# Lower Colorado River Authority v. Texas Department of Water Resources

> Texas Supreme Court · May 22, 1985 · 28 Tex. Sup. Ct. J. 420

URL: https://www.frixlaw.com/law-library/cases/9660722

## Case

- **Full name:** LOWER COLORADO RIVER AUTHORITY Et Al., Petitioners, v. TEXAS DEPARTMENT OF WATER RESOURCES Et Al., Respondents
- **Court:** Texas Supreme Court
- **Decided:** May 22, 1985
- **Citations:** 28 Tex. Sup. Ct. J. 420; 689 S.W.2d 873; 1985 Tex. LEXIS 921
- **Precedential status:** Published
- **Opinion:** Concurrence by Ray
- **Judges:** Kilgarlin, Ray
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9660722

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9660722. Public record. Not legal advice.