Dissenting Opinion issued December 22, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00044-CV

———————————

TANYA L. MCCABE TRUST, MCCABE FAMILY TRUST, AND THE 

ROCHFORD LIVING TRUST, Appellants

V.

RANGER ENERGY LLC, Appellee

On Appeal from the 356th District Court

Hardin County, Texas

Trial Court Case No. 54138

DISSENTING OPINION

This is an important suit that affects the development of Texas law governing 

the enforceability of correction deeds against oil and gas overriding royalty interest 
2

owners. I strongly disagree with the majority’s holding that a correction deed of 

trust was invalid and that the royalty owners’ interests in the property survive

foreclosure. Accordingly, I respectfully dissent.

This is a suit brought by appellee, Ranger Energy LLC (“Ranger”), against 

appellants, Tanya L. McCabe Trust, McCabe Family Trust, and Rochford Living 

Trust (collectively, “the Trusts”), to quiet title to overriding royalty interests in two 

oil-and-gas leases, the “McShane Fee and Brice Leases,” located in Hardin County, 

Texas, that Ranger acquired at a foreclosure auction. The question before the trial 

court on cross motions for summary judgment was whether a corrected mortgage 

and deed of trust complied with provisions in the Texas Property Code relating to 

correction instruments. See TEX. PROP.CODE ANN. §§ 5.027–.031 (West 2014). The 

Trusts contend that the correction instruments at issue in this case failed to comply 

with the statutory requirements for making a material correction to an instrument 

and are therefore invalid as a matter of law. The majority agrees with the Trusts, 

stating, “The correction instruments were ineffective because they purported to 

make material changes, yet they were not correctly executed as specified by the 

Texas Property Code.” Slip Op. at 3. I strongly disagree.

The leases at issue here—the McShane Fee and Brice Leases—were part of a 

package of eight oil and gas leases referred to as the “Saratoga Leases,” sold by 

Tomco Energy, PLC (“Tomco”) to Mark III Energy Holdings, LLC (“Mark III”) in 
3

August 2008. But these two particular leases were inadvertently omitted from the 

legal description of the Saratoga Leases set out in Exhibit A to the 2008 Original 

Assignment, Mortgage, and Deed of Trust.

The Trusts purchased their overriding royalty interests in the Saratoga Leases 

in 2011 and 2012. In 2011, Exhibit A was corrected with respect to the original 

assignment and the assignments of overriding royalty interests to each of the Trusts, 

and the corrected instruments were filed in the public records of Hardin County. All 

but the first overriding royalty interest purchased by the Trusts had the correct 

Exhibit A attached, and the one purchased with an incorrect Exhibit A was corrected 

effective one month later. In other words, the Trusts knew from the time they 

purchased their overriding royalty interests in the Saratoga Leases in 2011 and 2012 

that they had purchased property interests in all eight of the Saratoga Leases.

Subsequently, in December 2012, the Original Mortgage and Deed of Trust 

were renewed with the original incorrect Exhibit A attached that omitted the 

McShane Fee and Brice Leases from the legal description of the Saratoga Leases. 

The mistake was promptly discovered, however, and, in January 2013, correction 

instruments were filed in the Hardin County public records. These instruments

amended the Renewal Mortgage and Deed of Trust to reflect that the McShane Fee 

and Brice Leases were part of the Saratoga Leases, as shown in the 2011 Corrected 
4

Original Assignment and the assignments to the Trusts already on file in the Hardin 

County public records. 

Under these circumstances, I cannot agree with the majority that the 2013 

correction of Exhibit A to the renewal mortgage and deed of trust was a material 

change made at that time to the original conveyance instruments. I would hold,

instead, that it was a valid nonmaterial change made to correct the legal description 

of the Saratoga Leases in Exhibit A to the Renewal Mortgage and Deed of Trust so 

that they conformed to the previously Corrected Original Assignment on file in the 

Hardin County public records since 2011. I would conclude that Ranger’s 

predecessor in title complied with the statutory provisions for making nonmaterial 

changes to correction instruments.

