                                   NUMBER 13-10-00026-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


            IN RE SERVICE CORPORATION INTERNATIONAL AND
                   SCI TEXAS FUNERAL SERVICES, INC.
                    D/B/A MONT META MEMORIAL PARK


                            On Petition for Writ of Mandamus.


                                   MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Benavides
                       Per Curiam Memorandum Opinion1

        Relators, Service Corporation International and SCI Texas Funeral Services, Inc.

d/b/a Mont Meta Memorial Park, filed a petition for writ of mandamus in the above cause

on January 26, 2010. The Court requested and received a response to the petition from

the real party in interest, Norma Linda Sandoval, and such response was duly filed on

February 18, 2010. The Court, having examined and fully considered the petition for writ

of mandamus and the response thereto, is of the opinion that relators have not shown


        1
          See T EX . R. A PP . P. 52.8(d) (“W hen denying relief, the court m ay hand down an opinion but is not
required to do so.”); T EX . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions).
themselves entitled to the relief sought. See 9 U.S.C. § 5; In re FirstMerit Bank, N.A., 52

S.W.3d 749, 757 (Tex. 2001) (orig. proceeding) (stating that the “FAA permits the trial

court to choose an alternate set of arbitrators”); In re La. Pac. Corp., 972 S.W.2d 63, 64-65

(Tex. 1998) (orig. proceeding) (“Courts interpreting the “fail to avail” or “lapse” language of

the FAA have generally held that the section 5 substitution process should be invoked by

the trial court only when some “mechanical breakdown in the arbitrator selection process”

occurs or when “one of the parties refuses to comply, thereby delaying arbitration

indefinitely.”); see also Royce Homes, L.P. v. Bates, No. 01-08-00121-CV, 2010 Tex. App.

LEXIS 389, at *29-30 (Tex. App.–Houston [1st Dist.] Jan. 21, 2010, no pet. h.) (op.) (“Here,

the trial court did not abuse its discretion by appointing an arbitrator because the record

reflects that there was a mechanical breakdown in the process of appointing CAS as

arbitrator.”). Cf. TEX . CIV. PRAC . & REM . CODE ANN . § 171.041(b) (Vernon 2005) (providing

for the substitution of arbitrators where the agreed method of appointment of arbitrators

“fails or cannot be followed” under the Texas Arbitration Act); In re Brock Specialty Servs.,

Ltd., 286 S.W.3d 649, 656 (Tex. App.–Corpus Christi 2009, orig. proceeding) (applying

section 5 of the FAA to allow the trial court to choose an alternate arbitrator where the

arbitrator specified by contract was no longer in existence).

       Accordingly, the petition for writ of mandamus is DENIED. See TEX . R. APP. P.

52.8(a).

                                                          PER CURIAM

Delivered and filed the 23rd
day of February, 2010.




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