ORAL ARGUMENT REQUESTED

No. 04-14-00829-CV 

IN THE COURT OF APPEALS 

FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS 

AT SAN ANTONIO 

Western Rim Property Services, Inc., 

 Appellant, 

v. 

Paula Bazan-Garcia, 

 Appellee. 

ON APPEAL FROM THE COUNTY COURT AT LAW NO. CC# 03 OF 

BEXAR COUNTY, TEXAS, CAUSE NO. 2014CV01064 

APPELLANT’S REPLY BRIEF 

BAKER BOTTS L.L.P. 

Jennifer M. Trulock 

State Bar No. 90001515 

jennifer.trulock@bakerbotts.com 

2001 Ross Avenue, Suite 600 

Dallas, Texas 75201-2980 

(214) 953-6500 

(214) 953-6503 (Facsimile) 

BAKER BOTTS L.L.P. 

Stephanie F. Cagniart 

State Bar No. 24079786 

stephanie.cagniart@bakerbotts.com 

98 San Jacinto Boulevard, Suite 1500 

Austin, Texas 78701-4078 

(512) 322-2500 

(512) 322-2501 (Facsimile) 

Attorneys for Appellant Western Rim Property Services, Inc.

ACCEPTED

04-14-00829-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

2/9/2015 2:26:56 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 02/9/2015 2:26:56 PM KEITH E. HOTTLE Clerk
i 

Table of Contents 

Table of Contents 

Page 

Table of Contents ....................................................................................................... i

Summary of the Argument ......................................................................................... 1

Argument.................................................................................................................... 2

I. The AAA Rules are a publicly available authority that can be 

considered by this Court. ....................................................................... 2

II. The delegation clauses in the parties’ arbitration agreements are 

enforceable, and require the Court to send Bazan-Garcia’s 

unconscionability defense to arbitration. .............................................. 6

A. Bazan-Garcia has waived any argument that the 

delegation clauses are unconscionable. ...................................... 7

B. Bazan-Garcia’s claim that the arbitration agreements’ 

cost and venue provisions make the delegation clause 

unconscionable is directly contradicted by the AAA 

Rules. ........................................................................................... 9

C. Bazan-Garcia’s claim that arbitrating her 

unconscionability defense would be prohibitively 

expensive is not supported by any evidence in the record........ 12

III. Arbitration under the AAA Rules is not unconscionable. .................. 15

IV. Even if the AAA Rules do not apply to this appeal, BazanGarcia is bound by her arbitration agreements because she has 

failed to prove those agreements are unconscionable. ........................ 17

A. Bazan-Garcia cannot rely on prior AAA invoices to 

prove that the arbitration under the Employee Handbook 

is unconscionable, because she has not shown that 

arbitration will be conducted by the AAA. ............................... 17

B. Bazan-Garcia cannot rely on AAA invoices to prove that 

arbitration under the Employee Handbook is 
ii

unconscionable if this Court is barred from considering 

the AAA Rules. ......................................................................... 20

C. Bazan-Garcia cannot prove that the Employee 

Handbook’s arbitration agreement is unconscionable 

because she has not shown that a less expensive 

arbitration alternative is unavailable to her. .............................. 22

D. Bazan-Garcia cannot prove that arbitration under the 

Arbitration Agreement is unconscionable because she has 

not presented any evidence showing how much it would 

cost to travel to Dallas County. ................................................. 23

V. The challenged provisions do not constitute the “essential 

purpose” of the parties’ agreements, and may be severed from 

the agreements. .................................................................................... 24

Conclusion and Prayer for Relief .............................................................................25

Certificate of Compliance ........................................................................................27

Certificate of Service ...............................................................................................27
iii

TABLE OF AUTHORITIES 

Page(s) 

CASES

Aspen Tech., Inc. v. Shasha, 

253 S.W.3d 857 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ....... 18, 19, 20 

Caballero v. Contreras, 

No. 13-10-00150-CV, 2010 WL 3420527 (Tex. App.—Corpus Christi 

Aug. 31, 2010, no pet.) ....................................................................................... 12 

Coon v. Umphrey, 

09-09-00264-CV, 2009 WL 3030354 (Tex. App.—Beaumont Sept. 24, 

2009, pet. dism’d) ................................................................................................. 4 

Forest Oil Corp. v. McAllen, 

268 S.W.3d 51 (Tex. 2008)................................................................................... 7 

Green Tree Fin. Corp.-Ala. v. Randolph, 

531 U.S. 79 (2000) ......................................................................15, 18, 19, 20, 23 

In re Olshan Found. Repair Co., LLC, 

328 S.W.3d 883 (Tex. 2010) .......................................................... 3, 4, 20, 21, 22

In re Poly-America, 

262 S.W.3d 337 (Tex. 2008) ............................................................ 11, 12, 17, 24

John M. O’Quinn, P.C. v. Wood, 

12-06-001510CV, 2006 WL 3735617 (Tex. App.—Tyler Dec. 20, 2006) .......... 4 

Mitchison v. Houston Ind. Sch. Dist., 

803 S.W.2d 769 (Tex. App.—Houston [14th Dist.] 1991, writ denied) .............. 5 

Nabors Drilling USA, LP v. Carpenter, 

198 S.W.3d 240 (Tex. App.—San Antonio 2006, no pet.) .................................. 8 

Perez v. Spring Branch Indep. Sch. Dist., 

2011 WL 742601 (Tex. App.—Houston [14th Dist.] Mar. 3, 2011, pet. 

denied) ................................................................................................................... 5 

