Sylvia R. Bush, Robert Hailey, Barry Lee Hailey, Quail Pasture LP as Successor to Gwen Geltemeyer, David Jess St. Clair, Justin Dallas St. Clair, Joh Christopher St. Clair, Julie A. Canon, Lynn D. Hughes, Donna Pepper, Armadura Family Holdings, LP, Melanie S. Lee, John F. Griffin, Goat Hill Properties, LLC, Rosetta Resources Operating LP, Rosetta Resources Operating GP, LLC and Noble Energy v. Yarborough Oil & Gas, LP, Carrollton Mineral Partners, Carollton Mineral Partners Fund II, LP, Sterling MI-RO Partners, LP, Eagle Oil & Gas Partners, LLC, Eagle Oil & Gas Co., Dexter Capital Company LLC, Estate of Robert Mitchell Sayre, Lambert Land Company, LLC, Ralph and Martha Brown as Trustees of the Ralph A. Brown and Martha Brown Revocable Trust Dated 04-15-2015, Jordex Investments Company, Desert Partners IV, L.P.

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

SYLVIA R. BUSH, ROBERT HAILEY, §
BARRY LEE HAILEY, QUAIL PASTURE
LP, DAVID JESS ST. CLAIR, JUSTIN § No. 08-23-00261-CV
DALLAS ST. CLAIR, JON CHRISTOPHER
ST. CLAIR, JULIE A. CANON, LYNN D. § Appeal from the
HUGHES, DONNA PEPPER, ARMADURA
FAMILY HOLDINGS, LP, MELANIE S. § 143rd District Court
LEE, JOHN F. GRIFFIN, GOAT HILL
PROPERTIES, LLC., ROSETTA § of Reeves County, Texas
RESOURCES OPERATING LP, ROSETTA
RESOURCES OPERATING GP, LLC, and § Cause No. 17-06-21987
NOBLE ENERGY, INC.,
§
Appellants,
§
v.
§
YARBOROUGH OIL & GAS, LP,
CARROLLTON MINERAL PARTNERS, §
CARROLLTON MINERAL PARTNERS
FUND 11, LP, STERLING MI-RO §
PARTNERS, LP, EAGLE OIL & GAS
PARTNERS, LLC, EAGLE OIL & GAS §
CO., SANTA ELENA MINERALS, LP,
DEXTER CAPITAL COMPANY LLC, §
ESTATE OF ROBERT MITCHELL
SAYRE, LAMBERT LAND COMPANY, §
LLC, RALPH AND MARTHA BROWN AS
TRUSTEES OF THE RALPH A. BROWN §
AND MARTHA BROWN REVOCABLE
TRUST DATED 4-15-2015, J.B. §
CHAMPION, JR., JORDEX
§
INVESTMENTS COMPANY, DESERT
PARTNERS IV, L.P., OKLAHOMA STATE §
UNIVERSITY FOUNDATION, ANGLE
OIL COMPANY, CHARLOTTE §
HENDERSON AS TRUSTEE OF THE
CHARLOTTE HENDERSON REVOCABLE §
TRUST, RALPH T. AND GLENDA L.
CHURCHILL, and C.A. & C.H. §
LUNDBERG,
§
Appellees.
§

OPINION

This case involves the interpretation of a decades-old tax foreclosure judgment.

Specifically, the parties dispute whether that judgment not only foreclosed on the property owned

by an adjudicated delinquent taxpayer, but also on a 1/2 mineral interest, which was severed from

the land years earlier, and was undisputedly owned by a party not named in the judgment.

Successors of the tax sale purchaser and of the owner of the mineral interest filed cross motions

for summary judgment in this trespass-to-try-title and breach of contract suit. The trial court ruled

in favor of the mineral interest successors, and the tax purchaser successors appealed. Because the

mineral interest was not included in the scope of the foreclosure judgment, and the suit is not

otherwise barred by legal and equitable defenses, we hold the successors of the fractional mineral

interest proved their title as a matter of law. We affirm.

I. BACKGROUND

A. Factual Background

This suit arose from competing chains of title to property in Reeves County. The

undisputed common source, M.A. Piercy, owned the entirety of a 560-acre tract (the Property)

from which she conveyed, in March 1937, an undivided 1/2 mineral interest to Thomas C. Vaughn.

2
The mineral deed from Piercy to Vaughn was recorded in the Reeves County Real Property

Records as of July 20, 1937.1 Vaughn later conveyed his interest to Roy M. Johnson, who in turn

conveyed away fractional mineral interests to multiple parties, which eventually passed to

Appellees (the Vaughn Successors).2

The source of the parties’ disagreement is a tax foreclosure suit filed against Piercy. Many

years of past-due taxes had accrued against Piercy and tax liens had attached to her property. Some

liens arose from tax years earlier than 1937. Between 1937 and 1948, no property taxes were

assessed against any owner connected to the 560-acre tract other than Piercy. Neither Johnson nor

any of his grantees were served with notice of the foreclosure proceeding. Based on the suit, a

default tax judgment was rendered in July 1948 in favor of the taxing authorities, and an order of

sale followed months later. The county sheriff executed a tax deed conveying the tract to the taxing

entities, subject to the former owner’s right of redemption. In 1951, the taxing entities quitclaimed

their interest to John Bush. Bush’s interest eventually passed down to some of the appellants here

(the Bush Successors).3 Other appellants are oil companies holding mineral leases from the Bush

