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RULE §9.22Leasing Procedures

State property will be leased for the exploration and development of oil and gas under these procedures.

  (1) Sealed bid leasing by the SLB.

    (A) Lands affected. See §9.21 of this title, (relating to Leasing Guide) to determine which lands are leased by sealed bid. Generally, this includes all lands owned in fee by either the PSF or state agencies, except TPWD or TDCJ lands, and certain other lands in which the PSF owns a mineral interest.

    (B) Nominations, advertising, and awarding leases. The SLB, GLO staff, or persons interested in leasing a specific tract may nominate a tract for lease. Nominated tracts will be evaluated by GLO geologists. The SLB will set the terms and conditions upon which tracts will be offered for lease. These terms will be advertised and bids taken. The SLB shall accept the best bid meeting the minimum requirements set by the SLB or by law, or, reject all bids. See Chapter 151 of this title, (relating to Operations of the School Land Board) for more details on the leasing procedure.

  (2) Leasing of Relinquishment Act lands by surface owner as the state's agent.

    (A) Lands affected. The leasing procedures as set out in this paragraph apply only to the leasing of Relinquishment Act lands.

    (B) Identity of the state's agent. The surface owner of Relinquishment Act land acts as the state's leasing agent. A minor or a person of unsound mind, as these terms are defined in the Texas Probate Code, cannot act as the state's agent. However, a person authorized by law to act on such a person's behalf may do so. An agent of the surface owner, including an attorney-in-fact, cannot execute a Relinquishment Act lease, unless a power of attorney expressly authorizes the attorney-in-fact to execute Relinquishment Act leases. Said power of attorney shall be submitted to the GLO concurrently with the lease. Both the surface owner and attorney-in-fact shall owe the state the full fiduciary duty discussed in paragraph (2)(C) of this subsection, and as otherwise provided by law. If the surface owner is a corporation, a Relinquishment Act lease may be executed by any duly authorized officer or agent of the corporation.

    (C) Authority and fiduciary duty of agent.

      (i) Authority. The surface owner is authorized to execute oil and gas leases on behalf of the state, unless a surface owner's agency rights have been forfeited or waived. The surface owner may not enter into a seismic option or any other contract to execute a Relinquishment Act lease. As the state's agent, a surface owner owes the state a fiduciary duty and the duty of utmost good faith. A surface owner must fully disclose to the commissioner any facts affecting the state's interest and must act in the best interest of the state. Any conflict of interest must be resolved by putting the interests of the state before the interests of the surface owner. In addition to these duties, the surface owner owes the state all the common law duties of a holder of executive rights.

      (ii) Consequences of a breach of the surface owner's fiduciary duty or a violation of the prohibition against self-dealing. When a surface owner engages in self-dealing by acquiring an assignment in a lease executed by that surface owner, such lease is void as of the time of assignment and the commissioner may forfeit the surface owner's agency rights. When a surface owner breaches any duty or obligation owed to the state, the commissioner may request that the attorney general file suit. A suit to enforce the surface owner's duties and obligations or to forfeit the surface owner's agency rights shall be filed in a district court in Travis County. See Texas Natural Resources Code, §52.188 and §52.189.

      (iii) Penalty assessment for breach of the surface owner's fiduciary duty. A penalty of 10% shall be imposed on any sums due the state because a surface owner breaches a fiduciary duty. The imposition of this penalty does not limit the right of the state to obtain punitive damages, exemplary damages, or interest. Any punitive damages or exemplary damages assessed by a court shall be offset by the 10% penalty imposed by this paragraph.

    (D) Prohibition against self-dealing. A surface owner as the state's agent may not engage in self-dealing either directly or indirectly. Except as provided in Texas Natural Resources Code, §52.188(a)(b) and (d) and §52.189(a)(3)(4), a surface owner will be considered to have engaged in self-dealing if the surface owner, either directly or indirectly, leases or assigns a lease executed by that surface owner to themselves or to any of the following persons:

      (i) a nominee;

      (ii) any corporation or subsidiary in which the surface owner is a principal stockholder or an employee of such a corporation or subsidiary;

      (iii) a partnership in which the surface owner is a partner or an employee of such a partnership;

      (iv) if the surface owner is a corporation or a partnership, a principal stockholder of the corporation or a partner of the partnership, or any employee of the corporation or partnership;

      (v) a fiduciary representing the surface owner, including, but not limited to, a guardian, trustee, executor, administrator, receiver, or conservator; or

      (vi) a person related to the surface owner within and including the second degree of consanguinity or affinity, including a person related by adoption, or;

        (I) to a corporation or subsidiary in which that related person is a principal stockholder, or;

        (II) to a partnership in which that related person is a partner, or;

        (III) to an employee of such a corporation or subsidiary or partnership.

    (E) Lease negotiation procedure.

      (i) Subject to the limitations against self-dealing, the surface owner is authorized to act as the state's leasing agent with any person desiring to develop or explore for the oil and gas.

      (ii) The lease shall be on the GLO lease form in use on the date of execution. This form will be prepared and furnished by the GLO.

      (iii) All of the negotiated terms must be included in the lease instrument. No lease term or provision may be included in a collateral contract or agreement.

      (iv) The proposed lease shall be submitted to the GLO for approval prior to recording the lease in the county records. The proposed lease shall be accompanied by the processing fee required by §3.31 of this title, (relating to Fees).

    (F) State approval and filing of lease.

      (i) Any additions, modifications, deletions, or changes to the GLO lease form must be approved by the commissioner.

      (ii) A lease must adequately reflect the actual consideration paid or promised for the lease. The state and the surface owner must share equally in all consideration paid under the lease. However, the surface owner may waive or defer his or her share of the bonus. At any time after preapproval and before filing with the GLO, the adequacy of the consideration may be reassessed by the commissioner.

      (iii) The commissioner may reject and refuse to file any lease deemed contrary to the best interests of the state. If the commissioner rejects a lease that has been recorded prior to submission to the commissioner, a release of the lease must be filed in the appropriate county or counties and a certified copy sent to the GLO.

      (iv) If the commissioner rejects a proposed lease, the prospective lessee will be notified of the reasons for the rejection and any changes, deletions, or additions which would render the lease acceptable. The prospective lessee may request reconsideration of a rejection. This request shall be made to the commissioner.

      (v) A Relinquishment Act lease may not provide for a primary term of more than five years.

      (vi) A Relinquishment Act lease may not encompass more than four full sections or 2,560 acres. A "mother hubbard" or "coverall" clause in the lease is not acceptable.

      (vii) Private land and Relinquishment Act land may not be included in the same lease.

      (viii) A lease may encompass several smaller tracts if they are contiguous or within 1/2 mile of each other.

      (ix) A Relinquishment Act lease must provide the state with a royalty of at least 1/16th and a delay rental during the primary term of at least $.10 per acre per year to the state, or, on paid up leases, a paid up payment of at least $.10 per acre per year in the primary term.

      (x) When a proposed lease covering an undivided interest in Relinquishment Act land is submitted for approval, the person submitting the lease shall inform the GLO of all remaining undivided interest owners of that land. See also Texas Natural Resources Code, §52.190(k) and (l).

      (xi) Upon approval, the lease shall be recorded in each county in which the land is located. Leases are not effective until approved by the commissioner, and until a certified copy of the lease, from each county in which it is recorded, has been filed with the GLO. Such filing and approval of leases shall not limit, waive, or affect any lawful claim or remedy available to the state. After a lease is properly filed, the term of the lease shall be treated as beginning on the effective date stated in the Cont'd...

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