Broadway National Bank, Trustee of the Mary Frances Evers Trust v. Yates Energy Corporation, Eog Resources, Inc., Jalapeno Corporation, Acg3 Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., and Curry Glassell

IN THE SUPREME COURT OF TEXAS
4444444444
No. 19-0334
4444444444

BROADWAY NATIONAL BANK, TRUSTEE OF THE MARY FRANCES EVERS TRUST,
ET AL., PETITIONERS

V.

YATES ENERGY CORPORATION, EOG RESOURCES, INC., JALAPENO CORPORATION,
ACG3 MINERAL INTERESTS, LTD., GLASSELL NON-OPERATED INTERESTS, LTD.,
AND CURRY GLASSELL, RESPONDENTS

444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
444444444444444444444444444444444444444444

Argued December 2, 2020

JUSTICE DEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE BOYD, JUSTICE BLAND, and JUSTICE HUDDLE joined.

JUSTICE BUSBY filed a dissenting opinion, in which JUSTICE GUZMAN, JUSTICE
LEHRMANN, and JUSTICE BLACKLOCK joined.

The Texas Property Code authorizes the correction of a material error in a recorded

original instrument of conveyance by agreement. See TEX. PROP. CODE § 5.029. To be

effective, the instrument correcting the error must be executed by each party to the original

instrument “or, if applicable, a party’s heirs, successors, or assigns.” Id. § 5.029(b)(1). The

issue here is when are an original party’s heirs, successors, or assigns applicable, such that their
agreement is necessary to make the correction.

In this case, the court of appeals considered whether the original parties could validly

agree to correct a mistake in the original instrument of conveyance, after a third party acquired

an interest. The court concluded that the original parties could no longer correct their mistake

solely by their agreement after an assignment. 609 S.W.3d 140, 149 (Tex. App.—San Antonio

2018). The court reasoned that the assignment or sale of an interest in the property by an

original party triggered the “if applicable” clause, requiring the joinder of the assign for a

material correction. Id. at 148. In short, the court held that a validly executed correction

instrument under section 5.029 must be signed by the property’s current owners.

We do not agree that a correction instrument’s validity under 5.029 invariably depends

on the consent of an assign or subsequent purchaser. Rather, we understand the “if applicable”

clause to provide a substitute person or entity to sign when a party to the original conveyance is

unavailable to sign a correction instrument for a material error. Because we disagree with the

court of appeals’ interpretation of the “if applicable” clause as the statute’s method for protecting

the property interests of subsequent purchasers, we reverse and remand.

I. Background

The property at issue was once part of an inter vivos trust created by Mary Francis Evers.

Included in that trust were several property interests in DeWitt and Gonzales Counties. A few

months before Mary’s death in 2003, she amended her trust to allocate its property to her

descendants.

The 2003 amendment provided that the trust property was to be divided among four of

2
Mary’s children: Mariellen Evers Dyal, Sandra Evers Pierce, Jamie Evers Drago, and Eben John

Evers (referred to as “John” hereinafter). Although the trust property was to be divided into four

equal shares, the share allocated to Mary’s son, John, was to “be distributed” to the Trustee “to

hold in a separate trust,” designated as a supplemental-needs trust. Mary’s inter vivos trust

named Broadway National Bank as Trustee (hereinafter referred to as the “Bank” or “Trustee”).

Under the terms of John’s supplemental-needs trust, the Trustee was to “apply for the benefit of

[John] such amounts from the income or principal as the trustee in [its] sole discretion may from

time to time deem necessary or advisable for the satisfaction of [John’s] supplemental needs.” If

John’s supplemental-needs trust did not terminate within his lifetime, the trust was to terminate

on his death, and the remaining trust estate divided equally between one of Mary’s daughters,

Jamie Evers Drago, and one of her grandsons, Mike E. Dyal, or their respective descendants per

stirpes.

In 2005, the Bank, acting as trustee of Mary’s trust, executed a mineral deed that

conveyed the trust’s mineral interests in DeWitt and Gonzales Counties to her children as

designated by Mary in the 2003 trust amendment. In the 2005 Mineral Deed, John received an

undivided 25 percent interest in fee simple, which the Bank asserts was a mistake. To correct

the error, the Bank, as Trustee, filed a Corrected Mineral Deed in 2006, explaining that John was

only entitled to the distribution of a life estate in the minerals conveyed in the 2005 deed. The

2006 Corrected Deed also identified those whom Mary had designated to receive what remained

of John’s share of the trust property at his death. The 2006 Corrected Deed, like the 2005

Mineral Deed it was meant to replace, was signed only by Broadway National Bank, Trustee of

3
the Mary Frances Evers Trust. Because some of the mineral interests described in the 2006

Correction Deed were already under lease to Yates Energy Corporation, the Trustee sent copies

of the recorded 2006 Correction Deed to Yates with instructions to pay royalties to the grantees.