Rent-A-Center, West v. Jackson, 

561 U.S. 63 (2010) ...................................................................................... 7, 9, 13 
iv

Venture Cotton Co-op v. Freeman, 

435 S.W.3d 222 (Tex. 2014) ........................................................................ 24, 25 

Winslow v. D.R. Horton America’s Builder, 

04-12-00376-CV, 2013 WL 2368300 (Tex. App.—San Antonio May 29, 

2013, no pet.) ........................................................................................................ 4 

OTHER AUTHORITIES

AAA Employment Rules ..................................................................................passim 

Tex. R. App. P. 38.1(k)(1)(C) .................................................................................... 3 
1 

SUMMARY OF THE ARGUMENT 

Bazan-Garcia bases her Response on one central claim: that this Court 

cannot consider the Employment Rules of the American Arbitration Association 

(“AAA Rules”) because a copy of those rules was not included in the clerk’s 

record. Her reasons for making this argument are easy to understand. If the AAA 

Rules apply, then the Court must send all of Bazan-Garcia’s claims—including her 

unconscionability defense—to arbitration pursuant to the rules’ delegation clause. 

The AAA Rules also defeat Bazan-Garcia’s unconscionability defense on the 

merits, because they supersede all three provisions that she contends make the 

parties’ agreements unenforceable. 

Bazan-Garcia cannot escape her arbitration agreements so easily. It is 

well established that Texas courts can consider the publicly available AAA Rules, 

regardless of whether they were formally entered into evidence. Any deviation 

from that rule has no basis in the law, nor would it produce a fair result where both 

parties have relied on those rules throughout the litigation. 

Moreover, Bazan-Garcia is bound by her arbitration agreements even 

if the AAA Rules do not apply in this appeal. Bazan-Garcia can only avoid her 

agreements by presenting specific evidence that arbitration would be prohibitively 

expensive. The AAA invoices that Bazan-Garcia has submitted to prove that the 

Employee Handbook is unconscionable do not meet this burden, because Bazan-
2

Garcia has failed to show that the AAA would actually administer the arbitration 

proceeding, that the AAA would charge similar fees as those shown on the 

invoices, and that no cheaper arbitration alternatives are available. And BazanGarcia has submitted no evidence showing her costs if the arbitration were held in 

Dallas County, which is fatal to her claim that the Arbitration Agreement is 

unconscionable. 

Bazan-Garcia is bound by her agreements to arbitrate. WRPS 

therefore requests that this Court reverse the trial court’s order, abate this litigation, 

and compel arbitration of Bazan-Garcia’s claims. 

ARGUMENT 

I. The AAA Rules are a publicly available authority that can be 

considered by this Court. 

It is undisputed that the Employment Rules of the American 

Arbitration Association (“AAA Rules”) govern both of the parties’ arbitration 

agreements. See App. 3 (Arbitration Agreement), App. 13 (Employee Handbook).1

These rules are available to the public through the AAA’s website, see Opening Br. 

at 2 n.2, and were relied on by both parties before the trial court, see CR at 25–28, 

85–94; RR at 6–7, 10–12, 15. WRPS also included a copy of the AAA Rules in 

the Appendix to its Opening Brief, as required by the Texas Rules of Appellate 

 

1

 The Clerk’s Record is referred to herein as “CR,” the Reporter’s Record as “RR,” the 

Opening Brief filed by WRPS on Dec. 24, 2014 as “Opening Br.,” the Appendix to the Opening 

Br. as “App.,” and the Response Brief filed by Bazan-Garcia on January 20, 2015 as “Resp. Br.” 
3

Procedure. See App. at 14–65; Tex. R. App. P. 38.1(k)(1)(C) (appendix must 

include “the text of any rule . . . on which the argument is based”). Despite this, 

and for the first time on appeal, Bazan-Garcia claims that this Court cannot 

consider the AAA Rules in resolving the parties’ dispute, because “WRPS did not 

attach the AAA Employment Rules to its Motion to Compel and did not introduce 

the AAA Employment Rules as an exhibit at the hearing on its Motion to Compel 

Arbitration.” Resp. Br. at 11. 

Bazan-Garcia is wrong. The AAA Rules are not evidence; they are a 

publicly accessible authority. Consequently, Texas courts can apply those rules 

regardless of whether they were formally introduced into evidence. The Texas 

Supreme Court, for example, did precisely that in In re Olshan Found. Repair Co., 

LLC, 328 S.W.3d 883 (Tex. 2010). Like Bazan-Garcia, the respondents in Olshan

claimed that the appellate court could not consider the AAA Commercial 

Arbitration Rules because they had not been formally introduced into evidence. 

See Resp. to Pet. for Writ of Mandamus, 2009 WL 2388979, at *9 (filed July 16, 

2009); Tingdale’s Merits Br., 2009 WL 4764118, at *12 (filed Nov. 16, 2009). 

Olshan countered that because the AAA Rules were incorporated into the parties’ 

agreement, and “easily verifiable by reference to the AAA website, a source whose 

accuracy cannot reasonably be questioned,” they were properly before the Court. 

Olshan’s Reply to Tingdale’s Merits Br., 2009 WL 5251087, at *8 n.8 (filed Dec. 
4

21, 2009) (collecting cases). The Supreme Court agreed with Olshan, analyzing 

the AAA Rules in detail in its opinion and ultimately ruling in Olshan’s favor. See 

Olshan, 328 S.W.3d at 895–96. 

