In Re Gulf Exploration, L.L.C., No 07-0055 (Tex. Apr. 17, 2009)(Brister)
arbitration mandamus, order compelling arbitration)   
The court of appeals believed this dispute was outside the scope of arbitration
because the disputed wells were outside the parties’ area of mutual interest, and
thus not within the scope of the arbitration clause.[45] But even assuming that is
correct (an issue we do not reach), Great Western has not shown that its
appellate remedy following arbitration is inadequate. Because it did not, the court
of appeals erred in reviewing this order anyway.
For the reasons stated above, we conditionally grant the petition for writ of
mandamus. We direct the court of appeals to vacate its judgment and order the
trial court to reinstate the order compelling arbitration.      
IN RE GULF EXPLORATION, LLC, ET AL.; from Midland County; 11th district (11-06-00244-CV, 211
SW3d 828, 11-30-06)         
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court. [link to pdf version]
Link to
Electronic Briefs

Texas Supremes Bar Mandamus to Halt Arbitration (Almost) (Barry Barnett blog) ("we respectfully
disagree with the court's justification for the differential treatment -- that the statutory allowance of
interlocutory review in the refusal-to-enforce scenario but withholding of it in the improper enforcement
setting makes all the difference.  Doesn't a disputant whose only possible remedy is mandamus (short
of appealing a final judgment that enforces an invalid arbitration award) need it even more?")
Mandamus review of order compelling arbitration (Jefferson Court Blog) ("Texas Supreme Court finds
that mandamus review is not available to vacate order compelling arbitration (this time)... and grants
mandamus relief."
Texas Supreme Court Orders Arbitration in Oil and Gas Dispute (Disputing, blog by Karl Bayer)
Texas Supreme Court sends parties to arbitration in SOA dispute (Engery Law Blog)

In Re Gulf Exploration, LLC, No 07-0055 (Tex. 2009)  
Argued January 17, 2008

Justice Brister delivered the opinion of the Court.

In re Palacios, we held that mandamus relief was generally unavailable for orders compelling
arbitration.[1] But we stopped short of saying it was never available, and noted the Fifth Circuit’
s suggestion (which was not actually applied) in Apache Bohai Corp. v. Texaco China that
mandamus review might be available if an applicant could show “clearly and indisputably that
the district court did not have the discretion to stay the proceedings pending arbitration.”[2]

As with any “narrow” provision for appellate review, numerous disappointed litigants have
claimed the Apache Bohai “exception” applies to them.[3] But reviewing all arbitration orders to
see if they comply with an exception “would inevitably frustrate Congress’s intent to move the
parties . . . out of court and into arbitration as quickly and easily as possible.”[4] We granted
oral argument to address more specifically when mandamus relief is available in connection
with orders compelling arbitration. Finding it is unavailable here, we conditionally grant the writ.

I. Background

In this oil and gas suit, several working interest owners sued their operator, Great Western
Drilling, when it drilled two successful wells for its own account nearby. They claim an
opportunity to participate in those wells because Great Western had said it would protect their
interests and had used confidential data they paid for.

The parties’ joint operating agreements contain the following arbitration clause:

Any dispute, controversy or claim arising out of or relating to this Agreement or the breach or
validity thereof (“Dispute”) shall be referred to and finally settled by final and binding arbitration
in Houston, Harris County, Texas . . . . The parties agree to use the Commercial Arbitration
Rules of the American Arbitration Association and, to the maximum extent possible, the
Federal Arbitration Act . . . .

When the working interest owners demanded arbitration, Great Western filed this suit seeking
a declaration that it owed the working interest owners neither arbitration nor anything on the
underlying claim. The working interest owners moved to compel arbitration and stay litigation,
which the trial court granted.

Great Western sought mandamus relief in the court of appeals. That court recognized
mandamus review was generally unavailable after Palacios, but found Great Western had
satisfied Apache Bohai by showing the trial court had “clearly and indisputably” abused its
discretion by compelling arbitration, so it conditionally granted mandamus relief.[5] The
working interest owners seek relief from that order in this Court.