Several years later, John executed a Royalty Deed, dated February 1, 2012, conveying his

royalty interests from oil and gas leases in DeWitt and Gonzales Counties to Yates. The leases

covered the mineral interests that the Trustee had conveyed to John in the 2005 Mineral Deed.

Yates assigned 70 percent of the royalty interests acquired from John to EOG Resources, Inc.

pursuant to a farmout agreement and the remaining rights were assigned to others.1 All of these

instruments were dated as effective February 1, 2012, and recorded in the appropriate counties.

Although the assignment from Yates to EOG Resources was “effective as of February 1,

2012,” EOG did not execute it until August of the next year. Meanwhile, a title attorney

working with EOG Resources raised several questions about the extent of John’s royalty

interests. In a memorandum titled “Summary of Comments and Interpretations,” EOG’s

attorney discusses his thoughts about the relevant documents, which he identified as the recorded

2005 Mineral Deed, the recorded 2006 Correction Deed, the unrecorded 2003 Amendment to the

Mary Frances Evers Trust, and the recorded Royalty Deed from John to Yates, dated February 1,

2012.

The court of appeals summarizes this memorandum, beginning with the 2006 Correction

Deed, whose validity the attorney questioned. The attorney noted that this correction instrument

1
Those obtaining assignments of the remaining rights included Jalapeno Corp., EnerQuest Oil & Gas, LLC, ACG3
Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., Curry Glassell, DKE Dyersdale, Inc., Cathy Dohnalek,
Walter H. Mengden, Jr., WHMIII Dubose, LLC, Joseph Mengden, Carl C. Mengden, Susan Mengden, Michel C.
Mengden, and Pati-Dubose, Inc.

4
did not comply with the statute because it was executed only by the Trustee, and not also by

John and his siblings, who were the grantees in the 2005 Mineral Deed. The court of appeals’

summary continues:

To further complicate matters, the title attorney indicated the 2003 Trust
Amendment could be interpreted as only authorizing Broadway Bank to convey a
life estate in the trust property to John, and in the event of such interpretation,
then Broadway Bank could only convey what it was authorized to convey to John
as opposed to the fee simple estate in minerals it conveyed in the 2005 Mineral
Deed. The title attorney concluded that for the 2006 Correction Mineral Deed to
be valid, an amended correction deed should be executed by “all of the parties to
show that [John] and all of the [g]rantees to said [2005 Mineral Deed] accept the
change of ownership in the [2006 Correction Mineral Deed].” The title attorney
further concluded that if an amended correction deed was executed, it would
affect the type of interest—life estate or fee—John conveyed to Yates Energy
Corporation in the 2012 Royalty Deed and Assignment of Overriding Royalty
Interest, and subsequently, the type of interest Yates Energy Corporation assigned
to EOG Resources. The title attorney advised that if EOG Resources wanted to
secure a full fee estate interest, it needed to obtain John’s life estate interest from
Yates Energy Corporation and assignments of overriding royalty from the
remaindermen identified in the 2006 Correction Deed.

609 S.W.3d at 143–44. These concerns were subsequently communicated to the Bank by email,

advising that EOG’s title attorney had confirmed the need for an Amended Correction Deed for

the Mary Frances Evers Trust.

In November 2013, the Bank, as Trustee, executed and recorded an Amended Correction

Deed, which was signed by all of the parties to the original 2005 Mineral Deed. Like the 2006

Correction, the 2013 Amended Correction Deed advised that the 2005 Mineral Deed made an

incorrect conveyance of a fee estate to John, who instead was entitled to only a life estate, with

remainder interest identified as in the 2006 Correction. A few months after signing the

Amended Correction Deed, John died.

5
 John’s death ignited this dispute over the extent of the 2012 conveyance to Yates. The

Bank maintains that Yates and its assignees acquired only John’s life estate in the disputed

royalties, as described in the 2013 Amended Correction Deed. As Trustee, it argues that these

royalties are now owned by the Remaindermen identified in the correction instrument.

Conversely, Yates contends that John acquired full ownership of these royalties under the

Trustee’s 2005 Mineral Deed; the 2012 royalty deed from John to Yates likewise conveyed full

ownership; and the 2013 Correction Deed did not change that or otherwise affect Yates’s title.

To resolve this dispute, the Bank sought declaratory relief in the probate court. See TEX.