Similarly, in In re Champion Technologies, Inc., Champion did not 

introduce a copy of the AAA Rules into evidence before the trial court. 222 

S.W.3d 127, 133 n.6 (Tex. App.—Eastland 2005, pet. denied). On appeal, 

Champion attached a copy of the rules to its brief, which petitioners moved to 

strike as an improper attempt to introduce evidence on appeal. See id. The 

Eleventh Court of Appeals denied the motion, explaining: 

The [parties’ agreement] incorporates the rules of the 

AAA as a part of its terms. The rules and procedures are 

readily available via the internet. Relators’ act of 

providing a copy of these rules to the court is similar to a 

party attaching a copy of a statute or regulation for the 

court’s benefit. 

Id. This Court and other Texas courts of appeals also routinely cite the AAA Rules 

just as they would any other authority, regardless of whether the rules were 

included in the clerk’s record. See, e.g., Winslow v. D.R. Horton America’s 

Builder, 04-12-00376-CV, 2013 WL 2368300, at *1 n.3–5 (Tex. App.—San 

Antonio May 29, 2013, no pet.); Coon v. Umphrey, 09-09-00264-CV, 2009 WL 

3030354, at *4 n.2 (Tex. App.—Beaumont Sept. 24, 2009, pet. dism’d); John M. 

O’Quinn, P.C. v. Wood, 12-06-001510CV, 2006 WL 3735617, at *1 n.2 (Tex. 

App.—Tyler Dec. 20, 2006). 
5

The two cases that Bazan-Garcia relies on in her Response are not to 

the contrary. Neither of the cited cases involved the AAA Rules or similar, 

publicly available authorities. Instead, they are instances where a court of appeals 

refused to consider a factual record that was not properly submitted as part of the 

record on appeal. See Resp. at 11 (citing Mitchison v. Houston Ind. Sch. Dist., 803 

S.W.2d 769, 771 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (holding the 

court of appeals could not consider the appellant’s second “request for findings of 

facts and conclusions of law” that was filed with the trial court because appellant 

did not arrange for a copy of the request to be included in the clerk’s record); Perez 

v. Spring Branch Indep. Sch. Dist., 2011 WL 742601 (Tex. App.—Houston [14th 

Dist.] Mar. 3, 2011, pet. denied) (holding the court of appeals could not review 

evidentiary rulings made during a bench trial because appellant failed to pay for 

and provide a copy of the reporter’s record to the appellate court)). Because 

WRPS is not seeking to introduce any such document into the appellate record, 

these cases are irrelevant. 

Bazan-Garcia’s attempt to avoid the AAA Rules is not only legally 

unsupported, it is puzzling in light of her actions before the trial court. WRPS 

cited and relied on the AAA Rules in its Motion to Compel Arbitration. See CR 

25–28. In turn, Bazan-Garcia based her entire response on the claim that 

arbitration under the AAA Rules would be prohibitively expensive, and on an 
6

affidavit from her attorney detailing his experience with the AAA rules. See CR at 

81, 85–94; see also Resp. Br. at 4 (claiming Bazan-Garcia proved the arbitration 

agreement was unconscionable through “three AAA invoices from nearly identical 

employment cases that [her counsel] litigated under AAA rules”). At the hearing 

on its motion, WRPS discussed several AAA Rules in detail and provided copies 

of those rules to the court, just as counsel for both parties provided copies of key 

cases. See RR at 6–7 (discussing AAA Rules’ delegation clause); id. at 10–12 

(discussing delegation clause and AAA Rules governing costs, discovery and 

venue); id. at 15 (discussing process of arbitrating the issue of unconscionability 

under AAA Rules). Bazan-Garcia did not object, see id., nor has she claimed that 

WRPS misstated or misrepresented the AAA Rules. 

There is no legal or equitable justification for this Court to ignore the 

publicly available rules that govern the parties’ arbitration agreements. The AAA 

Rules therefore apply to this appeal. 

II. The delegation clauses in the parties’ arbitration agreements are 

enforceable, and require the Court to send Bazan-Garcia’s 

unconscionability defense to arbitration. 

Bazan-Garcia’s only defense to arbitration is her claim that the 

arbitration agreements are unconscionable. She does not dispute, however, that the 

AAA Rules’ delegation clause gives the arbitrator—not the court—authority to 

decide her unconscionability defense. See AAA Rule 6(a) (App. 30) (“The 
7

arbitrator shall have the power to rule on his or her own jurisdiction, including any 

objections to the existence, scope or validity of the arbitration agreement.”). That 

concession resolves this appeal, because courts must enforce delegation clauses 

under the Texas Arbitration Act. See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 

61 (Tex. 2008) (holding that the Court had “no discretion but to direct the court to 

compel arbitration and stay [this] litigation” because the parties’ arbitration 

agreement contained a delegation clause). 

To avoid this result, Bazan-Garcia raises another new argument on 

appeal. She claims the delegation clause itself is unconscionable, and therefore 

unenforceable, because simply arbitrating her unconscionability defense under the 

parties’ agreements would be prohibitively expensive. See Resp. at 34–39. This 

untimely argument should be rejected by the Court because it is waived, directly 

contradicted by the AAA Rules, and unsupported by any evidence in the record. 

A. Bazan-Garcia has waived any argument that the delegation 

clauses are unconscionable. 

