id.* at 13, 16. Because the parties' intent as expressed within the document must control, we recognized that a "[v]ariety of outcome should be expected," even among documents that contain similar words and phrases. *Id.* at 13.

The Court found it "plausible" to read the *Hysaw* deed's descriptive language as defining a fixed royalty interest, but it concluded that "other language in the will and the overall structure of the royalty devise confirms [the testator's] intent to ... legate a floating 1/3 royalty." *Id.* at 15.1 Similarly, courts have found an intent to create a floating royalty in "other language" like a minimum-royalty clause2 or a reference to "any and all" royalties in future leases.3 The deed at issue here, *157however, contains no such "other language." As the Court agrees, *ante* at ----, the *only* indication of the grantors' intent in this deed is a single sentence describing the reserved interest using two connected clauses:

> (1) "an undivided one-half (1/2) interest in and to the Oil Royalty, Gas Royalty and Royalty in other Minerals,"

> (2) "the same being equal to one-sixteenth (1/16) of the production."

Reading these two clauses together, I begin with the obvious conclusion: When the Bryans executed this deed in 1951, they believed they were reserving a royalty interest equal to 1/2 of a 1/8 royalty. The second clause could not state this more plainly: they expressly reserved an interest "being equal to one-sixteenth (1/16) of the production." And although no lease existed at that time, the first clause fits perfectly with the intent expressed in the second clause because a 1/8 royalty was then the standard royalty. As the Court explains, the circumstances surrounding the deed's execution, which "inform, rather than vary from or contradict, the [instrument's] text," confirm that the usual and standard royalty in 1951 was 1/8 of production. *Ante* at 151 (quoting *URI, Inc. v. Kleberg Cty.* , 543 S.W.3d 755, ---- (Tex. 2018) ).4

The Court, however, concludes that the first clause, "[r]ead independently, ... reserves a floating royalty interest equal to one-half of the royalty contained in [any] oil and gas lease in effect." *Ante* at 152. This conclusion serves as the *sole* foundation beneath all the Court's analysis regarding the deed's language, structure, and grammar. According to the Court, because the first clause, "read independently, reserves a floating interest," it conflicts with the second clause, thus requiring that we "harmonize" the two. *Ante* at 152. I disagree with the Court's conclusion because I disagree with its sole foundation, for two related reasons.

First, the first clause, standing alone, does not clearly indicate whether it reserves a floating or fixed royalty interest. The clause reserves "an undivided one-half (1/2) interest in and to the Oil Royalty, Gas Royalty and Royalty in other Minerals," but the instrument provides no indication of the intended meaning of the capitalized terms, and the deed does not define them. Nevertheless, without any analysis, the Court concludes that the clause "clearly indicates that the parties intended to reserve an amount that would 'float' with the governing lease." *Ante* at 153.

As its sole support for that foundational conclusion, the Court relies on *Schlittler v. Smith* , 128 Tex. 628, 101 S.W.2d 543, 544 (1937), which it asserts "impliedly" supports the Court's construction. *Ante* at ----. *Schlittler* implies no such support. The issue in *Schlittler* was whether the deed reserved 1/2 of the royalty interest or 1/2 of the mineral interest, and thus 1/2 of *158all bonuses and rentals as well as royalties. 101 S.W.2d at 544. We held that it reserved only 1/2 of the royalties, meaning it reserved "an interest in oil, gas, or minerals paid, received, or realized as 'royalty' under any lease existing on the land at the time of the reservation, or thereafter executed by the grantee, his heirs or assigns." *Id.* In response to the trial court's holding that the deed reserved "one-half of not less than the usual one-eighth royalty," we noted that nothing in the deed "indicate[d] that the royalty to be reserved was the usual one-eighth, although very likely neither of the parties thought it would be less." *Id.* Even if we intended to suggest in *Schlittler* that the deed reserved a floating interest (an issue not argued in that case), that deed reserved "an undivided one-half interest in and to *the royalty rights* on *all of oil and gas* and other minerals," not (as here) "an undivided one-half (1/2) interest in and to *the Oil Royalty* ." The deed here reserved an interest specifically in "the Oil Royalty," not to "royalty rights" in general, presenting the question of what specific "Oil Royalty" the parties had in mind.