Property Code section 5.030 provides that a correction instrument is subject 

only to the property interests of a creditor or bona fide purchaser without notice of 

an error in the original instrument. Under the circumstances of this case, I would 

conclude that the Trusts could not and did not establish that they were bona fide 

purchasers of the overriding royalty interests in the McShane Fee and Brice Leases

without notice at the time they acquired their interests in 2011 that their overriding 

royalty interests extended to all eight of the Saratoga Leases burdened with the 

Original Mortgage and Deed of Trust. As a result, I would hold that the trial court 

correctly determined that the foreclosure sale of the Saratoga Leases to Ranger 
5

extinguished the Trusts’ interests in the McShane Fee and Brice Leases together with 

their interests in the remaining six Saratoga Leases. I would affirm the judgment of 

the trial court granting summary judgment in favor of Ranger.

Facts

In August 2008, Tomco sold eight oil-and-gas leases, “the Saratoga Leases,”

in Hardin County, Texas, to Mark III. The Saratoga Leases were described in 

Exhibit A to the assignment and bill of sale (“the 2008 Tomco Original 

Assignment”). However, two of the eight Saratoga Leases—the McShane Fee and 

Brice Leases—were inadvertently omitted from Exhibit A. The 2008 Tomco 

Original Assignment was recorded in the official public records of Hardin County.

On October 21, 2008, in preparation for closing the $4 million Security 

Agreement between Mark III and Peoples Bank, attorney Keith C. Thompson issued 

an opinion letter (the “2008 Opinion Letter”). It stated, inter alia, that Thompson

had “[p]repared and obtained signatures for the Assignment of the Saratoga Lease 

from Tomco Energy, PLC to Mark III Energy Holdings, LLC,” along with other 

leases, and that he had recorded all of the described documents in the appropriate 

counties. Thompson gave his opinion that the transactions were completed using 

regularly accepted standards in the Texas oil and gas industry and that they were 

“such that People’s Bank, Kansas has a valid and legally enforceable security 

interest in the [Saratoga Leases].” 
6

On November 3, 2008, Mark III obtained a $4 million mortgage from Peoples 

Bank (the “Original Mortgage”) and executed a deed of trust securing the mortgage

(the “Original Deed of Trust”).

1

 The Original Mortgage and Deed of Trust granted 

to Peoples Bank a lien against Mark III’s undivided working interests in the Saratoga 

Leases. The Original Mortgage and Original Deed of Trust were recorded in the 

official public records of Hardin County on November 10, 2008. But, like the 2008 

Tomco Original Assignment, the Original Deed of Trust identified the subject leases 

in an Exhibit A that included only six of the eight Saratoga Leases, again 

inadvertently omitting the McShane Fee and Brice Leases. Neither Mark III nor 

Peoples Bank discovered the error at this time.

On May 3, 2011, Mark III executed an assignment, effective July 1, 2011, of 

a 10% undivided overriding royalty interest in “the oil, gas and mineral leases in 

Hardin County, Texas described on Exhibit ‘A’” to the Tanya L. McCabe Trust

(“Tanya L. McCabe Assignment No. 1”). Exhibit A to this assignment omitted the 

McShane Fee and Brice Leases, as had the 2008 Tomco Original Assignment and 

the Original Mortgage and Deed of Trust. The Tanya L. McCabe Assignment No. 

1 was filed on May 26, 2011, in the official public records of Hardin County. 

 

1 The transactions between Peoples Bank and Mark III also involved other oiland-gas leases in Hardin and Liberty Counties that are not at issue in this 

appeal. 
7

On July 25, 2011, Mark III executed an assignment of a 5% undivided 

overriding royalty interest in “the oil, gas and mineral leases in Hardin County, 

Texas described on Exhibit ‘A’” to the Tanya L. McCabe Trust (the “Tanya L. 

McCabe Assignment No. 2”). The assignment had an effective date of August 1, 

2011. The correct Exhibit A, including the McShane Fee and Brice Leases, was 

attached to the Tanya L. McCabe Assignment No. 2.

