CHL in TexasPolice Chief Steroid McMuscles reported that Colt Glockenhand who entered Wally-Mart with a shotgun was not charged with “engaging in the lawful open carry of a pump-action shotgun” – a violation of the Cut and Shoot town ordinance. However, when Colt entered Kreamy Kreme, loaded his shotgun and pumped it in front of witnesses, Chief McMuscles arrested him for breach of the peace. Wally-Mart did not have a posted sign prohibiting the open carry of guns; Kreamy Kreme did. Was Chief McMuscles on target?

Texas state law now pre-empts existing city ordinances in Dallas, Houston, San Antonio and Austin, despite a last minute effort by larger cities to opt-out of the “open carry” law. And, Yes, Chief McMuscles is right for two reasons: (1) ignoring a properly posted prohibition of either “open carry” or “concealed carry” is a Class A misdemeanor, (2) displaying a firearm or other deadly weapon in a public place in a manner calculated to alarm is a breach of the peace and a Class B misdemeanor.

Introducing the “open carry” bill, Wichita Falls Senator Craig Estes noted that Texas was one of only six states that did not permit its citizens to openly carry handguns under any circumstances. The other states are California, Florida, Illinois, New York, and South Carolina. To ban the open carrying of firearms, business must post a specifically worded sign at its entrance(s).

Tilting the Scales in Your Favor

Gray Reed attorney and Texas State Representative Jeff Leach tells us: “The ‘open carry’ bill was signed in to law by Governor Greg Abbott on June 13, 2015, and becomes effective (with a few minor exceptions) on January 1, 2016, making Texas the 45th state to allow some form of ‘open carry’ of handguns. Business and property owners who wish to prohibit open and concealed carry must closely observe the signage requirements.” Special thanks for his assistance in helping preparing this article, based on this legal update he recently drafted.

Signage Requirements:

  • To prohibit the “concealed” carry of handguns by licensed CHL (LTC) holders, the sign should include the following language (pursuant to Texas Penal Code Section 30.06):
    • “Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing la), may not enter this property with a concealed handgun.”
  • To prohibit the “open” carry of handguns by LTC holders, the sign should include the following language (pursuant to Texas Penal Code Section 30.07):
    • “Pursuant to Section 30.07, Penal Code (Trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly.”
  • To prohibit BOTH concealed and open carry of handguns, both signs should be posted.

General Information:

  • HB 910 authorizes individuals (with some exceptions) to obtain a license to openly carry a handgun where licensed carrying of a concealed handgun is permitted.
  • Openly carried handgun must be in a shoulder or belt holster, whether loaded or not.
  • Licensing of both concealed (CHL) or openly carrying a handgun (LTC) will not change. Both will be called LTC.
  • CHL holders may continue to carry handguns both concealed and open carry at no additional fee, nor will they be required to attend additional training.
  • New LTC applicants will be required to complete training updated to reflect new requirements addressing restraint holders for secure carry of handguns.

Even with a CHL (LTC), these weapons may not be carried concealed or “open carry” regardless of whether the handgun is holstered pursuant to Texas Penal Code §46.03 & §46.035:

A concealed handgun cannot be carried while the person is intoxicated.

  • In the premises of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which derives 51% or more of its income from the sale of alcoholic beverages and has a conspicuous warning prohibiting firearms, if posted.
  • On the premises of a public higher education institution or private or independent institution of higher education, including any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area
  • Inside the secured area of any airport, however a person may carry any legal firearm into the terminal that is encased for shipment purposes and checked as baggage to be lawfully transported on an aircraft pursuant to airline and TSA regulations.
  • In a place of religious worship if a proper TPC §30.06 warning is given.
  • In a hospital or nursing home if a proper TPC §30.06 warning is given.
  • In any court or offices used by a court unless pursuant to written regulations or written authorization from the court.
  • At any polling place on Election Day.
  • At any meeting of any governmental body if proper notice is posted pursuant to Texas Penal Code §30.06.

PAST RELATED ARTICLES:

Glock on Board: Can you Keep a Handgun in Your Car if you Don’t have a Concealed Handgun License?