We and the courts of appeals have recognized that this type of clause, expressing a single fraction with a reference to a "royalty,"5 can describe either a fixed or a floating royalty interest. In *Luckel* , for example, we concluded that a clause granting "an undivided one thirty-second (1/32nd) royalty interest in and to the ... described property" recited nothing more than that "a 1/32nd royalty interest is conveyed." *Luckel* , 819 S.W.2d at 460-61.6 Similarly, in *Garrett* , we held that language conveying "one-eighth of all of *the oil royalty* " expressed only an intent to convey "a royalty of one sixty-fourth or one-eighth of the one-eighth royalty retained in the lease." 299 S.W.2d at 906 (emphasis added). And the courts of appeals have made opposite assertions regarding similar provisions. *Compare, e.g.* , *Range Res. Corp.* , 266 S.W.3d at 495 (asserting that language reserving an "undivided one-half (1/2) Royalty ... of all the oil, gas and/or other minerals in, to, and under or that may be produced" from the land "probably reserved only a fractional [i.e., fixed] royalty interest") *with**Coghill* , 358 S.W.3d at 838 (asserting that language reserving "an undivided one-eighth (1/8) interest in and to all of the oil royalty [and] gas royalty" describes the interest "as a fraction of [i.e., floating] royalty").

In short, standing alone, a clause that reserves a single fractional interest in and to or of a "royalty" may describe either a *159fixed interest or a floating interest. *Brown v. Havard* , 593 S.W.2d 939, 942 (Tex. 1980) (holding that a clause reserving "an undivided one-half non-participating royalty" reserves "either a 1/2 royalty [i.e., a fixed interest] or 1/2 of royalties [i.e., a floating interest]"). It all depends on what the parties intended by the term "royalty"-or, here, by the reference to "the Oil Royalty." The Court's foundational conclusion-that the first clause "reserves a floating interest"-is thus simply unfounded and incorrect because that clause, standing alone, does not clearly indicate whether it reserves a floating or fixed royalty interest. The Court creates a conflict by attributing meaning to the first clause that its language cannot support. As a result, the Court purports to harmonize language that does not conflict at all.

This brings me to the second reason I disagree with the Court's foundational conclusion: it construes the first clause in isolation, without considering the only other language that provides insight into the first clause's meaning. In what it claims is the "only reasonable way to reconcile these clauses," the Court isolates the first clause, construes it to reserve a floating interest, and then construes the second clause in light of the meaning it attributed to the first clause. By taking this clause-by-clause approach, the Court relegates the second clause to an afterthought, so that it "simply describes the effect of the first" clause and "clarif[ies], as an incidental factual matter, what a 1/2 interest in the royalty amounted to when the deed was executed." *Ante* at 153. The Court thus ignores the approach we insisted upon in *Hysaw* : "*before* ascribing any particular meaning to double-fraction language in a conveying instrument, all the other language in the document must be considered to deduce intent." *Hysaw* , 483 S.W.3d at 14 (emphasis added).

In other words, we cannot determine the first clause's meaning without first considering any other language that provides guidance on that meaning. We must read the first clause in its context. That context necessarily includes the second clause, which confirms the Bryans' intent to reserve a royalty "equal to one-sixteenth [1/16] of the production."*Ante* at 150. Contrary to the Court's assertion, the second clause contains the "language indicating that the parties intended to limit the reservation" to 1/2 of the then-standard 1/8 royalty. *Ante* at ----. The second clause is the *only* other language that provides any guidance on the first clause's intended meaning. In light of the second clause, we know for certain that the Bryans understood the first clause's reference to "the Oil Royalty" to refer to a 1/8 royalty. No other language indicates that they intended anything different, or that they intended the reserved amount to change if a future lease provided for a different royalty.

Construing the clauses together does not render either meaningless. The Court asserts that, because the current lease provides for a 1/5 royalty instead of a 1/8 royalty, construing the deed to reserve a fixed 1/16 interest would render the first clause "meaningless" because the reserved interest would not equal "an undivided 1/2 interest" in the current 1/5 royalty. *Ante* at ----. But that analysis is based on the Court's foundational conclusion that the first clause, when improperly "read independently," instead of properly read in context with the second clause (as *Hysaw* requires), creates a floating interest. If, *as the second clause confirms* , the first clause's reference to "the Oil Royalty" refers only and specifically to the then-standard 1/8 royalty, construing the deed to reserve a fixed 1/16 royalty gives meaning to both clauses. In contrast, the Court's holding that the deed reserved a floating *160royalty that now equals 1/10 of production renders the second clause meaningless. The Court's "meaningless" argument, in other words, depends wholly on its improper foundational conclusion.

