COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
A.S. HORNER, INC., § No. 08-18-00044-CV
Appellant, § Appeal from the
v. § 384th District Court
RAFAEL NAVARRETTE, § of El Paso County, Texas
Appellee. § (TC# 2015DCV3144)
DISSENTING OPINION
What utility would be had by a statute allowing the State and TXDOT, who merely
maintain a highway overpass, to be liable for injury caused by construction of the overpass but
allowing the contractor who actually constructed it to never be subject to liability? To me, such an
interpretation of section 97.002 of the Texas Civil Practice and Remedies Code is unreasonable,
and one must look no further than the plain language of the statute to see why this is so. For this
reason, I must respectfully dissent.1
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In a companion case based on the same facts, Navarrette sought a bill of review against the State and TXDOT based
on the same premises-liability and negligence claims he asserted against A.S. Horner here. State v. Navarrette, No.
08-18-00017-CV, at *1-2 (Tex. App. – El Paso March 19, 2021, no pet. h.). Although the trial court agreed that
Navarrette was entitled to a bill of review, the majority in that case reversed the trial court’s judgment and rendered a
dismissal based on the rationale that Navarette failed to prove his bill of review where there was no evidence that
Appellants had actual notice of his claims under Texas Civil Practice and Remedies Code section 101.101. Id. at *10-
11. I dissented from the majority’s rationale because I would have instead held that Navarrette established TXDOT
was subjectively aware of possible fault, even if, as a matter of policy, TXDOT did not take steps to investigate
At the outset, I must note that I have no disagreement with the majority’s recitation of the
material facts, nor its articulation of the governing legal principles of statutory construction listed
in subjection B of the majority opinion. Simply, my disagreement lies only within the majority’s
application of those legal principles to section 97.002. I agree with Navarrette’s interpretation of
section 97.002 and would hold that the statute applies only in the context of active construction,
rather than also applying to damage, injury, or death occurring after construction is completed.
As a refresher, I set out here the complete text of Texas Civil Practice and Remedies Code
section 97.002 and highlight the two portions that Navarette underscores to support the
interpretation of the statute that I would endorse:
A contractor who constructs or repairs a highway, road, or street for the Texas
Department of Transportation is not liable to a claimant for personal injury,
property damage, or death arising from the performance of the construction or
repair if, at the time of the personal injury, property damage, or death, the contractor
is in compliance with contract documents material to the condition or defect that
was the proximate cause of the personal injury, property damage, or death.
TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. And while Navarrette places special emphasis on
those two phrases, he also argues that this Court must consider the specific statutory language at
issue while looking to the statute as a whole, rather than as isolated provisions. See KMS Retail
Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 183 (Tex. 2019).
Having set that groundwork, I first turn to the disputed phrase “arising from the
performance” in section 97.002. See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002 (no liability for
personal injury “arising from the performance of the construction or repair”). Citing to one of our
sister intermediate courts and to a dictionary source, the majority concludes that “performance”
encompasses both ongoing and completed construction because the common meaning of the word
Navarrette’s accident after one of TXDOT’s area engineers learned about it. See State v. Navarrette, No. 08-18-00017-
CV, at *1-2 (Tex. App. – El Paso March 19, 2021) (Rodriguez, C.J., dissenting).
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“performance” has no inherent temporal limitation and may refer to past as well as present
performance. See Liberty Surplus Ins. Corp. v. Exxon Mobil Corp., 483 S.W.3d 96, 104 n.5 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied); see also Merriam-Webster’s Collegiate Dictionary
920 (11th ed. 2014). I find no reason to disagree with the majority’s rationale that the definition of
“performance” can apply to both present and past acts. However, rather than immediately drawing
a conclusion that “performance” must encompass both ongoing and completed construction for
that reason alone, I would instead look to surrounding, contextual words in construing the statute
as a whole. See KMS Retail, 593 S.W.3d at 183.