Texas Concealed Handgun Laws

Open-Carriers Pose a Threat to Restaurants with Liquor Licenses

WARNING to Liquor License Holders – “Open Carriers” Can Cost you your Liquor License

LEGISLATIVE UPDATE: HB 700 Seeks to Allow Handguns to be Carried Openly

Lisa Frick, our fictional Denton resident, who collected anti-fracing ordinance signatures to put on the Denton City Ballot now complains that fracing near old Texas Stadium caused earthquakes that harmed her twin sister Linda. Linda wants to sue our November fictional friend Frac Petroleum Company, contending that her Irving home was damaged by the January series of earthquakes caused by Frac’s hydraulic fracing that “felt like a semi hit the side of our house,” causing it to shake so badly it left structure cracks at least a half-inch wide. Can Lisa Frick’s sister Linda sue Frac Petroleum Company?

Answer

As the saying goes, anybody can file a lawsuit, but given the current status of Texas case law Linda probably won’t win. Scientific testimony relating earthquakes to hydraulic fracing is not widely accepted. Expert trial testimony requires reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue – it must have attracted widespread acceptance within a relevant scientific community, the Daubert standard.

The Claim

It’s not the fracing, but rather the disposal of the leftover briny water known as “flowback” that is at the center of the hubbub. Typically, millions of gallons of wastewater are trucked from the fracing site to a second well site and injected thousands of feet underground into porous rock layers. Some seismologists say the flowback injection can cause tiny “micro earthquakes” rarely felt on the surface. While recognizing that the disposal process can trigger slightly larger quakes when water is pumped near an already stressed fault, the U.S. Geological Survey reports that only a handful of the 30,000 injection wells across the country have been suspected of causing earthquakes. While research doesn’t prove all fracing causes earthquakes, it does suggest that fracing occurring near fault lines has the potential to cause them.

Possible Lawsuit Claims

Even assuming unlikely supporting scientific Daubert evidence, a party claiming property damages in Texas could not prove that it was damaged under its most probable claim – trespass. The Texas Supreme Court held that damages for drainage by hydraulic fracturing are precluded by the rule of capture – a rule that gives a mineral rights owner title to the oil and gas produced from a lawful well bottomed on the property, even if the oil and gas flowed to the well from beneath another owner’s tract. No earthquake lawsuits have been successful in Texas, only lawsuits claiming damages from exposure to the compounds in the “flowback” – benzene, toluene, ethylbenzene, xylene, and other compounds – that allegedly contaminated adjacent property.

My esteemed Gray Reed partner Charlie Sartain and expert Oil and Gas attorney regularly blogs at Energy and The Law and has several compelling and humorous entries worth your read:

What’s Going On in Denton, Texas?
Truth and Illusion in the Fracking Debate
Frac(k)ing, Parr v. Aruba, and Minority Oppression
In Wyoming, a Higher Burden for Chemical Disclosure Exemption?
Barnett Shale Drilling Increased North Texas Ozone – Fact or Fiction?
Hydrocarbon Exposure Reconsidered

Previous Tilting Articles: No Fracing Way!- Differences Between Surface & Mineral Estate Ownership and Come and Take It! – Denton Ordinance Prohibits Fracing

 

Broken windows, looting and fires were some of the lasting images from the Ferguson, Missouri riots.  And if you looked at those pictures closely, you may have noticed that a substantial number of the damaged businesses were locally-owned, “mom and pop” shops.   And if you are a business owner, you couldn’t help but ask yourself how would you pay for the damage if there was a riot in your community.   Fortunately, most commercial property and business owner insurance policies include coverage for property damage due to riots.  Some policies also include “business interruption” coverage for lost income when damage is so substantial that the business has to shut down until repairs are completed.  Again, coverage depends on the specific policy.  So, a business owner would be advised, as part of their year-end evaluation of their business, to review their policy with their insurance agent to ensure their business is covered for such an event.

Pizza the Action is a major distributor of pizza dough and toppings and provides these products to many large national pizza chains.  Pizza the Action’s top sales person, Eaton Wright, just announced that he was resigning and that he had accepted a position with The Pie’s the Limit, an upstart competitor in the very same industry.  Wright did not have an employment or non-competition agreement with Pizza the Action.  While Wright has ostensibly done nothing yet, Pizza the Action is concerned about Wright providing his new employer with Pizza the Actions’ customer lists, customer data and financial pricing information.  Is there anything that can be done to stop him?

