                               Fourth Court of Appeals
                                      San Antonio, Texas
                                   CONCURRING OPINION
                                         No. 04-17-00310-CV

  YATES ENERGY CORPORATION, EOG Resources, Inc., Jalapeno Corporation, ACG3
     Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., and Curry Glassell,
                                         Appellants

                                                 v.

            BROADWAY NATIONAL BANK, Trustee of the Mary Frances Evers Trust,
                                 Appellee

                         From the Probate Court No. 2, Bexar County, Texas
                                    Trial Court No. 2015PC2618
                             Honorable Tom Rickhoff, Judge Presiding

Opinion by: Marialyn Barnard, Justice
Concurring Opinion by: Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Irene Rios, Justice

Delivered and Filed: December 19, 2018

                                            INTRODUCTION

           I concur in the judgment because I agree with the majority’s holding that “by including

only the signatures of the original parties to the 2005 Mineral Deed, and not the signatures of the

parties’ heirs, successors, or assigns, the 2013 Amended Correction Deed did not comply with the

requirements of section 5.029 of the Code, and as a result, it did not replace the 2005 Mineral

Deed.” I also agree that section 5.029 controls, and I reach the same conclusion as the majority,

but I do so using a markedly different construction.
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        In construing the statute, I recognize that “[e]ven when it appears the Legislature may have

made a mistake, courts are not empowered to ‘fix’ the mistake by disregarding direct and clear

statutory language that does not create an absurdity.” Tex Lottery Comm’n v. First State Bank of

DeQueen, 325 S.W.3d 628, 638 (Tex. 2010). But the statute’s language is not “direct and clear,”

see id., it is “capable of multiple interpretations,” see Crosstex Energy Servs., L.P. v. Pro Plus,

Inc., 430 S.W.3d 384, 390 (Tex. 2014), and the majority’s construction could lead to absurd results,

see Tex Lottery Comm’n, 325 S.W.3d at 635; TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d

432, 439 (Tex. 2011) (recognizing that we do not adopt an interpretation of the plain language if

that “interpretation would lead to absurd results”). I write separately to present a different

construction.

                                    STATUTORY CONSTRUCTION

        Because the statute’s plain language is capable of multiple interpretations, it is ambiguous,

and we may apply the statutory construction aids. See TEX. GOV’T CODE ANN. § 311.023; Greater

Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015); Crosstex Energy, 430 S.W.3d at 390.

Two aids are particularly helpful: the “object sought to be attained,” and the “consequences of a

particular construction.” See TEX. GOV’T CODE ANN. § 311.023. By applying these two aids, we

can easily discern the legislative intent. See id.; Crosstex Energy, 430 S.W.3d at 390.

        Construing the statute as I outline below gives effect to the plain language, stays true to the

object sought to be obtained, and does not create absurd results. See TEX. GOV’T CODE ANN.

§ 311.023; Tex. Lottery Comm’n, 325 S.W.3d at 635. I begin with the statute’s plain language.

A.      Statute’s Plain Language

        Subparagraph (a) provides the general rule:

        In addition to nonmaterial corrections, including the corrections described by
        Section 5.028, the parties to the original transaction or the parties’ heirs, successors,


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Concurring Opinion                                                                        04-17-00310-CV


        or assigns, as applicable may execute a correction instrument to make a material
        correction to the recorded original instrument of conveyance . . .

TEX. PROP. CODE ANN. § 5.029(a).

Subparagraph (a) continues with examples of the types of permissible corrections. Id.

        Subparagraph (b) provides instructions on how the correction instrument must be executed

and recorded:

        A correction instrument under this section must be . . . executed by each party to
        the recorded original instrument of conveyance the correction instrument is
        executed to correct or, if applicable, a party’s heirs, successors, or assigns; and . . .
        recorded in each county in which the original instrument of conveyance that is
        being corrected is recorded.

Id. § 5.029(b).

        When subparagraphs (a) and (b) are read together, as they must be, it is clear that (b)’s

instruction that the correction instrument “must be . . . executed by each party to the original

instrument . . . or, if applicable, a party’s heirs, successors, or assigns” simply restates (a)’s general

rule. See id. The majority interprets the plain language differently; to resolve the ambiguity, we

can use the construction aids. See TEX. GOV’T CODE ANN. § 311.023; Crosstex Energy, 430

S.W.3d at 390

B.      Object Sought to be Obtained

        The first aid is the “object sought to be obtained.”            See TEX. GOV’T CODE ANN.

§ 311.023(1). In its simplest form, the object sought to be obtained by the statute is clear: to allow

a grantor and a grantee to fix an error in a recorded instrument, without involving the courts, if

they both agree to the change. See TEX. PROP. CODE ANN. § 5.029(a).

        For example, where A conveyed to B, but the conveying instrument contained a material

defect, the provision allows A and B, acting together, to fix a mistake in the recorded original

instrument. See id. A and B, “the parties to the original transaction,” may fix a mistake by


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Concurring Opinion                                                                    04-17-00310-CV


“execut[ing] a correction instrument to make a material correction to the recorded original

instrument of conveyance,” if both A and B agree to the change. See id. § 5.029(b). If so, “[the]

correction instrument . . . is executed by each party to the recorded original instrument of

conveyance.” See id.

        For this simplest conveyance, A to B, the statute makes the object to be obtained perfectly

clear: if all the parties to the original instrument agree to a material change, they can make the

correction without resorting to the courts. See id.

