                             Fourth Court of Appeals
                                    San Antonio, Texas
                                           OPINION

                                       No. 04-17-00811-CV

                    Richard O. WEED, Timothy A. Weed, and Rees R. Oliver III,
                                         Appellants

                                                 v.

                     FROST BANK, Individually and as Independent Executor
                         of the Estate of Rees R. Oliver, Jr., Deceased,
                                            Appellee

                        From the Probate Court No. 2, Bexar County, Texas
                                 Trial Court No. 2011-PC-2024A
                            Honorable Tom Rickhoff, Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Karen Angelini, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: November 14, 2018

AFFIRMED

           At issue in this appeal from a summary judgment signed by the probate court is the

characterization of certain oil and gas interests purchased by Rees R. Oliver Jr. during his marriage

to Elizabeth Oliver. Appellants Richard O. Weed, Timothy A. Weed, and Rees R. Oliver III (“the

Weed Appellants”), who are all beneficiaries named in Rees’s will, contend the oil and gas

interests were Rees’s separate property as a matter of law. Frost Bank, the independent executor

of Rees’s estate, argues the oil and gas interests were community property as a matter of law.
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Because we conclude the oil and gas interests at issue in this appeal were community property as

a matter of law, we affirm.

                                                  BACKGROUND

         In 2011, Rees R. Oliver Jr. died and was survived by his wife of twenty-one years,

Elizabeth Oliver. In his will, Rees made several bequests to his wife, including his Bexar County

real estate, his interest in a San Antonio partnership, and several bank accounts that were styled as

his sole and separate property. He left the residue of his estate in the following percentages: 20%

to his son Rees R. Oliver III; 10% to each of his nephews, Richard O. Weed and Timothy A. Weed;

and the remaining 60% to Keystone School and his step-grandchildren from his first marriage.

Before his marriage to Elizabeth, Rees worked as a stockbroker, managed other people’s

investments, graduated from law school, owned a 25% interest in a storage business, and had a

partnership with his sister. Rees also owned multiple real property interests, including some oil

and gas interests. After his marriage to Elizabeth, Rees continued investing in multiple mineral

interests, both in Texas and in other states. According to Elizabeth, throughout their marriage, Rees

was a sole proprietor engaged in the acquisition, exploration, and development of oil and gas

interests.

         At issue in this appeal are multiple oil and gas interests acquired by Rees during his

marriage to Elizabeth. The deeds of each of these oil and gas interests specify that the grantor had

conveyed the oil and gas interest to “Rees R. Oliver, Jr., as his sole and separate property and

estate.” 1




1
  The probate court identifies these oil and gas interests by attaching two exhibits to its order granting summary
judgment. Exhibit A lists over fifty oil and gas interests conveyed by deed. Exhibit B includes an operating agreement
from which Rees acquired an oil and gas interest. The probate court’s order declared the oil and gas interests specified
in Exhibits A and B to be community property.

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        In attempting to characterize whether these oil and gas interests were community property

or Rees’s separate property, Frost Bank, the independent executor, attempted to locate financial

records to trace the source of funds used to purchase the oil and gas interests. Unable to locate the

financial records necessary to trace the source of funds used in the transactions, Frost Bank relied

on the community property presumption and concluded the oil and gas interests should be

characterized as community property.

        Frost then filed a declaratory judgment action naming the beneficiaries of the will as

defendants and requesting the probate court to declare the oil and gas interests to be community

property. The Weed Appellants filed counter-petitions for declaratory judgment and counterclaims

against Frost Bank for breach of fiduciary duty. Both the Weed Appellants and Frost Bank filed

motions for partial summary judgment on the characterization issue, which were both denied by

the probate court. Later, before a trial setting, Frost, in its dual capacities, moved again for partial

summary judgment on the characterization issue. This time, the probate court granted partial

summary judgment in favor of Frost Bank, declaring the oil and gas interests to be community

property and denying the Weed Appellants’ request that the oil and gas interests be declared Rees’s

separate property. The probate court then severed “Frost’s claim for declaratory judgment on the

nature of the [oil and gas interests] and the counter claims for declaratory judgment on the [oil and

gas interests] asserted by [the Weed Appellants]” and assigned them a new cause number, making

the partial summary judgment a final, appealable judgment. The Weed Appellants appealed,

arguing the trial court erred in granting summary judgment on the characterization issue.

                                       STANDARD OF REVIEW

        To obtain a traditional summary judgment under Texas Rule of Civil Procedure 166a(c), a

party moving for summary judgment must show that no genuine issue of material fact exists and

that the party is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Randall’s Food
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Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548 (Tex. 1985). “An issue is conclusively established if reasonable minds could not

differ about the conclusion to be drawn from the facts in the record.” Cmty. Health Sys. Prof’l

Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017) (citation omitted). Once the movant has

established a right to summary judgment, the burden shifts to the respondent to present evidence

that would raise a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 (Tex. 1979). We review a trial court’s order granting summary judgment de novo,

taking as true all evidence favorable to the respondent and indulging every reasonable inference

and resolving any doubts in the respondent’s favor. Cmty. Health Sys., 525 S.W.3d at 680 (citation

omitted). 2

                                                 DISCUSSION

        On appeal, the Weed Appellants argue the probate court erred in concluding the oil and gas

interests were community property as a matter of law, because they argue the deed recitals granting

the oil and gas interests to “Rees R. Oliver, Jr., as his sole and separate property and estate” create

a separate property presumption that replaces the community property presumption. Thus, they

argue the burden shifted to Frost Bank to produce evidence that the oil and gas interests were, in

fact, community property. And, because it is undisputed the financial records necessary to trace

the source of funds used to purchase the oil and gas interests no longer exist, the Weed Appellants

contend the trial court should have declared the oil and gas interests were Rees’s separate property.

Alternatively, they argue issues of material fact exist that prevent summary judgment being

granted in favor of Frost Bank. In response, Frost Bank argues no separate property presumption


2
  In their brief, the Weed Appellants argue the probate court based its summary judgment on the wrong standard of
review by applying an abuse of discretion standard to Frost Bank’s characterization decisions. However, because we
review a trial court’s summary judgment under a de novo standard of review, whether the probate court applied an
erroneous standard does not matter for purposes of this appeal.