Yes.  During this past legislative session, Texas became the 48th state to enact (its version of) the Uniform Trade Secrets Act (“TUTSA”). TUTSA, which goes into effect September 1, 2013, will provide companies with greater protection of their trade secret information across Texas.  Previously, Pizza the Action may have found it difficult to obtain a temporary restraining order or injunctive relief against Wright without some proof of actual misappropriation of trade secrets.  TUTSA, however, now authorizes injunctive relief for actual and threatened misappropriation.  Pizza the Action could now arguably seek injunctive relief based on the “inevitable disclosure doctrine” where circumstances suggest that Wright would inevitably make use of their trade secret information as part of his new position.  Other significant changes include:

  1. an expanded definition of trade secret (includes lists of actual and potential customers or suppliers as well as financial information);
  2. safeguards to protect allegedly trade secret information during the pendency of the litigation (e.g. through protective and sealing orders);
  3. provisions for the award of attorneys’ fees to both the plaintiff and defendant; and
  4. the availability of exemplary damages (act to exceed twice the economic damages) where the plaintiff establishes willful or malicious misappropriation by clear and convincing evidence.

 Tilting the Scales in Your Favor

The TUTSA seeks to put Texas in step with other states and provide increased predictability for those seeking to assert claims in Texas courts for trade secret misappropriation.  Companies will now have a statute in their arsenal as opposed to merely relying upon employment agreements and case precedent.  Given the increased certainty in the law, businesses should consider choosing Texas as the governing law for their agreements as well as modifying their agreements to reflect the recent changes.  As the ultimate determination of whether information constitutes a trade secret will be case specific, businesses should be able to demonstrate measures taken to safeguard trade secret information and should clearly identify such information as “confidential.”

Winn Blohn knew the storm was coming before it lifted the roof and parts of the second floor from his home. Hiding behind the kitchen counters during the fifteen seconds of swirling glass and falling debris, Winn knew the roof was gone. Now, it’s too early to tell if the next call should be for a builder or a bulldozer. When Hugh Peigh, Winn’s landlord, stopped by to express his sympathy and to offer his pickup truck for cleanup, Hugh asked if Winn’s monthly rent payment was in the mail. Who is responsible, Winn Blohn or Hugh Peigh? Who pays, how much and by when?

Assuming that Hugh insured his rent house, he is responsible for damage to the house and should get his insurance company to adjust the claim. Asfor repairs, Hugh’s obligations do not begin until he receives the insurance proceeds. Either Hugh or Winn Blohn may terminate the lease by giving written notice to the other any time before repairs are completed. With the roof gone, it is likely that the premises are at least partially, if not wholly, unusable. Winn is entitled to reduce the rent he pays to Hugh to in an amount proportionate to the extent the premises are unusable because of the tornado.

Suitable Premises

At common law (before the Texas Property Code), a landlord could demand rent even if the premises became unsuitable because of a sudden act of God, such as a tornado. Even without a roof, Winn would have to pay rent for the duration of the lease. Most states like Texas statutorily abolished rent payment obligations if a non-man-made force renders the premises unsuitable. However, the landlord is likewise, not accountable for natural disasters such as a flood, fire, or tornado. Nor is the landlord responsible for providing alternate shelter and housing. The landlord is only responsible to fix the property and make it habitable as soon as possible.

Personal Property Losses

Renters sometimes assume that the landlord’s property insurance protects them in the case of a theft or fire. However, most landlord and owner’s policies cover only the structure of the building and grounds — not the tenants’ possessions. Renters can purchase rental insurance that provides temporary housing and provisions in a natural disaster. Unless the catastrophe was something other than a natural disaster and caused by the landlord’s negligence, the landlord cannot be held accountable for the loss of an occupant’s personal items.

Tilting the Scales in Your Favor

If you are the tenant and the landlord won’t make repairs to protect your health, safety, or security, and you follow the procedures required by law, you may be entitled to:

  • end the lease;
  • have the problem repaired and deduct the cost of the repair from the rent; or
  • file suit to force the landlord to make the repairs.

To do so, you MUST:

  • send the landlord a dated letter by certified mail, return receipt requested, or by registered mail, outlining the needed repairs, or deliver the letter in person;
  • keep a copy of the letter; and
  • be sure your rent is current when the notice is received. If the landlord does not make diligent efforts to repair, you may be entitled to terminate the lease, repair the problem and deduct the cost from your rent, or get a court to order that the repairs be made. You should consult with an attorney before taking any of these actions. In Texas, a landlord cannot retaliate for complaining about necessary repairs for six months after the complaint is made.