        With this object in mind, we consider a more complicated example that the statute also

provides for. The statute recognizes that, over time, the property interests may have passed to

others such as heirs, successors, or assigns. It identifies these others as “the parties’ heirs,

successors, or assigns, as applicable.” See id. § 5.029(a). And for execution, it requires signatures

from “each party to the recorded original instrument . . . or, if applicable, a party’s heirs,

successors, or assigns.” See id. § 5.029(b).

        In this more complicated example, as the simplest form makes clear, each party to the

original instrument must sign the correction instrument. But if one now stands in the shoes of an

original party as an heir, successor, or assign, then that heir, successor, or assign must execute the

correction instrument in the stead of that party to the original instrument. See id. § 5.029(b). This

construction stays true to the object sought to be obtained, and the consequences of this particular

construction are not troubling.

C.      Consequences of a Particular Construction

        The second aid is “the consequences of a particular construction.” See TEX. GOV’T CODE

ANN. § 311.023(5). This aid illustrates the flaw in the majority’s construction.




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Concurring Opinion                                                                                04-17-00310-CV


           The majority’s construction creates two mutually exclusive conditions for acceptable

execution: all of the original parties, or, all of the original grantee’s heirs, successors, or assigns,

without the original grantor’s signature.             Under the majority’s view, an original grantee’s

successors could “correct” the original instrument of conveyance to give themselves greater

interests than originally conveyed without the original grantor’s signature.

           In contrast, my construction requires all the parties to the original instrument, including the

original grantor, or any who now stands in the shoes of an original party, to agree to the correction.

To illustrate the difference in our constructions, I use two examples.

           1.      First example

           For the first example, assume A conveys an interest to B and the conveyance is properly

recorded. Later, A and B agree the original instrument of conveyance should be materially

corrected. Assume neither A nor B have any heirs, successors, or assigns. To make the correction,

the correction instrument must be “executed by each party to the recorded original instrument of

conveyance,” see TEX. PROP. CODE ANN. § 5.029(b), in this example A and B. 1 Because neither

A nor B has any “heirs, successors, or assigns,” the “or, if applicable” alternatives do not apply,

see id., so only A and B must execute the correction instrument. In this first example, the

majority’s construction and mine reach the same result.




1
    The correction instrument must also be properly recorded. See TEX. PROP. CODE ANN. § 5.029(b)(2).

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Concurring Opinion                                                                             04-17-00310-CV


        2.       Second example

        For the second example, assume A conveys an interest to B and C, and the conveyance is

properly recorded. Later, C conveys to D and E the entire interest
                                                                                          A
it received from A, and at present, D and E have not alienated the

interest they received from C. 2 Now, a party wants to correct the
                                                                                   B             C
original instrument of conveyance—the conveyance from A to B

and C. Who must execute the correction instrument? Assume
                                                                                          D              E
neither A nor B have any heirs, successors, or assigns with respect

to A’s conveyance to B and C.

        The statute requires “each party to the recorded original instrument of conveyance” to

execute the correction instrument, “or, if applicable, a party’s heirs, successors, or assigns.” See

id. As “part[ies] to the recorded original instrument” without applicable “heirs, successors, or

assigns,” see id., A and B must sign.

        C was a party to the original instrument, but C conveyed to D and E the entire interest C

received from A. Because D and E are C’s successors, D and E are “applicable,” and each must

sign. Thus, under my construction of the statute’s plain language, the correction instrument must

be signed by A, B, D, and E.

D.      Majority’s Construction

        The majority’s construction operates differently. The majority holds that a correction

instrument “must be executed by a party’s heirs, successors, or assigns as opposed to the original

parties of the recorded instrument, if the property interest conveyed in the original instrument has




2
 At this point, of the original interest A conveyed to B and C, A and C hold nothing; B, D, and E each hold some
portion.

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Concurring Opinion                                                                     04-17-00310-CV


been assigned or conveyed by an original party to that party’s heirs, successors, or assigns.”

(emphasis added).

        Applying the majority’s holding to this example, B, D, and E must sign, but not A. The

majority’s construction does not follow the statute’s plain language which requires all the parties

to the original instrument—or those who now stand in the original party’s shoes—to sign the

correction instrument. The possible consequences of that construction are problematic.

E.      Consequences of Majority’s Construction

        Consider this hypothetical, using the diagram above, where all the property rights are in

fee simple. A owns 10,000 acres of land. A conveys 3,000 acres to B and 3,000 acres to C. C

conveys half of its interest to D and half of its interest to E. D and E discover that A still owns

4,000 acres not conveyed in the original instrument.

        Applying the majority’s construction, B, D, and E realize they may make a material

correction to a recorded instrument to “add . . . land to a conveyance that correctly conveys other

land,” and they do not need A’s signature on the correction instrument. B, D, and E execute a

“correction” instrument, record it as required, and much to A’s surprise, now claim title to the

4,000 acres. A might have recourse against B, D, and E under other statutes or common law, but

eroding the “legal certainty and predictability . . . of property ownership” and increasing litigation

are surely not the objects the legislature sought to obtain or the consequences it intended to result.

See Cosgrove v. Cade, 468 S.W.3d 32, 40 (Tex. 2015) (“The virtues of legal certainty and

predictability are nowhere more vital than in matters of property ownership, an area of law that

requires bright lines and sharp corners.”).




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Concurring Opinion                                                                  04-17-00310-CV


        As this hypothetical illustrates, by straying from the clear rule of the simplest form—that

all who signed the original instrument must agree to the change—the majority’s construction

undermines the object sought to be obtained and yields problematic consequences.

                                          CONCLUSION

        For the reasons given above, I concur in the judgment only because I respectfully disagree

with the majority’s construction of section 5.029.

                                                     Patricia O. Alvarez, Justice




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