holding that section 11.025 of the Water Code, which provides that water that has not been beneficially used is considered “not appropriated,” does not apply to the determination of whether unappropriated water is available under section 11.134(b)(2) of the Code
How later courts described this case
- holding that section 11.025 of the Water Code, which provides that water that has not been beneficially used is considered “not appropriated,” does not apply to the determination of whether unappropriated water is available under section 11.134(b)(2) of the Code
Written by the judges who cited it.
The opinion
RAY, Justice,
concurring.
I agree with the court’s conclusion that “unappropriated water” must not include water already granted under an existing, uncancelled permit. I do not agree with the court’s disposition of setting aside the Commission’s order. I would remand the case to the Commission for further proceedings in accordance with the opinion.
Under section 19(e)(4) of the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19-(e)(4)(Supp.1984), the court has authority to remand the case to the administrative agency if the findings of the agency are affected by an error of law. Railroad Commission of Texas v. Home Transportation Co. Inc., 654 S.W.2d 432, 434 (Tex. *883 1983). The Commission’s error was applying the wrong definition of “unappropriated water.” This court had not previously expressly addressed the question. Had the water district presented its application under the proper standard, it could have simultaneously sought partial or total cancellations of unused water rights under existing certified filings and permits. Although the district can now file a new application using the proper definition, that action would not be a complete remedy. Both the priority of an appropriation and the claimant’s right to use the water date from the filing of the application with the Department. Tex. Water Code Ann. § 11 .-141 (Supp.1984). Since the misconception of the law caused the Commission to commit error, I believe it is appropriate to preserve the district's priority by remanding to the Commission for proper proceedings under the correct legal standard. Cf. Lewis v. Metropolitan Savings and Loan Ass’n, 550 S.W.2d 11, 16 (Tex.1977); Lewis v. Gonzales County Savings and Loan Ass’n, 474 S.W.2d 453, 458-59 (Tex.1971).