CIV. PRAC. & REM. CODE §§ 37.001–.011 (Uniform Declaratory Judgments Act). It named Yates

and its assignees as defendants and the Remaindermen as necessary parties.2 The Bank’s suit

asked the probate court to construe the title instruments and declare that the 2012 Royalty Deed

conveyed John’s life interest only to Yates and that title to John’s mineral interests passed to the

Remaindermen upon his death. The Remaindermen joined the Bank’s claim against Yates and

its assignees. Yates and its assignees answered, asserted affirmative defenses, and

counterclaimed for breach of express warranty and declaratory relief. Their counterclaim sought

to establish that: (1) the 2005 Mineral Deed was binding and enforceable; (2) the 2006 and 2013

Correction Deeds were invalid; and (3) Yates’s status as a bona fide purchaser was irrelevant

because of the invalidity of the Correction Deeds. Yates and its assignees also sought damages

2
The defendants in the probate court included Yates Energy Corporation, EOG Resources, Inc., Jalapeno Corp.,
EnerQuest Oil & Gas, LLC, ACG3 Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., Curry Glassell, DKE
Dyersdale, Inc., Cathy Dohnalek, Walter H. Mengden, Jr., WHMIII Dubose, LLC, Joseph Mengden, Carl C. Mengden,
Susan Mengden, Michel C. Mengden, and Pati-Dubose, Inc. The Remaindermen were identified as Mike E. Dyal and
the Westco Family Limited Partnership.

6
for breach of the Trustee’s express warranty of title in the 2005 deed to John. All litigants

sought their attorneys’ fees, and all moved for summary judgment.

The probate court granted summary judgment for the Bank and the Remaindermen,

declaring that: (1) the 2013 Amended Correction Deed was valid, conveyed to John only a life

estate in the mineral interests, and effectively replaced the 2005 Mineral Deed; (2) Yates

accordingly received only a life estate from John; and (3) what remained in John’s supplemental-

needs trust vested in the Remaindermen upon John’s death. The probate court further concluded

that Yates and its assignees were not bona fide purchasers because the 2006 Correction Deed

provided notice to them as a matter of law.

Yates and its assignees appealed. Although “each party to the recorded original

instrument of conveyance” executed the 2013 Amended Correction Deed, TEX. PROP. CODE

§ 5.029(b)(1), the appellate court held the correction instrument invalid and consequently

concluded “it did not replace the 2005 Mineral Deed.” 609 S.W.3d at 148 (citing TEX. PROP.

CODE § 5.030(a)(1)). The court accordingly reversed the summary judgment, which granted the

Trustee’s motion, and the final judgment, which declared the Remaindermen to be the owners of

the disputed property interests. Id. at 149–50. Finally, the court remanded Yates’s counterclaim

for breach of express warranty and related claim for attorneys’s fees to the probate court for

further proceedings. Id. at 150. A concurring justice agreed that the correction instrument was

invalid, but disagreed with the court’s construction of the Property Code in some respects. Id. at

150–53. (Alvarez, J. concurring).

7
 The Bank and Remaindermen3 appeal, complaining that the 2013 Amended Correction

Deed complies with the Property Code’s requirements for a material-correction instrument and

that the court of appeals therefore erred in holding it invalid. Yates and its assignees respond

that the 2013 Correction Deed is not only invalid, as the court of appeals’ has determined, but is

also barred by limitations. Thus, even were we to disagree with the court of appeals’ application

of the Property Code, Yates argues we should nevertheless render judgment barring the Bank’s

suit to enforce the amended correction instrument.

We begin with the issue the court of appeals found dispositive: Whether the execution of

the 2013 Amended Correction Deed complies with Property Code section 5.029 and thus validly

corrects a material error in the original 2005 Mineral Deed. Id. at 146.

II. The Correction-Instrument Statutes

Section 5.029 is part of a group of statutes that provide for the correction of errors in a

recorded instrument of conveyance with a subsequently recorded “correction instrument.” See

TEX. PROP. CODE §§ 5.027–.031 (providing for the use of correction instruments to remedy

errors in real property conveyances).4 Under these statutes, “[a] correction instrument replaces

3
Remaindermen also present a new theory as to why they should prevail. They argue that the original conveyance in
2005 should be declared void because the Bank did not have authority as Trustee to convey the mineral interest in fee
simple to John. Consequently, they submit, the 2006 Correction Deed is the valid, original conveyance of the property,
and it conveyed only a life estate in the property to John. This theory was not presented to the probate court as a ground
for summary judgment, nor was it argued in the court of appeals. The complaint is further inconsistent with the summary
judgment rendered below in the Remaindermen’s favor—a judgment they ask this Court to reinstate, among other things.
The argument has not been properly raised or preserved for appellate review.
4
See also Tanya L. McCabe Trust v. Ranger Energy, LLC, 531 S.W.3d 783, 794 (Tex. App.–Houston [1st Dist.] 2016,
pet. denied) (noting that the correction-instrument statutes were added to the Property Code in 2011 in response to this
Court’s decision in Myrad Properties, Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746 (Tex. 2009), which addressed
the limited scope of correction instruments in the real-estate context).

