Writ Conditionally Granted, Appeal Dismissed, and Majority and Concurring 

Memorandum Opinions filed May 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00019-CV

NO. 14-14-00042-CV

IN RE VALERUS COMPRESSION SERVICES, LP, VALERUS 

COMPRESSION SERVICES MANAGEMENT LLC, TPG CAPITAL LLC,

TPG V VE, LP, TPG VI VE, LP, AND SCOTT MAGZEN, Relators

VALERUS COMPRESSION SERVICES, LP, VALERUS COMPRESSION 

SERVICES MANAGEMENT LLC, TPG CAPITAL LLC, TPG V VE, LP 

TPG VI VE, LP, AND SCOTT MAGZEN, Appellants

V.

JAMES J. WOODCOCK, C&J INDUSTRIES, INC., DEFINED BENEFIT 

TRUST, AND OTHERS SIMILARLY SITUATED, Appellees

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2013-69580

M A J O R I T Y M E M O R A N D U M O P I N I O N 
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In this consolidated petition for mandamus and interlocutory appeal, 

relators/appellants contend that the trial court abused its discretion by failing to 

rule on relators’/appellants’ motion to compel arbitration prior to granting a Rule 

202 petition in favor of the real parties in interest/appellees. We conditionally grant 

the writ of mandamus and stay the trial court’s order granting the petition for Rule 

202 depositions. We dismiss the interlocutory appeal. 

BACKGROUND

Valerus Compression Services, LP (the “partnership”) is a limited 

partnership consisting of Valerus Compression Services Management LLC

(“Valerus”) and several limited partners. On October 2, 2013, James J. Woodcock 

and C&J Industries, Inc. Defined Benefit Trust (collectively, “the Woodcock 

Parties”) sent a letter to Valerus, stating that they believed Valerus was

manipulating tax allocations, assigning unwarranted phantom income, and failing 

to make requisite tax distributions. The Woodcock Parties also requested certain 

records to investigate these claims. Counsel for the partnership, Valerus, certain 

limited partners, and others (collectively, “the Valerus Parties”)1responded to the 

letter by addressing the stated concerns and providing some of the information 

requested. 

The Woodcock Parties filed a Rule 202 petition, seeking to depose various 

representatives of the Valerus Parties to investigate potential claims of breach of 

contract, breach of fiduciary duty, minority shareholder oppression, and civil 

conspiracy. In response, the Valerus Parties objected to the Rule 202 petition and 

 

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The Valerus Parties include the partnership, Valerus, TPG Capital LLC, TPG V VE, 

LP, TPG VI VE, LP, and Scott Magzen. Valerus is the general partner and TPG V VE, LP and

TPG VI VE, LP are limited partners in the partnership. TPG Capital LLC is a private equity 

investment firm that owns a controlling interest of the partnership through its affiliated entities, 

TPG V VE, LP and TPG VI VE, LP. Scott Magzen is a senior manager with Deloitte Tax LLP, 

who joined in the petition. The Woodcock Parties are also limited partners in the partnership. 
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filed a motion to compel arbitration pursuant to a dispute resolution clause in a

partnership agreement among the parties. The trial court granted the Rule 202 

petition but did not expressly rule on the motion to compel arbitration. The Valerus 

Parties filed this interlocutory appeal and mandamus proceeding. By order of 

February 27, 2014, this court consolidated the interlocutory appeal with this 

original proceeding. 

ISSUES AND ANALYSIS

In their petition for writ of mandamus and interlocutory appeal, the Valerus 

Parties contend that the trial court abused its discretion by granting the Rule 202 

petition and by failing to grant their motion to compel arbitration. 

I. Writ of Mandamus or Interlocutory Appeal 

To resolve this issue, we must first determine whether mandamus or 

interlocutory appeal is the appropriate mechanism to review the trial court’s order. 

The Valerus Parties assert that if the trial court deferred a ruling on the motion to 

compel, mandamus is the appropriate proceeding. The Valerus Parties further 

contend that if the trial court impliedly denied the motion to compel, the trial 

court’s order is reviewable by interlocutory appeal pursuant to section 51.016 of 

the Texas Civil Practice Remedies Code. See Tex. Civ. Prac. & Rem. Code 

§ 51.016. 

