COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE STATE OF TEXAS AND TEXAS No. 08-18-00017-CV
DEPARTMENT OF TRANSPORTATION, §
Appeal from the
Appellants, §
v. 384th District Court
§
RAFAEL NAVARRETTE, of El Paso County, Texas
§
Appellee. (TC# 2017DCV3084)
§
DISSENTING OPINION
I, respectfully, dissent. The question is, I believe, if the State is represented by two different
actors, and one acts as if subjectively aware of fault and the other does not, has the State received
actual notice? I would find the undisputed evidence shows TXDOT was subjectively aware of
fault, but as a matter of policy only investigated accidents involving a fatality.
In January 2017, Ricardo Romero, in his deposition, stated he is the Area Engineer for the
East Area Office with Texas Department of Transportation. He is a registered Professional
Engineer working with TXDOT for 28 years at the time of the deposition. Romero was the
individual with the highest level of authority for the East Area Office.
Romero testified he was aware of the accident and that someone had fallen. The
maintenance department informed Romero of the accident the day after it occurred. However, a
couple of weeks later, he was told that Navarrette, a first responder, had fallen through the “gap in
between the interchange and the highway.” Romero did not go the accident scene, take pictures,
or speak with anyone else regarding the accident. Romero never told his supervisors, colleagues,
his lawyers, or anyone else at TXDOT about the accident. Romero did not make any diary or
journal entries. Romero stated that he would examine and inspect a road only when there is a
fatality.
Romero recalled the Maintenance Section was not called out to the accident initially but
was informed of it that night or the next day. The Maintenance Section, once alerted to an accident,
will document it with a diary and their time sheets. The Maintenance Section’s diary will record
what they were called out on and what they did.
Romero was the individual with the highest authority for his office. Maintenance informed
of the accident and Navarrette’s fall. These undisputed facts underpin a de novo review that the
Maintenance Section report of the accident and Navarrette’s fall to the highest authority in their
chain of command is indicative of their subjective awareness of TXDOT’s possible fault. The fact
Romero did not acknowledge such, coupled with his policy of only investigating cases involving
fatalities does not obviate the Maintenance Section’s subjective awareness of possible
responsibility or fault of TXDOT.
If governmental actors adopt a policy of “do nothing say nothing” by avoiding any
investigation or remedial measures, they are rewarded under the subjective awareness of fault
principle while the public lies unprotected. The element of subjective awareness presumes
government actors will act in the best interest of the public and their organization to maintain safe
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premises and avoid lawsuits. But, alas, this may not always be the case. We cannot allow
“subjective awareness of fault” to incentivize these state actors to ignore dangerous conditions.
The State should not be able to escape responsibility by their intentional or even negligent
blindness. How many people must be seriously injured or killed before an investigation is
conducted? Or a plan of remediation implemented? Here, seemingly, Navarrette’s survival cut off
TXDOT’s responsibility.
In regard to TXDOT’s remaining three issues that Navarrette has failed to adequately plead
the following elements of a bill of review: (3) Navarrette did not establish his entitlement to
judgment on his underlying premises liability claims; (4) Navarrette did not allege or prove
extrinsic fraud; and (5) Navarrette did not demonstrate a good excuse for his lack of diligence, I
would find Navarette’s pleadings are sufficient to invoke the trial court’s jurisdiction for these
elements of a bill of review. I would affirm the trial court’s denial of TXDOT’s motion to dismiss
Navarrette’s bill of review for lack of jurisdiction.
YVONNE T. RODRIGUEZ, Chief Justice
March 19, 2021
Before Rodriguez, C.J., Palafox, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge), sitting by assignment
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