1
The mineral deed from Piercy to Vaughn specifically conveyed “an undivided one-half interest in and to all of the
oil, gas and other minerals in and under, that I may own and that may be produced from the following described land
situated in Reeves County, Texas, to-wit: The South one-half (S½) and the Southwest One-quarter (SW¼) of the
Northwest One-quarter (NW¼) of Section Seventeen (17), in Block C-7, Public School Land, and containing 360
acres, more or less, also All of Section Number Ten (10), Block C-7, except the East one-half (E½) of the west one-
quarter (NW¼) of [] said section, and containing 560 acres, more or less.”
2
The Vaughn Successors include Yarborough Oil & Gas, LP, Carrollton Mineral Partners, Carrollton Mineral Partners
Fund 11, LP, Sterling MI-RO Partners, LP, Eagle Oil & Gas Partners, LLC, Eagle Oil & Gas Co., Dexter Capital
Company LLC, Estate of Robert Mitchell Sayre, Lambert Land Company, LLC, Ralph and Martha Brown as Trustees
of the Ralph A. Brown and Martha Brown Revocable Trust dated 04-15-2015, J.B. Champion, Jr., Jordex Investments
Company, Desert Partners IV, L.P., Oklahoma State University Foundation, Angle Oil Company, Charlotte Henderson
as Trustee of the Charlotte Henderson Revocable Trust, Ralph T. and Glenda L. Churchill, Santa Elena Minerals LP,
and C.A. & C.H. Lundberg.
3
The Bush successors include Sylvia R. Bush, Robert Hailey, Barry Lee Hailey, Quail Pasture LP, David Jess
St. Clair, Justin Dallas St. Clair, Jon Christopher St. Clair, Julie A. Canon, Lynn D. Hughes, Donna Pepper, Armadura
Family Holdings, LP, Melanie S. Lee, John F. Griffin, and Goat Hill Properties, LLC.

3
Successors (collectively, Rosetta/Noble).4 Rosetta/Noble began drilling in 2014, and after

crediting the Bush Successors with a share of the mineral interest, it paid them proportional

royalties from its production.

B. Procedural background

In 2017, Yarborough Oil & Gas, L.P., a Vaughn Successor, sued Rosetta/Noble for

trespass-to-try-title, breach of contract, and money had and received, alleging it owned a fractional

share of a participating mineral interest and it had not been paid royalties from production obtained

on the tract.5 Rosetta/Noble answered, and through a plea in abatement, it also claimed that

Yarborough needed to add necessary parties to the suit, including the Bush Successors, and other

successors as well to the 1937 mineral deed from Piercy to Vaughn. The trial court abated the

proceeding, and Yarborough soon filed an amended petition naming additional parties. The trial

court thereafter aligned the Bush Successors with Rosetta/Noble as defendants, and Vaughn

Successors as plaintiffs. The trial court appointed an attorney ad litem to represent those parties

who were served but had defaulted in filing an answer.

Yarborough filed a traditional motion for summary judgment, urging that the foreclosure

judgment resulting from the 1948 tax suit did not affect its fractional mineral interest in the tract

as a Vaughn Successor. Certain Vaughn Successors, who had answered the suit, joined in

Yarborough’s motion, while other parties represented by an ad litem did not.6 Soon thereafter, the

Bush Successors filed a competing, traditional and no-evidence motion for summary judgment,

4
Rosetta Resources Operating LP, Rosetta Resources Operating GP, LLC, and Noble Energy, Inc.
5
Yarborough sought a declaratory judgment acknowledging it owned “a 115/2240 participating mineral interest in
the south half (S/2), the northeast quarter (NE/4) and the west half of the northwest quarter (W/2 NW/4) of Section
10, Block C7, PSL Survey, Reeves County, Texas.”
6
Santa Elena Minerals, LP, also a Vaughn Successor, joined Yarborough’s motion and filed its own traditional and
no-evidence motion for summary judgment. Because Santa Elena requested essentially the same relief as did the rest
of the Vaughn Successors, we see no need to separately address these motions, and instead we consider them
collectively.

4
claiming the 1948 tax foreclosure judgment in fact foreclosed on all interests in the Property,

including the 1/2 mineral interest that Piercy had conveyed to Vaughn, years earlier, in 1937. The

Bush Successors’ no-evidence motion asserted that the Vaughn Successors could not overcome

the foreclosure of their interests because (1) their challenge was barred by limitations, and (2) they

lacked standing to assert any due process claims. Rosetta/Noble joined in the Bush Successors’

motions and it added, as well, a motion seeking to defeat the breach of contract claim.

The trial court granted the Yarborough’s motion joined by the Vaughn Successors and

denied the Bush Successors’ motions, which were joined by Rosetta/Noble, noting that the 1948

tax foreclosure “impacted” only Piercy’s interest and not the 1/2 mineral interest sold to Vaughn.

Rosetta/Noble and the Bush Successors (collectively, Appellants) each filed notices of appeal.

II. STANDARD OF REVIEW

“We review a trial court’s grant of summary judgment de novo.” Eagle Oil & Gas Co. v.

TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). A traditional summary judgment is proper when

a movant establishes that no genuine issue of material fact exists, and the movant is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c); KCM Fin. LLC v. Bradshaw, 457 S.W.3d

70, 79 (Tex. 2015). A no-evidence motion for summary judgment pursuant to Tex. R. Civ. P.

166a(i) is essentially a motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 581 (Tex. 2006). We review such motion under the same legal sufficiency standard

used to review a directed verdict. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

When parties file competing motions for summary judgment, and the trial court grants one motion

and denies the other, we consider the evidence presented by both sides and render the judgment

the trial court should have rendered. Trial v. Dragon, 593 S.W.3d 313, 316–17 (Tex. 2019).

5
III. ISSUE ON APPEAL

In one issue, Appellants urge the trial court erred in concluding that the 1/2 mineral interest

conveyed to the Vaughn Successors’ predecessors in 1937—and subject to statutory tax liens at

the time of the conveyance—was “not impacted by the 1948 tax foreclosure judgment.” They

contend the tax judgment foreclosed on the liens on the Property in its entirety including all of the

mineral estate. Conversely, the Vaughn Successors maintain the trial court correctly granted their

motions for summary judgment, contending the 1948 tax foreclosure suit only divested Piercy of

her interest. Specifically, they argue the tax entities were on notice of the 1937 conveyance and

could have assessed Vaughn and his successors with a portion of the Property’s prior taxes, or

with those accruing after 1937, but they chose not to do so, and instead looked solely to Piercy for

the prior and subsequently assessed taxes. In short, they argue the 1948 judgment only adjudicated

Piercy’s interest, and the sheriff’s deed only sold the foreclosed interest.

Based on the parties’ arguments, and our review of the trial court’s summary judgment, we

construe the issue on appeal to include two subsidiary questions: (1) Were the Vaughn minerals

expressly or implicitly included in the scope of the 1948 foreclosure judgment? (2) Is the

underlying suit time-barred, either by a statute of limitations or other equitable considerations?

