James T. Kittrell

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Recent technology has made produced water—a byproduct of fracing that was traditionally considered waste—a valuable product. However, no legal guidance existed on whether produced water was owned by mineral owners or surface owners. The Texas Legislature resolved some of that uncertainty by passing Texas Natural Resources Code § 122.002 on September 1, 2019, which generally grants title to produced water to whoever takes possession of it for the purpose of treating it for subsequent beneficial use. However, this statute only governs parties to instruments executed after September 1, 2019, which left parties to instruments executed prior to that date uncertain on whether they owned the produced water extracted from their property. The El Paso Court of Appeals undertook to resolve this conflict in Cactus Water Services, LLC v. COG Operating, LLC, and on July 28, 2023, it held that when instruments convey “oil and gas” or “oil, gas and hydrocarbons” to mineral owners without specifically reserving title to produced water or oil and gas waste, mineral owners have the sole right to produced water extracted from their property.
Continue Reading One Man’s Waste is Another Man’s Treasure: Texas Appellate Court Holds that Produced Water Belongs to Mineral Owners

In Freeport-McMoRan Oil & Gas LLC v. 1776 Energy Partners, LLC, — S.W.3d —, No. 22-0095, 2023 WL 3556695 (Tex. 2023), the Texas Supreme Court held that, as a matter of law, the operator of a joint operating agreement, Ovintiv, did not owe interest on production payments owed to the non-operator, 1776 Energy, that…

In Point Energy Partners Permian, LLC v. MRC Permian Company, — S.W.3d —, No. 21-0461, 2023 WL 3028100 (Tex. 2023), the Texas Supreme Court held that the lessee could not invoke a force majeure clause to save its oil and gas leases when it inadvertently scheduled its operations to begin after the requisite deadline.…

The Texas Supreme Court recently released its opinion in Devon Energy Production Company, L.P. v. Sheppard, — S.W.3d —, No. 20-0904, 2023 WL 2438927 (Tex. 2023), in which it held that lessees owed royalties in excess of their gross proceeds, specifically “adding back” costs incurred by third-party buyers that were enumerated in the sales…

The Texas Supreme Court recently released its opinion in Van Dyke v. Navigators Grp., No. 21-0146, 2023 WL 2053175 (Tex. Feb. 17, 2023), in which it re-affirmed the axiomatic principle that a text retains the same meaning in the present day as when it was drafted.  In the context of antiquated oil and gas…

In Tier 1 Resources Partners et al. v. Delaware Basin Resources LLC, 08-20-00060-CV, the Court of Appeals for the Eighth District of Texas (El Paso) recently held oral argument on the proper construction of the word “and” used in a Delaware Basin oil and gas lease.  The meaning of the word is hotly contested…

In Kachina Pipeline Company, Inc. v. Lillis, No. 13-0596, the Supreme Court of Texas interpreted a natural gas-purchase contract and held that a producer was not required to share in the costs of compression, even though that compression helped yield a higher re-sale price. Whether this decision narrowly reflects the language of one specific…