      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                    ON MOTION FOR RECONSIDERATION EN BANC



                                        NO. 03-08-00651-CV



                                      In re James Norton, Jr.




                       ORIGINAL PROCEEDING FROM BELL COUNTY



                               DISSENTING OPINION


               Because I believe that Norton’s petition for writ of mandamus should be granted

pursuant to In re Poly-America, L.P., 262 S.W.3d 337 (Tex. 2008), I respectfully dissent from the

denial of the motion for en banc reconsideration. In In re Poly-America, the Texas Supreme Court,

reviewing an arbitration agreement related to a retaliatory discharge claim, held that an arbitration

agreement covering statutory claims is invalid if it waives “the substantive rights and remedies the

statute affords” and that because the retaliatory discharge statute allows claimants to seek

reinstatement and punitive damages, a provision in the arbitration agreement waiving these remedies

was unconscionable. Id. at 349, 352; see also Tex. Lab. Code Ann. § 451.002 (West 2006). While

the court did allow the validity of the arbitration agreement’s fee-splitting provision to be determined

by the arbitrator, the retaliatory discharge statute contains no statutory right to any particular fee

arrangement. See id. §§ 451.001-.003 (West 2006).
               In the present case, Norton brings claims under certain usury provisions of the finance

code and the Texas Debt Collection Act—statutes which specifically provide a right to attorney’s

fees. See Tex. Fin. Code Ann. §§ 349.001(a)(2), .002(b), .004(2), 392.403(b) (West 2006). Because

Norton has a right to seek attorney’s fees under the relevant statutes, the fee provisions of the

arbitration agreement requiring Norton to bear his own costs are similar to the provisions waiving

reinstatement and punitive damages in In re Poly-America. Where, as here, a statutory right has been

waived in the arbitration agreement, the courts, rather than an arbitrator, should resolve questions

of unconscionability. Accordingly, I respectfully dissent.




                                              Diane M. Henson, Justice

Filed: April 17, 2009




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