We address the subsidiary questions in turn.

IV. SCOPE OF THE FORECLOSURE JUDGMENT

Appellants argue the 1948 tax foreclosure judgment foreclosed on the entire Property

including all mineral interests. In opposition, the Vaughn Successors argue the judgment and its

resulting sheriff’s deed were limited to Piercy’s interest only, not their predecessors’ interest.

6
A. Applicable law

In recent opinions, the Texas Supreme Court has reiterated a legal framework for analyzing

various written instruments, including those involving mineral interests. See Van Dyke v. Navigator

Group, 668 S.W.3d 353, 365 (Tex. 2023) (interpreting a 1924 deed reserving a fractional mineral

interest); Endeavor Energy Res., L.P. v. Energen Res. Corp., 615 S.W.3d 144, 148 (Tex. 2020)

(construing an oil-and-gas lease); URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 767–69 (Tex. 2018)

(analyzing a settlement agreement). These same rules of interpretation apply in construing the

meaning of a court order or judgment. Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404–05

(Tex. 1971).

First, we begin with the “literal” text within the four corners of the judgment. Kourosh

Hemyari v. Stephens, 355 S.W.3d 623, 626 (Tex. 2011). If the language is “clear and

unambiguous,” the court looks no further. In Matter of Estate of Downing, 461 S.W.3d 231, 238

(Tex. App.—El Paso 2015, no pet.). We apply the “plain, ordinary, and generally accepted

meaning” of words and rules of grammar, unless terms are defined or used in a “technical or

specialized way.” Finley Res., Inc. v. Headington Royalty, Inc., 672 S.W.3d 332, 339 (Tex. 2023).

We do not read provisions of the judgment in insolation; “even a ‘literal’ interpretation of an

unambiguous order requires us to look at the order as a whole.” Kourosh Hemyari, 355 at 626. If

portions “appear contradictory or inconsistent,” we “strive to harmonize all of the parts, construing

the instrument to give effect to all of its provisions.” Luckel v. White, 819 S.W.2d 459, 462

(Tex. 1991). “Conclusive effect is not to be given the use or not at a particular point in the judgment

of the commonly employed decretal words, and what the court had adjudicated is to be determined

from a fair reading of all the provisions of the judgment.” Constance v. Constance, 544 S.W.2d

659, 660 (Tex. 1976). Our goal is to “determine not what the trial court should have done but, if

7
possible, what the court actually did.” Shanks v. Treadway, 110 S.W.3d 444, 446 (Tex. 2003).

Though older cases have occasionally applied canons of construction, the Texas Supreme Court

has increasingly discounted these approaches, “particularly in our decisions addressing mineral-

interest conveyances.” Piranha Partners v. Neuhoff, 596 S.W.3d 740, 744, 746 (Tex. 2020).

Courts are encouraged instead to “resolve any conflicts by harmonizing the agreement’s

provisions, rather than by applying arbitrary or mechanical default rules.” Id. at 744.

Second, when the text of the judgment is “inconclusive,” we consider surrounding facts

and circumstances to “shed light on the objective meaning conveyed by the text.” Endeavor, 615

S.W.3d at 152–53. To determine historical meaning, we generally begin with “contemporary legal

and lay dictionaries.” Van Dyke, 668 S.W.3d at 360. Then we consider historical cases and statutes.

Id. When interpreting older instruments, we must “determine what a text could reasonably have

meant to an informed but disinterested speaker at the time the text was written.” Id. at 362. The

“text does not evolve with the broader language.” Id. at 360. We also “avoid strictly construing an

instrument’s language if it would lead to absurd results.” Kourosh Hemyari, 355 S.W.3d at 626.

Although oil and gas experts “have a proper (if confined) role,” Dynegy Midstream Services, Ltd.

P’ship v. Apache Corp., 294 S.W.3d 164, 170 (Tex. 2009), expert opinions as to the meaning of

common oil and gas terms is not necessary. Nettye Engler Energy, LP v. BlueStone Nat. Res. II,

LLC, 639 S.W.3d 682, 691 (Tex. 2022); Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590

S.W.3d 471, 486 (Tex. 2019).

Third, in the event of “inescapable ambiguity,” courts consider extrinsic evidence of

subjective intent. Van Dyke, 668 S.W.3d at 361, 365. In the case of judgments, this generally means

determining the legally correct meaning. Reiss v. Reiss, 118 S.W.3d 439, 442 (Tex. 2003) (“Only

when a judgment is subject to more than one reasonable interpretation do we adopt the construction

8
that correctly applies the law.”). In such case, we consider the law in force at the time of the

judgment. Cedillo v. Gaitan, 981 S.W.2d 388, 390 (Tex. App.—San Antonio 1998, no pet.). In

addition, we would consider the entire record. State Mortg. Corp. v. Traylor, 36 S.W.2d 440, 441

(Tex. 1931).

Notwithstanding these principles, the Supreme Court further noted that “other legal

principles,” such as “the presumed-grant doctrine,” or statutes, “may require courts to fix present-

day ownership regardless of what the original text provided.” Van Dyke, 668 S.W.3d at 365 n.4.

That is, when historical records are clear and a recognized doctrine is implicated, the “original

instrument would at most provide an alternative holding such that a court could exercise its

discretion not to reach that question at all,” and may “dispense with the deed-construction

analysis.” Id. at 365 n.4, 368 n.11.

B. Analysis

(1) Express language of the 1948 tax judgment

The closing paragraphs of the 1948 tax foreclosure judgment state in pertinent part:

After hearing the evidence submitted, the court finds that this is an action for
delinquent ad valorem taxes, penalties, interest and costs allowed by law, and for
foreclosure of the constitutional and statutory lien for said taxes against the property
described in Plaintiff’s petition.

The court further finds from the evidence and decrees, that the plaintiff and
following taxing units which are parties to this suit, have valid claims for taxes,
penalties, interest and costs . . . against the property hereinafter described, and valid
tax liens in said amounts as follows, to-wit:

One (1), acre out of Section 25, Block C-7, P.S.L., Abst. #3040 and, S½ and NE¾
and W½ of NW¼, Section 10, Block C-7, Public School Land, Abst. #4363,
containing 560 acres; and, SW¼ and SE¼ and SW¼ of NW¼, Section 17, Block
C-7, Public School Land, Abst. #4830, containing 360 acres, all lying and being
situated in Reeves County, Texas.

