
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-07-00078-CV


In re AXA Financial, Inc.; AXA Advisors, L.L.C.; AXA Equitable Life Insurance Co.,
f/k/a Equitable Life Assurance Society of The United States; and John Lefferts





ORIGINAL PROCEEDING FROM TRAVIS COUNTY


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

		Relators AXA Financial, Inc., and others bring this original proceeding seeking a writ
of mandamus compelling the trial court to order arbitration of all claims in the underlying lawsuit. 
Relators moved to compel arbitration under both the Federal Arbitration Act, 9 U.S.C.A. §§ 1-16
(West 1999), and the Texas Arbitration Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-.098
(West 2005).  The trial court denied relators' motion.  In addition to this original proceeding based
on the federal act, relators have filed an interlocutory appeal challenging the trial court's denial of
relators' motion to compel arbitration under the state arbitration act.  See AXA Financial, Inc. v.
Roberts, No. 03-07-00079-CV (Tex. App.--Austin, filed Feb. 12, 2007).
		Texas law permits an accelerated appeal from an order denying a motion to compel
arbitration under the state arbitration act.  Tex. Civ. Prac. & Rem. Code Ann. § 171.098.  When
proceeding in the state courts, there is no similar right of appeal from an order denying a motion to
compel arbitration under the federal act.  In re Valero Energy Corp., 968 S.W.2d 916, 916
(Tex. 1998) (per curiam).  Although the supreme court has held that mandamus relief is appropriate
when a state court erroneously denies a motion to compel arbitration under the federal act, see
Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271-72 (Tex. 1992) (orig. proceeding), the supreme
court has advised that "the better course of action for a court of appeals confronted with an
interlocutory appeal and a mandamus proceeding seeking to compel arbitration would be to
consolidate the two proceedings and render a decision disposing of both simultaneously."  In re
Valero Energy Corp., 968 S.W.2d at 916-17.  Following the supreme court's guidance in In re
Valero Energy Corp., we decline to consider relators' petition for writ of mandamus at this time, and
we consolidate the instant proceedings into the pending appeal in cause number 03-07-00079-CV. 
The record and all pertinent documents from this proceeding will be transferred into cause number
03-07-00079-CV.  There will be no further activity in cause number 03-07-00078-CV.


						__________________________________________
						Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Consolidated
Filed:   March 29, 2007