8
and is a substitute for the original instrument” and is “(1) effective as of the effective date of the

recorded original instrument of conveyance; (2) prima facie evidence of the facts stated in the

correction instrument; (3) presumed to be true; (4) subject to rebuttal; and (5) notice to a

subsequent buyer of the facts stated in the correction instrument.” Id. § 5.030(a)–(b). Correction

instruments may be used to correct both material and non-material errors. See id. §§ 5.028

(pertaining to non-material errors), 5.029 (pertaining to material errors).

The error here is material, and thus the correction instrument must comply with 5.029.

That section provides in pertinent part that an instrument to correct a material error “must be”:

(1) executed by each party to the recorded original instrument of conveyance the
correction instrument is executed to correct or, if applicable, a party’s heirs,
successors, or assigns; and

(2) recorded in each county in which the original instrument of conveyance that is
being corrected is recorded.

Id. § 5.029(b)(emphasis added). Thus, an instrument intended to correct a material mistake must

be executed by each party to the original transaction, or by an appropriate alternate, and recorded

in the relevant county to be a valid “substitute for the original instrument.” Id. § 5.030(b).

The dispute here is about when a party’s heirs, successors, or assigns are “applicable,”

such that their signatures are necessary to validate a material correction under the statute. The

Bank argues that “a party’s heirs, successors, or assigns” are merely substitutes whose signatures

are unnecessary unless an original party is unavailable to execute the correction instrument.

Yates responds that it is not the agreement of the original parties to the mistake that controls who

must sign, but rather who controls the property at the time of the proposed correction. Thus, if

9
an heir, successor, or assign acquires an interest in the property before a correction instrument is

properly executed and recorded, Yates contends, such an acquiring third party must join in the

instrument to validate a material correction.

The court of appeals agreed with Yates. The court construed “or, if applicable” as a

conditional clause, separating the statute’s primary and alternative options as to who should sign

and triggered by any transfer of ownership. 609 S.W.3d at 148. Because the phrase was not

otherwise defined in the statute, the court relied on the common meaning of its words, reading

“or” as “a disjunctive conjunction used ‘to link alternatives’” and “if applicable” as “a

conditional clause meant to apply when appropriate or relevant.” Id. (quoting WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY 76, 865, & 1232 (2002)). The court then reasoned that

“which of the two separate ways a correction instrument making a material change must be

executed depends on whether the condition outlined by the ‘if applicable’ provision is

triggered.” Id. Finally, the court concluded that anyone who acquired a property interest in the

original conveyance—whether as an original party’s heir, successor, or assign—was relevant and

appropriate to sign the correction instrument:

We hold the provision is triggered and a correction instrument making a material
change must be executed by a party’s heirs, successors, or assigns, as opposed to
the original parties of the recorded instrument, if the property interest conveyed in
the original instrument has been assigned or conveyed by an original party to that
party’s heirs, successors, or assigns.

Id. It was, the court explained, the current ownership interest of John’s assigns (Yates’s

assignees) that made them “relevant parties who were required to sign” the correction

instrument. Id.

10
 III. Material Corrections under Section 5.029

The Bank contends that a correction deed signed by all parties to the original deed is

valid under 5.029, even though one of them no longer owns the property or others have acquired

an interest. The Bank submits that 5.029 plainly permits the parties to an original conveyance to

correct a material mistake, without having to resort to litigation. It also agrees that the statute

allows for third parties to sign a correction instrument under certain circumstances. But the use

of “or” indicates that, while permissible substitutes, those other parties are not necessary if all

the original parties agree to correct their mistake. The Bank thus objects to the court of appeals’

interpretive leap from the potential relevance of a third party to the original conveyance to a

statutory requirement that such party sign the correction instrument. See id. (“John’s successors

and assigns were current interest holders at the time the 2013 Amended Correction Deed was

executed; in other words, they were relevant parties who were required to sign the new deed.”).

Whether 5.029 authorizes the original parties to the conveyance to correct a material

error in a deed, or requires the joinder of others who subsequently acquire interests in the

property, is a matter of statutory construction. Such matters are legal questions that we review

de novo. Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).