9
That language is followed by the following decree:

It is therefore considered, ordered and adjudged by the Court that the plaintiffs . . .
recover of and from defendant(s) herein above named the total sum of money due
for taxes . . . on each separately described tract . . . .

It is further Ordered and Decreed by the Court that the tax lien securing the payment
of the same be, and the same is hereby foreclosed on each tract of said land against
the rights, titles, liens and claims of each and all of the said defendants herein . . .
and that the Clerk of this Court do issue an Order of Sale, directed to the Sheriff or
any Constable of REEVES County, Texas, commanding him to seize, levy upon
and advertise for sale, as under execution, each of the said above described tracts
of land . . . and to sell the same . . . . [Emphasis added.]

Relatedly, the sheriff’s deed more specifically provides in part that the Sheriff:

Bargained, Sold, and Conveyed . . . all the right, title and interest of the said Mrs.
M.A. Piercy, Defendant, in and to the following described land that said Defendant
had in and to the said land . . . . [Emphasis added.]

Based on this pertinent language, Appellants urge the 1948 tax judgment “unmistakenly

awards foreclosure on the liens on the [Property] in its entirety.” To this extent, they argue the 1/2

mineral interest falls within the scope of the judgment based on its decretal language,

notwithstanding that Piercy had conveyed those interests to Vaughn years earlier. They rely on

language providing, “the tax lien . . . is hereby foreclosed on each tract of said land.” Appellants

reason that because “tract of said land” or “said property” is therein described as an area of 560

acres, it necessarily encompasses the entire mineral estate of the Property.

The Vaughn Successors respond that the cited language includes additional words that

specifically limit the scope of the foreclosure to the interest of Piercy: “the tax lien . . . is hereby

foreclosed on each tract of said land against the rights, titles, liens and claims of each and all of

the said defendants herein.” (Emphasis added.) More specifically, they contend the sheriff’s deed

provided that the Property conveyed to the tax sale purchasers was limited to the “right, title and

interest of the said Mrs. M.A. Piercy, Defendant.” (Emphasis added.)

10
In their reply, Appellants characterize the reference to Piercy and “said defendants” as

isolated instances that should not determine the meaning of the judgment. Appellants emphasize

that multiple parts of the judgment refer to the “above described tract.” Regarding the explicit

reference to the “interest of the said Mrs. M.A. Piercy” in the sheriff’s deed, Appellants suggest

this language must be disregarded in favor of the language of the judgment. Appellants quote Ball

v. Carroll for the proposition that the scope of a foreclosure is “not affected by the fact that the

deed from the sheriff only purports to convey the interest” of certain defendants. 92 S.W. 1023,

1026 (Tex. Civ. App.—Galveston 1906, writ ref’d). That is, they cite Ball for the proposition that

a foreclosure judgment controls over a sheriff’s deed that only purports to convey interests of

certain parties. But as the Vaughn Successors noted in their response brief, Ball is factually

distinguishable. Unlike here, the parties omitted in the sheriff’s deed in Ball were categorically

named in the suit as “all persons owning or having or claiming any interest in the land,” and they

were cited and noticed by publication. See id. at 1024. The court held the foreclosure was not

limited to heirs as named in the deed: “[W]e think this judgment foreclosed the tax lien against all

of the parties to the suit, and the defendants who claim under said judgment are claiming under

the unknown owners, as well as under the unknown heirs of the Zacharies.” Id. at 1026 (emphasis

added).

We are also not persuaded by Appellants’ reliance on the reference to “liens of defendants”

in the decretal language of the judgment, which they suggest negates the specific reference to “said

defendants.” The decree provides that “lien . . . is hereby foreclosed . . . against the . . . rights,

titles, liens and claims of the said defendants.” It is not immediately apparent why a judgment

would declare plaintiffs’ liens foreclosed against defendants’ liens. “A lien is not title to real

property” but merely a “right of recourse to sell specific property.” Migura v. Dukes, 770 S.W.2d

11
568, 569 (Tex. 1989). Thus, liens are not taxable property and tax liens only attach to property of

defendants that can be recovered in foreclosure proceedings. Tex. Tax Code Ann. § 32.01. The

Tax Code and many foreclosure judgments do provide that the tax lien is prior and superior to any

liens of the defendant. See Tex. Tax Code Ann. § 32.05(b)(1) (providing that “a tax lien . . . takes

priority over . . . the claim of any holder of a lien on property encumbered by the lien”). In this

instance, the decretal language does not refer to “priority” or “superiority” of liens. The preceding

sentence awards judgment to “defendant(s) herein above named.” The caption and the first

paragraph identify the “defendant” as Piercy. Construing the judgment as a whole, Thus, the “liens

of defendants” should be construed as an isolated phrase that does not negate the clear intent of

the judgment as a whole to limit the scope of foreclosure to the interests of Piercy.

The reference to Piercy in the sheriff’s deed is even more difficult to reconcile with

Appellants’ interpretation of the judgment. Although a sheriff’s deed cannot exceed the scope of

the judgment authorizing the sale, the express limitation of the scope of the deed to interests of

Piercy is consistent and, if anything, narrower than the limitation in the judgment to “said

defendants.” Appellants’ claim to title is based in part on the language of this deed. It is too late

for Appellants to challenge the sheriff’s deed or to request a correction. Appellants have offered

no authority for otherwise disregarding such an explicit restriction on interests conveyed in a

sheriff’s deed that is consistent with the judgment. We therefore conclude this restriction is not

inconsistent; it is not an isolated instance; and we may not “harmonize” it by effectively ignoring

this language.

(2) Objective facts and circumstances
(a) Contemporaneous statutes

Supplementing their textual arguments, Appellants urge that contemporary statutes create

a presumption that the judgment and resulting tax deed conveyed the Vaughn Successors’ interest,

12
notwithstanding the plain text of those instruments. To begin, the Delinquent Tax Act of 1895

provided that a tax deed “shall be held in any court of in this State to vest good and perfect law or

equity title in the purchaser thereof, subject to be impeached only for actual fraud.” Act of April

13, 1895, 24th Leg., R.S., ch. 42, 1895 Tex. Gen. Laws 50, 52. Currently the statute provides: “The

purchaser may conclusively presume that the tax sale was valid and shall have full title to the

property free and clear of the right, title, and interest of any person that arose before the tax sale .

