Does the standard TREC contract convey mineral rights automatically?

Yes. The TREC One to Four Family Residential Contract (Resale), TREC 20-18 in current usage, and other TREC promulgated contract forms convey all interests in the property, including mineral interests owned by the seller, unless a reservation is specifically made through the TREC 44-3 addendum. If a seller wants to reserve any mineral interest, the addendum must be attached to the contract before signing.

What is the executive right, and why does it matter?

The executive right is the right to negotiate and execute an oil and gas lease binding the mineral estate. It is one of the five sticks of the mineral estate bundle. An executive-right holder controls when and whether the minerals are leased, subject to fiduciary duties to any non-executive interest holders under Texas case law. When executive rights are severed from other mineral sticks (bonus, royalty), leasing decisions can become contested, so buyers of surface property in areas with complex mineral chains should investigate executive-right status carefully.

How does the accommodation doctrine apply to a homeowner with a well being drilled next to their house?

The accommodation doctrine requires the operator to consider reasonable alternatives that would allow existing surface uses (including residential occupancy) to continue. Common accommodations include horizontal drilling from a more distant surface location, using existing access roads, and mitigating noise and light impacts. The doctrine does not guarantee the homeowner can block drilling — the mineral owner remains dominant — but it can force the operator to select a less impactful method if one is reasonably available. Litigation is typically required to enforce the doctrine, and success depends heavily on evidence of feasible alternatives.

Can a seller reserve a mineral estate they don't fully own?

Only to the extent of the seller's ownership. A seller who owns half the mineral estate can reserve at most half; a seller who owns none cannot reserve any. The TREC 44-3 addendum requires the seller to identify the fraction or percentage being reserved, and misrepresenting ownership creates fraud and misrepresentation exposure. Title examination is essential to accurate reservation language.

Is there a Texas statute that limits the mineral owner's surface use?

Yes, in specific contexts. The Texas Railroad Commission regulates well spacing, plugging, and surface restoration under Statewide Rules 37 and related provisions. Local surface-use ordinances may apply in some incorporated areas. Certain surface-owner protections exist for residential lots in developed subdivisions under case law and, in some situations, specific statutes. But the underlying common-law dominant-estate rule remains the default framework, subject to the accommodation doctrine as the primary judge-made limit.

What is a Non-Participating Royalty Interest (NPRI)?

An NPRI is a right to a share of production royalty without the accompanying right to lease, receive bonus, or receive delay rentals. NPRIs are commonly created when heirs divide mineral estates through inheritance, or when a mineral owner conveys a royalty interest to a third party while retaining the executive right. NPRIs pay only when a lease is executed by the executive-right holder and production actually occurs, so they can lie dormant for decades before generating any income. A buyer purchasing surface property with an outstanding NPRI is not directly affected day-to-day but may see surface impact when the executive-right holder eventually leases the minerals. Note that the accommodation doctrine is triggered by the mineral estate holder's (or lessee's) surface use, not by an NPRI holder — NPRIs carry no surface-use rights and therefore no accommodation-doctrine analysis.

Texas Mineral Rights: Severance, Dominant Estate, TREC 44-3

TL;DR

Texas real property can be divided into a surface estate and a mineral estate, with each severable and separately transferable. Once severed, the mineral estate is the dominant estate, meaning the mineral owner has the right to use as much of the surface as reasonably necessary to develop the minerals — subject to the common-law accommodation doctrine and applicable regulations. TREC's Addendum for Reservation of Oil, Gas, and Other Minerals (Form 44-3, effective February 1, 2023) is the mandatory addendum for TREC-form residential contracts when the seller intends to reserve all or a portion of the mineral estate at closing. Understanding severance, the dominant estate rule, the accommodation doctrine, and the mechanics of TREC 44-3 is essential for licensees handling any transaction where mineral rights are in question.

Severance — how surface and minerals separate

At common law and under Texas real property doctrine, a fee simple estate includes both the surface of the land and the minerals beneath. Severance occurs when the surface and mineral estates are separated in ownership through a deed or reservation. A seller who conveys the surface but reserves the minerals creates two distinct estates: the buyer takes the surface with a servient posture toward the reserved mineral estate; the seller retains the minerals with dominant rights against the surface.

Once severed, the two estates remain separate through subsequent conveyances unless later reunited by a common owner. This means many Texas properties have chains of title where the surface has been conveyed multiple times while the mineral estate remains with a distant heir, an oil company, or an estate — often unknown to the current surface owner until an operator arrives to drill. Title examination for Texas rural and semi-rural property routinely traces both surface and mineral chains separately to determine current ownership of each estate.

