The majority of this Court has held that the Commissioners' Court of Ector County was without authority to acquire land for The University of Texas and that acquisition of the 280 acres by the Board of Regents did not fulfill the requirements of House Bill 157 (Acts 1969, 61st Leg., ch. 459, p. 1523; Art. 2606c — 4, Vernon's Anno.Rev.Civ.Sts.). With this decision I am in accord and concur in such holding.
The majority has also held that the tract of 308 acres, which was a gift to the University free of any debt, was acquired by the Board of Regents in compliance with paragraphs (c) and (e) of H.B. 157.
It is with respect to the latter holding that I am not in agreement and file this dissent in order to state my reasons.
In my opinion the Board of Regents did not accept and acquire the 308 acres within the provisions of H.B. 157 and the Regents' decision to accept the land on stipulated conditions is contrary to the Act and therefore null and void.
The legislature, in H.B. 157, "authorized and directed' the Board of Regents "to establish and maintain a fully state-supported coeducational institution of higher learning to be known as The University of Texas of the Permian Basin."
"The site for said institution,' the legislature declared, "shall be chosen as provided for herein."
Section 4 of the Act stated that "The Board is hereby authorized and directed To establish the institution and Locate same on a site selected by the Board' as provided in subparagraphs (a) through (e). Subparagraph (a) required that the site "must be accessible Within a reasonable length of time to roads." Subparagraph (c) required that the Board "accept and acquire such site for said college within the provisions of this Act,' and under subparagraph (d) the Regents "shall in no event delay the acquisition of land for said Institution created herein within the provisions of this Act later than the 31st day of December, 1969." (Emphasis supplied). *Page 286
The Board of Regents accepted title to the 308 acres on December 12, 1969, nearly three weeks prior to the expiration of the period for acquisition fixed by the legislature. But in accepting the land the Regents, by resolution, put certain qualifications on any action it might take "to activate and operate The University of Texas of the Permian Basin."
The Board plainly stated that "other than acquisition' it would go no further to "activate and operate' the institution "unless and until each and all of the * * * conditions' set out by the Board were "satisfied and met." (Emphasis supplied). The first two conditions, that all oil and gas exploration, production, and marketing must be conducted in the future entirely from adjoining lands and that existing pipelines and other facilities on the site must be removed and relocated elsewhere, have not been, and are not likely to be, "satisfied and met." Getty Oil Company understandably has refused to comply with a request to make possible removal of either of these two conditions.
If the Board had regarded the 308 acres suitable, in the state in which the land was acquired, "to establish the institution and locate same on a site', the conditions, without satisfaction of which the Board declared it would take "no action to activate and operate' the institution, would have been wholly unnecessary. The Board obviously did not regard the site as suitable, and the record does not disclose that the Board, after hearing from Getty, decided to "activate and operate' the institution even though the conditions had not been satisfied.
The record shows, as pointed out by the majority, that oil and gas operations on the 308 acres are likely to continue for twenty to forty years, or perhaps for an undetermined additional period if secondary recovery operations are undertaken.
H.B. 157 evidences some urgency intended by the legislature in establishing the institution. Access roads were to be provided within a reasonable time. The Board was directed to establish and locate on the site an institution created in the Act itself. There is nothing in the legislative mandate to suggest authorization of a long delay, either in acquisition of the land or in activating and operating the college. Certainly it was not contemplated under terms of the Act that activation and operation would be delayed twenty to forty years, or until conditions imposed by the Regents should be satisfied.
It is my view that H.B. 157 did not authorize the Board to accept a site it clearly regarded as not suitable for the operation of an institution of higher learning. The Regents could not in one breath accept the land as a site for the college and in the next breath reject the site as not a fit place on which to activate and operate a college, without thereby departing from the legislature's plain mandate to find a site and establish on it the very institution of higher learning created in the Act. I would hold that the Board's acceptance was not within provisions of the Act. In so holding, this Court would not substitute its judgment for that of the Regents. The Court would but perform the judicial function of declaring the Board's action in fatal conflict with provisions of the Act. The Board's decision to qualify its acceptance with conditions, which, if not satisfied, condemned the site as unsuitable, did not follow the Act, and acceptance of the 308 acres under such circumstances should be declared null and void. Art. 2606c — 4, § 4, subp. (e). *Page 287