Bazan-Garcia admits that she did not challenge the arbitration 

agreements’ delegation clauses in her Response to WRPS’s Motion to Compel 

Arbitration. See Resp. at 38. She is therefore bound to them. See Rent-A-Center, 

West v. Jackson, 561 U.S. 63, 73–76 (2010) (holding that a plaintiff who failed to 

“make any arguments specific to the delegation provision” before the trial court 

could not raise those arguments on appeal, and was bound to that provision). 
8

On appeal, Bazan-Garcia protests that “no fault can be assigned” to 

her for failing to challenge the delegation clauses below, because WRPS did not 

introduce the AAA Rules into evidence. Resp. at 38. But WRPS was not required 

to do so. See Section I, supra at 2–6. Moreover, WRPS discussed the delegation 

clause at length in its Motion to Compel Arbitration, putting Bazan-Garcia on 

notice that it was relying on that clause. See CR 25–28. Bazan-Garcia’s failure to 

address this issue is therefore unexcused. See Nabors Drilling USA, LP v. 

Carpenter, 198 S.W.3d 240, 249 (Tex. App.—San Antonio 2006, no pet.) (holding 

that a party seeking to avoid an arbitration agreement can only rely on arguments 

that it raised before the trial court). 

In the alternative, Bazan-Garcia insists that she raised and preserved 

her challenges to the delegation clauses at the hearing when her counsel stated: 

“[Bazan-Garcia]’s going to have to go to Dallas to complain to the arbitrator 

about [the arbitration agreements].” Resp. at 38 (quoting RR at 15) (emphasis in 

Resp.). According to Bazan-Garcia, this statement and two other exchanges 

between the judge and WRPS’s counsel prove that “the trial court also understood 

that Bazan-Garcia was challenging the delegation clause because it required 

Bazan-Garcia to incur prohibitive costs of first traveling to Dallas County, Texas to 

challenge the rest of the agreement.” See Resp. at 38–39. 
9

At most, these statements show that Bazan-Garcia preserved an 

argument that the delegation clause in the Arbitration Agreement is unenforceable, 

based on that agreement’s venue clause. See App. 3 (“Any arbitration relating to 

any dispute covered by this Agreement shall be arbitrated in Dallas County, 

Texas.”). But the Arbitration Agreement is only one of the agreements at issue in 

this appeal. The second agreement—the Employee Handbook that is incorporated 

by reference into the Acknowledgement—does not have a venue clause. See App. 

4, 13. Because, by her own admission, Bazan-Garcia failed to raise any timely 

challenge to the Employee Handbook’s delegation clause, this Court must enforce 

that clause and compel arbitration of Bazan-Garcia’s unconscionability defense. 

See Rent-A-Center, 561 U.S. at 74. 

B. Bazan-Garcia’s claim that the arbitration agreements’ cost and 

venue provisions make the delegation clause unconscionable is 

directly contradicted by the AAA Rules. 

Bazan-Garcia’s untimely challenges to the delegation clauses also fail 

because they are directly contradicted by the AAA Rules, which control over any 

contrary provisions in the parties’ arbitration agreements. See AAA Rule 1 (App. 

28) (the arbitrator must apply the AAA Rules if “an adverse material inconsistency 

exists between the arbitration agreement and these rules”). 

First, Bazan-Garcia claims that the delegation clause in the Employee 

Handbook is unconscionable because its cost-sharing provision allegedly requires 
10

her to pay “half of the arbitrator’s fees for any hearing” on her unconscionability 

defense. Resp. at 35–36. But under the AAA Rules, Bazan-Garcia will not pay 

any of the arbitrator’s fees or hearing expenses. Instead, Bazan-Garcia will pay an 

initial filing fee of $200, and WRPS will be responsible for paying all hearing fees 

and all of the arbitrator’s fees and expenses. See Opening Br. at 26–27; AAA Rule 

45 (App. 43); AAA Rule 48(i)–(iii) (App. 45–47). And if the filing fee causes her 

“excessive hardship,” then Bazan-Garcia is permitted to request that the fee be 

reduced or deferred. AAA Rule 43 (App. 43). 

Bazan-Garcia’s Response never addresses the above AAA Rules on 

fees, even though WRPS identified and discussed them in detail at the hearing on 

its motion and in its Opening Brief. See RR at 10–11; Opening Br. at 26–28. Nor 

does Bazan-Garcia contend that she cannot afford the $200 filing fee, which is less 

than what she paid to file her claims in state court. See CR at 81. Her silence 

impliedly concedes that this challenge to the Employee Handbook’s delegation 

clause is without merit, and that arbitrating her unconscionability defense would 

not be prohibitively expensive. 

Second, Bazan-Garcia claims that the delegation clause in the 

Arbitration Agreement is unconscionable because its venue clause allegedly 

requires her to travel to Dallas County to arbitrate her unconscionability defense. 

Resp. at 35–37. But under the AAA Rules, the unconscionability defense would 
11

be addressed during the Management Conference, which is “conducted by 

telephone conference call” unless the parties agree otherwise. AAA Rule 8 (App. 

31). Bazan-Garcia will therefore not have to incur any travel expenses. 

Furthermore, AAA Rule 10 empowers the arbitrator to choose the 

locale of arbitration, “having regard for the contentions of the parties and the 

circumstances of the arbitration.” AAA Rule 10 (App. 32). Thus, even if a nontelephonic hearing was necessary to decide Bazan-Garcia’s unconscionability 

defense, Bazan-Garcia could request a location other than Dallas County.2

 This 

rule defeats Bazan-Garcia’s challenge to the Arbitration Agreement, because the 

Texas Supreme Court has expressly held that a provision that the arbitrator is 

empowered to modify cannot be unconscionable. See In re Poly-America, 262 

S.W.3d 337, 347 (Tex. 2008) (applying this rule to an agreement that “provide[d] 

that the arbitrator may modify unconscionable terms”); see also Opening Br. at 29–

30 (discussing Poly-America, 262 S.W.3d at 347). 

