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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-18-00273-CV 

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IN RE OXBOW CALCINING LLC

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Original Proceeding

172nd District Court of Jefferson County, Texas

Trial Cause No. E-201,894

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MEMORANDUM OPINION

Oxbow Calcining LLC filed a petition for writ of mandamus to compel the 

trial court to vacate an order denying relator’s motion to quash a hearing on Port 

Arthur Steam Energy, L.P.’s (PASE) Application for Post-Judgment Enforcement 

Orders. We entered a stay and requested further briefing.

In 2011, Oxbow and PASE had a dispute concerning certain rights and duties

under a Heat Energy Agreement (Heat Agreement) that resulted in an arbitration 

award of $3,409,781.57 to PASE. According to the arbitration award, PASE was 

entitled to lost revenue caused by Oxbow’s breach of provisions in the Heat 
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Agreement. The arbitration award expressly states further that: “This is not a cash 

award requiring Oxbow to write PASE a check. It shall be handled in accordance 

with the specific provisions of the Heat Agreement regarding the heat bank as an 

offset.”1 The award was confirmed by the 151st District Court of Harris County. 

On June 8, 2018, PASE filed a Petition and Application for Post-Judgment 

Enforcement Orders in the 172nd District Court of Jefferson County. Oxbow owns 

and operates a coke calcining plant located in Port Arthur, Jefferson County, Texas. 

PASE owns and operates a steam plant that is adjacent and connected to Oxbow’s 

petroleum coke calcining plant in Jefferson County, Texas. PASE requested the 

appointment of a receiver under section 31.002 of the Civil Practice and Remedies 

Code to monitor and control Oxbow’s coke calcining plant to maximize the delivery 

of flue gas energy to PASE. See generally Tex. Civ. Prac. & Rem. Code Ann. § 

31.002 (West Supp. 2017).

Oxbow filed a motion to transfer venue to Harris County and subject to its 

motion to transfer venue, moved to compel arbitration of the dispute under the Heat 

Agreement. Oxbow filed a motion to quash the hearing on PASE’s application for a 

 

1 PASE concedes that it was not to recover a monetary payment for damages 

directly from Oxbow, and that it was to recover the damages awarded in the 

judgment by offsetting “Heat Payments” that the arbitration panel anticipated PASE 

would be making to Oxbow under Section 6 of the Heat Agreement over a period of 

twelve or more years. 
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turnover order and appointment of a receiver, which, in part, argued that the motion 

to transfer venue and motion to compel arbitration should be decided first. The trial 

court denied Oxbow’s motion to quash. 

In its mandamus petition, Oxbow contends the trial court clearly abused its 

discretion by denying the motion to quash when a motion to transfer venue and a 

motion to compel arbitration based on a mandatory arbitration provision in the Heat 

Agreement will not be decided before the scheduled hearing on PASE’s application 

for a turnover order. Oxbow contends it lacks an adequate remedy by appeal because 

the order effectively deprives Oxbow of its contractual right to arbitration and 

severely compromises its ability to present its defense at the hearing on PASE’s 

application for a turnover order. 

Mandamus Review

A writ of mandamus traditionally has been only to “compel the performance 

of a ministerial act or duty.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) 

(orig. proceeding). The use has been expanded to “correct a ‘clear abuse of 

discretion’ committed by the trial court”. Id. A trial court clearly abuses its discretion 

if “‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and 

prejudicial error of law.’” Id. (quoting Johnson v. Fourth Court of Appeals, 700 

S.W.2d 916, 917). The relator must establish that the trial court could reasonably 
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have reached only one decision. Id. at 840. “On the other hand, review of a trial 

court’s determination of the legal principles controlling its ruling is much less 

deferential.” Id. “A trial court has no ‘discretion’ in determining what the law is or 

applying the law to the facts.” Id. “Thus, a clear failure by the trial court to analyze 

or apply the law correctly will constitute an abuse of discretion[] and may result in 

appellate reversal by extraordinary writ.” Id.