At some point, Mark III discovered the omission of the McShane Fee and 

Brice Leases. Although the Tanya L. McCabe Assignment No. 2 had the correct 

Exhibit A, Mark III nevertheless executed a “Corrected Tanya L. McCabe 

Assignment No. 2” on November 1, 2011, to be effective August 1, 2011. The 

Exhibit A attached to this document again included the McShane Fee and Brice 

Leases. Mark III also corrected the first assignment to the Tanya L. McCabe Trust 

by executing a “Corrected Assignment of Overriding Royalty Interest” that 

“supersede[d] the Assignment of Overriding Royalty Interests recorded in 

Instrument No. 2011-20342” in the Hardin County Public Records (the “Corrected 

Tanya L. McCabe Assignment No. 1”) on November 30, 2011, to be effective 

August 1, 2011. The Corrected Tanya L. McCabe Assignment No. 1 attached the 

corrected Exhibit A that included the McShane Fee and Brice Leases. Both of these 

corrected assignments were filed in the Hardin County Public Records on December 

22, 2011.
8

On November 1, 2011, Mark III executed an assignment of a 15% undivided 

overriding royalty interest in “the oil, gas and mineral leases in Hardin County, 

Texas described on Exhibit ‘A’” to the Tanya L. McCabe Trust (the “Tanya L. 

McCabe Assignment No. 3”). The Exhibit A attached to this document included the 

McShane Fee and Brice Leases. The Tanya L. McCabe Assignment No. 3 was also 

filed in the Hardin County Public Records on December 22, 2011.

On or about December 13, 2011, Tomco executed and filed a Corrected 

Assignment and Bill of Sale (the “2011 Corrected Tomco Original Assignment”) 

which added the two omitted McShane Fee and Brice Leases to the August 2008 

Tomco Original Assignment, clarifying that the August 2008 transaction transferred 

all eight Saratoga Leases from Tomco to Mark III. Mark III and Peoples Bank did 

not execute a corrected mortgage or deed of trust at this time.

The parties do not dispute the validity of the 2011 Corrected Tomco Original 

Assignment conveying the Saratoga Leases to Mark III. Nor do they dispute the 

validity of the 2011 Corrected Tanya L. McCabe Trust Assignments, all of which 

were filed by Mark III in the Hardin County Public Records by December 2011. 

On April 1, 2012, Mark III executed an assignment of a 2.5% undivided 

overriding royalty interest in “the oil, gas and mineral leases in Hardin County, 

Texas described on Exhibit ‘A’” to the McCabe Family Trust (the “McCabe Family 

Trust Assignment”). The Exhibit A attached to this document again included the 
9

McShane Fee and Brice Leases. The McCabe Family Trust Assignment was filed 

in the Hardin County Public Records on May 18, 2012.

Likewise on April 1, 2012, Mark III executed an assignment of a 2.5% 

undivided overriding royalty interest in “the oil, gas and mineral leases in Hardin 

County, Texas described on Exhibit ‘A’” to the Rochford Living Trust (the 

“Rochford Living Trust Assignment”). The Exhibit A attached to this document 

included the McShane Fee and Brice Leases. The Rochford Living Trust 

Assignment was also filed in the Hardin County Public Records on May 18, 2012.

Mark III fell behind in its mortgage payments, and, in 2012, Peoples Bank 

filed a lawsuit to collect the debt. At that time, however, Steward Energy Fund LLC

also claimed a lien on some of the leases that secured the loans to Mark III from

Peoples Bank. On December 6, 2012, Peoples Bank, Mark III, and other parties,

including Steward, entered into a settlement agreement (the “2012 Settlement 

Agreement”). That agreement provided that Steward would release its lien and, in 

lieu of foreclosure, Mark III would deed its interest in the Saratoga Leases to Peoples 

Bank and pay it $750,000. The exhibit identifying the Saratoga Leases omitted the 

McShane Fee and Brice Leases.

In connection with the 2012 Settlement Agreement, Peoples Bank and Mark 

III executed a new mortgage on December 6, 2012 (the “Hardin Renewal 

Mortgage”), which extended the bank’s security interest in the Saratoga Leases.
10

Despite having the correct description of the eight leases comprising the Saratoga 

Leases on file with the Hardin County Public Records in the 2011 Corrected Tomco 

Original Assignment and each of the five assignments of overriding royalty interests 

to the Trusts, the Hardin Renewal Mortgage, like the uncorrected Original Mortgage, 

identified the leases in an attachment, Exhibit A, that omitted the McShane Fee and 

Brice Leases.