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applies to this case. According to Frost Bank, because the oil and gas interests were acquired during

Elizabeth and Rees’s marriage, the community property presumption applies. Therefore, because

the tracing of funds is not possible in this case, Frost Bank contends the probate court correctly

applied the community property presumption and declared the oil and gas interests to be

community property as a matter of law. Alternatively, Frost Bank argues that even if the deed

recitals created a separate property presumption, then the oil and gas interests should still be

characterized as community property because the summary judgment evidence shows Rees used

his time, toil, and talent to acquire the oil and gas interests.

        A. Separate and Community Property Defined

        All property owned by either party to a marriage is either separate property or community

property. A spouse’s separate property consists of (1) the property owned or claimed by the spouse

before marriage, (2) the property acquired by the spouse during marriage by gift, devise, or

descent, and (3) the recovery for personal injuries sustained by the spouse during marriage, except

any recovery for loss of earning capacity during marriage. TEX. FAM. CODE ANN. § 3.001. Unless

otherwise agreed to in writing by both spouses, community property consists of the property, other

than separate property, acquired by either spouse during marriage. Id. §§ 3.002, 4.002-.003.

        All property, both real and personal, of a spouse owned or claimed before marriage is the

separate property of that spouse. TEX. CONST. art. 16, § 15; TEX. FAM. CODE ANN. § 3.001(1). In

determining whether property is “owned or claimed” by a spouse prior to marriage, the doctrine

of inception of title may be applicable. Under the doctrine, the character of the property is generally

determined not by the date of acquisition of final title, “but by the origin of title to the property.”

Roach v. Roach, 672 S.W.2d 524, 531 (Tex. App.—Amarillo 1984, no writ). That is, when the

right to property accrues prior to marriage, the property is separate even though the property or

legal title is not received until after the marriage. Welder v. Lambert, 91 Tex. 510, 44 S.W. 281,
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284-85, 286 (1898). Additionally, the doctrine of tracing should be considered. Under this

doctrine, mutations and changes in the form of property do not affect its character as separate

property so long as it can be definitely traced and identified. Tarver v. Tarver, 394 S.W.2d 780,

783-86 (Tex. 1965).

       Further, property possessed by either spouse during or on dissolution of marriage is

presumed to be community property. TEX. FAM. CODE ANN. § 3.003. The presumption may be

rebutted by clear and convincing evidence. Id. § 3.003(b). “Parties claiming certain property as

their separate property have the burden of rebutting the presumption of community property” by

tracing the property to its separate property origin. Pearson v. Fillingim, 332 S.W.3d 361, 363

(Tex. 2011); see Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975). “[W]hen the

evidence shows that separate and community property have been so commingled as to defy

resegregation and identification, the burden is not discharged and the statutory presumption

prevails.” McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973).

       B. Community Property Presumption vs. Separate Property Presumption

       In this appeal, Frost Bank argues the community property presumption applies because it

is undisputed that the oil and gas interests were acquired by Rees during his marriage to Elizabeth.

And, because it is also undisputed no financial records exist to trace the source of funds used to

purchase the oil and gas interests, Frost Bank argues that the Weed Appellants cannot overcome

the community property presumption, and the trial court correctly characterized the oil and gas

interests as community property. In contrast, the Weed Appellants argue because the deeds recited

the oil and gas interests were conveyed to Rees as his sole and separate property, the community

property presumption is replaced by a separate property presumption. Thus, they contend the

burden shifted to Frost Bank to bring forth evidence that the oil and gas interests were purchased

with community funds. And, because it is undisputed no financial records exist to make tracing
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possible, they argue Frost Bank cannot meet this burden as a matter of law. Given that the parties

argue two different presumptions apply, we must first address whether the community property

presumption or a separate property presumption applies to this appeal.

               1. Separate Property Presumption Based on Implied Gift

       In researching this issue, we have found supreme court precedent dating to the late 1800s.

In 1892, the supreme court considered whether the community property presumption applied

where the wife acquired the land in question during her marriage and the deed recited that the

consideration “was paid by her out of her separate property and that the land was conveyed to her

as her separate property.” McCutchen v. Purinton, 84 Tex. 603, 19 S.W. 710, 710 (1892). The

court explained at trial, “[n]o evidence was offered to prove that the $1,120 purchase money for

the land was the separate property of [the wife].” Id. The appellant’s argument was the same one

presented by Frost Bank in the instant case: because “the facts show that the land was conveyed

upon a valuable consideration to” the wife during her marriage, “it must be presumed to have been

community property,” and “to defeat such presumption it was incumbent upon [the wife’s heirs]

to prove that the consideration paid was the separate property of the wife.” Id. The supreme court

presented the following questions: “Do the express recitals of the deed overcome this presumption?

Can they be treated as evidence of the source of consideration?” Id. The supreme court concluded

that it could “see no good reason why a deed containing such recitals should not remove the

presumption that would exist in favor of the community in their absence, and be given the effect,

when uncontradicted or unexplained, of vesting the title according to the terms of the deed.” Id. at

711. According to the supreme court, “[i]f such recitals are untrue, and the payment of the

consideration was in fact made with community funds, the evidence thereof would be admissible

in a proper case to establish a resulting trust in favor of the community estate, as in other cases



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where the title is conveyed to one party, and the purchase money is paid by another.” Id. The

supreme court reasoned that the husband was necessarily a party to such a transaction:

       The husband has the management of both community property and the separate
       estate of his wife, and when a deed containing recitals like the one now under
       consideration is found to have been made during the existence of the marriage, and
       no evidence is offered to explain or qualify it, the presumption must be indulged
       that it was made with the knowledge and consent of the husband, and for the
       purpose of making the property the separate estate of the wife. Such transactions
       may be intended as a fraud upon creditors and may be attacked upon that ground,
       but no such issue was made in this case.

Id. Therefore, the supreme court affirmed the judgment declaring the property was the wife’s

separate property. Id.; see also Brick & Tile, Inc. v. Parker, 143 Tex. 383, 186 S.W.2d 66, 66

(1945) (“Since the property was acquired during the marriage of [husband] and wife, it was

presumably their community property, and this presumption prevails even though the deed was

taken in the name of the wife, in the absence of language in the deed tending to show that it was

purchased with separate funds of the wife, or that it was conveyed to her as her separate

property.”) (emphasis added); Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529, 532 (1940) (holding

that deed recitals stating property was conveyed to wife “out of her own separate property, funds

and estate” “prima facie show that at the very time [the wife] acquired the land thereby conveyed,

she took the entire title in her separate right, and not in community”).

