COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DELFINGEN US-TEXAS, L.P.,

 Appellant,

v.

GUADALUPE VALENZUELA,

 Appellee. 

'

'

'

'

'

'

No. 08-12-00022-CV

Appeal from

County Court at Law No. 3

of El Paso County, Texas

(TC # 2011-251)

O P I N I O N

Delfingen US-Texas, L.P. has brought this accelerated appeal from an order denying its 

motion to compel arbitration. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Delfingen specializes in the design and manufacture of wiring harnesses and other plastic 

components for the automotive industry. Guadalupe Valenzuela worked as a temporary 

employee for Delfingen for about four months in El Paso, Texas being hired as a permanent 

employee on May 5, 2008. She is unable to read English. On May 7, 2008, Valenzuela attended 

an orientation session for new employees conducted by Maria Guzman, Delfingen’s human 

resources representative. Guzman conducted the entire orientation session in Spanish. At the 

conclusion of the meeting, Valenzuela signed several documents which were in English, 

including the “Dispute Resolution and Arbitration Policy and Agreement”. By signing the 

Agreement, Valenzuela acknowledged she had read the document and “agree[d] to submit to 

final and binding arbitration any and all claims and disputes that are related in any way to my 

employment or the termination of my employment with Delfingen.” 
- 2 -

On January 24, 2011, Valenzuela filed suit against Delfingen alleging she was wrongfully 

terminated because she pursued workers’ compensation benefits after suffering an on-the-job 

injury. Delfingen filed a motion to stay proceedings and compel arbitration based on the 

Agreement. In her response, Valenzuela alleged that the Agreement is procedurally 

unconscionable because it was never explained to her in Spanish and she was “rushed to sign the 

document.” Valenzuela’s affidavit is attached to the response and avers that:

I was hired by Delfingen U.S.-Texas, L.P. to be a vent tube assembler in

May 2008. The only language I can communicate in is Spanish. I cannot read

English. My employer knew this and hired me for the job. When I was hired 

my employer presented many forms to me for signature. All of the forms were

written in English. I understand now that one these [sic] forms may have been the

DISPUTE RESOLUTION AND ARBITRATION POLICY AND

AGREEMENT. This form was not explained to me nor was it made available to 

me in Spanish so I could evaluate it and make a decision to accept it or reject it. I 

had no idea that I was waiving my constitutional rights to bring statutory and

common-law claims against my employer in a court of law. Delfingen U.S.-

Texas, L.P. never explained to me that I was entering into such an agreement.

Maria Guzman was the person who was telling me to fill out the forms. 

She told me that she was going to explain only the important parts of the 

paperwork. Because I do not understand English, I was at a disadvantage while 

going through the paperwork, as I had no means to determine for myself what the 

important parts of the paperwork were. However, I took Ms. Guzman’s word that 

everything important was being translated for me by her. Ms. Guzman translated 

the policies of Delfingen U.S.-Texas, L.P. with regard to attendance, tardiness, 

and punctuality in detail. At the end of the process of completing all of the 

paperwork, Ms. Guzman asked me if I had any other questions. I asked her some 

more questions about the attendance policy, but I had no idea that there had been 

a waiver of the right to bring my employer to court in the event of a dispute. Ms. 

Guzman did not mention the arbitration agreement or what it meant. I would 

have definitely asked for more information about this policy had I known that it 

was something that I had been coerced and fraudulently induced into signing. 

I understand that this is a substantially equal version of the affidavit I gave 

in Spanish, and this version has been read and translated to me.1 

Delfingen filed a written reply to Valenzuela’s response contending that the inability to 

 

1

 Valenzuela’s affidavit made in Spanish is also attached to the response.
- 3 -

speak or read English does not invalidate the Agreement. It also challenged Valenzuela’s 

assertions that Guzman did not explain the arbitration agreement to her in Spanish and that 

Valenzuela is unable to read English. Delfingen supported its reply with Guzman’s affidavit:

2. All new employees hired by Delfingen must attend a new employee 

orientation. The purpose of the orientation is to provide all new employees with 

information about the company’s policies and procedures. I am in charge of 

conducting the new employee orientation sessions which take place at Delfingen’s 

El Paso, Texas location. Orientation sessions are typically conducted in groups of 

the employees recently hired. Sometimes, we hire employees whose native or

first language is Spanish. I am fully bilingual, and, therefore, when I conduct the 

orientation sessions, I explain all of the company’s policies in both English and 

Spanish. As I explain each policy, I make it a point to ask the employees whether 

they have any questions.