Also as part of the 2012 Settlement Agreement, the same parties executed a

“Renewal Deed of Trust.” In the Renewal Deed of Trust, Mark III represented that 

it was renewing and extending the $4 million note it had executed on August 12, 

2008, in favor of Peoples Bank. Like the Hardin Renewal Mortgage, the addendum 

to the Renewal Deed of Trust that identified the leases subject to the mortgage to 

Peoples Bank, Exhibit A, omitted the McShane Fee and Brice Leases. The Renewal 

Deed of Trust was recorded in the official public records of Hardin County on 

December 7, 2012. 

About a month after Mark III and Peoples Bank executed the Hardin Renewal 

Mortgage and the Renewal Deed of Trust, Peoples Bank discovered the mistake: the 

McShane Fee and Brice Leases had been omitted from Exhibit A to both the Hardin 

Renewal Mortgage and the Renewal Deed of Trust executed in connection with the 

2012 Settlement Agreement. On January 14, 2013, Peoples Bank filed a “Corrected 

Deed of Trust” in the public records of Hardin County. This document contained a 
11

revised first page and the original remaining pages of the Renewal Deed of Trust, 

including the original signature page signed by Mark III and Peoples Bank that had 

previously been filed as the signature page of the Renewal Deed of Trust in the 

official public records of Hardin County on December 7, 2012. This document also 

contained a correct Exhibit A that listed all eight Saratoga Leases, including the 

McShane Fee and Brice Leases. The revised first page of the Corrected Deed of 

Trust listed the same parties as the Renewal Deed of Trust: Mark III and Peoples 

Bank. It added a paragraph to the bottom of the first page explaining that the 

document had been refiled to correct the original Exhibit A that listed the properties 

used as collateral. Peoples Bank notified Mark III of the filing of the Corrected Deed 

of Trust on January 15, 2013.

On January 23, 2013, after recording the Corrected Deed of Trust, Peoples 

Bank filed a “Corrected Mortgage” in the official public records of Hardin County. 

The Corrected Mortgage was corrected in the same manner as the Corrected Deed 

of Trust. As with the Corrected Deed of Trust, the Corrected Mortgage included a 

revised first page that identified Mark III as the mortgagor and Peoples Bank as the 

mortgagee, plus the original remaining pages of the Original Mortgage, including 

the original signature page executed by Mark III and Peoples Bank for the Original

Mortgage, and a corrected Exhibit A that listed all eight of the Saratoga Leases, 

including the McShane Fee and Brice Leases. As with the Corrected Deed of Trust,
12

the revised first page of the Corrected Mortgage stated that the Original Mortgage

was being refiled to correct the Exhibit A that listed the property used as collateral, 

and the corrected Exhibit A showed all eight Saratoga Leases. On January 23, 2013, 

Peoples Bank notified Mark III of the filing of the Corrected Mortgage.

Two months later, on March 4, 2013, Peoples Bank and Mark III entered into 

a second written settlement agreement (the “Second Settlement Agreement”), which 

provided that Peoples Bank had the right to foreclose on the lien created by the 

Corrected Mortgage and renewed by the Corrected Deed of Trust against all eight of 

the Saratoga Leases, including the McShane Fee and Brice Leases. In return, 

Peoples Bank agreed to pay a third-party lienholder $150,000 to obtain release of 

the third-party’s lien against the McShane Fee and Brice Leases.

On March 5, 2013, Peoples Bank foreclosed on the lien created by the 

Corrected Mortgage, and it sold the Saratoga Leases to Ranger.

In May 2013, Ranger filed this declaratory judgment action and suit to quiet 

title against the Trusts. Ranger asserted that because it had obtained the leases by 

foreclosure sale, the Trusts’ overriding royalty interests had been extinguished. The 

Trusts disagreed. They argued that the Corrected Mortgage and the Corrected Deed 

of Trust were invalid, and therefore the foreclosure affected only the six leases listed 

in the original, uncorrected Hardin Renewal Mortgage, excluding the McShane Fee 
13

and Brice Leases. The Trusts argued that they retained their overriding royalty

interests in the McShane Fee and Brice Leases free and clear of any mortgage.