Nor does the Court's reliance on the sentence's "grammatical structure" support its conclusion. The Court asserts that the inclusion of a comma between the two clauses makes the second clause a "nonrestrictive dependent clause" that merely "clarif[ies], as an incidental factual matter, what a 1/2 interest in the royalty amounted to when the deed was executed." *Ante* at 159. Although the inclusion of a comma is not "dispositive," the Court asserts, it makes the structure "consistent" with the Court's holding that the deed reserved a floating interest. *Ante* at ----. This argument, of course, also wholly depends on the Court's foundational conclusion regarding the first clause. But in any event, regardless of the "non-dispositive" comma, the second clause is not merely "incidental"; rather, it is the *only* language that sheds any light on the first clause's meaning. Like similar language included as a parenthetical in similar deeds, the second clause "explains and defines" the interest the first clause describes. *Moore v. Noble Energy, Inc.* , 374 S.W.3d 644, 647, 650-51 (Tex. App.-Amarillo 2012, no pet.) (holding that deed that reserved "a one-half non-participating royalty interest (one-half of one-eighth of production)" reserved "a fixed royalty of one-half of one-eighth of production, or one-sixteenth, and cannot reasonably be read to reserve a [floating] one-half royalty" and construing the language to reserve a floating royalty would "require that the parenthetical phrase be ignored, contrary to the rule of construction mandating that we examine the deed as a whole"); *see also**Helms v. Guthrie* , 573 S.W.2d 855, 857 (Tex. Civ. App.-Fort Worth 1978, writ ref'd n.r.e.) (holding that deed reserving "1/2 of the 1/8Th royalty (same being a 1/16Th of the total production) of oil, gas and minerals" reserved a fixed 1/16 interest in production, "not a 'fraction of royalty'[ ] determinable upon the execution of some future lease"). So I agree with the Court that the second clause confirms what the Bryans believed the interest "amounted to when the deed was executed," but that does not answer the question of whether they intended the amount to change at some later date. Reading both clauses together, the only intent the deed expressed was the intent to reserve an interest equal to 1/16 of production.

We know from the deed's plain language that the Bryans believed the deed reserved 1/2 of the then-standard 1/8 royalty, "the same being equal to one-sixteenth (1/16) of the production." While "other language in the [deed] and the overall structure of the royalty [reservation]" *could* indicate a different intent, *Hysaw* , 483 S.W.3d at 15, it does not do so here. By construing the first clause in isolation, the Court fails to construe the two clauses together and in context, as *Hysaw* requires. Because nothing in the deed indicates that the Bryans intended the reserved interest to change based on the royalty paid in a future lease, I conclude that the deed reserved a fixed undivided 1/2 interest in and to the then-standard 1/8 royalty, "the same being equal to 1/16 of the production." Because the Court holds otherwise, I dissent.

1

EOG acquired this interest by assignment from Whitmire Land Services Company in December 2009. The lease was originally executed in April 2008 by Whitmire and Laborde's predecessors-in-interest.

2

U.S. Shale sued both Laborde Properties and its general partner, Laborde Management, LLC. These entities are hereinafter collectively referred to as Laborde.

3

The difference is significant because, under Laborde's interpretation, the Bryan successors would be entitled to slightly less than 1/3 of the royalty under the current lease, rather than 1/2.

4

The trial court also severed Laborde's remaining counterclaims into a separate cause, such that the declaratory judgment and award of attorney's fees in favor of the Bryan successors became final and appealable.

5

*See generally**Alford v. Krum* , 671 S.W.2d 870 (Tex. 1984) ; *Brown v. Havard* , 593 S.W.2d 939 (Tex. 1980) ; *Garrett v. Dils Co.* , 157 Tex. 92, 299 S.W.2d 904 (1957) ; *Tipps v. Bodine* , 101 S.W.2d 1076 (Tex. Civ. App.-Texarkana 1936, writ ref'd).

6

Specifically, in order to receive 1/16 of production where the royalty is 1/5, the royalty owner would have a 5/16 interest in the royalty, not a 1/2 interest.

7

Unremarkably, the dissent cites various cases reaching different results on whether a reserved royalty was fixed or floating based on the language used. *Post* at ----. We fail to see how those results call into question our analysis of the language used here.

8

The dissent's discussion of the Bryans' intentions regarding a *future* lease providing for a *different* royalty is curious in light of the dissent's recognition that no lease was in effect providing for any royalty at the time the deed was executed. *See**id.* at 159.

9

In *Brown v. Havard* , we examined a deed reserving an "undivided one-half non-participating royalty (Being equal to, not less than an undivided 1/16th) of all the oil, gas and other minerals, in, to and under or that may be produced from said land." 593 S.W.2d at 940. We held that the use of the parenthetical rendered the clause ambiguous, noting that (1) it appeared to simultaneously reserve both one-half of all minerals and one-half of the royalties and (2) the parenthetical phrase could connote reservation of either a fixed 1/16 interest or 1/2 of the royalties in future leases (with such share not to fall below 1/16).*Id.* at 942. The reservation clause in the *Brown* deed was thus problematic on several levels, rendering it unclear what type of interest (mineral vs. nonparticipating royalty interest) was even being reserved. Although the reservation clause at issue here bears some similarity to that in *Brown* , it is sufficiently distinguishable, both in the language used and in grammatical structure, that we do not find *Brown's* holding dispositive.