               2. Supreme Court in Hodge makes distinction based on spouse being a party to
                  the deed transaction.

       The supreme court’s reasoning in McCutchen appears to be based on the concept of the

wife being gifted the husband’s interest in community property through his consent and

participation in the deed transaction. See TEX. FAM. CODE ANN. § 3.001 (“A spouse’s separate

property consists of . . . the property acquired by the spouse during marriage by gift, devise, or

descent . . . .”). In 1955, in Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900 (1955), the supreme

court specifically addressed the situation where a husband was a party to a deed transaction and
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the situation where he was not a party to the transaction. The dispute in Hodge was between the

surviving husband and the executor of his wife’s estate over the characterization of three properties

acquired by the wife during the marriage. Id. at 901. Each deed in question stated that the property

was conveyed to the wife as her separate property. Id. at 902. No bank records existed from which

one could trace the source of funds used for the purchases. See id. at 903. The husband testified

that “he knew generally about the purchase of each property, including the price of at least one”

and that he had inspected one or more “in advance of closing.” Id. at 904. The supreme court noted

that “despite the prompt record of each deed at the city of their residence and even his admitted

signature on the bank note for the Wilson purchase, [the husband] insisted that he never knew of,

or consented to, the terms of the deeds in so far as they purported to make the respective premises

the separate property of the [wife].” Id.

        The supreme court in Hodge explained that the community property presumption is

“sometimes displaced by a presumption in favor of the separate estate of the wife where the deed

of acquisition recites either that the land is conveyed to her as her separate property, or that the

consideration is from her separate estate, or includes both types of recitation.” Id. (emphasis

added). “This latter presumption, like most others concerning the same subject matter, is generally

rebuttable.” Id. “And its importance, of course, lies in the manner of its application to particular

sets of facts.” Id.

        The supreme court then distinguished a set of facts where the husband is a party to the deed

transaction and where he is not:

        For example, where . . . the husband is a party to the transaction, the result generally
        is to hold the property to be separate property of the wife, even though the
        consideration be community or from the separate estate of the husband, and even
        though the husband on the trial denies that the purchase was by way of a gift of
        either to the wife. And in such cases where all or part of the consideration is
        contractual, as where, for example, the deed to the wife stating the conveyance to
        be for her separate benefit and in consideration of her separate funds, is made
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       pursuant to an installment purchase contract of the husband and wife, itself
       expressly providing for the payments to be made from her separate funds, we have
       invoked the parol evidence rule to exclude proof by the husband that the
       consideration was actually community and the purchase actually for community
       benefit. . . . Where the husband is a party to the purchase for the purported separate
       interest of the wife, even though his name may not appear in the documents, (see
       Smith v. Buss[, 135 Tex. 566, 144 S.W.2d 529 (1940)]), there is good reason to
       presume the recitals in the deed to be true, because his position as regards the wife
       and the community is much the same as if he were the grantor, and in the latter
       situation it would be at least unusual that he should intend to convey to the
       community when the property was already community or even where it was his
       separate property. Such a construction would be equivalent to holding that it passed
       the title from the community to the community; or, in other words, that it passed
       nothing.

Hodge, 277 S.W.2d at 904 (emphasis added).

       The supreme court then addressed the set of facts where the husband is not a party to the

deed transaction. “But the situation is otherwise when the husband is not a party to the purchase.”

Id. at 905. The court pointed to a previous case, Kearse v. Kearse, 276 S.W. 690 (Tex. [Comm’n

Op.] 1925), “where the transaction was between the wife and her daughter, the consideration being

all in the form of notes signed by the former only.” Hodge, 277 S.W.2d at 905. The supreme court

noted that the Kearse court had “emphasized the fact of nonparticipation of the husband” in

distinguishing prior precedent. Hodge, 277 S.W.2d at 905. The Kearse court recognized the

difference between “presuming a gift” when the husband is a party to the transaction and not

making such a presumption when he is not a party to the transaction. Hodge, 277 S.W.2d at 905.

The supreme court then recognized the strangeness of a third party grantor characterizing property

between a husband and wife: “[I]n connection with the parol evidence rule, a third party grantor,

not interested in the community one way or another, has no standing whereby to impose a

particular character on the estate conveyed; so the recital in his deed may be regarded merely as

one of an existing fact, which may properly be disputed by evidence, as distinguished from an




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operative portion of the deed, which it probably is where the husband is a party and which ought

not to be contradicted by parol.” Id. (emphasis added).

        The supreme court concluded that “in the latter instance not only is the husband free of the

parol evidence rule in proving the community nature of the transaction as against the separate

property recitals in the deed, but also there would seem to be little more reason to apply a

presumption from the recitals in favor of the wife’s separate estate than to apply the elemental

presumption to the contrary effect.” Id. “It is accordingly reasonable to say that in such a case,

once there is adduced evidence of probative force tending to show the property to have been

purchased with community funds, the question as to the status of the property is ordinarily one of

fact.” Id.

        The supreme court then applied the above principles to the facts of its case. With respect

to all three properties at issue (i.e., the Wilson, Stewart, and Walker properties), the husband

testified he “knew generally about the purchase of each property, including the price of at least

one.” Id. at 904. He had “actually inspected one or more” of the properties before they were

purchased by his wife. Id. And, he admitted he had signed the “bank note for the Wilson purchase.”

Id. Nevertheless, he “insisted that he never knew of, or consented to, the terms of the deeds in so

far as they purported to make the respective premises the separate property of [his wife].” Id.

        With respect to the Wilson property, the supreme court concluded that the husband’s

signature on the bank note made him a party to the transaction:

        [W]e first conclude that the joinder of the [husband] in the bank note in the Wilson
        purchase makes an important difference between it and the Stewart and Walker
        purchases. Regarding the two latter, which we will discuss more fully further on,
        there may well be ground to support implied findings of the trial judge in accord
        with the testimony of the [husband] to the effect he was [not] a party to the
        transactions, and that the property was purchased with community funds. But to say
        that the [husband] was not a party to the Wilson [purchase] in the face of what he
        admits knowing generally, plus the fact that he was expressly a party to the bank
        note and deed of trust, would be too much at variance with human experience, in
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       the absence of proof of duress or fraud on the part of the [wife] or the bank, of
       which there was none.