II. Dismiss Instead Of Stay?

In Green Tree Financial Corp. v. Randolph, the United States Supreme Court observed that the
FAA “generally permits immediate appeal of orders hostile to arbitration . . . but bars appeal of
interlocutory orders favorable to arbitration.”[6] Yet the FAA also allows appeal from “a final
decision with respect to an arbitration.”[7] Construing the two together, the Supreme Court held
there can be no immediate appeal of an order compelling arbitration if it stays the underlying
case, but there can be an appeal if the underlying case is dismissed.[8]

This appears to be the majority rule among the states as well. A few states have specific
provisions for appealing orders compelling arbitration.[9] But most states (including Texas)
have adopted the Uniform Arbitration Act, which like the FAA authorizes immediate appeal
only from orders denying arbitration.[10] Nevertheless, a few Uniform Act states review all
orders compelling arbitration,[11] and a few review none;[12] but most Uniform Act states
follow Green Tree in allowing review if the order dismisses the case but not if it stays it.[13]

We too have adopted this rule: “Courts may review an order compelling arbitration if the order
also dismisses the underlying litigation so it is final rather than interlocutory.”[14] Thus, the
order compelling arbitration in
Childers v. Advanced Foundation Repair was immediately
reviewable because the judgment stated that it was “final, disposes of all parties and all claims
in this case, is appealable, and disposes of this case in the entirety.”[15] This is consistent with
general Texas law that an order is final and appealable only if “it actually disposes of every
pending claim and party or [ ] it clearly and unequivocally states that it finally disposes of all
claims and all parties.”[16]

At first blush, this rule appears to leave appellate review entirely at the discretion of the trial
judge: stay the case and postpone review, or dismiss the case and allow it immediately. But in
state courts this discretion is usually limited. Arbitrability is often the only issue in federal court
because nondiverse parties may prevent removal of the underlying case from state court;[17] in
such cases, even a stay order will be considered final if the federal action is effectively over.
[18] But in the state courts, disputes about arbitrability and the merits must usually proceed in a
single court under the rules of dominant jurisdiction.[19]

Accordingly, a stay is generally the only appropriate order for a state court with jurisdiction of all
issues. Indeed, the Texas Arbitration Act states that “[a]n order compelling arbitration must
include a stay” of the underlying litigation.[20] During arbitration, a court order may be needed
to replace an arbitrator,[21] compel attendance of witnesses,[22] or direct arbitrators to
proceed promptly;[23] after arbitration, a court order is needed to confirm, modify, or vacate
the arbitration award.[24] Consequently, dismissal would usually be inappropriate because the
trial court cannot dispose of all claims and all parties until arbitration is completed.[25]

It is in this context that one must read Apache Bohai C not as an all-purpose test for mandamus
review, but as a test for reviewing whether the trial court should have dismissed rather than
stayed the underlying case.[26] Palacios may have created some confusion on this issue,
because after quoting Apache Bohai it went on to analyze whether the case was arbitrable
rather than whether it should have been stayed. Accordingly, we clarify today that this
“exception” applies not to the question whether an order compelling arbitration was correct, but
to the question whether the case should have been dismissed rather than stayed.

Here, the trial court stayed this case pending arbitration, so there is no final judgment. Great
Western does not argue otherwise, or assert that the trial court erred in staying rather than
dismissing this case. Accordingly, Apache Bohai does not apply.

III. Mandamus Instead Of Interlocutory Appeal?

Even when an order is not reviewable by interlocutory appeal, that does not always preclude
review by mandamus.[27] In 1994, we authorized general mandamus review of orders either
compelling or denying arbitration under the FAA.[28] But in Palacios we limited such review to
orders denying arbitration, so that federal and state procedures would remain consistent after
Green Tree.[29] We left open the question whether mandamus review of orders compelling
arbitration should be entirely precluded, an issue we now address.[30]

To be entitled to mandamus, “a petitioner must show that the trial court clearly abused its
discretion and that the relator has no adequate remedy by appeal.”[31] In the context of orders
compelling arbitration, even if a petitioner can meet the first requirement, mandamus is
generally unavailable because it can rarely meet the second.

If a trial court compels arbitration when the parties have not agreed to it, that error can
unquestionably be reviewed by final appeal. In Perry Homes v. Cull, we rejected the argument
that an order compelling arbitration must be reviewed before arbitration, noting that for many
years this Court has reviewed such orders after arbitration in the final appeal.[32] Both federal
and Texas statutes provide for vacating an arbitration award by final appeal if the arbitrators
exceeded their powers.[33] If appeal is an adequate remedy for an order compelling
arbitration, mandamus must be denied.

