      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



                             MEMORANDUM OPINION


               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




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