3. Delfingen has an arbitration policy which requires both the company 

and the employee to resolve employment-related disputes through the arbitration 

process. During the orientation sessions, new employees are presented with the 

arbitration agreement for their signature. I explain the company’s arbitration 

policy to the employees in both English and Spanish and always ask if they have 

any questions about it.

4. Guadalupe Valenzuela is a former employee of Delfingen. Ms. 

Valenzuela was hired on or about May 5, 2008 and attended the new employee 

orientation held on May 7, 2008. I specifically recall Ms. Valenzuela being 

present at this orientation. Ms. Valenzuela and a couple of other employees in 

this orientation session, including a new hire by the name of Nancy Colorado, 

were not native English speakers. During the May 7, 2008 session, I recall 

explaining all of the company’s policies in English and Spanish including the 

arbitration policy. When I asked if anyone had questions about the arbitration 

policy, Ms. Valenzuela did not say anything. 

The trial court initially denied the motion to compel arbitration, but at Delfingen’s request and 

with Valenzuela’s agreement, the court withdrew that order and conducted an evidentiary 

hearing.2 At that hearing, only Valenzuela and Guzman testified. Valenzuela testified that she 

understood “very little” English. She admitted signing the Arbitration Agreement. When asked 

 

2

 The trial court was required to conduct an evidentiary hearing to resolve the disputed material facts raised by the 

affidavits. See Jack B. Anglin Company, Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992); In re Big 8 Food Stores, 

Ltd., 166 S.W.3d 869, 875 (Tex.App.--El Paso 2005, orig. proceeding).
- 4 -

whether she could read it, Valenzuela said she could read it but she could not understand it. 

Valenzuela recalled that Guzman communicated with her in Spanish, but she only explained the 

attendance policies and production requirements. When Valenzuela signed the Agreement, she 

believed she was signing the attendance policy. She was never told that if she signed the 

Arbitration Agreement, she was waiving her right to sue her employer. Valenzuela specifically 

testified that Guzman did not trick her into signing the Agreement but she insisted that Guzman 

did not explain it. If Valenzuela had known the document she signed was an arbitration 

agreement, she would not have signed it. 

On cross-examination, Valenzuela admitted that Guzman explained company policies 

other than attendance, including reporting injuries, substance abuse and alcohol, sexual 

harassment, clocking-in, the standards of conduct, and employment safety. When Valenzuela 

signed the Agreement, she thought she was signing those policies as well as the attendance 

policy. Delfingen’s counsel then asked Valenzuela whether it was possible she was confusing 

the arbitration agreement with the employee handbook which contained those policies, and she 

agreed it was possible. 

Guzman testified that Delfingen provided Valenzuela with a “new hire packet” of 

documents and forms at some point prior to the beginning of the orientation session.

3

 The packet 

included five documents which required the new employee’s signature: (1) Delfingen’s injury 

reporting policy; (2) an acknowledgement that the employee has received the Company 

Employee Handbook; (3) the “Dispute Resolution and Arbitration Policy and Agreement”; (4) an 

acknowledgement the employee has received a copy of Delfingen’s Safety Policies and 

Guidelines Handbook; and (5) the Proprietary Information Agreement. All of the documents are 

 

3

 According to Guzman, Delfingen usually provided the packet to new employees a couple of days before the 

orientation session, but she could not recall exactly when Valenzuela had been given the packet prior to the 

orientation session. 
- 5 -

in English.

During the orientation session, which Guzman conducted entirely in Spanish because all 

of the new employees were Spanish-speakers, Guzman informed Valenzuela and the other new 

employees about the company’s policies and procedures. With respect to the Arbitration 

Agreement, Guzman explained that “as an employee, you’re waiving your rights to take any 

dispute to Court and you handle it within the company, with an arbitrator . . . .” At the 

conclusion of the meeting, Guzman met with each new employee individually and went over the 

paperwork with them before they signed those documents which required a signature. 

Valenzuela did not ask any questions and signed the Agreement. 

The trial court signed an order denying Delfingen’s motion to compel arbitration. 

Delfingen filed notice of accelerated appeal. 

PROCEDURAL UNCONSCIONABILITY

In its sole issue on appeal, Delfingen contends that Valenzuela failed to meet her burden 

of showing that the arbitration agreement is procedurally unconscionable. Valenzuela responds 

that she met her burden of proof because there is evidence that Delfingen affirmatively 

misrepresented the nature of the arbitration agreement. Additionally, Valenzuela argues that

procedural unconscionability exists in this case because she was “the weaker party in the 

atmosphere in which the arbitration agreement was obtained.” More specifically, she asserts that 

the agreement is in English and Delfingen did not provide or explain it to her in Spanish. 