Id. at 905. According to the court, because the husband “was undoubtedly a party to the

transaction,” it could “thus hold the Wilson property to be separate on the theory of implied gift

from the [husband] as a matter of law, considering the recitals in the deed that the premises were

conveyed as separate property for separate property consideration, whatever be the actual character

of the consideration and despite that the note may have bound the community.” Id. The supreme

court explained that the parol evidence rule barred the husband from presenting evidence showing

that the property in question was community property:

       [W]e may say with almost equal certainty that the [husband] was cut off by the
       parol evidence rule from showing the consideration or nature of the estate
       conveyed, should these be at variance with the mentioned recitals. That the note
       itself did not speak of separate funds (although it did say “borrowed by [wife]”)
       and was not referred to in the deed, does not change the result. It was all one
       transaction, and the deed recited “from her separate estate.”

Id. (citations omitted). Because the parol evidence barred the husband from bringing any evidence

relating to the consideration or nature of the estate conveyed and because there was no evidence

of fraud or duress, the supreme court concluded the Wilson property was the wife’s separate

property. Id. Thus, according to the supreme court, if Spouse A is a party to the deed transaction

and the deed “recites either that the land is conveyed to [Spouse B] as her separate property, or

that the consideration is from her separate estate, or includes both types of recitation,” unless

Spouse A has “proof of duress or fraud on the part of” Spouse B or the grantor, the recital in the

deed has conclusive effect on the characterization of the property as the separate property of

Spouse B because Spouse A will be prevented “by the parol evidence rule from showing” either

that community funds were used for the purchase or that “the nature of the estate conveyed” was

community. Id. at 904, 905.



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       The supreme court then considered whether the husband had also been a party to the

Stewart and Walker transactions and concluded he had not, explaining that he had not signed any

papers in connection with either purchase transaction and had no detailed knowledge of the deeds.

Id. at 906. In looking at the evidence presented in the case, the supreme court explained that there

was some evidence rebutting deed recital’s separate property presumption. See id. at 906-07

(“[C]onsidering the substantial amounts of the community type funds in relation to the amount of

separate funds involved and the large total consideration paid for the properties, as well as the

absence of evidence as to other separate property that might have been employed, there is a

permissible inference that some of the community type went into the purchases.”). Thus, the

burden shifted back to the wife’s estate to show that the property was separate:

       Conceivably the otherwise community portion of the funds might, prior to the use
       of both types in the purchases, have somehow become the separate property of the
       [wife], so as to result in the purchased property being clearly separate because
       acquired entirely with separate funds. But the burden to show that fact would be on
       the [wife’s estate], and we cannot say that they have established it as a matter of
       law.

Id. at 907 (emphasis added). Because the supreme court could not “say that the finding of the trial

court that the Stewart and Walker properties were community [was] wrong as a matter of law,” it

“must accordingly treat them as community.” Id. Thus, according to the supreme court, if Spouse

A was not a party to the deed transaction, to rebut the deed recital’s separate property presumption,

Spouse A need only present some evidence that the property was, in fact, community property.

See id. at 906-07. And, unlike when Spouse A is a party to the deed transaction, the parol evidence

rule does not bar Spouse A from presenting such evidence. See id. at 905. Once Spouse A presents

some evidence to rebut the deed recital’s separate property presumption, the burden shifts back to

Spouse B to prove that the property is actually separate property. See id. at 906-07.




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               3. Supreme Court in Henry S. Miller follows its previous reasoning in Hodge.

       In the 1970 opinion, Henry S. Miller Co. v. Evans, 452 S.W.2d 426 (Tex. 1970), the

supreme court once again considered a deed recital. Henry S. Miller Co. (“Miller”) had sued the

sheriff for his failure to levy execution on a property. Id. at 428. The property in question had been

conveyed to Nancy Shoaf during her marriage to Joseph Shoaf. Id. The deed recited “a

consideration of $1.00 and a vendor’s lien note for $8,000.00, paid and to be paid out of Nancy

Shoaf’s ‘sole and separate estate,’ and that this property was conveyed to her as her ‘sole and

separate estate.’” Id. at 428-29. Joseph Shoaf was an experienced real estate dealer and co-signor

of the note on the property. Id. at 429. He handled all the negotiations involved in the transaction,

and Nancy did not participate in any of the negotiations. Id.

       The parol testimony of Joseph Shoaf, admitted in evidence over the Sheriff’s
       objection, was, in substance, as follows: that he was an experienced real estate
       dealer; that the “property was sold to me,” but the title was taken in his wife’s name
       because he was heavily in debt, and “if something should happen to me, this was
       something that could provide an income”; that he co-signed the vendor’s lien note
       and paid the $300.00 down payment and some utility bills and taxes; that he
       collected the rent payments and gave them to his wife, and she deposited them in
       her separate account out of which she made all of the mortgage payments; that he
       told the attorney who prepared the deed that “he wanted title to the property to be
       put in her name in case anything should happen,” but “told him I wanted it to be
       community property”; and that he wanted to fix it so that creditors could not get the
       title away in case something happened.

Id.

       More than four years after execution of the deed, Joseph Shoaf executed a note payable to

Miller in the principal sum of $37,500.00. Id. The sole collateral for the note was the property in

question. Id. When Joseph Shoaf defaulted on the note, Miller obtained a judgment against Joseph

Shoaf. Id. Miller thereafter sought a levy of execution on the property, claiming that it was

community property and thus subject to execution. Id. at 430.




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       The supreme court explained that “[b]efore Miller offered evidence to show that the

property was acquired during coverture, which would give rise to the presumption that this was

community property, the Sheriff introduced into evidence the deed to Nancy Shoaf containing the

recitals to the effect that the land was conveyed to her as her sole and separate estate, and that the

consideration was paid and to be paid out of her separate estate.” Id. “As a result of the recitals in

the deed, no presumption of community property existed.” Id. (emphasis added). “By the

introduction of the deed containing these recitals into evidence, the Sheriff established a prima

facie defense that the Amanda Street property was the separate property of the wife, Nancy Shoaf,

and not subject to execution.” Id.