Our objective in construing a statute is to effectuate the Legislature’s intent as we find it in the

statute’s text. Id.; see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,

865–66 (Tex. 1999) (noting that the Legislature’s words are the best guide to its intent). We do

not consider statutory provisions in isolation but rather seek their meaning from the statute as a

whole. Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 572 (Tex. 2016). We further “presume

11
the Legislature included each word in the statute for a purpose and that words not included were

purposefully omitted.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per

curiam). We rely on the plain meaning of the text “unless a different meaning is apparent from

the context or the plain meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell,

356 S.W.3d 407, 411 (Tex. 2011). We apply any definitions the statute supplies, but if a term is

not defined, we “interpret the term according to its ordinary meaning.” Tex. Dep’t of Crim. Just.

v. Rangel, 595 S.W.3d 198, 208 (Tex. 2020).

Not surprisingly, the statute here does not define “or” or “if applicable.” The court of

appeals accordingly consulted a dictionary for the commonly understood meaning of these

words. We do so as well. “Or” is “used as a function word to indicate (1) an alternative between

different or unlike things, states, or actions,” “(2) choice between alternative things, states, or

courses,” or “(3) the synonymous, equivalent, or substitute character of two words or phrases.”

Or, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED (ONLINE) (2021).

Consistent with that definition, this Court has recognized that “or” is typically understood as a

disjunctive term, meaning that either of the separated words or phrases may be employed

without the other. See, e.g., Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015)

(interpreting “or” as indicating separate prongs in the Tort Claims Act’s phrase “condition or

use,” either of which may be used to demonstrate a waiver of sovereign immunity); Spradlin v.

Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000) (noting that separating two phrases

with the conjunction “or” “signifies a separation between two distinct ideas”). “Applicable” is

defined as “capable of being applied; having relevance” and “fit, suitable, or right to be applied.”

12
Applicable, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED (ONLINE)

(2021). Thus, we generally agree with the court of appeals that “if applicable” conditionally

introduces the phrase “heirs, successors, or assigns,” signaling that the phrase is meant to apply

when relevant or appropriate.

The parties also have no apparent disagreement over the ordinary meaning of these

words. They agree that an original party’s “heirs, successors, or assigns” may execute a

correction instrument, instead of the original party, when relevant and appropriate. But they

disagree about what makes an original party’s “heirs, successors, or assigns” relevant and thus

an appropriate party to sign the correction instrument.

The Bank argues that the alternates are irrelevant when an original party is available and

signs the correction instrument. It further submits that the original parties are the statute’s

primary alternative because they are in the best position to know the true intent of the original

instrument. The court of appeals disagreed, however, holding that title to the property should

determine relevance and who must sign. 609 S.W.3d at 148. The court reasoned that if an heir,

successor, or assign of an original party exists, it is the appropriate party to sign a correction

instrument under 5.029. Id. The appellate court thus views the “or, if applicable” phrase as a

triggering provision in which the original parties must sign the correction instrument so long as

there are no heirs, successors, or assigns; but if there are heirs, successors, or assigns, then the “if

applicable” provision is triggered, and the relevant alternates must sign the correction

instrument.

The Bank complains that the statutory text does not support the court of appeals’

13
preference for the joinder of alternates merely because they exist. We agree to the extent that

nothing in the text of 5.029 indicates a preference one way or the other: Either that the

Legislature intended for the original parties to sign, if they were available, or that it intended for

an alternate to sign, once the alternate acquired an interest in the original conveyance. If the

Legislature’s intent was the latter, however, the Bank reasonably questions why it chose “if

applicable” to express that intention, instead of a simply providing that correction deeds must

include the signatures of all current property owners. The court of appeals, however, was

persuaded to that view by a concern that the Bank’s “interpretation would render the conditional

clause, ‘if applicable,’ meaningless.” Id.

Whether the “if applicable” phrase is triggered by the transfer of title or by the absence of

an original party makes no difference when the alternative is the original party’s heirs or

successors.5 Under either scenario, the original party is not available to execute a correction

instrument and title is held by another. Thus, either party’s interpretation is satisfied and neither

renders the conditional clause meaningless. However, an original party’s assignment of an

interest in the property presents a different situation because the original party may remain
5
The Legislature has defined the term “heir” to mean “a person who is entitled under the statutes of descent and
distribution to a part of the estate of a decedent who dies intestate,” including the “decedent’s surviving spouse.” TEX.
EST. CODE § 22.015. Corporations and other business entities do not have heirs, but they can have successors. In the
classic sense of the term, the “successor” of a business entity is not an assignee, but rather refers to rights and obligations
transferred by merger, consolidation, or other legal succession. Enchanted Ests. Cmty. Ass’n, Inc. v. Timberlake
Improvement Dist., 832 S.W.2d 800, 802 (Tex. App.—Houston [1st Dist.] 1992, no writ). Individuals, on the other
hand, have heirs but are not ordinarily thought of having successors. But see Howell v. Murray Mortg. Co., 890 S.W.2d
78, 83 (Tex. App.—Amarillo 1994, writ denied) (noting that in common parlance successor means anyone who follows
and when used as a legal term applying to a natural person may refer to an estate administrator or other legal
representative). The term’s meaning “when used in a contract, depends largely on the kind and character of the contract,
its purposes and circumstances, and context.” Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 894 (Tex. 2017) (citation
omitted). In the context of this statute, the term “successors” fills the gap between “heirs” and “assigns,” covering
entities and legal representatives who succeed an original party other than as an heir or assign.