Applicable Law

A party seeking to compel arbitration must (1) establish the existence of a valid 

arbitration agreement; and (2) show that the claims asserted are within the scope of the 

agreement. See In re AdvancePCS Health L.P., 172 S.W.3d 603, 605 (Tex. 2005); Inland Sea, 
- 6 -

Inc. v. Castro, --- S.W.3d ----, 2012 WL 1715242 at *2 (Tex.App.--El Paso 2012, pet. filed). It 

is undisputed that the FAA is applicable to the Agreement at issue here. Section 2 of the FAA 

provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such 

grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2 (West 

2009). Thus, under the FAA, ordinary principles of state contract law determine whether there is 

a valid agreement to arbitrate.4In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 

2005); Inland Sea, Inc. v. Castro, --- S.W.3d ----, 2012 WL 1715242 at *2. Once the party 

seeking to compel arbitration proves that a valid arbitration agreement exists, a presumption 

attaches favoring arbitration and the burden shifts to the party resisting arbitration to establish a 

defense to enforcement. Inland Sea, Inc. v. Castro, --- S.W.3d ----, 2012 WL 1715242 at *2; see 

In re AdvancePCS, 172 S.W.3d at 607. In the context of enforcement, defenses refer to 

unconscionability, duress, fraudulent inducement, and revocation. In re FirstMerit Bank, N.A., 

52 S.W.3d 749, 756 (Tex. 2001); IHS Acquisition No. 171, Inc. v. Beatty-Ortiz, --- S.W.3d ----, 

2012 WL 1658644 at *7 (Tex.App.--El Paso 2012, no pet.). Because the law favors arbitration, 

the burden of proving a defense to arbitration is on the party opposing it. IHS Acquisition No. 

171, Inc. v. Beatty-Ortiz, --- S.W.3d ----, 2012 WL 1658644 at *7, citing J.M. Davidson, Inc., 

128 S.W.3d at 227.

Agreements to arbitrate disputes between employers and employees are generally 

enforceable under Texas law. In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008). 

There is nothing per se unconscionable about an agreement to arbitrate employment disputes and 

Texas law has historically favored agreements to resolve such disputes. Id. But an arbitration 

agreement is invalid if it is unconscionable. See In re Palm Harbor Homes, Inc., 195 S.W.3d 

672, 677-79 (Tex. 2006); In re Halliburton Company, 80 S.W.3d 566, 572 (Tex. 2002).

 

4

 The parties agree that Texas contract law applies to the Arbitration Agreement.
- 7 -

Texas recognizes both procedural and substantive unconscionability. In re Olshan 

Foundation Repair Company, LLC, 328 S.W.3d 883, 892 (Tex. 2010). Substantive 

unconscionability refers to the fairness of the arbitration provision itself, whereas procedural 

unconscionability refers to the circumstances surrounding adoption of the arbitration provision. 

In re Olshan Foundation Repair, 328 S.W.3d at 892; In re Palm Harbor Homes, 195 S.W.3d at 

677; see TMI, Inc. v. Brooks, 225 S.W.3d 783, 792 (Tex.App.--Houston [14th Dist.] 2007, pet.

denied)(procedural unconscionability relates to the making or inducement of the contract, 

focusing on the facts surrounding the bargaining process). Valenzuela’s defense is restricted to 

procedural unconscionability. 

“Unconscionability” has no precise legal definition because it is not a concept but a 

determination to be made in light of a variety of factors. Southwestern Bell Telephone Company 

v. DeLanney, 809 S.W.2d 493, 498 (Tex. 1991)(Gonzalez, J. concurring); Arthur’s Garage, Inc. 

v. Racal-Chubb Security Systems, Inc., 997 S.W.2d 803, 815 (Tex.App.--Dallas 1999, no pet.). 

In determining whether a contract is unconscionable, we must examine (1) the “entire 

atmosphere” in which the agreement was made; (2) the alternatives, if any, available to the 

parties at the time the contract was made; (3) the “non-bargaining ability” of one party; (4) 

whether the contract was illegal or against public policy; and (5) whether the contract is 

oppressive or unreasonable. Ski River Development, Inc. v. McCalla, 167 S.W.3d 121, 136 

(Tex.App.--Waco 2005, pet. denied). The totality of the circumstances must be assessed as of 

the time the contract was formed. Ski River, 167 S.W.3d at 136; El Paso Natural Gas Company 

v. Minco Oil & Gas Company, 964 S.W.2d 54, 60-61 (Tex.App.--Amarillo 1997), rev’d on other 

grounds, 8 S.W.3d 309 (2000). The grounds for substantive abuse must be sufficiently shocking 

or gross to compel the court to intercede, and the same is true for procedural abuse--the 
- 8 -

circumstances surrounding the negotiations must be shocking. Ski River, 167 S.W.3d at 136;

El Paso Natural Gas Co., 964 S.W.2d at 62. 