There is no definitive list of when an appeal will be “adequate,” as it depends on a careful
balance of the case-specific benefits and detriments of delaying or interrupting a particular
proceeding.[34] But in balancing these matters, “our place in a government of separated
powers requires us to consider also the priorities of the other branches of Texas government.”
[35] Legislative acts encouraging or discouraging interlocutory review must weigh heavily in the
balance of benefits and detriments.[36] Here, as both the federal and state arbitration acts
pointedly exclude immediate review of orders compelling arbitration, any balancing must tilt
strongly against mandamus review.[37]

Of course, if an order compelling arbitration is wrong, the parties may waste time and money in
arbitration. But standing alone, delay and expense generally do not render a final appeal
inadequate.[38] That is especially true here because arbitration clauses are usually contractual
and cover contractual claims. A party that prevails on a contractual claim can recover its fees
and expenses,[39] even if they were incurred in collateral proceedings like arbitration.[40]

The “adequacy” of an appeal may be a closer question when the legislature has weighed in on
both sides of the balance. For example, we recently reviewed an order compelling arbitration in
In re Poly-America, and granted mandamus relief regarding a waiver of statutory remedies,
because it threatened to undermine the legislative workers compensation system as a whole.
[41] By contrast, we denied mandamus relief as to other provisions because interference with
the statute was no more than speculative.[42]

The problem in Poly-America was that granting mandamus risked frustrating one statutory
imperative, while denying it risked frustrating another. In those rare cases when legislative
mandates conflict, mandamus “may be essential to preserve important substantive and
procedural rights from impairment or loss, [and] allow the appellate courts to give needed and
helpful direction to the law that would otherwise prove elusive in appeals from final judgments.”
[43] But such conflicts are few, so the balance will generally tilt toward reviewing orders
compelling arbitration only on final appeal.

We recognize that any rule short of completely barring mandamus review runs the risk of
delaying some arbitrations after a trial court has compelled them. Mandamus proceedings take
time, even when relief is denied. But our rules allow an appellate court to deny mandamus relief
without waiting for a response, and without handing down an opinion.[44] Summary denials do
little to assist trial judges or explain matters to the parties, but they are especially appropriate in
this context due to the legislative preference for moving cases to arbitration quickly.

In this case, there are no counterbalancing legislative mandates. This arbitration agreement
placed no limits on Great Western’s constitutional or statutory rights, other than the right to a
jury trial that it expressly waived by agreeing to arbitration in the first place.

The court of appeals believed this dispute was outside the scope of arbitration because the
disputed wells were outside the parties’ area of mutual interest, and thus not within the scope
of the arbitration clause.[45] But even assuming that is correct (an issue we do not reach),
Great Western has not shown that its appellate remedy following arbitration is inadequate.
Because it did not, the court of appeals erred in reviewing this order anyway.

For the reasons stated above, we conditionally grant the petition for writ of mandamus. We
direct the court of appeals to vacate its judgment and order the trial court to reinstate the order
compelling arbitration. We are confident the court of appeals will comply, and our writ will issue
only if it does not.

Scott Brister



[1] 221 S.W.3d 564, 565 (Tex. 2006).

[2] Id. (quoting Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 310-11 (5th Cir. 2003)).

[3] See, e.g., In re Han Nara Enters., L.P., No. 11-08-00147-CV, 2008 WL 2933522 (Tex. App.-
Eastland July 31, 2008, orig. proceeding [mand. denied]); In re Cannon, No. 05-07-00955-CV, 2007 WL
2447264 (Tex. App.- Dallas Aug. 30, 2007, orig. proceeding) (mem. op) (denying relief); In re Wolff,
231 S.W.3d 466 (Tex. App.-Dallas 2007, orig. proceeding) (applying exception and requiring de novo
review of arbitration order); In re AmeriCredit Fin. Servs., Inc., No. 05-07-00241-CV, 2007 WL 2005020
(Tex. App.-Dallas July 12, 2007, orig. proceeding [mand. pending]) (mem. op.) (denying relief); In re
ETBS, Inc., No. 05-07-00562-CV, 2007 WL 1978323 (Tex. App.-Dallas July 10, 2007, orig. proceeding)
(mem. op.) (denying relief); In re Cutler‑Gallaway Servs., Inc., No. 04-07-00216-CV, 2007 WL 1481999
(Tex. App.-San Antonio May 23, 2007, orig. proceeding) (mem. op.) (denying relief); Glenn J.
Deadman, P.C. v. SBC, No. 04-06-00646-CV, 2007 WL 1200108 (Tex. App.-San Antonio Apr. 25,
2007, orig. proceeding) (mem. op.) (denying relief); In re Premont Indep. Sch. Dist., 225 S.W.3d 329
(Tex. App.-San Antonio 2007, orig. proceeding [mand. pending]) (applying exception and reversing
arbitration order); In re Ivins, No. 09-06-249-CV, 2006 WL 2075192 (Tex. App.-Beaumont July 27,
2006, orig. proceeding) (mem. op.) (denying relief); In re Emmons, No. 14-06-01063-CV, 2006 WL
4114314 (Tex. App.-Houston [14th Dist.] Mar. 13, 2006, orig. proceeding) (mem. op.) (denying relief).