14
available to correct a material mistake in the original conveyance. Certainly, the existence of a

subsequently acquired interest in the original conveyance is a common thread among these

alternatives, but only in the instance of an assignment does a choice arise. Assuming that the

statute requires that a choice be made, what in the statute’s text makes the assign the prevailing

choice?

The text of 5.029 merely provides that “the parties to the original transaction or the

parties’ heirs, successors, or assigns, as applicable may execute a correction instrument to make

a material correction” and that the correction instrument “must be executed by [the original

parties] or, if applicable, a party’s heirs, successors, or assigns.” TEX. PROP. CODE § 5.029(a),

(b)(1). Nothing in this text indicates that an assign must assent to a correction instrument when

each party to the original conveyance is available to correct their mistake by executing a

correction instrument. Rather, when read along with the disjunctive “or,” “if applicable” simply

emphasizes that the phrase “party’s heirs, successors, or assigns” may be relevant when the

original party is unavailable and, in that case, may serve as a substitute. See id. Accordingly,

section 5.029 is satisfied when all the original parties agree to sign the correction instrument.

Because this section provides for unanimous agreement among the parties to an original

conveyance as a means to correct a material error and does not otherwise provide that the

existence of an assign must supersede or replace that method, we conclude that the court of

appeals erred in holding that the statute requires the joinder of assigns to validate the correction

instrument.

But Yates submits that underlying the court of appeals’ application of the material-

15
correction statute is the common-sense notion that a correction deed that affects the interests of

current title holders should not be effective unless signed by the current owners. Indeed, implicit

in the court of appeals’ preference for the assigns of an original party is the court’s apparent

concern about protecting the interests of subsequent purchasers.

The Bank concedes that this is a legitimate concern as well, but complains that the

appellate court has erroneously addressed it. Rather than curtail who can execute a valid

correction instrument under 5.029, the court should have turned to section 5.030, which is the

Legislature’s response to that concern. When properly construed, the Bank maintains, these

provisions authorize a correction deed signed by all parties to the original deed under section

5.029, even if one of them no longer owns the property, but subjects the correction instrument to

the interests of innocent purchasers under section 5.030.

As a contextual matter, we interpret related provisions in light of the statutory scheme as

a whole. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018). The

correction-instrument statutes generally provide that a compliant correction instrument may be

used to correct an “ambiguity or error that relates to the description of or extent of the interest

conveyed.” TEX. PROP. CODE § 5.027(a). These statutes also generally incorporate the

protections of the recording statute by subjecting correction instruments to section 13.001 of the

Property Code. Id. § 5.027(c). Under section 13.001, “[a] conveyance of real property or an

interest in real property . . . is void as to” a bona fide purchaser “unless the instrument has been

acknowledged, sworn to, or proved and filed for record as required by law.” Id. § 13.001(a).

Section 13.001 further states that an “unrecorded instrument is binding” only “on a party to the

16
instrument, on the party’s heirs,” and on subsequent purchasers who are not bona fide

purchasers. Id. § 13.001(b). A bona fide purchaser is one who “acquire[s] property in good

faith, for value, and without notice of any third-party claim or interest.” Madison v. Gordon, 39

S.W.3d 604, 606 (Tex. 2001) (per curiam). “Notice may be constructive or actual.” Id. Thus, if

a correction instrument is not recorded before a bona fide purchaser obtains an affected property

interest, sections 5.027 and 13.001 provide that the correction instrument has no effect on the

bona fide purchaser. See id.

Once a correction instrument has the requisite signatures and is recorded, however, it is

“effective as of the effective date of the recorded original instrument of conveyance.” Id.

§ 5.030(a)(1). That means that a properly executed correction instrument, when recorded,

“replaces and is a substitute for the original instrument.” Id. § 5.030(b).6 But consistent with

section 13.001’s protections for bona fide purchasers, one notable exception to section 5.030’s

retroactive effect exists: “A correction instrument is subject to the property interest of a” bona

fide purchaser that was “acquired on or after the date the original instrument” was recorded “and

before the correction instrument” was recorded. Id. § 5.030(c). Thus, even when a correction

instrument is properly executed and recorded, a bona fide purchaser’s property interest still

controls if the purchaser acquired its interest prior to the correction instrument being recorded.