Standard of Review

The trial court’s determination of the arbitration agreement’s validity is a legal question 

subject to de novo review. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); 

Inland Sea, Inc. v. Castro, --- S.W.3d ----, 2012 WL 1715242 at *2. Whether a contract is 

unconscionable at the time it is formed is also a question of law which is reviewed de novo. In 

re Poly-America, L.P., 262 S.W.3d at 348-49; Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 

562 (Tex. 2006); Ski River, 167 S.W.3d at 136. The determination of the facts relevant to the 

question of unconscionability is, however, a question for the trial court. Besteman v. Pitcock, 

272 S.W.3d 777, 788 (Tex.App.--Texarkana 2008, no pet.). 

Delfingen met its initial burden of showing that an agreement to arbitrate exists and 

Valenzuela has never disputed that her claim falls within its scope. Consequently, the 

presumption favoring arbitration attached and the burden shifted to Valenzuela to establish her 

defense of procedural unconscionability. Delfingen argues that Valenzuela failed to meet her 

burden and that the evidence does not support a determination that the arbitration agreement is 

procedurally unconscionable. Delfingen takes the position that we must review the trial court’s 

fact findings under the no evidence or legal sufficiency standard. Valenzuela responds that we 

must engage in an abuse of discretion analysis and defer to the trial court’s fact findings if they 

are supported by the record. The parties agree that unconscionability is a question of law subject 

to de novo review but they disagree regarding the standard to be applied to the trial court’s 

relevant fact findings.

Delfingen has brought this interlocutory appeal pursuant to Section 51.016 of the Civil 
- 9 -

Practice and Remedies Code. TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (West Supp. 

2012). Prior to the effective date of that statute, September 1, 2009, an order denying a motion 

to compel arbitration under the FAA could not be challenged in an interlocutory appeal. 

Cleveland Construction, Inc. v. Levco Construction, Inc., 359 S.W.3d 843, 851 (Tex.App.--

Houston [1st Dist.] 2012, pet. dism’d), citing In re Merrill Lynch & Company, 315 S.W.3d 888, 

890-91 & n.3 (Tex. 2010)(orig. proceeding); Sidley Austin Brown & Wood, LLP v. J.A. Green 

Development Corporation, 327 S.W.3d 859, 862 (Tex.App.--Dallas 2010, no pet.), citing Jack B. 

Anglin Company, Inc. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992). Consequently, a party

denied the right to arbitrate pursuant to an agreement subject to the FAA did not have an 

adequate remedy by appeal and was entitled to mandamus relief to correct a clear abuse of 

discretion. In re Labatt Food Service, L.P., 279 S.W.3d 640, 642-43 (Tex.2009)(orig. 

proceeding). Under that clear abuse of discretion standard, a reviewing court is required to defer 

to the trial court’s factual determinations if they are supported by the evidence and it reviews the 

trial court’s legal determinations de novo. Sidley, 327 S.W.3d at 862, citing In re Labatt, 279 

S.W.3d at 643. The Texas Supreme Court has not specifically addressed the appropriate 

standard of review for interlocutory appeals under Section 51.016 of an order denying a motion 

to compel arbitration. 

In interlocutory appeals of orders denying motions to compel arbitration under the Texas 

Arbitration Act (“TAA”), some courts of appeals, including this court, have held that we review

the trial court’s fact findings under a legal sufficiency or “no evidence” standard while legal 

conclusions are reviewed de novo. See e.g., McReynolds v. Elston, 222 S.W.3d 731, 739

(Tex.App.--Houston [14th Dist.] 2007, no pet.); Tri-Star Petroleum Co. v. Tipperary Corp., 107 

S.W.3d 607, 616 (Tex.App.--El Paso 2003, pet. denied); Fridl v. Cook, 908 S.W.2d 507, 511 
- 10 -

(Tex.App.--El Paso 1995, writ dism’d w.o.j.); Hearthshire Braeswood Plaza Ltd. Partnership v. 

Bill Kelly Co., 849 S.W.2d 380, 384 (Tex.App.--Houston [14th Dist.] 1993, writ denied); Wetzel 

v. Sullivan, King & Sabom, P.C., 745 S.W.2d 78, 79 (Tex.App.--Houston [1st Dist.] 1988, no 

writ). When the facts are undisputed, the court reviews the legal conclusions de novo. See

McReynolds, 222 S.W.3d at 739. 

