Supreme Court of Texas

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No. 21-0711

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Andrew M. Thomson, CDG Peeler Family Limited Partnership, 

Cynthia L. Littlefield, The Dick Family Irrevocable Trust, Gordon 

G. Thomson, Jane Elizabeth Erzen, Larry Wayne McCarty, Linda 

M. Ball, Michael David Dick, North Thomson Oil and Gas LP, 

Patricia P. Fleming, Paul W. Peeler Family Limited Partnership, 

Sandra Shannon Collins, Shannon Family Trust, Thomson Oil & 

Gas Investments LP, Coconut Point St, LLC, Coconut Point OE, 

LLC, Colonial Villa Estates, LLC, Laze Daze KLA, LLC, 

Whispering Pines Mobile Home Park, Ltd., and R & H Paul, Inc.,

Petitioners,

v.

Kent B. Hoffman, Susan Hoffman Binieck, 

E. Peter Hoffman, Jr., and Marni H. Cooney, 

Respondents

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On Petition for Review from the

Court of Appeals for the Fourth District of Texas

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PER CURIAM 

Justice Lehrmann did not participate in the decision.

This case concerns a familiar question of deed construction within 

the oil and gas context: whether a royalty interest is fixed or floating. A 
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1956 deed expressly reserved

an undivided three thirty-second’s (3/32’s) 

interest (same being three-fourths (3/4’s) of 

the usual one-eighth (1/8th) royalty) in and to 

all of the oil, gas and other minerals. . . .

Other parts of the deed then referred only to 3/32 without using the 

double-fraction description. The question presented is whether the 

reservation was a floating 3/4 interest of the royalty—whatever it may 

be—rather than a fixed 3/32 interest.

The court of appeals held that the reservation was a floating 3/4 

interest. 630 S.W.3d 427, 436 (Tex. App.—San Antonio 2021). The court 

reasoned that the deed used the term “3/32” merely as a substitute for 

the longer double-fraction description and that the longer description of 

the reservation used the term “1/8” as a placeholder for the royalty 

interest generally. Id. at 434.

The court of appeals’ decision in this case preceded our most recent

double-fraction case, Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex.

2023). We there held that antiquated mineral instruments containing 

“1/8” within a double fraction raise a rebuttable presumption that 1/8 was 

used as a term of art to refer to the total mineral estate, not simply oneeighth of it. Id. at 359. Because nothing rebutted the presumption in 

Van Dyke, we held that, as used in the 1924 deed at issue, “‘one-half of 

one-eighth’ equal[ed] one-half of the mineral estate.” Id. at 357. 

Nothing displaced the presumption in Van Dyke itself, but we 

emphasized that the presumption is “genuinely rebuttable.” Id. at 364. 

“A rebuttal could be established by express language, distinct provisions 

that could not be harmonized if 1/8 is given the term-of-art usage . . . , 
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or even the repeated use of fractions other than 1/8 in ways that reflect 

that an arithmetical expression should be given to all fractions within 

the instrument.” Id. Accordingly, in a double-fraction case, “1/8” will be 

regarded as a term of art unless the text or structure of the instrument

rebuts the presumption, which would require giving “1/8” its arithmetical

meaning instead. A third and rarer possibility is that the text may be 

inescapably ambiguous because “an instrument may have enough textual

evidence to drain confidence in the presumption yet insufficient evidence

for a court to conclude that a reasonable reader at the time would have 

understood the instrument to require mere multiplication.” Id. at 365. 

The parties to this case filed briefs on the merits in this Court 

before we heard or decided Van Dyke. Once we issued that opinion, the 

parties submitted letter briefs in which they disputed the ways in which 

this case and Van Dyke are alike and different and how the analytical 

framework described in Van Dyke should apply here.* The court of 

appeals, however, did not have the benefit of our decision or the parties’ 

competing responses to it. The analytical framework introduced in Van 

Dyke, while consistent with our precedents, see id. at 364, presents a 

new legal formulation, which is why the parties have focused so heavily 

* The parties debate several such differences. For example, in Van 

Dyke, the deed at issue was executed in 1924, reserved a fraction of the entire 

mineral estate, and described the interest by using a double-fraction expression 

(“one-half of one-eighth”) without ever actually referring to the product of the 

multiplication (i.e., “1/16”). By contrast, the deed in this case was executed in 

1956, reserved only an interest in the royalty, and used both a double fraction 

and the arithmetical product of that double fraction (“3/32”) to describe the 

interest reserved, possibly as a definition. We express no view as to whether 

those or other differences are material or whether they are sufficient to rebut 

the presumption. 
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on it in their supplemental briefing. We conclude that the most prudent 

course is for the court of appeals to apply Van Dyke to this record in the 

first instance. The parties should develop and present their arguments 

to that court.

Because the parties and the court of appeals did not have the 

opportunity to evaluate this case in light of the framework articulated 

in Van Dyke, we conclude that a remand to the court of appeals “for 

further proceedings in light of changes in the law” is appropriate. TEX.

R. APP. P. 60.2(f). Accordingly, without hearing oral argument, TEX. R.

APP. P. 59.1, we grant the petition for review, vacate the court of appeals’ 

judgment, and remand the case to that court for further proceedings. 

OPINION DELIVERED: September 1, 2023