Disaster Relief Resources

The Hood County Bar Association is offering Hood County tornado victims free information and consultation on legal issues related to the recent disaster on May 23 from 9:00 a.m. to 11:00 a.m. at the Hood County Annex (1 – 1410 W. Pearl St.) The State Bar of Texas provides a toll-free disaster legal hotline at (800) 504-7030 for those impacted by the tornadoes in North Texas, as does Legal Aid of NorthWest Texas at (855) 548-8457.

Days after closing on their dream home – a brick colonial near the historic Texas Capitol – Hino and Mino Schute learned of their property’s ghastly past. Eleven months earlier, an intruder entered the house, shot and killed a 9-year-old girl and her father. Horrified, the Schutes unsuccessfully demanded their money back. When that failed, Hino and Mino tried to paint over the grim history, refinishing the woodwork and refurbishing the kitchen. After a couple of months Mino gets transferred by his company to another state and they have to sell the house.  Since the murders were not disclosed when Hino and Mino bought the house, do they have the obligation to disclose the house as a “stigmatized property” to the future buyers?

Probably, yes. The Texas Property Code expressly provides that a realtor is not required to disclose or release information related to whether a death by natural causes, suicide or accident unrelated to the condition of the property occurred on the property. Murder is not covered by this “no duty” rule. Since a murder on the property might be considered a material fact that a buyer would want to know in deciding whether to purchase, it’s probably prudent for sellers to disclose this fact.

What Not To Disclose?

It is a discriminatory practice in violation of the Texas Real Estate Commission’s Canons of Professional Ethics and Conduct for a real estate licensee to inquire about, respond to or facilitate inquiries about race, color religion, sex, national origin, ancestry, familial status or handicap. You can’t talk about AIDS, HIV-related illnesses or HIV infection related to the property, any occupant or owner, either.

What MUST Be Disclosed?

Physical stigmas arise when some negative or detrimental physical or environmental condition exists that may affect the health or safety of the occupants or the value of the property, whether direct or indirect. An obvious property condition would be houses in an area subject to sinkholes, like central Florida where an occupant was killed when his house collapsed. More indirectly, health-related problems whether real or imagined, can impact property marketability or value, like the asbestos scare or perhaps if the house is Haunted! The Seller’s knowledge of active termites and damage, flooding, toxic wastes, previous fires, landfill, settling, soil movement, fault lines and manufacture or sale of methamphetamine, must all be revealed in a Seller’s Disclosure of Property Condition. If the seller fails to provide the notice required by the statute, the purchaser may terminate the contract for any reason within seven days after receiving the notice.

Tilting the Scales in Your Favor.

If you own or intend to purchase real property, consider the following:

  • GOOGLE the property address and ask questions about prior usages and property circumstances, and know that your buyer or seller is likely to do the same;
  • In Texas carefully review and complete the Seller’s Disclosure of Property Condition for residential sales, knowing that if you are the buyer there may be more to the disclosure list than meets the eye, and if a commercial transaction, consider the same questions and responses;
  • Even if there are no disclosed property conditions or physical stigmas, separately investigate if there may be and, if so, try to determine whether the stigma is based on rumor or fact;
  • If it’s a fact, consider how material it is to the transaction—how sensational was the event, how long ago did the event occur, would it likely impact the purchase price or resale value;
  • Discuss the physical stigma, its accuracy, perceived impact and likely consequences with your broker to evaluate the impact upon the value of the property and / or the risk of legal liability and responsibility;
  • Generally speaking, more informative disclosures are better. Doing so, in writing, reduces the likelihood that a subsequent lawsuit will be successful and, therefore reduces the risk that a contingency fee lawyer will be interested in taking the case.

Lawsuits stemming from nondisclosure of a property’s problems were ranked by real estate brokers in the National Association of Realtors 2011 Legal Scan as among their “top three current and future issues.” It is almost certain that neighbors will later inform buyers about deaths and other physical stigmas related to the property. Whether the physical stigma may be a death involving or any other stigma not specifically covered by a duty to disclose, sellers may choose to voluntarily disclose information about all stigmas to avoid contract termination or worse yet, subsequent litigation.

SEE ALSO:

Assult RifleAttendees at the midnight showing of the remake of the movie “Paladin – the Gentleman Black Knight” were ambushed at the Orpheum Theater. According to news reports the accused bought a ticket and sat in the audience. He waited until after the movie started and then stepped out where he donned riot gear and re-entered the theater, tossed two gas canisters and began shooting into the crowd.  Subsequent investigation suggested insufficient security for anticipated crowds and a lack of alarm system controls on the emergency exit. Is the business owner liable to its customers who were injured in the shooting?