       The supreme court explained that “the extrinsic evidence offered to contradict the express

recitals in the deed that the property was to be the separate property of Nancy Shoaf was

inadmissible.” Id. at 431. According to the court, “[u]nder this record, Miller was unable to

introduce extrinsic evidence (e.g., payment by the community and subjective intention of the

parties) which would establish a resulting trust, and in turn, contradict the express recitals in the

deed to the effect that this was the separate property of Nancy Shoaf, without first tendering

competent evidence that there had been fraud, accident and mistake in the insertion of the recitals

in the deed.” Id. The court noted that Nancy Shoaf had not participated in the negotiations and that

“Joseph Shoaf, an experienced real estate dealer, handled all of these negotiations and co-signed

the note.” Id. “As such, he had knowledge of the terms of the deed and in law would be treated as

a party to the transaction.” Id. The court explained that “[t]here was no fraud, accident or mistake

in the insertion of these recitals in the deed.” Id. The court then considered “the record to determine

whether the deed to Nancy Shoaf was made in fraud of subsequent creditors.” Id. at 432. The court

noted that Miller had not produced any evidence that the deed to Nancy, “executed and recorded

four years prior to the origin of [Miller’s] claim and subsequent judgment, was made in fraud of
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subsequent creditors.” Id. Thus, the supreme court held the property in question was “the separate

property of Nancy Shoaf by virtue of the recitals in the deed.” Id. at 433.

        The supreme court’s holding in Henry S. Miller Co. is consistent with its analysis in Hodge:

if the spouse is a party to the transaction, absent proof of fraud, accident or mistake in the insertion

of the recitals in the deed, the deed recitals have a conclusive effect and no parol evidence is

admissible to prove the recitals are not accurate. 3

        C. Because Elizabeth is not a Party to the Deed Transactions, the Deed Recitals Constitute
           Only Prima Facie Evidence that the Oil and Gas Interests are Rees’s Separate
           Property.

        In applying supreme court precedent to the facts of our case, we first note it is undisputed

the oil and gas interests in question were acquired by Rees during his marriage to Elizabeth. While

there is evidence Elizabeth was aware in general of the transactions, it is undisputed that she did

not participate in any negotiations with respect to the oil and gas interests or sign any documents

relating to them. Thus, we conclude the record reflects that she was not a party to any of the deed

transactions. Pursuant to supreme court precedent, once the Weed Appellants presented the deeds

containing the recitals that the properties had been conveyed to Rees as his sole and separate

property, the community property presumption was “displaced by a presumption in favor of the

separate estate” of Rees. Hodge, 277 S.W.2d at 904. That is, the recitals found in the deeds


3
  Since the supreme court’s holding in Henry S. Miller Co., courts of appeal have followed the precedent set by the
supreme court with regard to the separate property presumption created by a deed recital. See In re Marriage of
Moncey, 404 S.W.3d 701, 712-13 (Tex. App.—Texarkana 2013, no pet.) (explaining that a separate property recital
in an instrument displaces the community property presumption and becomes prima facie evidence that the property
is separate property and that the spouse contending the property is community property then has the burden to rebut
the separate property presumption); Sanders v. Sanders, No. 02-08-00201-CV, 2010 WL 4056196, at *16 (Tex.
App.—Fort Worth 2010, no pet.) (same); Kyles v. Kyles, 832 S.W.2d 194, 196 (Tex. App.—Beaumont 1992, no pet.)
(same); see also Cardenas v. Cardenas, No. 13-06-00064-CV, 2017 WL 1089683, at *2 (Tex. App.—Corpus Christi
2017, no pet.) (explaining that a separate property presumption arises when the instrument of conveyance contains a
separate property recital and that this separate property recital replaces the community property presumption and
“creates in its place a rebuttable presumption of separate property”); K.B. v. N.B., 811 S.W.2d 634, 642 (Tex. App.—
San Antonio 1991, writ denied) (“The community property presumption applies even though the deed conveyed title
to the husband in his name, there being no recital in the deed that the land was conveyed to him as his separate
property or that he bought it with separate funds or credit.”) (emphasis added).

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                                                                                     04-17-00811-CV


constituted “prima facie evidence of a gift,” which must be rebutted by Frost Bank. Henry S.

Miller, 452 S.W.2d at 430.

       D. Time, Toil, and Effort of Rees in Acquiring the Oil and Gas Interests

       Frost Bank argues because Rees acquired the oil and gas interests through his time, toil,

and effort, even if they were purchased with separate funds, they became community property.

Under Texas’s community property system, “[a]ny property or rights acquired by one of the

spouses after marriage by toil, talent, industry or other productive faculty is community property.”

Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 682 (1953); see also Graham v. Franco, 488

S.W.2d 390, 392 (Tex. 1972). “The rationale behind this premise is that each spouse’s time, talent,

and efforts are assets of the community estate.” 38 ALOYSIUS A. LEOPOLD & GERRY W. BEYER,

TEXAS PRACTICE: MARITAL PROPERTY & HOMESTEADS § 14.12 (1993 & Supp. 2017-18).

However, while each spouse’s time, talent, and efforts are community assets, a spouse does have

a right to spend a reasonable amount of time, talent, and effort in caring for, preserving, making

productive, and selling his or her separate property “without impressing a community character

upon that [property].” Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex. 1982); see Norris, 260

S.W.2d at 680-81. Thus, when a spouse uses a reasonable amount of time, talent, and effort, a

spouse’s separate property may undergo changes and mutations, be sold and the proceeds invested,

resold, and reinvested, and yet preserve its separate character as long as the spouse can trace the

separate character of the funds. See Norris, 260 S.W.2d at 681 (explaining that “[r]easonable

control and management is necessary to preserve the separate estate and put it to productive use”

and “community character [will] not be impressed upon” separate property so long as only a

reasonable amount of time, toil and effort was used).

       However, what happens when a spouse spends an unreasonable amount of time, toil, and

effort increasing the value of his separate property? Case law appears to reflect the outcome will
                                               - 17 -
                                                                                      04-17-00811-CV


depend on the degree to which the spouse used his community time, toil, and effort on increasing

the value of his separate property. “[W]hen a spouse takes a separate property asset and with

community labor significantly enhances its value, the end product may be transmuted into

community property.” Oliver S. Heard Jr. et al., Characterization of Marital Property, 39 BAYLOR

L. REV. 909, 923 (1987) (citing De Blane v. Hugh Lynch & Co., 23 Tex. 25 (1859)) (emphasis

added).