 

2

 Bazan-Garcia suggests that during the hearing on WRPS’s Motion to Compel Arbitration, 

WRPS conceded that Bazan-Garcia would have to travel to Dallas to arbitrate her 

unconscionability defense. See Resp. at 39. This is not the case. In response to a question from 

the court regarding whether Bazan-Garcia would have to present her unconscionability defense 

to an arbitrator in Dallas, WRPS’s counsel responded: “They do have to ask the arbitrator in 

Dallas, unless the AAA decides the arbitration should not occur in Dallas.” RR at 11–12 

(emphasis added). Bazan-Garcia selectively quotes this portion of the record, and omits the 

italicized phrase. Nothing in the AAA Rules or the Arbitration Agreement prevents either the 

arbitrability question from being resolved by telephonic conference or a request from BazanGarcia to change the venue. 
12

In her response, Bazan-Garcia ignores Poly-America and insists that 

WRPS cannot rely on this argument because “[c]ourts have expressly rejected this 

same circular logic.” Resp. at 36. In support, she quotes a footnote from an 

unpublished case in which the Thirteenth Court of Appeals stated that “it would 

appear preferable” for such issues to “be submitted to, and decided by, the courts 

as a gateway matter.” Resp. at 36–37 (quoting Caballero v. Contreras, No. 13-10-

00150-CV, 2010 WL 3420527, at *10 n.2 (Tex. App.—Corpus Christi Aug. 31, 

2010, no pet.)). But this authority cannot supersede authority from the Texas 

Supreme Court. Moreover, Bazan-Garcia conveniently omits the rest of that 

footnote, in which the Caballero panel acknowledged Poly-America’s rule and that 

the rule is binding on the courts of appeals. See id. Because Poly-America 

forecloses Bazan-Garcia’s challenge to the Arbitration Agreement’s delegation 

clause, Bazan-Garcia is bound to her agreement. 

C. Bazan-Garcia’s claim that arbitrating her unconscionability 

defense would be prohibitively expensive is not supported by any 

evidence in the record. 

Finally, Bazan-Garcia’s untimely challenges to the delegation clauses 

fail because she has not provided any evidence showing that arbitrating her 

unconscionability defense under the Employee Handbook or the Arbitration 

Agreement would be prohibitively expensive. 
13

Before the trial court, Bazan-Garcia claimed that the arbitration 

agreement in the Employee Handbook was unconscionable because its cost-sharing 

provision allegedly requires her to split the costs of arbitration equally with WRPS. 

See Resp. at 10. Bazan-Garcia estimated that arbitrating the merits of her claims 

against WRPS could cost upwards of $20,000, based on invoices from three prior 

AAA arbitrations, described as “labor cases . . . similar in nature, complexity, and 

amount of witnesses as Ms. Bazan-Garcia’s case.” CR 85. 

How much it would cost to arbitrate the merits of Bazan-Garcia’s 

claims, however, has no relevance to whether the delegation clause is 

unconscionable. The delegation clause requires Bazan-Garcia to submit her 

unconscionability defense to the arbitrator. To avoid that clause, therefore, BazanGarcia must show that arbitrating just her unconscionability defense would be 

prohibitively expensive. Rent-A-Center, 561 U.S. at 74. The United States 

Supreme Court has warned that this is a “difficult” standard to meet, because such 

a proceeding is usually less complicated, less fact-intensive, and less lengthy than 

arbitrating the actual merits of the parties’ underlying dispute. Id. (“[T]he 

unfairness of the fee-splitting arrangement may be more difficult to establish for 

the arbitration of enforceability [of the arbitration agreement] than for arbitration 

of more complex and fact-related aspects of the alleged employment 

discrimination.”). 
14

Bazan-Garcia failed to introduce any evidence to meet this burden. 

The three AAA invoices she submitted, for example, were for proceedings that 

lasted 2 to 3 days each, involved testimony from witnesses and experts, and 

required the arbitrator to decide the merits of all of the parties’ statutory and factintensive employment claims. See CR 85–94. Any hearing on Bazan-Garcia’s 

unconscionability defense, in contrast, would likely last an hour or less, involve a 

smaller and much simpler set of issues, require little or no fact-finding, and only 

require testimony from Bazan-Garcia herself. Because there is no evidence on the 

costs of such a hearing, or even a showing that a hearing would be required, 

Bazan-Garcia cannot prove that the Employee Handbook’s delegation clause is 

unconscionable. 

Bazan-Garcia’s challenge to the Arbitration Agreement’s delegation 

clause—that it would be prohibitively expensive to travel to Dallas to arbitrate her 

unconscionability defense—is also unsupported by the evidence. Bazan-Garcia 

submitted an affidavit to the trial court stating that arbitrating the merits of her 

claims in Dallas would cause her to “incur substantial additional expenses in travel 

and lodging.” CR 96–97. But this conclusory statement does not provide any 

information regarding how much such travel would actually cost, much less prove 

a likelihood that Bazan-Garcia could not pursue her claims if she were required to 

incur those costs. Indeed, Bazan-Garcia’s affidavit is almost identical to testimony 
15

that the U.S. Supreme Court found was inadequate to prove that an arbitration 

agreement was unconscionable in Green Tree Fin. Corp.-Ala. v. Randolph. See

531 U.S. 79, 91 n.6 (2000) (discussing as insufficient plaintiff’s testimony “that 

‘[a]rbitration costs are high and that she did not have the resources to arbitrate”). 

This Court must submit Bazan-Garcia’s claims and her 

unconscionability defense to arbitration pursuant to the delegation clauses in the 

parties’ agreements. The Court does not need to decide the merits of BazanGarcia’s challenges to those clauses, because she waived them by failing to raise 

them before the trial court. Moreover, even if those claims were before this Court, 

they are directly contradicted by the AAA Rules and unsupported by the record. 