The dominant mineral estate rule

Texas courts have consistently held that the mineral estate, once severed, is the dominant estate. The mineral owner (and the mineral owner's lessee, typically an oil or gas operator) has the implied right to use as much of the surface as reasonably necessary to explore for, develop, and produce the minerals — even without the surface owner's consent, and without paying for the surface use unless a lease or statute requires it.

This right of reasonable use includes ingress and egress across the surface, siting of well pads and access roads, laying of gathering lines, and disposal of produced water within reasonable operational parameters. The surface owner cannot block these activities as long as they are reasonably necessary to mineral development and do not exceed what a prudent operator would require. This dominant-estate rule is a fundamental difference between Texas property law and the property law of many other jurisdictions, and it materially affects the value and usability of Texas surface estates where minerals have been severed.

The accommodation doctrine as a limit

Texas courts have developed the accommodation doctrine as a common-law limit on the dominant estate rule. Operator surface-use practice is separately shaped by Texas Railroad Commission regulations on well spacing, plugging, and surface restoration, though the accommodation doctrine itself is judge-made and enforced through the courts. Under the doctrine, when the mineral operator's proposed surface use would substantially impair an existing surface use, and reasonable alternative operational methods are available that would allow both surface and mineral development, the operator must accommodate the surface use. The doctrine was clearly stated in Getty Oil Co. v. Jones (1971) 470 S.W.2d 618 and refined in subsequent Texas Supreme Court decisions.

The accommodation doctrine is fact-intensive and requires the surface owner to prove: (a) the operator's proposed use will substantially impair an existing surface use, (b) reasonable alternatives exist for the operator, and (c) those alternatives are consistent with industry standards. It does not give the surface owner a veto over all mineral operations — the mineral owner retains dominant rights — but it prevents the operator from adopting a surface-destructive method when a reasonable alternative would allow both uses to coexist. Surface owners considering litigation should understand the doctrine is protective but narrow, and the mineral owner will likely have significant operational latitude even under a successful accommodation claim.

TREC Addendum 44-3 — the mineral reservation mechanism

For residential real estate transactions using TREC promulgated contract forms, sellers who intend to reserve all or part of the mineral estate at closing must use the Addendum for Reservation of Oil, Gas, and Other Minerals (TREC Form 44-3), effective February 1, 2023. The addendum, adopted by TREC under 22 TAC §537.51, is the mandatory vehicle for a mineral reservation in TREC-form residential transactions and replaces the prior Form 44-2. Without the addendum, the standard TREC contract conveys all interests in the property, including any minerals owned by the seller.

TREC 44-3 provides fields for the seller to specify the fraction or percentage of the mineral estate being reserved, the identity of any existing mineral leases and lessees, and the surface-use limitations (if any) the seller is agreeing to impose on the reserved mineral estate. The addendum can accommodate a total reservation (seller keeps all minerals), a partial reservation (seller keeps a specified fraction), or a reservation with a surface waiver (seller reserves minerals but waives surface use for a period). Sellers with questions about specific reservation language should consult counsel — TREC prohibits licensees from drafting substantive mineral-clause modifications outside the addendum's structure.

What's actually included in a mineral estate

The Texas mineral estate is a bundle of five distinct rights, sometimes called the "mineral estate sticks":

Right	What It Means
Right to develop	Right to explore for, extract, and produce minerals from the land, including drilling and mining operations
Right to lease (executive right)	Right to enter into oil and gas leases with operators, granting them access to develop the minerals in exchange for a bonus, royalty, and other consideration
Right to receive bonus	Right to the upfront cash payment made by a lessee when entering into a mineral lease
Right to receive delay rentals	Right to periodic payments made by a lessee to defer drilling operations during the lease's primary term
Right to receive royalty	Right to a share of the value of minerals produced (typically 1/8 to 1/4 in Texas, higher in shale-play areas), free of production costs

Any of these five rights can be reserved, conveyed, or leased separately. A seller might reserve all five (a full mineral reservation), only the royalty right (a non-participating royalty interest, or NPRI), or only the executive right (an executive-only interest). TREC 44-3 accommodates the most common patterns but complex splits typically require attorney-drafted addenda or separate mineral deeds executed at closing.

Practical considerations for the licensee

Licensees representing sellers should ask about mineral interests during the listing intake, particularly for rural, semi-rural, or historically agricultural property. Many Texas homeowners are unaware that they may or may not own the minerals under their property. A quick title check — often available through the title company at listing time — can identify severed mineral interests and inform the seller's decision whether to reserve anything at closing.