On May 8, 2014, Ranger and the Trusts executed a Rule 11 and Stipulation of 

Facts Agreement (“the Rule 11 Agreement”). The parties stipulated that the 2008 

Tomco Original Assignment inadvertently omitted the McShane Fee and Brice 

Leases from the Saratoga Leases that Tomco conveyed to Mark III. The parties also 

stipulated that the McShane Fee and Brice Leases were inadvertently omitted from 

the Original Mortgage and the Renewal Deed of Trust as well. The Rule 11 

Agreement also contained stipulations relating to the filing of the Corrected 

Mortgage and Corrected Deed of Trust by Peoples Bank. The parties stipulated that 

the Corrected Mortgage and Corrected Deed of Trust included the inadvertently 

omitted McShane Fee and Brice Leases and that Peoples Bank prepared the 

correction instruments by revising the first page of the instruments to acknowledge 

the correction being made, using the remaining pages from the original instruments, 

and revising Exhibit A describing the Saratoga Leases. Attorneys for both Ranger 

and the Trusts signed the Rule 11 Agreement on May 8, 2014, and the parties filed 

the Rule 11 Agreement with the trial court on May 12, 2014. 

Both parties subsequently moved for summary judgment. As summary 

judgment evidence, Ranger filed the affidavit of Mark Watts, an officer of both 

Ranger and Peoples Bank, explaining the history of all relevant transactions. The 
14

affidavit attached the 2008 Opinion Letter, which stated that the entire “Saratoga 

Lease” was subject to the Security Agreement between Mark III and Peoples Bank. 

The affidavit also stated that in December 2011, Mark III “had corrected the mistake 

concerning the McShane Fee and Brice Leases with regard to every transaction 

except as to the Hardin mortgages it had executed in 2008 in favor of Peoples.” 

Ranger’s summary judgment evidence also included the deposition of Stanley 

McCabe, the trustee of the McCabe Family Trust. McCabe testified that he did not 

perform any due diligence prior to purchasing the overriding royalty interests in the 

Saratoga Leases. He did not check the property records, and Mark III did not inform 

him that Peoples Bank had a lien on the Saratoga Leases. Ranger also attached the 

deposition of Lloyd Rochford, a trustee of the Rochford Living Trust, and Rochford 

also testified that he did not perform a title examination or inquire about whether 

there were any outstanding liens on the Saratoga Leases before purchasing an 

overriding royalty interest.

On October 26, 2014, the trial court denied the Trusts’ motion for summary 

judgment, granted summary judgment in favor of Ranger, and issued a final 

declaratory judgment that the Trusts’ overriding royalty interests were void and 

extinguished. The Trusts appealed. The majority reverses, enters judgment in favor

of the Trusts, and remands the case. I would affirm.
15

Validity of Correction Instruments

A. Applicable Statutes

The Texas Property Code provides for the correction of recorded instruments 

that transfer real property or an interest in real property. See TEX. PROP. CODE ANN. 

§ 5.027(a) (West 2014). Section 5.027(a) provides, in relevant part:

A correction instrument that complies with Section 5.028 or 5.029 may 

correct an ambiguity or error in a recorded original instrument of 

conveyance to transfer real property or an interest in real property, 

including an ambiguity or error that relates to the description of or 

extent of the interest conveyed.

Id. The Property Code permits parties to make both nonmaterial and material 

changes to instruments of conveyance.

Section 5.028 governs nonmaterial corrections to instruments of conveyance 

and provides:

(a) A person who has personal knowledge of facts relevant to the 

correction of a recorded original instrument of conveyance may 

prepare or execute a correction instrument to make a nonmaterial 

change that results from a clerical error . . . .

. . . .

(a-1) A person who has personal knowledge of facts relevant to the 

correction of a recorded original instrument of conveyance may 

prepare or execute a correction instrument to make a nonmaterial 

change that results from an inadvertent error, including the 

addition, correction, or clarification of:

(1) a legal description prepared in connection with the 

preparation of the original instrument but 

inadvertently omitted from the original instrument; 

. . . .
16

(b) A person who executes a correction instrument under this section 

may execute a correction instrument that provides an 

acknowledgement or authentication that is required and was not 

included in the recorded original instrument of conveyance.

(c) A person who executes a correction instrument under this section 

shall disclose in the instrument the basis for the person’s personal 

knowledge of the facts relevant to the correction of the recorded 

original instrument of conveyance.