The trial court’s order granted the Rule 202 petition but did not expressly

rule on the motion to compel arbitration. The trial court’s order only mentioned the 

motion to compel as one of the motions it considered in making its ruling. 

Although the trial court did not expressly state that it was postponing a ruling on 

the merits of the motion to compel, it appears that the trial court deferred a ruling 

on the motion to compel arbitration until after the Rule 202 depositions had been 
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taken. See In re F.C. Holdings, Inc., 349 S.W.3d 811, 815 (Tex. App.—Tyler 

2011, orig. proceeding) (analyzing the trial court’s order as a deferral even though 

the trial court did not expressly state that it was deferring its ruling on the motion 

to compel arbitration). 

Mandamus lies only when there is no adequate remedy by appeal, and an 

appeal lies only from final orders and those interlocutory orders that statutes make 

appealable. In re MHI P’ship, Ltd., 7 S.W.3d 918, 920 (Tex. App.—Houston [1st 

Dist.] 1999, orig. proceeding). Appellate courts have jurisdiction over interlocutory 

orders permitted by statute. See Tex. Civ. Prac. & Rem. Code § 51.016. The 

substance and function of the interlocutory order viewed in the context of the 

record controls our interlocutory jurisdiction. Tex. La Fiesta Auto Sales, LLC v. 

Belk, 349 S.W.3d 872, 878 (Tex. App.—Houston [14th Dist.] 2011, no pet.). 

The Valerus Parties filed an interlocutory appeal pursuant to section 51.016 

of the Texas Civil Practice and Remedies Code and the Federal Arbitration Act

(FAA), 9 U.S.C. Section 16, along with a mandamus proceeding. The parties’ 

arbitration clause states that it is subject to the FAA. The FAA allows interlocutory 

appeal from an order denying an application to compel arbitration, among other 

types of orders. 9 U.S.C. § 16(a)(1)(C). The FAA does not allow an interlocutory 

appeal from a trial court’s deferral of a ruling on a motion to compel. See In re 

F.C. Holdings, Inc., 349 S.W.3d at 815 (citing 9 U.S.C. § 16) (stating that there is 

“no provision for appealing trial court’s deferral of ruling on motion to compel 

arbitration under Federal Arbitration Act”). The FAA refers only to orders denying 

a motion to compel arbitration and not to orders deferring a ruling on a motion to 

compel arbitration. See 9 U.S.C. § 16. Thus, because such an order is not 

appealable under the FAA, it is not an appealable order under section 51.016. See 

ReadyOne Indus., Inc. v. Simental, 394 S.W.3d 676, 679 (Tex. App.—El Paso 
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2012, no pet.) (citing Tex. Civ. Prac. & Rem. Code § 51.016) (stating that “in 

matters subject to the FAA, an appeal is available only under the same 

circumstances that an appeal from federal district court’s order would be 

permitted”). 

Several courts have considered this identical issue and have held that when a 

trial court defers ruling on a motion to compel arbitration, mandamus is the 

appropriate proceeding, not an interlocutory appeal. See In re F.C. Holdings, Inc., 

349 S.W.3d at 815 (“[A]ppeal is not available when a trial court defers ruling on a 

motion to compel arbitration.”); see also ReadyOne Indus., Inc., 394 S.W.3d at 679 

(holding that an order deferring a ruling on a motion to compel arbitration was not 

appealable); In re MHI P’ship, Ltd., 7 S.W.3d at 920−21 (holding that mandamus, 

not interlocutory appeal, was proper because the trial court deferred a ruling on 

whether to grant the motion to compel arbitration until after discovery was 

completed). We therefore hold that the trial court’s order deferring a ruling on the 

motion to compel arbitration is not reviewable by interlocutory appeal.

In a similar Rule 202 petition case, this court conditionally granted 

mandamus relief when a trial court granted a Rule 202 petition and deferred its 

ruling on arbitrability until after the Rule 202 deposition had been taken. See In re 

Bill Heard Chevrolet, Ltd., No. 14-05-00744-CV, 2005 WL 2787468, at *1 (Tex. 

App.—Houston [14th Dist.] Oct. 27, 2005, orig. proceeding) (per curiam) (mem. 

op.). Therefore, we hold that mandamus is the appropriate proceeding to review the 

trial court’s order deferring a ruling on the motion to compel arbitration. We 

dismiss the Valerus Parties’ interlocutory appeal. 