          In Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 677 (1953), the supreme court

recognized this rule of community character being impressed upon separate property. Before his

marriage, the husband in Norris owned as his separate estate (1) a 7/8ths determinable fee, as

lessee, in seven producing gas wells (“the Pakan Wells”); (2) a 1/4th interest in the Shamrock Gas

Co., which was a partnership; (3) a 1/4th interest in the Vaughan Well Co., which was also a

partnership; and (4) a 1/2 interest in the partnership of Pendleton & Vaughan. Id. at 678. With

respect to the Pakan wells, the petitioner, who was the daughter and only heir of the deceased wife,

argued “that, even if the gas produced is to be considered [the husband]’s separate property by

virtue of being a sale of the separate estate, community labor, talent and funds were expended on

its production and sale, thus impressing community character upon the gas.” Id. at 680 (emphasis

added). According to the supreme court, “[t]his is a well recognized theory.” Id. (emphasis added).

The court noted that in the cases relied on by petitioner for this theory, “it is obvious that a great

deal of community effort was required to transmute the separate property in to a new and more

valuable state.” Id. (emphasis added).

          The supreme court then looked at the circumstances surrounding the Pakan wells. It

explained there was no co-mingling of funds, and “no showing that community funds were used

in these maintenance operations.” Id. The husband’s uncontroverted testimony was that he made

only one trip to the “Pakan” area during his marriage and the wells required no management. Id.
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                                                                                       04-17-00811-CV


The husband entered into the lease with Lone Star Gas Co. and “thereafter had nothing to do with

the leases, except to collect for his part of the gas produced.” Id. According to the supreme court,

“since there was not such an expenditure of community funds or effort as to impress community

character on the gas produced from the ‘Pakan’ wells and the $80,661 received as profit, the gas

produced and the proceeds therefrom remain separate property.” Id. Further, the community estate

had no right of reimbursement with respect to the husband’s efforts regarding these wells because

his efforts had been no more than necessary to maintain his separate property. See id.

       With respect to the husband’s 1/4 interest in the Shamrock Gas Co., the supreme court

explained “[t]his partnership maintained distribution facilities and retailed natural gas to residences

in and around Shamrock, Texas.” Id. at 680-81. Shamrock Gas Co. “buys its natural gas from the

Vaughan Well Co. and owns no gas producing property of its own.” Id. at 681. The court noted

the husband had acquired his interest in the partnership before his marriage and drew salary and

profits from the company during his marriage. Id. The court explained the husband also owned a

1/4 interest in the partnership known as the Vaughan Well Co. Id. “This partnership’s sole business

is the acquisition of gas wells by drilling under lease agreements and selling gas production to

Shamrock Gas Co.” Id. Before his marriage, Vaughan Well Co. owned three producing gas wells

(“the O’Gorman No. 1 and No. 2, and the Sims wells”). Id. The court reasoned that “[a]s to the

matter of community labor or talent utilized in the production of the natural gas produced by these

wells,” the husband has a “right to manage, control, and dispose of his separate property.” Id.

“Reasonable control and management is necessary to preserve the separate estate and put it to

productive use.” Id. The court concluded “the production and maintenance operations on these gas

wells are necessary to their use and preservation and are in the nature of reasonable control and

management of the separate estate.” Id. Thus, the court held “community character would not be

impressed upon these wells by means of [the husband]’s activities in relation to production and
                                                 - 19 -
                                                                                      04-17-00811-CV


maintenance” and the husband’s “interest in the Sims and O’Gorman wells remains separate

property.” Id.

       The supreme court then considered the facts surrounding two other wells (“the Hill and

Cantrell wells”), which had been drilled by the Vaughan Well Co. and the right to drill the wells

had been secured after the date of the husband’s marriage. Id. The husband had acquired a one-

fourth interest in the Hill and Cantrell leases through an assignment and “in recognition of the one-

fourth interest which he owned in the Vaughan Well Co., a partnership.” Id. “The leases were

taken in the name of A.N. and B.F. Holmes for the benefit of four partners, A.N. Holmes, B.F.

Holmes, W.S. Pendleton, and Hal H. Vaughan [the husband].” Pendleton & Vaughan (the

husband’s partnership) “drilled ten gas wells, known as the McDowell and Taylor wells, under

‘farmout’ agreements with Magnolia Oil Co.” Id. By the terms of these agreements, Magnolia

assigned certain lease interests to Pendleton & Vaughan upon completion of a well in the lease

area. Id. The supreme court emphasized that “[n]egotiation and acquisition of the ‘farmout’

agreements were made after” the husband’s marriage, “and were at least partially due to his talent

and labor.” Id. The supreme court concluded that the “community acquired the right to drill the

Hill and Cantrell wells under the oil and gas leases heretofore mentioned, and negotiations and

acquisition of the ‘farmout’ agreements (the McDowell and Taylor Wells) were entered into with

Magnolia Oil Company after the [husband]’s marriage.” Id. The supreme court noted that the Hill

and Cantrell oil leases recited a cash consideration. Id. at 681-82. According to the supreme court,

the “community’s acquired rights were fixed and determined at the time the oil leases were

executed and the ‘farmout’ agreements were entered into.” Id. at 682. “The community rights thus

acquired cannot be nullified merely because the [husband] elected to use separate funds in drilling

the Hill and Cantrell wells under the oil and gas leases, and in carrying out his agreement with

reference to the McDowell and Taylor wells.” Id. The supreme court emphasized that “[a]ny
                                                - 20 -
                                                                                    04-17-00811-CV


property or rights acquired by one of the spouses after marriage by toil, talent, industry or other

productive faculty is community property.” Id. Thus, “the right to drill the McDowell and Taylor

wells and the Hill and Cantrell wells was a community asset and the dry gas rights obtained by the

drilling of the wells are community in nature.” Id. The supreme court explained the husband’s

separate estate that “would be entitled to reimbursement by the community estate for funds

expended in behalf of the community.” Id.

