ETC's predecessor, Regency, received a permit to dispose of hydrogen sulfide (H2S), a poisonous, corrosive gas, by injecting it into a depleted mineral formation from a well on property adjacent to the Dickinson Ranch; the permit does not authorize infringing private property rights.¹ In 2012, H2S escaped to the surface of the ranch and killed some of Jeff Dickinson's cows, and in 2014 the Dickinsons, who then owned both the surface and mineral estates, and neighboring landowners sued Regency for trespass, nuisance, and other theories; the case settled, and the settlement agreement is not in the record.² Ageron Energy's predecessor leased the minerals from the Dickinsons in 2019, and Ageron acquired the lease in 2020.³ In 2022, Ageron asked ETC to pause injection while it drilled, ETC refused, and although Ageron took precautions its experts thought would allow it to drill through the plume, H2S ate through the drill pipe and the well had to be plugged.⁴

Ageron sued ETC for trespass, nuisance, and other theories based on interference with its mineral development rights, and ETC moved to dismiss for lack of jurisdiction, contending that Ageron lacked standing because the mineral development rights were injured before it leased them.¹ The trial court denied the motion, and ETC took an interlocutory appeal; the court of appeals reversed 2 to 1 and rendered judgment dismissing the case, holding that any claims for injury to mineral development rights accrued along with the surface injury to the cows, "ripe or not".² Ageron petitioned for review on March 13, 2024; the Court requested merits briefing on September 27, 2024, and on October 31, 2025, denied the petition, with Justice Busby, joined by Justice Devine, concurring in the denial.³

Petition for review from the Eighth Court of Appeals in an interlocutory appeal from the denial of a plea to the jurisdiction; denied October 31, 2025, with a concurring opinion by Justice Busby, joined by Justice Devine.⁴

Ageron presents whether the court of appeals majority erred by holding that the single-action rule accrued causes of action for interference with the non-possessory mineral development right when no legal injury to that right had yet occurred and the claims were not ripe, noting that if the claims accrued while others owned the right Ageron lacks standing, but if they accrued when the right was first interfered with, it has standing.¹ ETC asks whether the court of appeals correctly concluded that, because Ageron acquired its interest long after the first legal injury from the hydrogen sulfide injection, it cannot bring claims for the same injuries to the same property.² The concurrence frames the question as whether res judicata and accrual principles bar claims that were not ripe, and when a mineral lessee's claim accrues.³

The concurrence notes that ETC filed a jurisdictional plea challenging standing with supporting evidence, so, as in a traditional motion for summary judgment, ETC had the burden to show when the claims accrued.¹

When the claims for interference with mineral development rights accrued.

Petitioner (Ageron): The majority and ETC misapply Regency and the single-action rule, which should not accrue a legal injury to the mineral development right when H2S first reached the surface in 2012; the majority's approach derails the legal-injury rule, stunts the law of claim accrual for mineral development rights, and creates a catch-22 under which neither the predecessor nor the successor owner can hold the trespasser responsible.¹ In its petition it argues that the majority erred in applying the single-action rule to deem a legal injury to the mineral development right when injectate injured the surface owner.²

Respondents (ETC and LG PL): The court of appeals correctly applied the legal-injury and single-action rules: all claims for all damages from the wrongful conduct accrue when the first injury occurs, including injuries not yet ascertainable; the H2S caused legal injury to the Dickinsons' property interests by 2012, including their undivided mineral estate, and because that injury predates Ageron's lease, Ageron cannot sue.³

Ageron argued that the court of appeals' misapplication of the single-action rule destabilizes oil and gas development in Texas and that the Court should clarify when legal injury occurs to a mineral development right.¹ ETC responded that the court of appeals applied well-settled rules to the facts, so no review was needed.² The concurrence concluded that the case was not worth review because it could not say the court of appeals' result was incorrect.³

None. The docket shows no amicus filings.

Reasoning

The Court gave no reasons for denying review; the only writing is Justice Busby's concurrence, joined by Justice Devine.¹ He identifies two errors of law in the court of appeals' opinion, though he cannot say its result, dismissal, was wrong.²

First, the court held that an unripe claim accrues with a ripe claim from the same wrongful conduct; but res judicata, including the single-action rule, bars only claims that, through diligence, could have been litigated in the earlier suit, and a claim that was not ripe could not have been, so the rule would otherwise put a plaintiff in a catch-22 of asserting unripe claims to have them dismissed or waiting and having them barred.³ Regency is not to the contrary, because it did not involve different wrongs to surface and mineral interests and expressly did not decide whether the single-action rule required all claims to be brought together.⁴

Second, the court misunderstood when a claim for injury to mineral development rights accrues. Under Lightning Oil, an interference with the place where minerals are located is a trespass as to the mineral estate only if it infringes the lessee's ability to exercise its rights to explore, obtain, produce, and possess the minerals, and mere migration of contaminants into the subsurface does not establish injury; thus the choice between ETC's theory (when gas reaches a location or concentration) and Ageron's (when a drilling attempt fails) is a false dichotomy, and the court of appeals' various "triggering events" are only types of evidence of when interference occurred.⁵

He concurs in the denial because there was some evidence, including that injected H2S forced a well to shut down by 2012 and expected testimony from the Dickinsons' experts in the 2014 case that no prudent operator would drill, that the gas infringed mineral development rights before Ageron's lease, while contrary evidence existed, and whether that evidence was conclusive is not important to the jurisprudence.⁶

Disposition

Petition for review denied.⁷

Vote Breakdown

Justice Busby, joined by Justice Devine, concurred in the denial of the petition for review.⁸