Texas has a highly developed and nuanced body of law governing mineral ownership. It provides private individuals with mineral ownership and broad latitude in the sale of minerals. Texas also has a robust body of law around mineral sales and extraction. 

Private Ownership

In Texas, the owner of the land also owns the mineral rights unless the surface and minerals have been severed by a previous sale. There are some exceptions in which either the Federal Government or the State of Texas owns the minerals beneath the land, but private ownership is more common. 

Separate Surface and Mineral

In some cases, previous owners can sell all the land’s surface but retain all or part of the mineral rights. Or a previous owner may sell all or a portion of the minerals and retain the surface. Either way, this creates a severance, and this is very common in areas with oil and gas production. 

Undivided Interests

In many cases, mineral rights can be broken up among several owners who each own an undivided interest in the minerals in a tract of land. Each owner has rights to minerals in the entire tract of land. It is extremely common in oil-producing areas for the mineral ownership in a tract of land to be spread out across dozens or even hundreds of undivided interest owners. 

The Parts of the Mineral Estate

The mineral estate represents a bundle of legal rights.

Executive Right

The mineral owner has the right to execute an oil and gas lease, which is called the executive right.

Right To Enter and Possess the Minerals.

Even without an oil, gas or mineral lease, mineral ownership grants the right to enter the property to extract oil, gas, and other minerals, and the surface owner must allow access, subject to some limitations that will be discussed later.

Right To Bonus

The mineral owner has a right to receive a lump-sum payment, called the bonus, for executing an oil, gas, and mineral lease. The amount is open for negotiation and is not recorded in the county records. Operators and mineral owners usually do not publish or broadcast the bonus amounts. 

Right To Delay Rentals

In old leases, the lessee, in most cases, an oil company, would have to pay a certain amount per year to delay production. These payments were called delay rentals. Most modern leases are ‘paid up’ leases, so the delay rentals are effectively paid in advance along with the bonus. 

Right To Royalty

The royalty is a fraction of the oil, gas, and other minerals produced from operations on the leased area, free of production costs. In early leases, the royalty was typically 1/8, and in modern leases it is 1/4. 

Severance Within the Mineral Estate

Any of these rights, except for the executive right and the possessory right, may be severed. The most common right to see severed within the mineral estate is the right to royalty. A royalty interest without any other mineral rights is called a non-participating royalty interest (NPRI). This type of interest only owns a portion of the royalty and does not participate in making leases, receiving bonuses, or receiving delay rentals. 

What Is Not Part of the Mineral Estate

Surprisingly, Texas caselaw grants certain subsurface rights to surface owners instead of the mineral owners.

Anything That Is Not a ‘Mineral’

There are some substances that are in the ground that are not considered minerals that may seem like they should be, such as sand, gravel, limestone, caliche (a type of rock), fresh water, and lignite near the surface, but the right to extract these substances is owned by the surface estate. These substances are severable from the rest of the surface estate’s rights, may be included in an oil, gas, and mineral lease or a conveyance if specifically named in the grant, but are not automatically included under the term ‘mineral’.   

How Do We Know What Is Included in the Word ‘Mineral’ (The Time of the Conveyance Matters)

Before June 8, 1983, the surface estate owned any substance that, when extracted, caused significant destruction to the surface, and other extractable substances were considered minerals. See Moser v. U.S. Steel Corp., 676 SW.2d 99 (Tex 1984). This was called the Surface Destruction Test. After Mosier v U.S. Steel Corp. was decided, the Texas Supreme Court adopted the ‘plain meaning’ test for minerals and did away with the Surface Destruction test for any conveyance or oil, gas, or mineral lease after June 8, 1983. Abstractly, anything that is included in the common definition of the term ‘mineral’ is included in the mineral estate. However, in practice, anything the Texas Supreme Court has held to be a mineral is included in the term ‘mineral,’ and absent a specific holding the substance is subject to litigation as to its classification. It is worth noting that deeds and leases executed before June 8, 1983 will still use the Surface Destruction test to decide what is included in the term ‘mineral.’ While this distinction does not affect oil and gas extraction, it does affect the rights of other substances. 

The Right to Drill Through the Earth but Not Extract Minerals

If someone wants to drill through the earth but not extract oil, gas, or any other minerals, they need to speak to the surface owner, not the mineral owner. According to Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W. 3d 39 (Texas 2017), the surface owner has subsurface rights to all non-mineral particles subsurface and the right to access this area. This is a common issue that arises when operators begin drilling a horizontal well outside of the producing tract and then drill through the next tract, which they have leased and intend to produce. Drilling without producing can be done without the mineral owner’s permission, but it does require the surface owner’s permission. 

Use of Subsurface Voids

While salt is considered a mineral, under the term ‘mineral’, the voids left after salt extraction are the property of the surface owner. See Meyers-Woodward LLC Underground Services Markham LLC, 716 S.W.3d 461 (Texas 2025). This is important because these caverns can be used for underground storage, which is especially useful for carbon capture and sequestration. 

Mineral is the Dominant Estate

In Texas, the mineral estate is considered dominant, which means that mineral owners have the right to reasonable use of the surface without permission from the surface owner to extract oil, gas, or other minerals, with some limitations. These limitations fall under the Accommodation Doctrine, which means that a mineral owner, or anyone extracting minerals, must provide reasonable accommodations for preexisting surface uses. For example, if a farm on the property requires irrigation, an operator may need to use a specialized pumping unit to ensure its operations do not conflict with the farmer’s irrigation system. However, a preexisting surface use does not stop the production dead in its tracks, but it does mean that the mineral extractor needs to try not disrupt any surface use that predates extraction. In addition, if the mineral extractors cannot reasonably accommodate the preexisting surface use, they may go ahead and disrupt it. 

Mineral extractors are also obligated to pay for surface damages, which are reasonable costs for the disruption caused by surface disturbance. If the mineral owner also owns the surface, surface damages can be negotiated under the oil, gas, and mineral lease. 

Conclusion

Mineral ownership is a bundle of rights related to the extraction of oil, gas, and other substances. The substances included in the mineral estate are dependent upon the time of the conveyance and not always intuitive. The mineral estate is dominant and provides the right to extract with some limitations. Mineral law in Texas is complex, but its complexity is manageable. Expertise and information can allow individuals to profit from minerals if they stay informed of the law, which is already well developed but continues to develop as the needs of mineral owners and operators change over time.