(d) A person who executes a correction instrument under this section 

shall:

(1) record the instrument and evidence of notice as 

provided by Subdivision (2), if applicable, in each 

county in which the original instrument of 

conveyance being corrected is recorded; and

(2) if the correction instrument is not signed by each 

party to the recorded original instrument, send a 

copy of the correction instrument and notice by first 

class mail, e-mail, or other reasonable means to 

each party to the original instrument of conveyance 

and, if applicable, a party’s heirs, successors, or 

assigns.

Id. § 5.028 (West 2014) (emphasis added).

Section 5.029, governing material changes to instruments of conveyance,

provides, in relevant part:

(a) In addition to nonmaterial corrections, including the corrections 

described by Section 5.028, the parties to the original transaction 

or the parties’ heirs, successors, or assigns, as applicable may 

execute a correction instrument to make a material correction to 

the recorded original instrument of conveyance, including a 

correction to:

(1) add:
17

(A) a buyer’s disclaimer of an interest in the real 

property that is the subject of the original instrument 

of conveyance;

(B) a mortgagee’s consent or subordination to a 

recorded document executed by the mortgagee or an 

heir, successor, or assign of the mortgagee; or

(C) land to a conveyance that correctly conveys other 

land[.]

. . . .

(b) A correction instrument under this section must be:

(1) executed by each party to the recorded original 

instrument of conveyance the correction instrument 

is executed to correct or, if applicable, a party’s 

heirs, successors, or assigns; and

(2) recorded in each county in which the original 

instrument of conveyance that is being corrected is 

recorded.

Id. § 5.029 (West 2014) (emphasis added).

Finally, section 5.030, which governs the effect of a correction instrument

against a challenge by another party claiming an interest in the property, provides:

(a) A correction instrument that complies with Section 5.028 or 

5.029 is:

(1) effective as of the effective date of the recorded 

original instrument of conveyance;

(2) prima facie evidence of the facts stated in the 

correction instrument;

(3) presumed to be true;

(4) subject to rebuttal; and
18

(5) notice to a subsequent buyer of the facts stated in 

the correction instrument.

(b) A correction instrument replaces and is a substitute for the 

original instrument. Except as provided by Subsection (c), a 

bona fide purchaser of property that is subject to a correction 

instrument may rely on the instrument against any person making 

an adverse or inconsistent claim.

(c) A correction instrument is subject to the property interest of a 

creditor or a subsequent purchaser for valuable consideration 

without notice acquired on or after the date the original 

instrument was acknowledged, sworn to, or proved and filed for 

record as required by law and before the correction instrument 

has been acknowledged, sworn to, or proved and filed for record 

as required by law.

Id. § 5.030 (West 2014) (emphasis added).

B. Whether the Corrected Mortgage and Deed of Trust Complied with 

Statutory Requirements

The Trusts contend that the corrected instruments of conveyance did not 

comply with the Texas correction statutes; therefore, they “could not serve to correct 

the original instruments of conveyance which omitted all mention of two oil and gas 

leases, and thereby prevented [Ranger] from extinguishing by foreclosure [the 

Trusts’] right in such omitted leases.” The Trusts acknowledge that “due to an 

inadvertent error, two of the Saratoga Leases intended to be included in the Tomco 

Original Assignment were inadvertently omitted from Exhibit A thereto, which 

listed only six of the eight Saratoga leases intended to be subject to the Tomco 

Assignment,” specifically the McShane Fee Lease and the Brice Lease on which 

they base their claims. In the trial court and on appeal, Ranger responds that “[t]he 
19

corrected instruments are valid under sections 5.027 through 5.031 of the Texas 

Property Code (the “Correction Statutes”).” And it further argues that the Trusts 

“are not bona fide purchasers for the purposes of Section 5.030(c) of the Correction 

Statutes.”

1. Inadvertent error in a legal description under section 5.028

In my view, section 5.028(a-1), governing nonmaterial changes to 

conveyance instruments, which is relied upon by Ranger, governs this case. The 

majority instead incorrectly determines that section 5.029, governing material

changes to conveyance instruments, applies. The difference is decisive.