Oxbow must also demonstrate that it has no adequate remedy by appeal. See 

In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. 

proceeding). Mandamus review of incidental, interlocutory rulings by the trial court 

unduly interferes with trial court proceedings and adds to the expense and delay of 

civil litigation. Id. at 136. However, mandamus review of significant rulings in 

exceptional cases may, at times, be essential to preserve important substantive and 

procedural rights from impairment or loss and spare private parties and the public 

the time and money utterly wasted enduring eventual reversal of improperly 

conducted proceedings. Id. When the benefits to mandamus review outweigh the 

detriments, appellate courts must consider whether the appellate remedy is adequate. 

Id. “[W]hether an appellate remedy is ‘adequate’ so as to preclude mandamus review 

depends heavily on the circumstances presented and is better guided by general 
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principles than by simple rules.” Id. at 137. Mandamus review is appropriate if “the 

error was clear enough[] and correction simple enough[.]” Id. 

In its mandamus petition, Oxbow contends the trial court clearly abused its 

discretion by denying the motion to quash when a motion to transfer venue and a 

motion to compel arbitration based on a mandatory arbitration provision in the Heat 

Agreement will not be decided before the scheduled hearing on PASE’s application 

for a turnover order. Oxbow contends it lacks an adequate remedy by appeal because 

the order effectively deprives Oxbow of its contractual right to arbitration and 

severely compromises its ability to present its defense at the hearing on PASE’s 

application for a turnover order. 

The hearing that Oxbow seeks to quash is on PASE’s request for turnover of 

assets and relates to post-judgment enforcement of a judgment. See generally Tex. 

Civ. Prac. & Rem. Code Ann. § 31.002. The turnover statute is purely procedural in 

nature. Republic Ins. Co. v. Millard, 825 S.W.2d 780, 783 (Tex. App.—Houston 

[14th Dist.] 1992, orig. proceeding). The purpose of a turnover proceeding is merely 

to ascertain whether an asset is in the possession of the judgment debtor or subject 

to the debtor’s control. Id. The statute does not allow for a determination of the 

parties’ substantive rights. Id. 
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Whether the arbitration award reduced to judgment allows the real party in 

interest to seize control of the relator’s plant or to obtain a turnover order or 

receivership, whether the dispute is a “new dispute” or seeks additional substantive 

relief, whether venue of this matter is proper in Jefferson County, Texas, and 

whether the matter should be arbitrated are issues that have not yet been determined 

by the trial court, and such issues are not currently before us. We expressly do not 

rule on any of these questions. The only questions before a trial court at a hearing on 

an application for turnover are: (1) whether the judgment creditor is entitled to 

turnover of nonexempt assets to obtain satisfaction of a judgment; (2) whether the 

judgment debtor is in possession of an asset that is not exempt from attachment, 

execution, or seizure for the satisfaction of liabilities under the judgment; and (3) 

whether the trial court should appoint a receiver with the authority to take possession 

of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to 

the extent required to satisfy the judgment. See generally Tex. Civ. Prac. & Rem. 

Code Ann. § 31.002. Any resulting order that grants the turnover or appoints a 

receiver or that functions as a mandatory injunction will be appealable. See 

Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., 540 

S.W.3d 577, 586 (Tex. 2018); see also Tex. Civ. Prac. & Rem. Code Ann. § 

51.014(a)(1) (West Supp. 2017). 
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The matter that Oxbow seeks to quash is a hearing that is limited to postjudgment enforcement of an arbitration award. Whether the Judgment in this case 

allows the real party in interest to seize control of the relator’s plant is a matter that 

has not yet been determined by the trial court. After reviewing the mandamus 

petition and record, we conclude that an appeal of a turnover order will provide 

adequate relief in this instance. We lift our July 20, 2018 stay order and deny the 

petition for a writ of mandamus. 

PETITION DENIED. 

PER CURIAM

Submitted on July 31, 2018

Opinion Delivered August 9, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.