
    WINTERMANN v. McDONALD, Land Com’r.
    No. 7063.
    Supreme Court of Texas.
    April 14, 1937.
    For former opinion, see 102 S.W.(2d) 167.
    Rex G. Baker, of Houston, and Powell, Wirtz, Rauhut & Gideon, of Austin, for relator.
    William McCraw, Atty. Gen., and H. Grady Chandler and Russell Rentfro, Asst. Attys. Gen., for respondents.
    Bramlette & Levy and Richard B. Levy, all of Longview, amici curise.
   SHARP, Justice.

The following language was used in the original opinion in this case: “That both surveyed and unsurveyed school lands situated within five miles of a producing oil or gas well are not subject to sale, but are subject to lease only.”

In order that there may be no confusion in applying the rule announced in the opinion, we here state that part of section 5 of H. B. No. 358 (Acts 1931, c. 271 [Vernon’s Ann.Civ.St. art. 5421c, § 5]) is not involved in this case. That part reads: “Any headright survey, homestead donation, pre-emption survey, scrip survey or other survey heretofore awarded or sold, which survey has been held and claimed in good faith by any party for a period of ten years prior to the date of application for patent and which surveys cannot be patented under existing laws, may be patented on payment of One Dollar ($1.00) an acre to the Land Commissioner.”

Therefore, it is not necessary to hold that land described in that part of said section cannot be acquired by purchase if it is situated within five miles of a producing oil or gas well. That question is not before us, and we express no opinion thereon.

With these statements, the motion for rehearing is overruled.  