See id. (protecting the property interest of a “subsequent purchaser for valuable consideration

without notice”).

Taken together, these provisions indicate that original parties to a deed can effectuate a
6
Section 5.030(b) further states that bona fide purchasers “may rely on the [correction] instrument against any persons
making an adverse or inconsistent claim.” TEX. PROP. CODE § 5.030(b).

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correction instrument under 5.029 without the signatures of subsequent purchasers or current

property owners. See id. §§ 5.027, .030, & 13.001. If bona fide purchasers—as current property

owners—were otherwise required to sign a correction instrument for it to take effect, the

protection for bona fide purchasers afforded by those sections would be pointless. After all,

those protections are necessary only when a bona fide purchaser has not consented to the change

but still is affected by it—a situation that may occur when the original parties to an instrument

all sign on to a correction instrument. That aligns with the important policy consideration of

providing title stability to innocent purchasers. Thus, the statutory scheme contemplates that

original parties can effectuate a correction instrument without the signatures of the current

property owners. See Rodriguez, 547 S.W.3d at 838 (“When interpreting each provision, we

must consider the statutory scheme as a whole.”).

The Legislature could have written 5.029 to require that all current owners of the

property must sign a correction instrument, but that is not what it says. And while 5.029

certainly permits an original party’s “heirs, successors, or assigns” to sign a correction

instrument if the original party is unavailable, the statute plainly does not require that they do so

when the original parties all execute the correction. The statute’s plain language and the

Property Code’s encompassing scheme, confirm that section 5.029(b)(1) is satisfied when all

parties to the original transaction agree to correct a material mistake in the original conveyance.

Because the 2013 Amended Correction Deed was executed and recorded in conformity with the

Property Code, the court of appeals erred in declaring the correction instrument invalid. See

TEX. PROP. CODE § 5.029(b).

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 IV. Limitations

Yates and its assignees argue in the alternative that the Bank’s lawsuit here is barred by

limitations. Yates submits that the underlying litigation is in substance a suit to reform the 2005

Mineral Deed to which a four-year statute of limitations applies. According to Yates, that four-

year period began to run when the Bank executed the 2005 Deed and thus expired long before

the Bank commenced this litigation. Yates complains that the Bank has been allowed to

circumvent limitations by nominally pleading their suit as a declaratory judgment action to

construe the validity of the 2013 Correction Deed, when in substance it is a time-barred suit to

reform the 2005 Mineral Deed. See Cosgrove v. Cade, 468 S.W.3d 32, 35 (Tex. 2015) (applying

the residual limitations period to deed-reformation claims); see also TEX. CIV. PRAC. & REM.

CODE § 16.051 (“Every action for which there is no express limitations period, except an action

for the recovery of real property, must be brought not later than four years after the day the cause

of action accrues.”).

While we agree that the residual, four-year statute of limitations applies to reformation

suits, we do not agree that the Bank’s action here was such a suit. Causes of action and self-help

provisions are not interchangeable concepts. A distinction thus exists between (1) seeking the

judicial remedy of deed reformation and (2) voluntarily seeking to correct a deed by agreement.

Parties attempting the latter are not limited to doing so within four years of their mistake. See,

e.g., Garcia v. Reverse Mortg. Sols., Inc., No 04-18-00736-CV, 2019 WL 2996971, at *3 (Tex.

App.—San Antonio 2019, no pet.) (holding that Tex. Civ. Prac. & Rem. Code § 16.051 “does

not apply to a party filing a corrected instrument in the county’s public records” pursuant to Tex.

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Prop. Code § 5.029). Neither section 5.027, which pertains to correction instruments generally,

nor sections 5.029 and 5.030, which pertain to material-correction instruments and their effect,

mention any such time constraint. See Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex.

2019) (noting the presumption that legislative omissions are purposeful). The Property Code

does not require that parties correcting an instrument pursuant to 5.029 do so within four years of

the mistake.

Nor does the residual statute of limitations provision suggest anything different. See

TEX. CIV. PRAC. & REM. CODE § 16.051 (“Every action for which there is no express limitations

period . . . must be brought not later than four years after the day the cause of action accrues.”).

That provision applies only to an “action,” that is, “a cause of action subject to the statute of

limitations;” it does not apply to a self-help remedy to correct an instrument outside the judicial

system. See Yowell v. Granite Operating Co., ___ S.W.3d ___, ___ (Tex. 2020); No. 18-0841,

2020 WL 2502141, at *10–11 (Tex. May 15, 2020) (holding a statutory “instruction to courts” is

not “a cause of action subject to a statute of limitations”). Indeed, the very purpose of enacting

section 5.029 was to allow parties to correct deeds without invoking the judicial process. See

TEX. PROP. CODE § 5.029; see also Myrad Props., Inc., 300 S.W.3d at 749–50 (noting the

limitations for a consensual correction of a material mistake in a deed outside the judicial

remedies of reformation and rescission); Tanya L. McCabe Trust, 531 S.W.3d at 794 (observing

that the addition of the correction-instrument statutes to the Property Code in 2011 was in

response to this Court’s decision in Myrad addressing the limited scope of such instruments).