       We note that the Weed Appellants argue that even if the properties in question were

acquired by Rees’s time, toil, and effort, community character could not be impressed upon his

separate property. Instead, they argue the community estate would only be entitled to a

reimbursement claim. For support, they cite Jensen v. Jensen, 665 S.W.2d 107 (Tex. 1984). In

Jensen, the husband bought shares of stock four months prior to his marriage. The supreme court

explained that when separate property of a spouse increases in value during marriage, the property

owned by the spouse before marriage will remain separate property, but “the community will be

reimbursed for the value of time and effort expended by either or both spouses to enhance the

separate estate of either, other than that reasonably necessary to manage and preserve the separate

estate, less the remuneration received for that time and effort in the form of salary, bonus,

dividends and other fringe benefits, those items beings community property when received.” Id. at

109. However, the Jensen “method of computing the right of reimbursement is arguably applicable

only to a fact situation where the separate property has remained in a constant form, one that

existed at the beginning of the marriage and continued to appreciate in value from the spouse’s

normal efforts as well as from natural growth or economic market fluctuations.” 38 ALOYSIUS A.

LEOPOLD & GERRY W. BEYER, TEXAS PRACTICE: MARITAL PROPERTY & HOMESTEADS § 14.12

(1993 & Supp. 2017-18) (emphasis added). In this case, the property has not remained in constant

form from the beginning of Rees’s marriage to his death. Instead, the oil and gas interests were
                                               - 21 -
                                                                                     04-17-00811-CV


acquired during his marriage and, even if they were purchased with Rees’s separate funds, they

changed in form from cash to real property interests. Thus, Jensen is distinguishable from the facts

presented here.

       In applying the supreme court precedent above, it is possible that even if the oil and gas

interests were purchased with separate funds, the degree to which Rees used his time, toil, and

effort in acquiring the oil and gas interests could have impressed a community character on the oil

and gas interests. Whether the appellate record contains evidence of Rees’s time, toil, and talent

sufficient to rebut the prima facie evidence of the deed recital depends on the circumstances of

Rees’s oil and gas business and his acquisition of oil and gas interests during his marriage.

However, before we can determine if the evidence in the record is sufficient to rebut the separate

property presumption, we must consider the burden placed on a party attempting to rebut the

separate property presumption.

       E. Presumptions: Distinction Between Morgan and Thayer Presumptions

       “Over the years, numerous approaches to the treatment of presumptions [in civil cases]

have been urged.” 1 STEVEN GOODE & OLIN GUY WELLBORN III, TEXAS PRACTICE: TEXAS RULES

OF EVIDENCE   § 301.2 (4th ed. 2016). “One, traditionally associated with James Bradley Thayer,

gives presumptions only minor effect.” Id. “A Thayer-type presumption shifts only the burden of

production to the opponent of the presumption.” Id. “In other words, once the presumption’s

proponent establishes the existence of the basic fact, the factfinder must find the presumed fact

exists unless the opponent meets the burden of production as to the presumed fact.” Id. “This

means that the opponent must produce enough evidence so that a reasonable juror could find the

non-existence of the presumed fact.” Id. “If the opponent meets this burden, the presumption

disappears from the case; the case proceeds as if there were no presumption.” Id. “If, however, the

opponent fails to meet its burden of production, the factfinder must find that the presumed fact
                                               - 22 -
                                                                                     04-17-00811-CV


exists.” Id. Under a Thayer-type presumption, the burden imposed on the party seeking to rebut

the presumption “is slight.” Id. All a party “must do to eliminate the presumption from the case is

produce enough evidence so that a reasonable juror could find the non-existence of the presumed

fact.” Id. “As a result of the ease with which Thayer-type presumptions can be defeated, they are

frequently referred to as ‘bursting bubble’ presumptions.” Id. “Many presumptions in Texas are

given the minimal, Thayer-type effect.” Id. Thus, in discussing the general rules governing

presumptions, the Texas Supreme Court described rules governing a Thayer-type presumption:

       The presumption is subject to the same rules governing presumptions generally. Its
       effect is to shift the burden of producing evidence to the party against whom it
       operates. Once that burden is discharged and evidence contradicting the
       presumption has been offered, the presumption disappears and is not to be weighed
       or treated as evidence. The evidence on the issue is then evaluated as it would be in
       any other case. The presumption has no effect on the burden of persuasion. The
       facts upon which the presumption was based remain in evidence, of course, and
       will support any inferences that may be reasonably drawn from them.

General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993).

       Another type of presumption, called a “Morgan Presumption” after Professor Edmund M.

Morgan, “shifts to the opponent not only the burden of producing evidence but the burden of

persuasion as well.” Jerome A. Hoffman, Thinking About Presumptions: The “Presumption” of

Agency From Ownership as Study Specimen, 48 ALA. L. REV. 885, 896-97 (1997). “Thus, once the

proponent establishes the basic facts of a presumption, the factfinder would be required to find the

presumed fact unless the opponent actually satisfies the factfinder of the presumed fact’s non-

existence.” 1 STEVEN GOODE & OLIN GUY WELLBORN III, TEXAS PRACTICE: TEXAS RULES                  OF

EVIDENCE § 301.2 (4th ed. 2016). “Merely offering evidence of its non-existence would not suffice

to remove the presumption from the case.” Id.

       In determining whether the separate property presumption created by the deed recitals is a

Thayer-type presumption or a Morgan-type presumption, we look again to Hodge v. Ellis, 154


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                                                                                     04-17-00811-CV


Tex. 341, 277 S.W.2d 900 (1955). In Hodge, a spouse who was a party to the deed transaction was

prevented by the parol evidence rule from rebutting the separate property presumption; the deed

recital was given conclusive effect. See id. at 905 (“Since [the spouse] was undoubtedly a party to

the transaction, we must thus hold the Wilson property to be separate on the theory of implied gift

from the respondent-plaintiff as a matter of law . . . .”). However, when the spouse was not a party

to the deed transaction, as here, the spouse was allowed to rebut the separate property presumption

with parol evidence. Id. Once the court determined the spouse had rebutted the separate property

presumption with respect to two of the properties at issue, the court explained that the burden of

persuasion was back on the spouse claiming the party to be separate property:

       Conceivably the otherwise community portion of the funds might, prior to the use
       of both types of purchases, have somehow become the separate property of the
       testatrix [wife], so as to result in the purchased property being clearly separate
       because acquired entirely with separate funds. But the burden to show that fact
       would be on the [executor of the estate and her remaining beneficiaries], and we
       cannot say that they have established it as a matter of law.