1

*See also, e.g.* , *Medina Interests* , *Ltd. v. Trial* , 469 S.W.3d 619, 624-25 (Tex. App.-San Antonio 2015, pet. denied) (concluding that although language describing the interest "bears some similarity to language that has been interpreted as stating a fixed royalty," the deed conveyed a floating royalty because subsequent "paragraphs repeat three times the agreement that the royalties will be pooled and shared equally among the six grantors and the two grantees").

2

*See, e.g.* , *Coghill v. Griffith* , 358 S.W.3d 834, 839-40 (Tex. App.-Tyler 2012, pet. denied) (holding that language requiring future leases to "provide for *at least* ... the usual one-eighth" royalty indicates that grantor "contemplate[d] the possibility of a future lease containing a larger royalty" and thus intended to create a floating interest) (emphasis added); *Range Res. Corp. v. Bradshaw* , 266 S.W.3d 490, 493-96 (Tex. App.-Fort Worth 2008, pet. denied) (finding intent to convey a floating interest based on language requiring that any future lease "provide for Royalty of *not less than* one-eighth (1/8)" and that grantee shall receive "*not less than* one-sixteenth (1/16) portion (being equal to one-half (1/2) of the customary one-eighth (1/8) Royalty) of the entire gross production"); *Garza v. Prolithic Energy Co.* , 195 S.W.3d 137, 146 (Tex. App.-San Antonio 2006, pet. denied) (holding language that "restricts the ability of the grantor to enter into a future lease that provides for less than a one-eighth royalty ... contemplates the possibility of a future lease containing a larger royalty," so "if the grantor enters into a future lease with a royalty that is larger than the 'usual one-eighth,' the grantee would be entitled to 15/32nds of the larger royalty interest").

3

*See, e.g.* , *Luckel v. White* , 819 S.W.2d 459, 464-65 (Tex. 1991) (finding intent to create floating royalty interest based on language providing that grantee would receive "one-fourth of *any and all royalties reserved under* " any future leases) (emphasis added); *Leal v. Cuanto Antes Mejor LLC* , No. 04-14-00694-CV, 2015 WL 3999034, at *3-4 (Tex. App.-San Antonio, July 1, 2015, no pet.) (finding intent to create floating interest based on language describing interest as an "*undivided one-fourth (1/4) interest in and to all of the royalty paid on the production* " and other language referring to the interest as an "*interest in and to any royalty* ").

4

*See also**Hysaw* , 483 S.W.3d at 9 (describing the 1/8 royalty rate as "so pervasive that, for decades, courts took judicial notice of it as the standard and customary royalty"); *Garrett v. Dils Co.* , 157 Tex. 92, 299 S.W.2d 904, 907 (1957) ("The court takes judicial knowledge of the fact that the usual royalty provided in mineral leases is one-eighth."); *State Nat. Bank of Corpus Christi v. Morgan* , 135 Tex. 509, 143 S.W.2d 757, 761 (1940) ("[T]hat the usual royalty in oil and gas leases is 1/8, is in our opinion one so generally known that judicial knowledge may be taken of it.").

5

This type of clause differs from those "double-fraction" clauses that actually refer to two separate fractions, reserving-for example-"1/4 of the 1/8th royalty interest in and to all of the oil," *Hawkins v. Tex. Oil & Gas Corp.* , 724 S.W.2d 878, 889 (Tex. App.-Waco 1987, writ ref'd n.r.e.), or "[o]ne-eighth (1/8) of the usual one-eighth (1/8) royalty on oil and/or gas," *Allen v. Creighton* , 131 S.W.2d 47, 49-50 (Tex. Civ. App.-Beaumont 1939, writ ref'd). As we explained in *Hysaw* , "court opinions construing double-fraction language have yielded mixed results, with no discernible unifying principle except to the extent the outcome derives from the conveying instrument's specific language." *Hysaw* , 483 S.W.3d at 11. Thus, like the clause at issue here, "double fractions in a mineral conveyance may or may not evince intent to fix the interest. Consequently, before ascribing any particular meaning to double-fraction language in a conveying instrument, all the other language in the document must be considered to deduce intent." *Id.* at 14.

6

We ultimately held that the *Luckel* deed conveyed a floating royalty interest, but we reached that conclusion because *other language* in the deed-specifically, the future-lease clause-provided that the grantee "shall be entitled to one-fourth of *any and all royalties* reserved under said leases." *Luckel* , 819 S.W.2d at 461. As noted, the deed at issue here does not include any such additional language.