. . .” Tex. Tax. Code Ann. § 33.08(b).

Contrary to Appellants’ argument, other provisions of the Tax Code impose limits on the

scope of the foreclosed property when liens are omitted or waived. The relevant provision provides

that a taxing authority could fail to appear and omit taxes and thereby release its tax lien on the

Property as to that amount. See Tex. Tax Code Ann. §§ 33.42(c), 33.44; see also Pram Int’l, Inc.

v. Houston Indep. Sch. Dist., No. 01-98-00838-CV, 1999 WL 740688, at *2 (Tex. App.—Houston

[1st Dist.] 1999, no pet.) (tax authority’s omission of certain tax years in foreclosure pleading

waived recovery under § 33.42). To this extent, § 33.42 limits, rather than maximizes, the scope

of foreclosure to the delinquent taxes (as of the date of the judgment) that were pleaded by all

taxing authorities in a suit filed by any one of them. See City of El Paso v. Forti, 181 S.W.2d 579,

580 (Tex. 1944) (stating “chief purpose” of predecessor statute was “prevention of a multiplicity

of suits by providing for the inclusion of all taxing units in one action and adjudicating the claims

of all units”).

Appellants also fail to explain how the Tax Code provision for “good and perfect title”

otherwise alters the property interest that is expressly decreed in the judgment.7 We have

previously considered how the text of a foreclosure judgment may limit the foreclosed property

7
The Tax Code was later amended to specify that a tax deed vests “good and perfect title . . . to the interest owned by
the defendant in the property subject to the foreclosure.” Tex. Tax Code Ann. § 34.01(n).

13
interests. See Ridgefield Permian, LLC v. Diamondback E & P LLC, 626 S.W.3d 357, 368

(Tex. App.—El Paso 2021, pet. denied) (holding foreclosure limited to royalty interests where the

“plain language of the Tax Judgment only specifically described the two royalty interests under

the Meriwether Lease”); see also Pounds v. Jurgens, 296 S.W.3d 100, 106 (Tex. App.—Houston

[14th Dist.] 2009, pet. denied) (holding a “judgment of foreclosure and sale did not extend to the

royalty interest”).

Addressing the nature of interests foreclosed, Appellants emphasize that the taxing

authorities had a statutory right to foreclose against both Piercy and the mineral interest owners

for a portion of delinquent taxes that accrued before she conveyed, subject to any liens, a fractional

mineral interest to Vaughn. Appellants point out that tax liens “automatically” attach and

accumulate year over year without expiration. Our sister court addressed a similar argument,

noting that taxing authorities “undoubtedly had a lien on the land for the taxes, but it was not

automatic, but had to be foreclosed, and, in order to foreclose it legally, the state was compelled

to have the necessary parties before the court.” State Mortg. Corp. v. Magee, 27 S.W.2d 864, 865–

66 (Tex. App.—San Antonio 1930, no writ). Though liens do attach automatically, the purpose of

the Delinquent Tax Act is to ensure that foreclosure does not automatically occur upon

nonpayment of taxes, but rather, it remains subject to judicial process. Brown v. Bonougli, 232

S.W. 490, 492 (Tex. 1921).

Appellants focus their argument on a now-repealed provision added in 1897 stating that

delinquent taxes “shall remain a lien upon the said land . . . though it be listed in the name of a

person not the actual owner; and though the ownership be changed, the land may be sold under

the judgment of the court for all taxes, interest, penalty and costs shown to be due by such

assessment for any preceding year.” Act of April 14, 1897, 25th Leg., R.S., ch. 103, 1897 Tex. Gen.

14
Laws 132. In contrast, the current statute provides: “At any time after its tax on property becomes

delinquent, a taxing unit may file suit to foreclose the lien securing payment of the tax, to enforce

personal liability for the tax, or both.” Tex. Tax Code Ann. § 33.41(a). Appellants argue the 1897

statute renders the 1948 judgment solely against Piercy, and the resulting sheriff’s deed as well,

nonetheless conclusive against the claims of owners without notice. Appellants do not cite any

case supporting this interpretation.

The only case we have found citing this provision, however, rejected Appellants’

interpretation. See Patton v. Minor, 117 S.W. 920, 922 (Tex. App. 1909), rev’d on other grounds,

125 S.W. 6 (Tex. 1910). There, the case involved a claim by an adverse possessor challenging a

foreclosure judgment against unknown owners based on lack of notice. Id. The court opined:

“Although taxes, as provided in this article, do form a lien upon the land, no matter in whom the

ownership may lie, and though the ownership be changed, the occupant, however, or person whose

rights are maturing by limitation, who is in possession claiming adversely to the owner, cannot

have his right, or, inchoate right, cut off by a suit against unknown owners, when he has no legal

notice of the pendency of such suit.” Id. We agree the statute merely provided that the state could

obtain a lien upon the “listing” of the prior owner by the tax collector prior to suit; but, unlike

Appellants’ claim, we do not agree it relieved the taxing entities from joining a current interest

owner in the foreclosure suit and in accord with judicial process.

Appellants’ suggestion that the statute authorized open-ended foreclosure on the interests

of oblivious parties, including predecessor owners as applicable here, would conflict with other

provisions of the Delinquent Tax Act. The Texas Supreme Court previously examined the purpose

of the Delinquent Tax Act, explaining that it was passed in 1895 to “remedy the evils” of the former

method of summary tax sales, e.g. “disregard of the owner’s property rights in dispensing with

15
notice and an opportunity to be heard.” Brown, 232 S.W. at 492. The Court emphasized the

centrality of the notice provisions: “Prior to the enactment of the law . . . a defendant in execution

who owned land subject to sale was under the necessity of watching the court-house door for

advertisements of sales of real estate[.]” Bean v. City of Brownwood, 45 S.W. 897, 898 (Tex. 1898).

