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  5. 764 S.W.2d 256 (1988)
 

PICKENS v. HOPE

No. 04-87-00475-CV.

764 S.W.2d 256 (1988)

John T. PICKENS, Appellant, v. J.A. HOPE, Jr., Appellee.

Court of Appeals of Texas, San Antonio.

December 7, 1988.

Attorney(s) appearing for the Case

Hubert W. Green, Robert W. Loree, Diego J. Pena, Green & McReynolds, James N. Castleberry, Jr., San Antonio, A.E. Aikman, Dallas, for appellant.

Charles J. Fitzpatrick, F.W. Baker, Annalyn G. Smith, Matthews & Branscomb, Jesse Gamez, San Antonio, for appellee.

Howard F. Moeck, Jr., Dallas, for amicus curiae Enserch Exploration, Inc. of Dallas.

Before CADENA, C.J., and ESQUIVEL and BISSETT, JJ.

OPINION

BISSETT, Justice (Assigned).

The controlling issue to be resolved in this appeal is whether the mineral fee owner (the holder of the executive rights) has breached a duty owed to the owner of a term non-participating royalty interest (the non-executive) by failing to lease his land to another for the development and production of tar from a deposit of tar underlying the land, or by failing to develop and...

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