Opinion issued November = 30,=20 2006
I =
join the=20
panel opinion. I write separately to point out that this case =
illustrates=20
the inequity and enormous waste of judicial and legal=20
resources =
As the=20
supreme court acknowledged in Jack B. Anglin, litigants =
who=20
allege entitlement to arbitration under the FAA, or in the =
alternative=20
under the TAA, "are burdened with the need to pursue parallel=20
proceedings--an interlocutory appeal of the trial court's denial =
under the=20
Texas Act, and a writ of mandamus from the denial under the =
Federal Act."=20
Id. Although the court opined, "[W]e can conceive of no =
benefit=20
from such an unnecessarily expensive and cumbersome rule," it =
concluded,=20
that it could "not enlarge appellate jurisdiction absent =
legislative=20
mandate." Id. Therefore, it urged the Legislature "to =
consider=20
amending the Texas Act to permit interlocutory appeals of orders =
issued=20
pursuant to the Federal Act." Id. It urged in =
vain. To date,=20
1182 cases have cited to Jack B. Anglin. Many of these =
cases have=20
involved situations where the applicability of the FAA was =
uncertain. In=20
these cases, not only must litigants go to the expense of two sets =
of=20
filings, and reviewing courts go through a two-fold process of =
review just=20
to determine the fundamental nature of their jurisdiction, but =
there are=20
hidden risks in requiring the filing of a mandamus in FAA cases, =
which=20
this case illustrates. Specifically, the mandamus record may be =
incomplete=20
because, as here, no signed order or evidence to resolve the =
mandamus is=20
included with the petition, whereas an interlocutory appeal could =
simply=20
be decided on the law. Moreover,=20
unlike review of an appeal, the court of appeals is not required =
to issue=20
a written opinion explaining its denial of mandamus relief.=20
Compare Tex. R. App. P. 52.8(d) ("When denying relief [in =
an=20
original proceeding], the court may hand down an opinion but is =
not=20
required to do so."), with Tex. R. App. P. 47.1 =
(requiring=20
written opinion "that addresses every issue raised and necessary =
to final=20
disposition of the appeal"). Thus, not only may the reviewing =
court in a=20
mandamus proceeding fail to reach the merits of the trial court's =
order=20
compelling or denying arbitration under the FAA, it is not even =
required=20
to tell the litigants that their mandamus failed for want of a =
complete=20
record, or perhaps because the petition was not verified, rather =
than for=20
want of a meritorious argument--thus inviting repetition of the =
error.=20
Like the=20
supreme court writing 14 years ago in Jack B. Anglin, I =
"can=20
conceive of no benefit from such an unnecessarily expensive and =
cumbersome=20
rule," but I recognize that the courts "may not enlarge appellate=20
jurisdiction absent legislative mandate." 842 S.W.2d at 273. =
Therefore, I=20
second the supreme court's request that the Legislature amend the =
TAA to=20
permit interlocutory appeals of orders issued pursuant to the=20
FAA. Evelyn V.=20
Keyes Panels=20
consists of Justices Taft, Keyes, and Hanks. Justice=20
Keyes, =
concurring.