In construing the phrase “arising from the performance[,]” I observe that consideration of
the immediately following words generates the phrase “arising from the performance of the
construction or repair . . . .” See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002 (emphasis added).
If the Legislature intended the plain language of this phrase to apply to both ongoing and completed
construction and repair, it could easily have written “arising from the construction or repair”;
however, the Legislature chose not to do so, and this Court must assume that it included the
additional words “the performance of” to impart a certain, more limited meaning than concluded
by our colleagues in the majority. See Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830,
838 (Tex. 2018) (“We read statutes contextually to give effect to every word, clause, and sentence
. . . because every word or phrase is presumed to have been intentionally used with a meaning and
a purpose.”) (internal citation omitted); TGS-NOPEC Geophysical Co v. Combs, 340 S.W.3d 432,
439 (Tex. 2011) (presuming that the Legislature “chooses a statute’s language with care, including
each word chosen for a purpose, while purposefully omitting words not chosen”). Reading the
phrase “arising from the performance of the construction or repair[,]” I believe the plain meaning
of this phrase limits “performance” to only ongoing construction or repair. Had the Legislature
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intended to adopt the broader, non-temporally limited definition of “performance,” it would not
have taken pains to add additional words to more clearly impart use of a limited definition of
“performance” applying only to ongoing construction. Indeed, the Legislature has indicated an
intent to use the word “performance” in such a manner – to mean only a contemporaneous
“performance” – in other statutes, as well. See TEX. INS. CODE ANN. § 4102.002(2) (“This chapter
does not apply to . . . an attorney engaged in the performance of the attorney’s professional
duties[.]”).
Second, another portion of section 97.002 supports my view that, as used in the statute,
“performance” refers to a contemporaneous construction or repair if we construe the statute as a
whole. Consider the phrase “if, at the time of the personal injury . . . the contractor is in
compliance with contract documents . . . .” See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002 (no
liability for injury “if, at the time of the personal injury, property damage, or death, the contractor
is in compliance with contract documents”) (emphasis added). If the Legislature had intended the
statute to encompass completed construction or repair, it could have more aptly written “the
construction or repair is in compliance[,]” and such phrasing would, of course, encompass both
ongoing and completed construction or repair. However, the phrasing actually enacted focuses on
the state of the contractor, rather than the state of the construction or repair. Once a contractor
completes a construction or repair, how (or why, for that matter) would contract documents dictate
the actions of a contractor any longer? I believe that the specific use of the word “contractor” in
this additional phrase shows the Legislature contemplated that section 97.002 would encompass
only ongoing construction or repair.
Third and finally, I briefly turn to the majority’s discussion on the phrase “constructs or
repairs” in section 97.002. See id. I believe the Legislature could have easily written the phrase as
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“constructed or repaired” if it clearly wanted to indicate its intention that, as a whole, section
97.002 applies to completed construction or repair. Nonetheless, I agree with my colleagues on
the rationale that “constructs or repairs” is a restrictive clause that modifies the noun “[a]
contractor” and does not so modify the later phrase “performance of the construction” as argued
by Navarrette. But even adopting the majority’s rationale on that phrase, it does not affect my view
that the overall language in section 97.002 – when viewed together as a whole, as this Court is
required to do – plainly indicates a clear intention by the Legislature that the statute applies only
to active construction and not completed construction. See KMS Retail, 593 S.W.3d at 183 (“While
we must consider the specific statutory language at issue, we must do so while looking to the
statute as a whole, rather than as isolated provisions.”) (internal quotation marks omitted).
Ultimately, the interpretation of section 97.002 adopted by my colleagues would allow
contractors who constructed or repaired roadways to escape liability forever and until the end of
time. As I see it, such an outcome defies sound Legislative sense, and it defies the plain language
of the statute. For the foregoing reasons, I must respectfully dissent.
YVONNE T. RODRIGUEZ, Chief Justice
March 19, 2021
Before Rodriguez, C.J., Palafox, J., and McClure, C.J. (Senior Judge)
McClure, C.J. (Senior Judge), sitting by assignment
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