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
OPINION ON MOTION FOR REHEARING
KILGARLIN, Justice.
The motion for rehearing of Lake Travis Improvement Association is granted in part. Our opinion of January 9, 1985 is withdrawn and this opinion is substituted therefor.
We grant in part the motion for rehearing filed by the Colorado River Municipal Water District and withdraw our previous judgment of November 14, 1984. The application for a water permit was filed by the district on February 21, 1978, at which time the priority date of the permit attached. From that time, Colorado River Municipal Water District proceeded through the administrative and judicial channels to obtain the permit. Because an examination of authorities on the issue demonstrates that a remand is more appropriate than a reversal and rendition, we reverse the judgments of the courts below and remand the cause to the Texas Department of Water Resources pursuant to our power under the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat. Ann. art. 6252-13a, § 19(e)(4) (Vernon Supp.1984). See also, e.g., Railroad Commission of Texas v. Home Transportation Co., 654 S.W.2d 432, 434 (Tex.1983); Lewis v. Metropolitan S & L Ass’n, 550 S.W.2d 11 (Tex.1977). The order dismissing the application of Lake Travis Improvement Association for want of jurisdiction is withdrawn and the application is granted and disposed of by the judgment in this cause. In all other respects, the motion by the district and the other motions for rehearing are overruled.