Id. at 907 (emphasis added). In looking at the supreme court’s application of facts to the law in

Hodge, we conclude the separate property presumption created by the deed recitals is a Thayer-

type presumption. Thus, to rebut the separate property presumption, Frost Bank needed merely to

produce evidence from which a reasonable factfinder could conclude that the oil and gas interests

acquired during Rees and Elizabeth’s marriage were community property. See 1 STEVEN GOODE

& OLIN GUY WELLBORN III, TEXAS PRACTICE: TEXAS RULES OF EVIDENCE § 301.2 (4th ed. 2016).

       It is undisputed in this case that Rees’s profession was the acquisition, exploration,

development and management of oil and gas interests. Elizabeth Rees testified that during her

marriage, “the majority of his work” was “oil and gas.” Rees “researched oil and gas” and “read a

lot about oil and gas opportunities.” She explained that he was “seeking to purchase more and

more minerals.” Elizabeth testified that he “would take the income that he earned off the oil and


                                               - 24 -
                                                                                        04-17-00811-CV


gas activity that he was involved in and use that to support the family.” She explained that “[t]he

majority of income to support the family came from his oil and gas activities.” “That was our

business, and that’s where our main income came from.” According to Elizabeth, Rees used his

connections to actively seek out new oil and gas interests to acquire. She affirmed Rees negotiated

the terms of those acquisitions and related agreements.

       Richard O. Weed agreed that for most of his adult life, his Uncle Rees “was in the oil and

gas business.” Richard O. Weed affirmed that Rees “owned, bought, and sold real property and

personal property that consists of mineral interests, royalty interests, overriding royalty interests,

working interests, and other assets related to the oil and gas business.” Jon Daubert with Frost

Bank agreed that Rees’s primary business was oil and gas.

       The record further reflects that from 2000 to the time Rees died in 2011, Rees acquired

during their marriage, almost sixty oil and gas interests. Over fifty of those interests are at issue in

this appeal and contain the deed recital “sole and separate” property language. Given the amount

of oil and gas interests acquired, the testimony that oil and gas was Rees’s primary business, the

testimony that Rees spent his time researching possible acquisitions and negotiated the terms of

the sale, the testimony that Rees used his oil and gas business to support the family, we hold that

there is evidence in the record from which a reasonable factfinder could conclude that, even if the

oil and gas interests at issue were purchased with Rees’s separate funds, the degree to which Rees

used his time, toil, and effort to acquire the oil and gas interests impressed a community character

upon the oil and gas interests. See Norris, 260 S.W.2d at 680. Thus, we conclude Frost Bank

rebutted the separate property presumption created by the deed recitals.

       Because Frost Bank has rebutted the separate property presumption, the presumption

“disappears and is not to be weighed or treated as evidence.” General Motors, 873 S.W.2d at 359

(citation omitted). We evaluate the summary judgment evidence as we “would in any other case.”
                                                 - 25 -
                                                                                      04-17-00811-CV


Id. And, in any other case on this issue, the community property presumption is applicable.

“Property possessed by either spouse during or on dissolution of marriage is presumed to be

community property,” and the “degree of proof necessary to establish that property is separate

property is clear and convincing evidence.” TEX. FAM. CODE ANN. § 3.003. The undisputed

evidence in this case shows the oil and gas interests at issue were acquired by Rees during his

marriage to Elizabeth. See id. § 3.002 (defining “community property” as “property, other than

separate property, acquired by either spouse during marriage”). The undisputed evidence also

shows that Rees did not acquire the oil and gas interests by gift, devise, or descent. See id. § 3.001

(“A spouse’s separate property consists of . . . the property acquired by the spouse during marriage

by gift, devise, or descent . . . .”).

        To rebut the community property presumption and create a fact issue in the summary

judgment proceeding, the Weed Appellants must have produced evidence from which a reasonable

factfinder could conclude they had met their burden, by clear and convincing evidence, of proving

that the oil and gas interests were separate property. This court has explained that “[t]o overcome

the community property presumption, the spouse claiming certain property as separate has the

burden to trace and clearly identify the property claimed to be separate.” Garza v. Garza, 217

S.W.3d 538, 548 (Tex. App.—San Antonio 2006, no pet.). “Tracing involves establishing the

separate origin of the property through evidence showing the time and means by which the spouse

originally obtained possession of the property.” Id. “And, as a general rule, mere testimony that

property was purchased with separate funds, without any tracing of the funds, is insufficient to

rebut the community property presumption.” Id. It is undisputed in this case that tracing of the

funds used to purchase the oil and gas interests is impossible because the relevant bank records no

longer exist. The only evidence the Weed Appellants produced to show that the oil and gas interests

were Rees’s separate property is the language in the deeds themselves. See General Motors, 873
                                                - 26 -
                                                                                       04-17-00811-CV


S.W.2d at 359 (explaining that after a Thayer-type presumption is rebutted, “[t]he facts upon which

the presumption was based remain in evidence . . . and will support any inferences that may be

reasonably drawn from them”). This mere language in the deeds is not sufficient to overcome the

community property presumption as a matter of law. See Garza, 217 S.W.3d at 548.

                                          CONCLUSION

       Because we have determined that Frost Bank rebutted the separate property presumption

created by the deed recitals, the separate property presumption disappeared and we evaluate this

summary judgment record as we would in any other case. Because of the now applicable

community property presumption, the Weed Appellants would have the burden to show by clear

and convincing evidence that the oil and gas interests at issue were Rees’s separate property. It is

undisputed in this case, however, that no financial records exist to trace the funds used by Rees to

purchase the oil and gas interests. Thus, the only evidence supporting the Weed Appellants’

assertion that the oil and gas interests were Rees’s separate property is the language in the deeds

themselves. These deed recitals, however, by themselves, are not sufficient evidence to overcome

the community property presumption as a matter of law. Summary judgment was therefore

correctly granted in favor of Frost Bank. We affirm the judgment of the trial court.

                                                  Karen Angelini, Justice




                                               - 27 -