Yates, however, points to our decision in Cosgrove v. Cade, 468 S.W.3d 32 (Tex. 2015),

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for the notion that, at bottom, the claim here is one for reformation that is time barred. In that

case, sellers sued buyer over a land transaction. The sales contract stated that sellers retained all

mineral rights, but the deed mistakenly conveyed the property in fee. Id. at 35. Over four years

after executing the deed, seller demanded that buyer issue a correction deed, pointing to one of

the closing documents that bound the parties to “fully cooperate, adjust, and correct any errors or

omissions and to execute any and all documents needed or necessary to comply with all

provisions of the [sales contract].” Id. Buyer refused to correct the deed, and sellers sued,

seeking “a declaratory judgment that [sellers] owned the mineral interests” based on the closing

documents’ requirement for cooperation in correcting errors. Id.

We held that the sellers’ claims were time barred. Noting that “[a] plainly evident

omission on an unambiguous deed’s face is not a type of injury for which the” statute of

limitations would be tolled, we concluded that the sellers’ deed-reformation claim was too late.

Id. at 36–37. Similarly, we held that sellers’ contract claim was barred because sellers “were

charged with notice—as a matter of law and upon execution of the deed—that the deed failed to

retain their mineral rights.” Id. at 40. “To hold otherwise,” we said, “would circumvent the

statute of limitations by allowing an open-ended breach of contract claim that would defy,”

among other things, our holdings regarding tolling and deed-reformation claims. Id. at 39.

Like the sellers in Cosgrove, Yates submits that the Bank has tried to revive a barred

claim to reform a deed by characterizing it as something else. But Cosgrove is readily

distinguishable because no correction deed existed in that case for the court to construe. The suit

in Cosgrove was not about the validity of a correction instrument but about the buyer’s refusal to

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agree to a correction based on time-barred claims for breach of contract and reformation.

Critically, the Bank does not seek to reform the 2005 Deed through the judicial process

but rather to avail itself of a non-judicial, statutory process. See TEX. PROP. CODE §§ 5.027–.031

(the correction-instrument statutes). By enacting Property Code section 5.029, the Legislature

gave parties the ability to correct material mistakes in their deeds without resorting to lawsuits

for reformation or rescission. Enforcing a correction instrument that complies with the Property

Code therefore is not a judicial reformation of the original conveyance. If the Trustee and other

parties to the original conveyance have properly executed the correction, they have themselves

replaced the original deed and substituted the correction. Id. § 5.030(b). Section 5.029 thus

provides the basis for the declaratory action here, but the statute does not require the parties

correcting an instrument do so within four years of their mistake. We accordingly reject Yates’s

argument that the Trustee’s suit to construe the Property Code’s correction-instrument provisions

and determine the validity of the 2013 Correction Deed was in substance a deed-reformation

suit, subject to the residual, four-year statute of limitations.

V. Innocent Purchasers

Some of the parties who acquired their interests from John through Yates seek a remand

to the court of appeals to consider an argument not addressed in that court. They argued there

that, even if the 2013 correction deed were valid, their subsequently acquired property interests

were protected under section 5.030 because of their status as bona fide purchasers. The court of

appeals considered the issue to be immaterial after determining the correction instrument invalid

under section 5.029. But because we disagree with the court’s reading of 5.029, the argument is

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no longer immaterial and should be considered. We accordingly remand to the court of appeals

for it to consider the parties’ arguments in light of the summary judgment ruling that neither

Yates nor its assigns are bona fide purchasers.

*****

In summary, we hold that the original parties to a recorded original instrument of

conveyance may validly execute a correction instrument under section 5.029, even after a third

party has acquired an interest in the original transaction. And although 5.029 permits an original

party’s “heirs, successors, or assigns” to sign a correction instrument “if applicable,” the statute

does not require that they do so when the original parties all execute the correction. Id.

§ 5.029(b)(1). A validly executed correction instrument replaces and is a substitute for the

original instrument, but the correction may not affect the property interest of a bona fide

purchaser. Id. § 5.030(b)–(c). Thus, to the extent that John’s assigns are able to establish their

status as bona fide purchasers, their interests are protected.

The judgment of the court of appeals is reversed and the cause remanded to that court for

further proceedings consistent with this opinion.

__________________________________
John P. Devine
Justice

OPINION DELIVERED: May 14, 2021

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