COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

A.S. HORNER, INC.,

Appellant,

v. 

RAFAEL NAVARRETTE,

Appellee.

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No. 08-18-00044-CV

Appeal from the

384th District Court

of El Paso County, Texas

(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.

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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 
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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