Perry Homes v. Cull, 258 S.W.3d 580, 587 (Tex. 2008) (quoting Preston v. Ferrer, ___ U.S. ___,
___ (2008)); see also Lloyd v. Hovensa, LLC., 369 F.3d 263, 270 (3d Cir. 2004) (holding that purpose
of stay pending arbitration “is twofold: it relieves the party entitled to arbitrate of the burden of
continuing to litigate the issue while the arbitration process is on‑going, and it entitles that party to
proceed immediately to arbitration without the delay that would be occasioned by an appeal of the
District Court’s order to arbitrate”).

[5] 211 S.W.3d 828, 835, 843 (citing
In re Palacios, 221 S.W.3d 564, 565 (Tex. 2006) and Apache
Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 310‑11 (5th Cir. 2003)).

[6] 531 U.S. 79, 86 (2000).

[7] 9 U.S.C. § 16(a)(3).

[8] Green Tree, 531 U.S. at 86-87.

[9] See Ala. R. App. P. 4(d) (allowing immediate appeal from order granting or denying arbitration); Fla.
R. App. P. 9.130(a)(3)(C)(iv) (same); Ohio Rev. Code § 2711.02 (same).

[10] See Unif. Arbitration Act § 28(a) (2000); Chambers v. O’Quinn, 242 S.W.3d 30, 31 (Tex. 2007).

[11] See Douglass v. Pflueger Hawaii, Inc., 135 P.3d 129, 131 n.1 (Haw. 2006); Salsitz v. Kreiss, 761 N.
E.2d 724, 730 (Ill. 2001); Sommers v. Sommers, 898 N.E.2d 1234, 1236 (Ind. Ct. App. 2008); Harris v.
Bridgford, 835 A.2d 253, 257 n.7 (Md. 2003); Wein v. Morris, 944 A.2d 642, 651 (N.J. 2008); Okla.
Oncology & Hematology P.C. v. US Oncology, Inc., 160 P.3d 936, 943 (Okla. 2007).

[12] See Cardiff Equities, Inc. v. Super. Ct., 83 Cal. Rptr. 3d 699, 709 (Cal. Ct. App. 2008); Creamer v.
Bishop, 902 A.2d 838, 839 (Me. 2006); Braden v. JF Enters., LLC, 274 S.W.3d 564, 565 (Mo. Ct. App.
2008); Toler’s Cove Homeowners Ass’n, Inc. v. Trident Constr. Co., 586 S.E.2d 581, 584 (S.C. 2003).

[13] See Ruesga v. Kindred Nursing Ctrs., L.L.C., 161 P.3d 1253, 1258 (Ariz. Ct. App. 2007); Lane v.
Urgitus, 145 P.3d 672, 682 (Colo. 2006); Dan Wiebold Ford, Inc. v. Universal Computer Consulting
Holding, Inc., 127 P.3d 138, 141 (Id. 2005); Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 547
n.2 (Ky. 2008); Commonwealth v. Philip Morris Inc., 864 N.E.2d 505, 511 (Mass. 2007); Banks v. City
Fin. Co., 825 So. 2d 642, 647-48 (Miss. 2002); State ex rel. Bruning v. R.J. Reynolds Tobacco Co., 746
N.W.2d 672, 678 (Neb. 2008); Edward Family Ltd. v. Brown, 140 P.3d 525, 529 (N.M. Ct. App. 2006);
Ass’n of Unit Owners of Bridgeview Condos. v. Dunning, 69 P.3d 788, 801 (Or. Ct. App. 2003); Powell
v. Cannon, 179 P.3d 799, 806B7 (Utah 2008); Scherer v. Schuler Custom Homes Constr., Inc., 98 P.3d
159, 162 (Wyo. 2004).

