
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00334-CV


In re Danilo Becerra




ORIGINAL PROCEEDING FROM TRAVIS COUNTY


M E M O R A N D U M   O P I N I O N

		In relator Danilo Becerra's petition for writ of mandamus, he seeks to compel the
trial court to vacate a discovery order dated June 5, 2009, and an order denying his motion to compel
arbitration.  Becerra further requests that we direct the trial court to enter an order
compelling arbitration of all claims of the real party in interest and staying the litigation pending the
outcome of arbitration. 
		Because Becerra sought to compel arbitration pursuant to the Texas General
Arbitration Act (TAA), Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-.098 (West 2005), the
appropriate vehicle for relief is by interlocutory appeal, rather than mandamus.  See Jack B. Anglin
Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (relief from trial court's denial of motion to compel
arbitration under TAA must be sought by interlocutory appeal, while relief from denial of motion to
compel under Federal Arbitration Act (FAA) must be sought by petition for writ of mandamus); see
also 9 U.S.C.A. §§ 1-16 (West 2009). (1) 
		The arbitration agreement between Becerra and the real party in interest, Oasis Legal
Finance, LLC, does not expressly invoke either the TAA or the FAA. (2)  Where, as here, an arbitration
agreement does not specify whether the FAA or the TAA applies, but states that it is governed by
the laws of Texas, both the FAA and the TAA apply unless the agreement specifically excludes
federal law.  See In re L&L Kempwood Assocs., L.P., 9 S.W.3d 125, 127-28 (Tex. 1999).  However,
Becerra's motion to compel specifically seeks arbitration "under Chapter 171 of the Texas Civil
Practice and Remedies Code," or the TAA.  Becerra cites the TAA three separate times in his motion
to compel, but does not indicate that he also seeks to compel arbitration under the FAA.  
		Where a party's motion seeks to compel arbitration solely under the TAA, the
trial court's order denying that motion cannot be considered subject to mandamus relief as a refusal
to compel arbitration under the FAA.  See ODL Servs., Inc. v. ConocoPhillips Co., 264 S.W.3d 399,
410-11 (Tex. App.--Houston [1st Dist.] 2008, no pet.).  In ODL Services, the court held that even
though both the FAA and the TAA applied to the agreement, the appellant "invoked only the FAA
to enforce the alleged arbitration agreement," and therefore the appellant's only available avenue for
relief was by petition for writ of mandamus.  Id. at 411.  The converse is true in the present case. 
While it appears that both the TAA and the FAA are applicable to the parties' arbitration agreement,
Becerra only sought to compel arbitration under the TAA.  Therefore, the trial court's order denying
Becerra's motion is not subject to mandamus relief as a refusal to compel arbitration under the FAA. 
Because Becerra has an adequate remedy on appeal in the form of an interlocutory appeal under
the TAA, see Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1), he is not eligible for mandamus
relief.  Accordingly, Becerra's petition is denied. (3)
 
 
___________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Puryear and Henson
Filed:   July 15, 2009



1.   The supreme court held in Tipps that "litigants who allege entitlement to arbitration under
the Federal Act, and in the alternative, under the Texas Act, are burdened with the need to pursue
parallel proceedings--an interlocutory appeal of the trial court's denial under the Texas Act, and a
writ of mandamus from the denial under the Federal Act."  Jack B. Anglin Co. v. Tipps, 842 S.W.2d
266, 272 (Tex. 1992). 
2.   There are a number of other parties in the underlying litigation, but Becerra and Oasis are
the only litigants involved in this original proceeding.
3.   Additionally, we dissolve the temporary stay of the trial court's order signed June 5, 2009,
imposed by order of this Court on June 17, 2009.