Both delegation clauses are therefore enforceable. 

III. Arbitration under the AAA Rules is not unconscionable. 

If the Court determines that the AAA Rules apply in this appeal, but

holds that the agreements’ delegation clauses are unenforceable, then it will have 

to decide the merits of Bazan-Garcia’s unconscionability defense—i.e., whether 

arbitrating Bazan-Garcia’s claims against WRPS would be prohibitively expensive. 

This defense fails, because the AAA Rules directly contradict all of the challenges 

that Bazan-Garcia has raised against the Employee Handbook and the Arbitration 

Agreement. 
16

At the hearing on its Motion to Compel Arbitration and in its Opening 

Brief, WRPS explained that the Employee Handbook agreement’s cost-sharing 

provision is not unconscionable because the AAA Rules expressly limit BazanGarcia’s arbitration costs. See RR at 10–11; Opening Br. at 26–28; see also AAA 

Rule 1 (App. 28) (AAA Rules govern if “an adverse material inconsistency exists 

between the arbitration agreement and these rules”). Under these rules, BazanGarcia will be charged a $200 filing fee and any fees associated with her witnesses. 

AAA Rule 45 (App. 43). In addition, she can ask for relief from any fees that 

cause her “extreme hardship.” AAA Rule 43 (App. 43). WRPS, on the other 

hand, is responsible for all hearing fees and for paying the arbitrator’s fees and 

expenses. AAA Rules 48(i)–(iii) (App. 45–47). Bazan-Garcia has never disputed 

WRPS’s interpretation of the rules, nor claimed that she cannot afford these 

expenses. She therefore cannot show that arbitration under the Employee 

Handbook would be prohibitively expensive. 

Likewise, the venue and discovery-limitation provisions in the 

Arbitration Agreement do not make the agreement unconscionable, because the 

AAA Rules empower the arbitrator to modify both these provisions. See RR at 11 

(discussing AAA Rules 9 and 10); Opening Br. at 30–31 (same). As explained in 

Section II.B above, Bazan-Garcia’s claim that this Court can find these provisions 

unconscionable despite these rules is directly foreclosed by the Texas Supreme 
17

Court’s decision in Poly-America. See supra at 11–12 (discussing Poly-America, 

262 S.W.3d at 347). Consequently, Bazan-Garcia also cannot show that arbitration 

under the Arbitration Agreement would be unconscionable. 

IV. Even if the AAA Rules do not apply to this appeal, Bazan-Garcia is 

bound by her arbitration agreements because she has failed to prove 

those agreements are unconscionable. 

Bazan-Garcia has staked this appeal on the hope that the Court will 

ignore the AAA Rules. But that alone cannot relieve Bazan-Garcia of her 

arbitration obligations. Instead, she must prove a likelihood that the excessive 

costs of arbitration would prevent her from pursuing her claims, including by 

identifying the organization or arbitrator who will conduct the proceeding, 

establishing what the fees would be charged by that organization or arbitrator, and 

demonstrating that no cheaper alternative is available to the parties. See Opening 

Br. at 23–25. As WRPS pointed out in its Opening Brief, Bazan-Garcia has not 

met any of these requirements, see id., and she fails to justify or excuse these 

omissions in her Response. Consequently, regardless of whether the AAA Rules 

apply in this appeal, the Court must compel arbitration of Bazan-Garcia’s claims. 

A. Bazan-Garcia cannot rely on prior AAA invoices to prove that the 

arbitration under the Employee Handbook is unconscionable, 

because she has not shown that arbitration will be conducted by 

the AAA. 

The only evidence that Bazan-Garcia has submitted to prove that 

arbitration under the Employee Handbook’s cost-sharing provision would be 
18

prohibitively expensive are three invoices from allegedly “similar arbitrations” 

conducted by the AAA. See CR 85–94. But the Employee Handbook does not 

require that the arbitration be conducted by the AAA; instead, it only requires that 

arbitration occur “under” the AAA Rules. See App. 13; see also Opening Br. at 

23-25. Bazan-Garcia must therefore make a “factual showing that the AAA would 

administer the arbitration” before she can rely on those invoices to prove her 

unconscionability defense. Aspen Tech., Inc. v. Shasha, 253 S.W.3d 857, 864 

(Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Green Tree, 531 U.S. at 90 

n.6). 

Bazan-Garcia has not made any such showing. On appeal, she tries to 

avoid this requirement altogether by arguing that Shasha, one of the cases cited in 

WRPS’s Opening Brief, stands for a different proposition: that “evidence of 

expected AAA costs presented solely in the form of testimony [is] legally 

insufficient.” Resp. at 26 (emphasis added); see also id. (quoting Shasha, 253 

S.W.3d at 864 (“[T]estimony alone does not provide specific evidence as to 

Shasha’s likely costs to arbitrate under the [arbitration] agreement.”). Because 

Bazan-Garcia also submitted invoices from other arbitrations in support of her 

unconscionability argument, she claims that Shasha supports her position. See id. 
19

Bazan-Garcia’s argument misreads and misrepresents Shasha. After 

reviewing an affidavit submitted by plaintiff’s attorney regarding how much 

arbitration with the AAA would cost, the court stated: 

this testimony alone does not provide specific evidence

as to Shasha’s likely costs to arbitrate under the 2006 

Agreement. Though Shasha’s counsel provides projected 

fees for filing with the AAA, AAA case service, and

AAA administration, this projection is based on the 

premise that the AAA would administer the 

arbitration. However, the arbitration provision in the 

2006 Agreement does not require that the AAA conduct 

or administer the arbitration; rather the provision states 

that arbitration shall be “in accordance with the [AAA 

Rules].” Under this language, the AAA may administer 

the arbitration, but the parties are not required to 

have the arbitration administered by the AAA. 