Section 5.028(a-1) provides that “[a] person who has personal knowledge of 

facts relevant to the correction of a recorded original instrument of conveyance may 

prepare or execute a correction instrument to make a nonmaterial change that results 

from an inadvertent error, including . . . a legal description prepared in connection 

with the preparation of the original instrument but inadvertently omitted from the 

original instrument.” Id. § 5.028(a-1). For a nonmaterial change, the person who 

executes the correction instrument must disclose in the instrument the basis for the 

person’s knowledge of the facts relevant to the correction. Id. § 5.028(c).

Unlike a correction instrument that makes a material correction to an 

instrument of conveyance, a correction instrument that makes a nonmaterial change 

need not be executed by each party to the recorded original instrument of 
20

conveyance. Compare id. § 5.029(b) (governing material corrections to instruments 

of conveyance), with id. § 5.028(d) (governing nonmaterial changes). Specifically, 

section 5.028 provides that “if the correction instrument is not signed by each party 

to the recorded original instrument,” the parties making the correction must “send a 

copy of the correction instrument and notice by first class mail, e-mail, or other 

reasonable means to each party to the original instrument of conveyance and, if 

applicable, a party’s heirs, successors, or assigns.” Id. § 5.028(d)(2). It must record 

the instrument and evidence of reasonable notice given as provided in the statute to 

each party to the original instrument and, if applicable, a party’s assigns. Id.

The majority notes that the Corrected Mortgage and Deed of Trust added the 

McShane Fee and Brice Leases to Exhibit A, which described the Saratoga Leases, 

and it states that “the revisions purported to add property interests in two leases that 

previously were not listed.” Slip Op. at 24. The majority concludes that the 

correction instruments “added two leases to a conveyance that correctly conveyed 

interests in other specifically identified leases,” which constitutes a material 

correction pursuant to section 5.029. Slip Op. at 26. But to say that the two leases 

were not listed in the legal description of the land conveyed is not to say that they 

were not conveyed, and the evidence is undisputed that all eight Saratoga Leases 

were, in fact, conveyed by Tomco to Mark III in 2008. I disagree, therefore, that the 

revisions in the Corrected Mortgage and Deed of Trust “add[ed] . . . land to a 
21

conveyance that correctly convey[ed] other land.” See TEX. PROP. CODE ANN.

§ 5.029(a)(1)(C). Instead, I agree with Ranger that the revisions in the correction 

instruments added the McShane Fee and Brice Leases to the legal description of the 

Saratoga Leases, the property interest conveyed by Tomco to Mark III in 2008 and 

mortgaged by Mark III to Peoples Bank in 2008. The “addition, correction, or 

clarification of . . . a legal description prepared in connection with the preparation of 

the original instrument but inadvertently omitted from the original instrument” is a 

nonmaterial correction pursuant to section 5.028(a-1). See id. § 5.028(a-1).

The evidence in this case shows that all of the requirements of section 5.028 

were met. The Corrected Deed of Trust stated, “This document was originally filed 

under County Clerk Instrument No. 2-12-33676, Official Public Records of Hardin 

County, Texas and is being refiled to correct the Exhibit A attached at the time of 

the original filing.” That same Exhibit A had already been corrected with respect to 

both the 2008 Tomco Original Assignment of the Saratoga Leases to Mark III and 

the assignments of undivided overriding royalty interests in the Saratoga Leases to 

the Trusts and filed in the Hardin County public records in 2011. Moreover, both 

parties stipulated in their Rule 11 Agreement filed in this litigation, “Due to an 

inadvertent error, two of the Saratoga Leases were omitted from the Exhibit A

attached to the Original Tomco Assignment.” That same Rule 11 Agreement stated

that Tomco executed the 2011 Corrected Tomco Original Assignment, recorded 
22

under number 2011-25176 of the official public records of Hardin County, that 

“corrected the Original Tomco Assignment by adding the two Omitted Saratoga 

Leases as part of the property being conveyed by this instrument.” The parties also 

agreed in the Rule 11 Agreement that Peoples Bank sent notice of the Corrected 

Mortgage and Deed of Trust to Mark III shortly after it filed the corrected 

instruments.

I would hold that all of the requirements of section 5.028 for making a

nonmaterial correction to a legal description in a conveyance instrument were 

satisfied with respect to the Corrected Mortgage and the Corrected Deed of Trust. 