Owner Liability Issues to Customers

Probably not the customers (employees – a different story – will be addressed next month). While a business owners must take reasonable steps to protect visitors coming onto the property or people coming to do business in their store, for victims successfully to recover compensation they must show that past violent incidents reasonably caused the mass shooting at that particular theatre to be foreseeable. The Orpheum responded to its patrons’ lawsuits seeking a dismissal and argued, “It would be patently unfair, and legally unsound, to impose on the Orpheum… the duty and burden to have foreseen and prevented the criminal equivalent of a meteor falling from the sky.” There was no history of similar events to argue a pattern. There was no communication of a threat. The theater would likely be successful in arguing it could not have reasonably foreseen that a deranged gunman would shoot up the theater because it is no more at risk for a mass shooting than any other venue hosting a large crowd of people. Hiring armed security guards over and above the presence of routine local law enforcement patrols is not an ordinary and customary procedure for suburban movie theaters in relatively low-risk areas.

A pattern of criminal problems, such as repeated robberies at the business or assaults in the parking lot, are generally required for courts to hold businesses liable for a crime on their premises.

Tilting the Scales in Your Favor

Insurance. Up to forty percent of businesses affected by a natural or human-caused disaster never reopen. If this happened at your business, could your business survive? Evaluate your commercial property and business interruption policies as well as reputational and crisis management coverage. For most businesses, the brunt of the insurance response will likely fall under commercial general liability coverage because there is no exclusion for random acts of violence or mass events. You may wish, however, to consider public liability insurance. Because of their high-severity and low-frequency nature, insurance for public liability occurrences is designed to protect from incidents on the premises those public venues and other businesses that frequently bring large crowds – a shooting, a structure collapse, an explosion, a terrorist act. Talk to your insurance agent, and review your existing general liability insurance policies.

Reasonable Precautions. The Department of Homeland Security created a checklist of measures recommended to create a business preparedness program. Generally, those measures are summarized as organize, develop and administer a preparedness program, identify the hazards and assess the risks. Then, implement the plan and address the emergency response, crisis communications, employee assistance and training. Annually test and evaluate the plan using a variety of exercises and scenarios.

SEE ALSO:

Ray Kroc, a resident of a rural town in Texas, awoke one morning to find several head of cattle grazing in his backyard.  Kroc does not have any idea who the owner might be and the cattle are untagged, unbranded and have no other identifying marks.  Kroc is hopeful that Texas has some type of “finders keepers” statute and fences the cattle in so that he may “use” them for a business that he recently started.  If they remain unclaimed, can Kroc keep the cattle and use them to supersize his business?

No, there is no “finders keepers” when it comes to another Texan’s livestock.  The notion of wandering cattle, horses or other livestock (known as “estray” in the law) is unfamiliar to most city folk but not uncommon to those inhabiting more rural areas.  Unfortunately for Kroc, he is going to have to turn the cattle over.  If he fails to do so, the Texas  and Southwestern Cattle Raisers Association notes that he can be charged with “Theft of Livestock” (a cattle rustler, I suppose). In Texas, Kroc is obligated to report the ”stray” to the county sheriff as soon as reasonably possible.  The sheriff will then notify the owner or, if the owner is unknown, impound the cattle.  If the owner still cannot be located after certain efforts have been undertaken, the cattle may be sold (with funds going to the county), donated to a nonprofit organization or retained for county purposes.  While Kroc cannot keep the cattle, Texas law does provide that he shall be reimbursed, a reasonable amount, for any “maintenance and damages.” Check out the list of animals (including a red Beefmaster bull, 4 Longhorns, a sorrel and white paint gelding and a Jack Donkey) impounded by the Travis County Sheriff’s Office. Wichita County Sheriff Lt. Cecil Yoder said his department spends several hours every week chasing down loose livestock that have escaped through broken fences. In an attempt to be neighborly, officers used to lead the lost animals back onto the owner’s property. But now, Yoder says the cows will be impounded.

Tilting the Scales in Your Favor. Do you know someone who owns “exotic livestock” or “exotic fowl”? These are any mammals or animals, respectively, which are not indigenous to the State of Texas, including animals from the deer and antelope families and game birds not indigenous to Texas. Unlike loose livestock, a Texan can only claim to be the owner of exotic livestock or exotic fowl if the animal is “tagged, branded, banded, or marked in another conspicuous manner that can be read or identified from a long distance and that identifies the animal as being the property of the claimant.” Otherwise, it appears that exotic livestock or exotic fowl that are loose are “fair game!”