Perry Homes v. Cull, 258 S.W.3d 580, 586 n.13 (Tex. 2008).

[15] 193 S.W.3d 897, 898 (Tex. 2006); see also Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex. 2007)
(holding denial of mandamus challenging arbitration order did not bar appeal of that order after
arbitration was completed).

[16] Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).

[17] See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 7 n.4 (1983) (noting
federal action to compel arbitration excluded nondiverse party who prevented removal of underlying
state action); Omni Hotels Mgmt. Corp. v. Bayer, 235 F.App’x 208, 210 (5th Cir. 2007) (same); Brown v.
Pac. Life Ins. Co., 462 F.3d 384, 390, 394 (5th Cir. 2006) (same); CitiFinancial Corp. v. Harrison, 453 F.
3d 245, 248 (5th Cir. 2006) (same).

[18] See Moses H. Cone, 460 U.S. at 10 (“[A]rbitrability was the only substantive issue present in the
federal suit. Hence, a stay of the federal suit pending resolution of the state suit meant that there would
be no further litigation in the federal forum; . . . [so] this stay order amounts to a dismissal of the suit.”);
Omni Hotels, 235 F.App’x at 211; Brown, 462 F.3d at 391; CitiFinancial Corp. v. Harrison, 453 F.3d at

[19] See Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (“As a rule, when cases involving the same
subject matter are brought in different courts, the court with the first‑filed case has dominant jurisdiction
and should proceed, and the other cases should abate.”).

[20] Tex. Civ. Prac. & Rem. Code § 171.021(c) (emphasis added).

[21] See 9 U.S.C. § 5; Tex. Civ. Prac. & Rem. Code § 171.041(b).

[22] See 9 U.S.C. § 7; Tex. Civ. Prac. & Rem. Code § 171.086(b).

[23] See Tex. Civ. Prac. & Rem. Code § 171.044(c).

[24] See 9 U.S.C. §§ 9-13; Tex. Civ. Prac. & Rem. Code §§ 171.087-.092.

[25] See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001).

[26] Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 310 (5th Cir. 2003) (“In the
alternative, Apache Bohai seeks a writ of mandamus directing the district court to vacate its order
[granting a stay] and enter an appealable final judgment.”).

[27] Deloitte & Touche, LLP v. Fourteenth Ct. App., 951 S.W.2d 394, 396 (Tex. 1997) (“[O]ur
mandamus jurisdiction is not dependent on appellate jurisdiction.”).

[28] Freis v. Canales, 877 S.W.2d 283, 284 (Tex. 1994).

[29] Palacios, 221 S.W.3d at 565.

[30] Id.

In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008); In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135‑36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

[32] 258 S.W.3d 580, 586 & n.9 (Tex. 2008).

[33] See 9 U.S.C. § 10(a)(4); Tex. Civ. Prac. & Rem. Code § 171.088(a)(3)(A).

[34] In re Prudential, 148 S.W.3d at 136.

In re McAllen Med. Ctr., 275 S.W.3d at 461.

[36] Id.; In re Watkins, ___ S.W.3d ___, ___ (Tex. 2009).

[37] See Watkins, ___ S.W.3d at ___ (“Legislative findings balancing the costs and benefits of
interlocutory review must work both ways: having treated them with respect when they encourage
interlocutory review, we must treat them with the same respect when they discourage it.”); In re McAllen
Med. Ctr., 275 S.W.3d at 466-67.

In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008); In re Prudential, 148 S.W.3d at 136;
Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992).

[39] See Tex. Civ. Prac. & Rem. Code § 38.001-.006.

[40] See, e.g., Gill Sav. Ass’n v. Chair King, Inc., 797 S.W.2d 31, 32 (Tex. 1990) (holding reasonable
fee in contract action included fees incurred in related bankruptcy proceeding).

[41] 262 S.W.3d 337, 352 (Tex. 2008).

[42] Id. at 357-59.

[43] In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004).

[44] See Tex. R. App. P. 52.4, 52.8.

[45] 211 S.W.3d at 843.