Therefore, I would hold that the Corrected Mortgage and Corrected Deed of Trust 

are valid. 

2. Bona fide purchasers without notice under section 5.030

I would also hold that, at the time the Corrected Mortgage and Corrected Deed 

of Trust were filed, the Trusts were not bona fide purchasers for value of their 

overriding royalty interests in the McShane Fee and Brice Leases. The Trusts were 

not without notice that these Leases were two of the eight Saratoga Leases to which 

their undivided overriding royalty interests applied and which were mortgaged by 

Mark III to Peoples Bank. Therefore, these correction instruments replaced the 

uncorrected instruments as to the Trusts and barred their claims in this litigation. 
23

Property Code section 5.030, governing the enforceability of correction 

instruments against adverse claimants, provides:

(b) A correction instrument replaces and is a substitute for the 

original instrument. Except as provided by Subsection (c), a 

bona fide purchaser of property that is subject to a correction 

instrument may rely on the instrument against any person making 

an adverse or inconsistent claim.

(c) A correction instrument is subject to the property interest of a 

creditor or a subsequent purchaser for valuable consideration 

without notice acquired on or after the date the original 

instrument was acknowledged, sworn to, or proved and filed for 

record as required by law and before the correction instrument 

has been acknowledged, sworn to, or proved and filed for record 

as required by law.

Id. § 5.030(b)–(c). Thus, under section 5.030, a correction instrument replaces the 

original instrument and is subject only to the property interests of creditors or bona 

fide purchasers for value without notice of the error in the original instrument and 

who acquired their interest on or after the date the original instrument was executed 

and filed in the public records and before the correction instrument was executed 

and filed in the public records. See id.

The Trusts assert that their property interests in the McShane Fee and Brice 

Leases were not subject to the lien placed on the Saratoga Leases by Peoples Bank, 

so that their interests were not conveyed to Ranger at the March 5, 2013 foreclosure 

sale. To prove this, the Trusts had to show that they were bona fide purchasers of 

their undivided overriding royalty interests in the McShane Fee and Brice Leases 
24

“for valuable consideration without notice acquired on or after the date the original 

instrument was acknowledged, sworn to, or proved and filed for record as required 

by law and before the correction instrument ha[d] been acknowledged, sworn to or 

proved and filed for record as required by law.” Id. § 5.030(c). The Trusts thus had 

to prove that they had no notice that their undivided overriding royalty interests in 

the McShane Fee and Brice Leases were included in the undivided interests in all 

eight Saratoga Leases acquired by Mark III from Tomco in the 2008 Tomco Original 

Assignment and Bill of Sale and made subject to Peoples Bank’s 2008 Original 

Mortgage and Deed of Trust. See id.

I would hold that the Trusts did not and cannot show that they were bona fide 

purchasers for value of their undivided overriding royalty interests in the McShane 

Fee and Brice Leases without notice before the Corrected Mortgage and Corrected

Deed of Trust were executed and filed that their undivided property interests in those 

two leases were a portion of their undivided property interests in all eight Saratoga 

Leases conveyed by the 2008 Tomco Original Assignment to Mark III. Nor did the 

Trusts acquire their interests without knowledge that the working interests in the 

Saratoga Leases acquired by Mark III in 2008—from which they purchased their 

interests in 2011 and 2012—were all subject to the 2008 Original Mortgage and 

Deed of Trust and the Hardin Renewal Mortgage and Renewal Deed of Trust before

the Corrected Mortgage and Corrected Deed of Trust were executed and filed. 
25

Therefore, the Corrected Mortgage and the Corrected Deed of Trust were both 

enforceable against the Trusts’ interests. See id. § 5.030(a)–(c).

Because the Trusts failed to show that the foreclosure sale under the Corrected 

Mortgage and Deed of Trust foreclosed upon and sold property they owned that was 

not subject to the Corrected Mortgage and Corrected Deed of Trust—namely that

portion of the undivided overriding royalty interests in the Saratoga Leases 

attributable to the McShane Fee and Brice Leases—I would hold that their interests 

were extinguished by the foreclosure sale.

Conclusion

I would affirm the trial court’s judgment denying the Trusts’ motion for 

summary judgment and granting summary judgment in favor of Ranger.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Justice Keyes, dissenting.