Fearing that her beautiful landscaping will wither away from lack of water and feeling shafted by the ceaseless torrent of water usage limitations imposed by her city, Misty Spring is thinking about drilling a well in her own backyard. But does Misty own the water under her land  and can she drill a well for her personal water uses?

Maybe. Although Misty must check the rules and regulations of any number of possible authorities, with a little persistence she may be able to secure permitting for a licensed operator to drill a water well on her property; however, the well cannot be used for Domestic (household) use or for consumption by the public.

Texas Water Ownership and Usage. If Misty is already buying her water from someone else, she is subject to that seller’s regulations. For example, the City of Plano and most other Texas cities have ordinances that regulate, among other things, watering yards during drought conditions. In some cases, the determination of a city’s water restrictions is dictated by an even larger authority like the North Texas Municipal Water District, which currently is imposing its Stage 3 Water Conservation and Drought Contingency and Water Emergency Response Plan on all of its member cities, including Plano.

What about Misty’s water under her property? Generally speaking, each Texas landowner is regarded as having absolute title to the water beneath their land, much like ownership of minerals like oil and gas. The only “catch” of ownership is that it must be considered in connection with the law of capture and is subject to legislatively approved regulations. So, yes, it is likely that Misty can drill a well on her property – so long as it does not violate the rules of the authority selling her the water or the rules of the authority which the legislature has approved to regulate either the water under her property or her surface uses.

Tilting the Scales in Your Favor. Who are “the authorities” that Misty should contact? If Misty’s property is within an incorporated city, she should check there first. She should also check whether her property has any deed restrictions or if she is in a property owners association that would limit or prohibit drilling on her property. Depending upon where she lives, and particularly if she is in a more rural area, Misty should determine if she is subject to a groundwater conservation district that regulates water production from underground reservoirs. Typically such districts address water supply needs, management goals and the amount of water estimated to be used and recharged annually within the district. To address those issues, the groundwater supply district may regulate the spacing of water wells and limits on the production of water produced based upon the size of the tract.

For more information on the ownership, the evolution of Texas water rights, and the emerging authority of groundwater control districts in Texas, check out the this year’s Texas Supreme Court decision of The Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel.

Can Oil & Gas Companies Place a Pump Jack in Your Front YardSeldon Wright, an accountant, searched for years to find the perfect piece of property to open his tax preparation business, Many Happy Returns.  At long last, Wright finally located and purchased an ideal parcel from Molly Kuehl, a physicist at the local university.  Several months after Wright finished construction of his office and opened for business, Kuehl stopped by and informed Wright that natural gas had been found in the area and, as she still owned the mineral rights, that she intended to enter into a lease to allow drilling on the property.  Wright tells Kuehl that her right to the natural gas was terminated when she sold the property and that any exploration or drilling would be a trespass.  Is Wright right?

Probably not.  In Texas, land is divided into a “surface estate” and a “mineral estate.”  A seller can sell the entire estate (both the surface and mineral) or just the surface or mineral estate.  When Wright purchased the land, his concern was for the surface estate where he intended to build his office.  Wright didn’t care (or even realize) that Kuehl had retained the mineral estate because natural gas and/or oil had never been drilled in the area.  This is all very bad news for Wright.  In Texas, where oil and gas have been so critically instrumental to the state’s economy, case law has developed greatly favoring the estate of the mineral owner.  When the estate has been severed (as in this case), the mineral estate always dominates so that the minerals (e.g. oil and gas) may be produced.  Despite Wright’s protests, if Kuehl enters into a mineral lease with a natural gas company, the company may use as much of the surface as is reasonably necessary for its operations.  Kuehl’s ability to drill is subject, however, to municipal ordinances and the prior use doctrine, which protects land owners from damage or disruption to their business. 

Tilting the Scales in Your Favor – When purchasing or selling property pay close attention to whether the surface and mineral estate will remain united or are being severed.  Looper Reed has seen a resurgence in certain oil and gas legal work as a result of new drilling technologies.  These recent advances have permitted oil and gas companies in North Texas to drill in areas where once there was no drilling (including residential neighborhoods), but have also moved drilling operations closer to residential neighborhoods.  What drilling activities may take place and where they may take place is ultimately governed by the municipality in which the land is situated.