The Legislature was “careful to secure the property rights of the owner from invasion” by

mandating that owners “shall be made parties” and “shall be served with process.” Brown, 232

S.W. at 492. “The owner is here afforded full opportunity to defend an unfounded or unjust claim

for taxes.” Id.; see also Duncan v. Gabler, 215 S.W.2d 155, 161 (1948) (reiterating analysis in

Brown). The Delinquent Tax Act therefore protects the right to bring challenges to the scope or

validity of foreclosure judgments, while encouraging finality regarding other challenges to tax

deeds.

At the time of the 1948 judgment, the Delinquent Tax Act of 1895 as amended specifically

provided: “The proper persons shall be made parties defendant in such suit and shall be served

with process and other proceedings had therein as provided by law for suits of like character in the

direct courts of this State.” Act of April 13, 1895, 24th Leg., R.S., ch. 42, 1895 Tex. Gen. Laws 52,

amended by Act of April 14, 1897, 25th Leg., R.S., ch. 103, 1897 Tex. Gen. Laws 132. The

substance of this statute was incorporated in 1947 into Rule 117a, which remains largely

unchanged. Tex. R. Civ. P. 117a. In key part, Rule 117a provides that “known” owners must be

personally served; “unknown” owners may be served by publication; “record owners of such

property or of any apparent interest therein, including, without limitation, record lien holders, shall

not be included in the designation of ‘unknown owners[.]’” Id. The Tax Code retains duplicative

requirements that taxing authorities plead “each person named if known who owned the property”

and plead that “the person sued owns the property when the suit is filed. . . .” Tex. Tax Code Ann.

16
§ 33.43(a)(1), (8). The 1948 tax statutes also included a requirement that petitions specify that

“defendants are ____, ____ and ____, who . . . own or claim some interest in the hereinafter

described real property.” Act of April 6, 1939, 46th Leg., R.S., ch. 18, 1939 Tex. Gen. Laws 664.

In sum, we are not persuaded by Appellants’ claim that contemporary statutes support a

presumption that the 1948 judgment and its resulting sheriff’s deed foreclosed on the Vaughn

Successors’ mineral interest.

(b) Contemporaneous case law
Courts may also construe the foreclosure judgment in light of contemporaneous case law

interpreting the Delinquent Tax Act. In a series of cases following the Delinquent Tax Act, the

Texas Supreme Court held that a title-based judgment “does not conclude” the interests of property

owners who are not joined pursuant to the statute. Scales v. Wren, 127 S.W. 164, 164 (Tex. 1910);

see also Horst v. Lightfoot, 132 S.W. 761, 762 (Tex. 1910) (same); State Mortg. Corp. v. Traylor,

36 S.W.2d 440, 443–44 (Tex. 1931) (same); Kirby Lumber Corp. v. S. Lumber Co., 196 S.W.2d

387, 389 (Tex. 1946) (same); Tabasco Consol. Indep. Sch. Dist. v. Reyna’s Estate, 93 S.W.2d 796,

798 (Tex. App.—San Antonio 1936, no writ) (same). In a case with similar facts, Ditmore Land

& Cattle Co. v. Hicks, the Texas Supreme Court applied the rule to a 1/2 mineral interest sold to a

predecessor in title. 290 S.W.2d 499, 500 (Tex. 1956).8 In the same year as the foreclosure at issue,

the Texas Supreme Court recognized that the last vestige of summary tax sales had been repealed

in 1929:

It may be added that the present Attorney General of Texas and his two immediate
predecessors, in carefully considered opinions, have advised county attorneys and
school district officials that the Act of 1929 is constitutional and that neither the tax
collector nor anyone else has authority to sell real estate for delinquent taxes except
after foreclosure of the tax lien in a court.

8
The Vaughn Successors provide several additional intermediate court opinions affirming this long-established rule.
E.g., Norris v. Harry Hott Assocs., Inc., 612 S.W.2d 630, 631 (Tex. App.—Dallas 1981, no writ) (holding “judgment
of foreclosure did not bind Hott who was not a party”).

17
Duncan v. Gabler, 215 S.W.2d 155, 162–63 (Tex. 1948). As a consequence, contemporary case

law supports an interpretation that only Piercy’s interest was foreclosed or conveyed by the

instruments. Thus, in this instance, we need not be concerned whether long-established case law

requires the court to “to fix present-day ownership regardless of what the original text provided.”

Van Dyke, 668 S.W.3d at 365 n.4.

(c) Corroborating evidence

Even if the foreclosure judgment did not unambiguously and conclusively omit the Vaughn

Successors’ interest, we find that extrinsic evidence submitted by the Vaughn Successors

corroborates that fact. Recorded property records from the foreclosure suit establish that no

mineral owners or other defendants were named, cited, or served in the delinquency suit. Tellingly,

Appellants’ predecessor Bush in fact purchased a 130/1120 interest of the minerals in dispute two

months after purchasing Piercy’s interest in the tax sale through a quitclaim deed from the taxing

authorities. Referencing the sheriff’s deed, Bush’s quitclaim deed conveying property expressly

limited the scope to Piercy’s interest only:

THAT WHEREAS, by virtue of an Order of Sale issued out of the District Court
of Reeves County, Texas, for the 109th Judicial District in Cause No. 344-E, in
favor of the State of Texas and Reeves County as Plaintiff . . . against MRS. M.A.
PIERCY as Defendant, on a certain judgment granted on the 20th day of September,
1948 . . . the deed evidencing said sale being dated the 27th day of December, 1948,
and recorded in Volume 122, at pages 332-333, in Deed Records of Reeves County,
Texas, reference being hereby made to said judgment, order of sale, and sheriff’s
deed and their record for all purposes . . .

NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THAT Reeves
County, Texas, and the State of Texas . . .do hereby bargain, sell, release and forever
quit-claim unto the said John J. Bush, his heirs and assigns all of the right, title and
interest in the hereinafter described property as was acquired and is now held by
said taxing units under and by virtue of said tax judgment and said tax foreclosure
sale to said taxing units. . . .

18
Appellants argue that Bush’s purchase of the minerals two months after the tax sale is no evidence

of the scope of the foreclosure judgment. We disagree and find the quitclaim deed corroborates

our interpretation of the limited scope of the foreclosure as reflected by the plain language of the

judgment.

