law-arbitration-prearbitration-discovery under Texas law | Texas Supreme Court Arbitration Jurisprudence |

When a party disputes the scope of an arbitration provision or raises a defense to the provision, the trial
court, not the arbitrator, must decide the issues. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
444 (2006). And “[w]hen Texas courts are called on to decide if disputed claims fall within the scope of an
arbitration clause under the Federal Act, Texas procedure controls that determination.” Tipps, 842 S.W.2d
at 268. Pre-arbitration discovery is expressly authorized under the Texas Arbitration Act when a trial court
cannot fairly and properly make its decision on the motion to compel because it lacks sufficient information
regarding the scope of an arbitration provision or other issues of arbitrability. See Tex. Civ. Prac. & Rem.
Code §§ 171.023(b), 171.086(a)(4),(6). This, however, is not an authorization to order discovery as to the
merits of the underlying controversy. Motions to compel arbitration and any reasonably needed discovery
should be resolved without delay. Tipps, 842 S.W.2d at 269.
In Re Houston Pipeline Co., LP, No. 08-0800 (Tex. 2009)(per curiam) (discovery orders and motion to
arbitration)(interaction of federal FAA and state procedural law and TAA) (trial court ordered to rule
on motion to compel arbitration, and to lift
prearbitration discovery orders found excessively broad).
IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County;
13th district (
13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90,
08-26-08 Opinion of the Thirteenth Court of Appeals)
stay order issued October 17, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion [pdf - 4 pages]
Because the discovery ordered here is overbroad and beyond the issues raised in the motion to compel, we
conclude that the trial court abused its discretion by ordering this discovery rather than ruling on the legal
issues raised by the motion to compel. Accordingly, without hearing oral argument, we conditionally grant
the writ and direct the trial court to vacate the discovery order and to rule on the motion to compel