AAPL President’s Message Regarding Texas AG’s Wind Leasing Opinion

A message to members from AAPL President Brooks Yates, CPL:

On June 11, 2024, Texas Attorney General Ken Paxton issued an opinion in response to a request from the Texas Real Estate Commission (TREC) as to whether “a person who negotiates a wind lease (i.e., a lease in which a landowner leases the property for the development of a wind project) on behalf of another, for compensation, is required to hold a license issued by the Commission, either as a real estate broker or sales agent or an easement or right-of-way agent.” The Attorney General’s opinion held that “a person negotiating a lease for property of a wind power project on behalf of another, for compensation, is required to hold a license issued by the Commission.” While the opinion is unfavorable, it is not binding in any court and, at present, only serves as guidance to TREC. However, we want to ensure that AAPL members are protected against any possible ramifications for those working in not just wind leasing, but in all aspects of renewables leasing and production. 

AAPL strongly believes the Attorney General’s analysis of existing law was made in error as it fails to recognize the long-standing policy against licensing requirements for energy leasing, as well as lacking a basis in existing Texas judicial case law and even the legislative history of Texas lawmakers who wrote the very laws the Attorney General relies upon. 

Rest assured, all hands are on deck at AAPL and we are already working on a solution to clarify the law, mitigate the outcome and protect members to ensure such an opinion doesn’t happen again in other areas of renewable leasing and production. As always, protecting our members’ right to work and thrive is our number one priority!

In fact, AAPL Governmental Affairs has been engaged in this matter since the earliest stages when in November 2023, TREC first made their request. AAPL submitted a legal brief on behalf of members arguing that no such license is required – either by statute or regulation in Texas – and historically even TREC itself had never called for such licensing. Our position was supported by numerous industry stakeholders, including Texas lawmakers who supported the successful passage of AAPL-sponsored bill SB 604 which protects landmen who work in renewables. 

SB 604 – which was successfully enacted last year – provided first-ever benefits to landmen who work in renewables by extending exemptions that only previously existed in the oil and gas industry, such as unauthorized practice of law protections, exemption from franchise taxes, and independent contractor recognition. Importantly, our bill was passed to protect against just the type of interpretation made by the Attorney General, who seemingly misinterpreted the law, and with which we strongly disagree. But unfortunately, even Texas lawmakers, who argued on behalf of our bill protecting against any licensing requirement, were not able to persuade the Attorney General in this matter. 

So you know, AAPL is vigorously working to seek a legislative or regulatory fix. Fortunately, AAPL has influential members of the legislature in our corner as well as support from the governor in our recent legislative success, so we are confident that a beneficial solution is forthcoming. As always, we will continue to keep AAPL members and our industry partners informed as this process continues. Stay tuned! 

For further details, please refer to the Attorney General’s opinion and AAPL-sponsored bill SB 604