Having considered the plain text of the judgment and sheriff’s deed in light of

contemporary statutes, case law, and other objective facts and circumstances, we conclude the

Vaughn Successors mineral interests were not foreclosed on by these instruments. But our analysis

is not yet complete as Appellants raise additional issues by their appeal.

Appellants advance alternative grounds for this Court to nonetheless reverse and render

judgment in their favor. They urge that the Vaughn Successors’ claims are barred—to the extent

they improperly attempt to challenge the validity and force of the 1948 tax judgment—due to: (1)

the Tax Code’s one-year limitations period and its precondition to filing suit, (2) other policy and

equitable reasons, and (3) lack of standing to bring their claims. We turn next to address each of

these alternative grounds for reversing the trial court’s summary judgment.

C. Limitations, policy considerations, and standing

(1) Limitations and preconditions
Appellants argue the Vaughn Successors’ title claims expired long ago under the statute of

limitations. Tex. Tax Code Ann. § 33.54(a). Relatedly, they also contend that the Vaughn

Successors failed to satisfy the statutory precondition of paying any taxes “before and after

foreclosure.” Id. § 33.54(b).

As for limitations, § 33.54 of the Tax Code provides a one-year statute of limitations for

“an action relating to the title to property . . . against the purchaser of the property at a tax sale.”

Tex. Tax Code Ann. § 33.54(a). The statute includes a tolling provision, providing that a plaintiff

who “pays taxes on the property during the applicable limitations period and until the

19
commencement of an action” may avoid the limitations period. Id. § 33.54(b). “When actions are

barred by this section, the purchaser at the tax sale or the purchaser’s successor in interest has full

title to the property, precluding all other claims.” Id. § 33.54(c).

In support of limitations, Appellants cite this Court’s decision in W.L. Pickens

Grandchildren’s Joint Venture v. DOH Oil Co., a title suit in which the plaintiffs claimed that a

foreclosure judgment “did not have any effect on its title to the property because the suit was

flawed without the entity named as a party.” 281 S.W.3d 116, 122 (Tex. App.—El Paso 2008, pet.

denied). There, this Court held that “regardless of the potential merit . . . that argument must be

exercised within the statute of limitations.” Id. Distinguishing from Pickens, our sister court of

appeals held a quiet title suit to clear a tax foreclosure judgment, alleging failure to join a record

lienholder, was not time-barred under § 33.54. See Sec. State Bank & Tr. v. Bexar Cnty., 397

S.W.3d 715, 723 (Tex. App.—San Antonio 2012, pet. denied), abrogated on other grounds by

Mitchell v. MAP Res., Inc., 649 S.W.3d 180 (Tex. 2022). And, while the Texas Supreme Court

abrogated Sec. State Bank & Tr. on other grounds, it followed our sister court of appeals’ reasoning

on limitations, while declining to follow Pickens, and based its decision instead on PNS Stores,

Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012). See Mitchell, 649 S.W.3d at 194. And relatedly,

a federal district court has also concluded that Pickens was abrogated by PNS Stores. See Ocwen

Loan Servicing, LLC v. Gonzalez Fin. Holdings, Inc., 77 F.Supp.3d 584, 594 (S.D. Tex. 2015)

(“[F]ollowing the defendants’ intermediate appellate authority would contravene Texas Supreme

Court precedent that ‘[a] State law time limit is unenforceable when it violates due process.’”),

aff’d sub nom. Ocwen Loan Servicing, L.L.C. v. Moss, 628 F.App’x 327 (5th Cir. 2016).

Summarizing, then, the Texas Supreme Court rejected the limitations bar in Mitchell v. MAP Res.,

20
Inc., citing Ocwen and Sec. State Bank approvingly, and disapproving of cases following Pickens.

Mitchell, 649 S.W.3d at 194.

The Vaughn Successors contend in their response that § 33.54 is not applicable because it

does not apply to a title suit seeking a determination of the scope of a tax foreclosure judgment.

They rely on our decision in Diamondback, in which we held § 33.54 did not apply to suits to

determine the scope of a foreclosure judgment. Diamondback, 626 S.W.3d at 357. For sure,

Diamondback is a closer fit given the Vaughn Successors are requesting essentially the same relief.

That is, they seek a judgment declaring their mineral interest was not foreclosed on by the 1948

judgment.

In an effort to avoid Diamondback¸ Appellants suggest the Vaughn Successors’ claim as

to the scope of the foreclosure judgment may be viewed as an impermissible collateral attack on

the validity of the judgment; or alternatively, they argue the Vaughn Successors’ disclaimer of a

collateral attack may be a judicial admission of Appellants’ title. Both parties construe

Diamondback as requiring plaintiffs to make an election between “scope” claims and those

asserting a collateral attack on a judgment. But modern rules of procedure were adopted to avoid

this type of circuitous argument.9 By asserting alternative claims, an election becomes

unnecessary. See Tex. R. Civ. P. 48.

Appellants also point to Haynes v. DOH Oil Co., an opinion from our sister court of appeals

in direct contradiction with Diamondback, which held that a similar “scope” suit was barred by

the statute of limitations. 647 S.W.3d 793, 798 (Tex. App.—Eastland 2022, no pet.) (dismissing

9
See Tex. R. Civ. P. 48 (“A party may also state as many separate claims or defenses as he has regardless of
consistency. . . .”); Petit v. Klinke, 254 S.W.2d 769, 772 (Tex. 1953) (inconsistent pleading is “a practice long
permitted in this state”); Lyons v. Lindsey Morden Claims Mgmt., Inc., 985 S.W.2d 86, 92 (Tex. App.—El Paso 1998,
no pet.) (“[P]leading in conflict with other allegations in the same pleading does not constitute a judicial
admission[.]”).

21
title suit seeking a determination that sheriff’s deeds “only conveyed royalty interests and not her

entire mineral estate”). Because we do not believe § 33.54 was intended to limit “scope” suits, we

disagree with Haynes to this extent. Prior to Mitchell v. Map, we construed the statute only to bar

suits “challenging the validity of a tax sale,” as opposed to suits merely requesting a declaration

of the scope of a deed. Pickens, 281 S.W.3d at 121.