II. Mandamus Relief 

In their first issue, the Valerus Parties assert that they are entitled to 

mandamus relief because the trial court abused its discretion by failing to compel 
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arbitration pursuant to the parties’ partnership agreement and stay the Rule 202 

depositions.

In order to obtain mandamus relief, the Valerus Parties must show that the 

trial court committed a clear abuse of discretion and there is no adequate appellate 

remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135−36 (Tex. 2004)

(orig. proceeding). A clear abuse of discretion occurs when the trial court reaches a 

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error 

of law. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per 

curiam). 

A. Abuse of Discretion 

 The Valerus Parties contend that the trial court abused its discretion by 

failing to stay the Rule 202 depositions and compel arbitration. In support of their 

contention, the Valerus Parties primarily rely on In re Bill Heard Chevrolet. See

2005 WL 2787468. In that case, the trial court deferred its ruling on the issue of 

arbitrability until after the Rule 202 deposition had been taken. Id. at *1. A panel 

of this court held that the trial court abused its discretion by ordering the Rule 202 

deposition before ruling on the motion to compel arbitration. Id. The court 

reasoned that “[t]he trial court has no discretion to delay the decision on the merits 

of arbitrability until after discovery.” Id. (citing In re MHI P’ship, Ltd., 7 S.W.3d 

at 923). Thus, the court stayed the rule 202 deposition, conditionally granted the 

writ of mandamus, and ordered the trial court to rule on the issue of arbitrability. 

Id. This case is analogous to In re Bill Heard Chevrolet because the trial court 

granted the Rule 202 depositions prior to ruling on the motion to compel 

arbitration. 

In response, the Woodcock Parties primarily rely on Patton Boggs LLP v. 

Moseley, 394 S.W.3d 565 (Tex. App.—Dallas 2011, orig. proceeding). In that 
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case, the court held that the trial court had no jurisdiction to grant an interlocutory 

appeal from the trial court’s order denying the motion to compel. Id. at 572 (citing 

In re Sw. Sec., Inc., No. 05-99-01836-CV, 2000 WL 770117, at *2 (Tex. App.—

Dallas June 14, 2000, orig. proceeding) (mem. op.) (not designated for 

publication)). The court reasoned that because the only proceeding before the trial 

court was a rule 202 petition, the trial court did not have jurisdiction to grant the 

motion to compel arbitration, absent an agreement between the parties that the 

motion should be granted. Id.

We are bound to follow this court’s precedent holding that a trial court 

abuses its discretion when it defers a decision on a motion to compel arbitration 

until after a Rule 202 deposition is conducted. See Univ. of Tex. Health Science 

Cent. at Houston v. Crowder, 349 S.W.3d 640, 644 (Tex. App.—Houston [14th 

Dist.] 2011, no pet.) (holding that the court was bound by prior precedent despite 

other Texas intermediate courts being split on the issue). Although the concurrence 

raises a valid argument as to why this court should reconsider its decision in In re 

Bill Heard Chevrolet, we decline to do so in this case. Therefore, we find that the 

trial court abused its discretion in ordering the Rule 202 depositions before ruling 

on the motion to compel arbitration. See In re Bill Heard Chevrolet, 2005 WL 

2787468, at *1. 

B. Adequate Appellate Remedy 

The Valerus Parties assert that they have no adequate remedy by appeal 

because the trial court granted the Rule 202 depositions and failed to rule on the 

motion to compel arbitration. 

Because there is no interlocutory appeal available from the trial court’s 

deferral of ruling on the motion to compel arbitration, the Valerus Parties need not 

show that they have no adequate remedy by appeal. See In re F.C. Holdings, Inc., 
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349 S.W.3d at 815 (holding that relator was not required to show it had no 

adequate remedy by appeal because the trial court deferred its ruling on the motion 

to compel and review by interlocutory appeal was unavailable).

CONCLUSION

We therefore stay the trial court’s order of January 7, 2014, granting the 

petition for Rule 202 depositions. We conditionally grant the writ of mandamus 

and order the trial court to rule on the issue of arbitrability. Only if the trial court 

fails to do so will the writ issue. 

/s/ Ken Wise

Justice

Panel consists of Justices McCally, Brown, and Wise (McCally, J., concurring).