                                    NUMBER 13-09-00681-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 MAGIC VALLEY MEMORIAL GARDENS


                             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 Magic Valley Memorial Gardens, filed a petition for writ of mandamus in the above

cause on December 18, 2009. On December 28, 2009, relators filed a motion for

expedited relief in connection with this petition for writ of mandamus, which motion was



        1
          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
granted by this Court the following day. The Court requested and received a response to

the petition from the real parties in interest, Gabriel Serna and Yolanda Serna, and such

response and a supplemental record were duly filed on January 19, 2010. On January 25,

2010, relators filed a reply in support of their petition for writ of mandamus.

       The Court, having examined and fully considered the petition for writ of mandamus,

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

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




                                              2
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 stay previously imposed by this Court is LIFTED. See TEX . R. APP.

P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective

until the case is finally decided.”). The petition for writ of mandamus is DENIED. See id.

52.8(a).

                                                        PER CURIAM


Delivered and filed the 17th
day of February, 2010.




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