As for the Tax Code’s precondition to filing suit, Appellants assert the Vaughn Successors

failed to comply with the statutory precondition to pay taxes before filing suit. See Tex. Tax Code

Ann. § 33.54(b). Appellants insist only in their reply brief that taxes were assessed against Piercy

prior to the severance of the minerals in 1937. They do not point to evidence of taxes assessed

specifically on the mineral interest owners “before foreclosure” in 1948. Nor is there evidence that

taxes were assessed on any party “after foreclosure,” presumably because oil and gas production

did not occur until shortly before suit was filed in 2017.10

Although Appellants broadly argue the Vaughn Successors should be paying the taxes in

the amount of the notice, they do not include the amount provided by § 33.54(b). To this extent,

there has been no notice, or opportunity for the Vaughn Successors to pay a proportional amount

due, if any. Again, based on our record, the minerals were completely undeveloped and unexplored

when the taxing entities had assessed taxes on Piercy in 1948 and foreclosed on their liens.

We conclude that no Tax Code limitation or precondition to filing suit barred the Vaughn

Successors from pursuing their claims.

10
Mineral interests are generally taxed only after production occurs based on the average price of production in the
preceding year; in addition, mineral interest owners are subject to larger state-level “severance” taxes based on
production, separate from ad valorem taxes. Tex. Tax Code Ann. §§ 23.175, 201.001, 202.001

22
(2) Standing as a bar to the suit
Appellants rely on Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507

(Tex. App.—Fort Worth 2015, pet. denied) for the proposition that successors-in-interest like the

Vaughn Successors lack standing “to the extent that the challenge the Vaughn Successors make to

the scope of the judgment is an attempt to collaterally challenge it” for lack of notice to their

predecessors. In opposition, the Vaughn Successors urge they intend no such collateral attack.

Instead, they assert the language of the 1948 judgment shows it only concluded the interests of

Piercy, not that of their predecessors-in-interest.

As discussed earlier, we disagree with the standing argument to the extent it suggests it

matters whether the Vaughn Successors have brought a collateral attack in addition to a trespass-

to-try-title claim seeking a determination of the scope of the judgment. We decline to apply Pirkle

to such a “scope” claim.11

(3) Policy reasons and equitable considerations
Based on policy reasons and equitable considerations, Appellants further argue there could

be endless claims if the Vaughn Successors are permitted to pursue their trespass-to-try-title

claims. We note here that Appellants have not briefed the issue of laches as was pleaded and argued

in MAP Res., Inc. v. Mitchell, No. 08-24-00088-CV, 2024 WL ____, (Tex. App.—El Paso Dec.

30, 2024, no pet. h.) (addressing a laches defense raised in a collateral attack on a foreclosure

judgment). Instead, Appellants argue it “would be inequitable to allow a ‘subsequent purchaser to

ignore the deed records.’” They suggest the Vaughn Successors’ have had “constructive notice”

11
See Kidwell v. Black, 104 S.W.3d 686, 690 (Tex. App.—Fort Worth 2003, pet. denied) (owners had standing to
bring trespass-to-try-title claim); Cameron Cty. v. Tompkins, 422 S.W.3d 789, 801 (Tex. App.—Corpus Christi 2013,
pet. denied) (same); Horst, 132 S.W. at 762; Traylor, 36 S.W.2d at 445; Kirby Lumber, 196 S.W.2d at 389; Ditmore,
290 S.W.2d at 500; Davis v. Mueller, 528 S.W.3d 97, 103 (Tex. 2017) (standing to bring quiet title suit but not fraud
claim).

23
of the foreclosure for more than 70 years. We conclude this argument construes the title system

backwards.

The Legislature has enacted a recording statute ensuring that title records are maintained

in perpetuity, and a trespass-to-try-title claim enables record title owners to prove ownership back

to the sovereign. See Tex. Prop. Code Ann. §§ 13.002, 22.001; see also Van Dyke, 668 S.W.3d at

361 (“So important is it that these records are public and permanent that we recently overturned a

decades-old default judgment foreclosing a tax lien largely because of the failure ‘to consult public

deed and tax records[.]’”). The recording statute provides that property owners are on notice of

prior claims reflected in their chain of title pursuant to the recording statute. Tex. Prop. Code Ann.

§ 13.002. But they are not put on notice of a deed recorded after a conveyance to a predecessor,

which would be “out of the chain of title” of the property owner. Fitzgerald v. Le Grande, 187

S.W.2d 155, 159 (Tex. App.—El Paso 1945, no writ); Atl. Ref. Co. v. Noel, 443 S.W.2d 35, 39–

40 (Tex. 1969) (citing cases). In tandem with the recording statute, the Legislature established

limitations periods based on adverse possession. Tex. Civ. Prac. & Rem. Code Ann. §§ 16.021–

.038 (providing for periods ranging from 3 to 25 years for the purpose of settling title with or

without recorded deeds, notwithstanding prior deeds in chains of title).12 These statutes are

supplemented by two limitations periods specifically for suits regarding problematic deeds.

Tex. Civ. Prac. & Rem. Code Ann. §§ 16.033, 16.051. These statutes constitute the Legislature’s

12
The Texas Supreme Court has provided as follows:

A mineral estate, even when severed from the surface estate, may be adversely possessed under the
various statutes of limitations. Once severance occurs, possession of the surface alone will not
constitute adverse possession of minerals. Generally, courts across the country including Texas
courts have said that in order to mature title by limitations to a mineral estate, actual possession of
the minerals must occur. In the case of oil and gas, that means drilling and production of oil or gas.

Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 192–93 (Tex. 2003) (citation omitted).

24
response to Appellants’ concerns about endless claims, as they ensure that land development is not

stifled by the dead hand of the past while they also protect the rights of property owners.

Accordingly, for all these reasons, the Vaughn Successors’ claims are not barred by the

Tax Code’s limitations or its precondition to filing suit, nor by policy reasons or equitable

considerations, nor for lack of standing to bring their claims.

V. CONCLUSION

Having resolved each subsidiary issue in favor of the Vaughn Successors, we overrule

Appellants’ sole issue and affirm the trial court’s judgment.

GINA M. PALAFOX, Justice

December 30, 2024

Before Alley, C.J., Palafox, and Soto, JJ.

25