253 S.W.3d at 864 (emphases added). In context, it is clear that the court of 

appeals’ concern was not the testimonial nature of the evidence, but that Shasha 

did not provide an adequate basis for assuming that these costs would be governed 

by the AAA Rules’ fee schedule. See id. 

This requirement has also been adopted by the United States Supreme 

Court. In Green Tree, the Court explained that a plaintiff who failed to “make any 

factual showing that the American Arbitration Association would conduct the 

arbitration” could not rely on evidence of how much an AAA-administered 

proceeding would cost to show that her arbitration agreement was unconscionable. 

Green Tree, 531 U.S. at 90 n.6. And while the Texas Supreme Court has accepted 
20

AAA invoices as some evidence of the costs of arbitration, it did so in a case where 

the parties’ agreement specifically required them to submit their disputes to 

“binding arbitration administered by the American Arbitration Association.” 

Olshan, 328 S.W.3d at 887, 897 (emphasis added). 

Bazan-Garcia has failed to make any “factual showing that the AAA 

would administer the arbitration” under the parties’ agreement. See Shasha, 253 

S.W.3d at 864. She therefore cannot prove, based solely on invoices from AAAadministered arbitrations, that arbitration under the Employee Handbook would be 

prohibitively expensive and unconscionable.3

B. Bazan-Garcia cannot rely on AAA invoices to prove that 

arbitration under the Employee Handbook is unconscionable if 

this Court is barred from considering the AAA Rules. 

In addition, if the Court is barred from considering the AAA Rules, as 

Bazan-Garcia has argued in the Response, then Bazan-Garcia cannot rely on AAA 

 

3

 Bazan-Garcia attempts to flip the burden of proof by claiming that WRPS was required to 

show that arbitration “through an arbitration association other than the AAA, would be less 

expensive than an arbitration actually administered by AAA.” Resp. at 28. This argument was 

squarely rejected in Shasha. Like Bazan-Garcia, Shasha argued that his evidence regarding how 

much AAA arbitration would cost was sufficient to meet his burden of proof, because the other 

party failed to counter that evidence by showing that non-AAA arbitration would be more 

affordable. The court of appeals disagreed, explaining that even though the other party could 

have prevailed by submitting such evidence, “such proof is not necessary for Shasha to be 

required to make a factual showing that the AAA would administer the arbitration.” Aspen 

Tech., Inc. v. Shasha, 253 S.W.3d 857, 864 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 

Bazan-Garcia’s argument is also contrary to Olshan, in which the Texas Supreme Court held that 

the party claiming arbitration would be prohibitively expensive has the burden of affirmatively 

proving that no cheaper arbitration alternatives were available under the parties’ agreement. See

328 S.W.3d at 897 (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 n.6 (2000)). 
21

invoices to prove that arbitration under the Employee Handbook would be 

unconscionable. 

The Texas Supreme Court’s opinion in Olshan is instructive. Like 

Bazan-Garcia, the Olshan respondents claimed that arbitration would be 

prohibitively expensive, and as evidence submitted several arbitration invoices 

from allegedly “similar” AAA-administered arbitrations. 328 S.W.3d at 897. 

Rather than relying solely on these invoices, the Supreme Court examined the 

AAA Rules separately to determine, based on the rules’ fee schedule and the 

amounts of the respondents’ claims, “how much [respondents] will be charged 

under the AAA Rules.” Id. Without that information, the Supreme Court 

explained, respondents could not meet their “burden to show the likelihood of 

incurring excessive costs.” Id.

If Bazan-Garcia is correct and the AAA Rules cannot be considered 

by the Court in this appeal, then Olshan is clear: Bazan-Garcia cannot meet her 

heavy burden of proving that arbitration governed by those rules and fee schedule 

would be prohibitively excessive and unconscionable. See Olshan, 328 S.W.3d at 

897. She therefore cannot avoid her arbitration obligations under the Employee 

Handbook. 
22

C. Bazan-Garcia cannot prove that the Employee Handbook’s 

arbitration agreement is unconscionable because she has not 

shown that a less expensive arbitration alternative is unavailable 

to her. 

The Texas Supreme Court has intentionally set the bar high for 

holding that an arbitration agreement is unconscionable, and has explained that a 

party may not “avoid arbitration [by] assum[ing] the most expensive possible 

scenario.” Olshan, 328 S.W.3d at 897. In Olshan, the Supreme Court explained 

that to meet this burden, the party resisting arbitration must also show that no 

cheaper alternative is available to the parties, such as by demonstrating it “made 

any effort to reduce the likely charges through requests for fee waivers, pro bono, 

arbitrators, or even simply requesting a one arbitrator panel.” Id. 

WRPS specifically discussed this requirement in its Opening Brief 

and pointed out that Bazan-Garcia had failed to make such a showing. See 

Opening Br. at 25. In her response, Bazan-Garcia discusses Olshan, but 

conspicuously omits any mention of this requirement. See Resp. at 27–30. For 

this additional reason, Bazan-Garcia cannot prove that arbitrating her claims 

against WRPS under the Employee Handbook would be unconscionable. 
23

D. Bazan-Garcia cannot prove that arbitration under the 

Arbitration Agreement is unconscionable because she has not 

presented any evidence showing how much it would cost to travel 

to Dallas County. 