Licensees representing buyers should confirm the mineral estate status during the option period and evaluate whether any severed mineral interests could produce future surface impacts. In active production regions like the Permian Basin, Eagle Ford Shale, and Barnett Shale areas, the difference between a property with intact minerals and a property with severed minerals materially affects value and desirability. For related contract mechanics and the earnest money framework that governs terminations if a buyer objects to mineral status, see our Texas earnest money guide. For the seller-disclosure obligations that intersect with mineral-related material facts, see our Texas Seller's Disclosure Notice guide. For the TREC licensing rules that constrain how licensees may handle mineral-clause language, our Texas Real Estate License Law guide.

Frequently Asked Questions

Does the standard TREC contract convey mineral rights automatically?: Yes. The TREC One to Four Family Residential Contract (Resale), TREC 20-18 in current usage, and other TREC promulgated contract forms convey all interests in the property, including mineral interests owned by the seller, unless a reservation is specifically made through the TREC 44-3 addendum. If a seller wants to reserve any mineral interest, the addendum must be attached to the contract before signing.
What is the executive right, and why does it matter?: The executive right is the right to negotiate and execute an oil and gas lease binding the mineral estate. It is one of the five sticks of the mineral estate bundle. An executive-right holder controls when and whether the minerals are leased, subject to fiduciary duties to any non-executive interest holders under Texas case law. When executive rights are severed from other mineral sticks (bonus, royalty), leasing decisions can become contested, so buyers of surface property in areas with complex mineral chains should investigate executive-right status carefully.
How does the accommodation doctrine apply to a homeowner with a well being drilled next to their house?: The accommodation doctrine requires the operator to consider reasonable alternatives that would allow existing surface uses (including residential occupancy) to continue. Common accommodations include horizontal drilling from a more distant surface location, using existing access roads, and mitigating noise and light impacts. The doctrine does not guarantee the homeowner can block drilling — the mineral owner remains dominant — but it can force the operator to select a less impactful method if one is reasonably available. Litigation is typically required to enforce the doctrine, and success depends heavily on evidence of feasible alternatives.
Can a seller reserve a mineral estate they don't fully own?: Only to the extent of the seller's ownership. A seller who owns half the mineral estate can reserve at most half; a seller who owns none cannot reserve any. The TREC 44-3 addendum requires the seller to identify the fraction or percentage being reserved, and misrepresenting ownership creates fraud and misrepresentation exposure. Title examination is essential to accurate reservation language.
Is there a Texas statute that limits the mineral owner's surface use?: Yes, in specific contexts. The Texas Railroad Commission regulates well spacing, plugging, and surface restoration under Statewide Rules 37 and related provisions. Local surface-use ordinances may apply in some incorporated areas. Certain surface-owner protections exist for residential lots in developed subdivisions under case law and, in some situations, specific statutes. But the underlying common-law dominant-estate rule remains the default framework, subject to the accommodation doctrine as the primary judge-made limit.
What is a Non-Participating Royalty Interest (NPRI)?: An NPRI is a right to a share of production royalty without the accompanying right to lease, receive bonus, or receive delay rentals. NPRIs are commonly created when heirs divide mineral estates through inheritance, or when a mineral owner conveys a royalty interest to a third party while retaining the executive right. NPRIs pay only when a lease is executed by the executive-right holder and production actually occurs, so they can lie dormant for decades before generating any income. A buyer purchasing surface property with an outstanding NPRI is not directly affected day-to-day but may see surface impact when the executive-right holder eventually leases the minerals. Note that the accommodation doctrine is triggered by the mineral estate holder's (or lessee's) surface use, not by an NPRI holder — NPRIs carry no surface-use rights and therefore no accommodation-doctrine analysis.

Bottom Line

Texas mineral rights can be severed from the surface estate and separately owned, and once severed the mineral estate is the dominant estate — the mineral owner has the right to use as much of the surface as reasonably necessary to develop the minerals, subject to the common-law accommodation doctrine. The mineral estate consists of five distinct rights (development, executive, bonus, delay rentals, royalty), any of which can be individually reserved or conveyed. TREC's Form 44-3 (effective February 1, 2023) is the mandatory addendum for TREC-form residential contracts when the seller reserves any portion of the mineral estate; without the addendum the standard contract conveys all minerals owned by the seller. Licensees should identify mineral status during listing intake and buyer due diligence, particularly for rural or historically agricultural property. For the surrounding contract framework, see our Texas earnest money guide, and for the parallel seller-disclosure requirements, our Texas Seller's Disclosure Notice guide.

Source: TREC Form 44-3 — Addendum for Reservation of Oil, Gas, and Other Minerals · 22 TAC §537.51 — TREC Rule Adopting Form 44-3 · Texas Railroad Commission — Oil and Gas Division