                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS



    BENJAMIN TICE, JR.,                                             No. 08-13-00014-CV
                                                      §
                                     Appellant,                        Appeal from the
                                                      §
    v.                                                           327th Judicial District Court
                                                      §
    EL PASO EDUCATION INITIATIVE,                                 of El Paso County, Texas
    INC. d/b/a BURNHAM WOOD                           §
    CHARTER SCHOOL DISTRICT,                                       (TC# 2012-DCV04513)
                                                      §
                                     Appellee.
                                                      §


                                        MEMORANDUM OPINION

          In this employment-discrimination and -retaliation case, Benjamin Tice, Jr. appeals from

the trial court’s order granting El Paso Education Initiative, Inc. d/b/a Burnham Wood Charter

School District’s motion to compel arbitration and stay the proceedings. El Paso Education

Initiative now moves to dismiss the appeal for want of jurisdiction.1 Concluding that we lack

jurisdiction over this appeal, we dismiss it.

          It is well settled that appellate courts have jurisdiction over final judgments. Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if it disposes of all pending

parties and claims.           Id.   An order compelling arbitration and staying proceedings pending


1
    Tice has not responded.
arbitration does not dispose of all claims and parties. In re Gulf Exploration, LLC, 289 S.W.3d

836, 840-41 (Tex. 2009)(orig. proceeding).      Thus, the trial court’s order at issue here is

interlocutory.

       Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders

only if a statute explicitly confers appellate jurisdiction. See Stary v. DeBord, 967 S.W.2d 352,

352-53 (Tex. 1998). If a statute authorizes an interlocutory appeal, we strictly construe it. CMH

Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011); Nazareth Hall Nursing Ctr. v. Castro, 374

S.W.3d 590, 593 (Tex.App.--El Paso 2012, no pet.); Lucchese, Inc. v. Solano, 388 S.W.3d 343,

348 (Tex.App.--El Paso 2012, no pet.). The substance and function of the interlocutory order

from which an appeal is taken controls our interlocutory jurisdiction. Castro, 374 S.W.3d at 593;

Solano, 388 S.W.3d at 348; Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878

(Tex.App.--Houston [14th Dist.] 2011, no pet.).         When a party attempts to appeal a

non-appealable interlocutory order, we have no jurisdiction except to dismiss the appeal. Cantu

Servs., Inc. v. United Freedom Assoc., Inc., 329 S.W.3d 58, 63 (Tex.App.--El Paso 2010, no

pet.)[Quotation marks omitted].

       Under the Federal Arbitration Act (FAA), an order compelling arbitration and granting a

stay is not immediately reviewable. In re Gulf Exploration, LLC, 289 S.W.3d at 842; see 9

U.S.C.A. § 16(b)(1),(3)(West 2009)(interlocutory orders compelling arbitration and staying

proceeding are not immediately reviewable under the FAA). Because such an order is not

appealable under the FAA, it is not appealable under Section 51.016 of the Texas Civil Practice

and Remedies Code. See TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (West Supp. 2012)(in

matters subject to the FAA, an appeal is available only under the same circumstances that an


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appeal from federal district court’s order would be permitted). Here, both parties agreed at trial

that the arbitration agreement was governed by the FAA, not the Texas General Arbitration Act

(TAA). 2 The trial court’s order compelling arbitration and staying the proceedings pending

arbitration is therefore not reviewable by interlocutory appeal. We thus lack jurisdiction to

consider Tice’s appeal. Appellee’s motion to dismiss the appeal for want of jurisdiction is hereby

granted. Accordingly, we dismiss the appeal for want of jurisdiction.



March 13, 2013
                                                     YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




2
   Under the TAA, an order compelling arbitration is likewise not subject to immediate review. In re Gulf
Exploration, LLC, 289 S.W.3d at 842; see Tex.Civ.Prac.&Rem.Code Ann. § 171.098(a)(1)-(5)(West 2011)(no
express provision under the TAA authorizing appeal from trial court’s order compelling arbitration); see also
TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(1)-(11)(West Supp. 2012)(setting forth eleven types of appealable
interlocutory orders, none of which relate to arbitration proceedings). The TAA does, however, permit a party to file
an interlocutory appeal from an order “granting an application to stay arbitration made under Section 171.023 [of the
Texas Civil Practice and Remedies Code].” Tex.Civ.Prac.&Rem.Code Ann. § 171.098(a)(2). Under Section
171.023(a), “[a] court may stay an arbitration commenced or threatened on application and a showing that there is not
an agreement to arbitrate.” Id. at § 171.023(a). Nothing in the record indicates that when El Paso Education
Initiative moved to stay proceedings, it did so pursuant to Section 171.023 or that Tice sought an order staying
arbitration under section 171.023(a) on the ground that no agreement to arbitrate exists.
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