Bazan-Garcia also claims that arbitration under the Arbitration 

Agreement would be unconscionable, on the grounds that she cannot afford the 

costs of travel and lodging in Dallas County. See Resp. at 24–25. In support of 

this claim, Bazan-Garcia submitted an affidavit stating that “if it is determined that 

I must bring my lawsuit against my employer in Dallas County, Texas, I will incur 

substantial additional expenses in travel and lodging, and I will probably not 

continue with my claim.” CR 96. 

As explained in Section II.C above, this conclusory statement is 

inadequate to prove that the Arbitration Agreement is unconscionable. See supra 

at 14–15 (discussing Green Tree, 531 U.S. at 90 n.6 (holding that plaintiff’s 

testimony “that [a]rbitration costs are high and that she did not have to resources to 

arbitrate” was inadequate to prove unconscionability)). For example, BazanGarcia does not indicate the amount of those “substantial” expenses, identify what 

type of transportation she would use to get to Dallas County, state how long she 

would have to stay, or show that no cheaper alternatives are available to her. 

Without this basic information, this Court cannot find that arbitration pursuant to 

the Arbitration Agreement would be prohibitively expensive, or allow BazanGarcia to escape her bargain with WRPS. 
24

V. The challenged provisions do not constitute the “essential purpose” of 

the parties’ agreements, and may be severed from the agreements. 

Finally, if this Court concludes that any of the challenged provisions 

in the Employee Handbook or Arbitration Agreement is unconscionable, then it 

must sever that provision and enforce the remainder of the parties’ agreement. The 

Court can only decline to do so if it concludes that the unconscionable provision 

constitutes the arbitration agreement’s “essential purpose.” See Opening Br. at 32–

33 (discussing Poly-America, 262 S.W.3d at 360; Venture Cotton Co-op v. 

Freeman, 435 S.W.3d 222, 230 (Tex. 2014)). In her Response, Bazan-Garcia 

contends that the three challenged provisions are “integral” to the parties’ 

arbitration agreements because (1) the agreements do not contain a severability 

clause, see Resp. at 40 (citing Poly-America, 262 S.W.3d at 360), and (2) WRPS 

did not request severance from the trial court, see Resp. at 40–41. 

First, “[i]n determining an agreement’s essential purpose, the issue is 

‘whether or not parties would have entered into the agreement absent the 

unenforceable provisions.’” Venture Cotton, 435 S.W.3d at 230 (quoting PolyAmerica, 262 S.W.3d at 360). WRPS and Bazan-Garcia’s incorporation of the 

AAA Rules in both the Arbitration Agreement and the Employee Handbook 

demonstrate that none of the provisions challenged by Bazan-Garcia were 

“essential” to those agreements. The AAA Rules not only supersede the 

challenged provisions, they also give the arbitrator power to modify or remove 
25

them. See AAA Rule 1 (App. 28). If these particular provisions were “essential” 

to the agreements, then it is highly unlikely the parties would have given the 

arbitrator such authority. 

Second, and contrary to Bazan-Garcia’s suggestion, the Texas 

Supreme Court has never held that the absence of a severability clause proves that 

all of the agreement’s terms constitute its “essential purpose.” Instead, the 

Supreme Court expressly held in Venture Cotton that a court of appeals is required

to sever an unconscionable provision from an arbitration agreement even when the 

agreement has no severability clause, and even when that remedy was not 

requested from the trial court. 435 S.W.3d at 230 (discussed in Opening Br. at 32). 

Consequently, if this Court concludes that any provision in the parties’ arbitration 

agreements is unenforceable, then it must sever that provision and enforce the 

remainder of the agreements. 

CONCLUSION AND PRAYER FOR RELIEF 

For the reasons set forth above, WRPS respectfully requests the Court 

reverse the trial court’s Order denying WRPS’s motion to compel arbitration, and 

direct the trial court to compel arbitration of all of Bazan-Garcia’s claims and abate 

this litigation. 
26

Respectfully submitted, 

BAKER BOTTS L.L.P. 

By: /s/ Jennifer M. Trulock 

Jennifer M. Trulock 

State Bar No. 90001515 

2001 Ross Avenue, Suite 600 

Dallas, Texas 75201 

(214) 953-6500 Telephone 

(214) 953-6503 Facsimile 

jennifer.trulock@bakerbotts.com 

Stephanie F. Cagniart 

State Bar No. 24079786 

98 San Jacinto Boulevard, Suite 1500 

Austin, Texas 78701-4078 

(512) 322-2500 Telephone 

(512) 322-2501 Facsimile 

stephanie.cagniart@bakerbotts.com 

ATTORNEYS FOR APPELLANT 

WESTERN RIM PROPERTY 

SERVICES, INC. 
27

Certificate of Compliance 

This brief complies with the type-volume limitations of Tex. R. App. 

P. 9.4, as it contains 5,861 words, excluding the parts of the brief exempted by 

Rule 9.4(i)(1). 

/s/ Stephanie F. Cagniart 

Stephanie F. Cagniart 

Certificate of Service 

I hereby certify that on February 9, 2015, a copy of the foregoing was 

served by the Court’s CM/ECF electronic service and by electronic mail on the 

following parties: 

Javier Espinoza 

Josue F. Garza 

The Espinoza Law Firm, PLLC 

503 E. Ramsey, Ste. 103 

San Antonio, Texas 78216 

210-229-1302 (Facsimile) 

josue@espinozafirm.com 

 /s/ Stephanie F. Cagniart 

Stephanie F. Cagniart