Other intermediate appellate courts have held that the trial court’s order denying a motion 

to compel arbitration under the TAA should be reviewed under the abuse of discretion standard

utilized when the trial court decides a matter involving both factual determinations and legal 

conclusions, sometimes referred to as a mixed question of law and fact. See e.g., Chambers v. 

O’Quinn, 305 S.W.3d 141, 146 (Tex.App.--Houston [1st Dist.] 2009, pet. denied); Pony Express 

Courier Corporation v. Morris, 921 S.W.2d 817, 820 (Tex.App.--San Antonio 1996, no writ); 

see also State v. $217,590 in U.S. Currency, 18 S.W.3d 631, 633 (Tex. 2000)(stating that an 

appellate court reviews a trial court’s ruling on a mixed question of law and fact for an abuse of 

discretion); Brainard v. Texas, 12 S.W.3d 6, 30 (Tex. 1999)(holding that question whether a state 

agency’s action is “unreasonable” within the meaning of Frivolous Claims Act, such that 

prevailing party is entitled to litigation costs and attorney fees, is a mixed question of law and 

fact subject to review for abuse of discretion), disapproved on other grounds by Martin v. 

Amerman, 133 S.W.3d 262, 267-68 (Tex. 2004). Under this standard, the appellate court defers 

to the trial court’s factual determinations supported by the record and reviews legal conclusions 

de novo. $217,590 in U.S. Currency, 18 S.W.3d at 633; Chambers, 305 S.W.3d at 146-47; Pony 

Express, 921 S.W.2d at 820. The reviewing court does not engage in its own factual review, but 

decides whether the record supports the trial court’s resolution of factual matters. $217,590 in 

U.S. Currency, 18 S.W.3d at 633-34. If the record supports the trial court’s evidentiary findings, 
- 11 -

the reviewing court is not at liberty to disturb them. Id. at 634. A reviewing court instead 

determines whether the trial court properly applied the law to the facts in reaching its legal 

conclusion. Id. It does not defer to the trial court on questions of law. Perry Homes v. Cull, 258 

S.W.3d 580, 597-98 (Tex. 2008). 

It is significant to the question before us that some intermediate appellate courts have 

determined that this abuse of discretion standard should be used when reviewing mixed 

questions of law and fact in appeals under Section 52.016. See e.g., Cleveland Construction, Inc. 

v. Levco Construction, Inc., 359 S.W.3d 843, 851 (Tex.App.--Houston [1st Dist.] 2012, pet. 

dism’d); Garcia v. Huerta, 340 S.W.3d 864, 868-69 (Tex.App.--San Antonio 2011, pet. filed); 

Sidley, 327 S.W.3d at 863; SEB, Inc. v. Campbell, No. 03-10-00375-CV, 2011 WL 749292, at *2 

(Tex.App.--Austin Mar. 2, 2011, no pet.). This standard has also been applied in a nonarbitration setting where a court is addressing a defense that a contract is unconscionable. See

Ski River, 167 S.W.3d at 136-37; El Paso Natural Gas Company, 964 S.W.2d at 60-61; 

W. Wendell Hall, Standards of Review in Texas, 38 ST. MARY’S L.J. 1, 67-68 (2010).

While the Supreme Court has not directly addressed the standard of review issue 

presented in this case, it made clear in Perry Homes v. Cull that this same abuse of discretion 

standard applies when examining whether a trial court correctly determined that a party had 

waived its right to arbitration by substantially invoking the litigation process. Perry Homes, 258 

S.W.3d at 597-98 (“Under a proper abuse of discretion review, waiver is a question of law for 

the court;” the court defers to a trial court’s fact findings if they are supported by the evidence 

but does not defer to the trial court on questions of law). Given that unconscionability, like 

waiver, is a legal question which is reviewed de novo by the appellate court, we conclude that the 

appropriate standard of review in this case is the abuse of discretion standard. Accordingly, we 
- 12 -

will not follow our prior decisions in Tri-Star Petroleum Co. v. Tipperary Corporation, 107 

S.W.3d 607, 616 (Tex.App.--El Paso 2003, pet. denied) and Fridl v. Cook, 908 S.W.2d 507, 511 

(Tex.App.--El Paso 1995, writ dism’d w.o.j.). 

Illiteracy and Misrepresentation

Valenzuela argues that the Arbitration Agreement is procedurally unconscionable 

because: (1) she is unable to read English and Delfingen failed to provide a Spanish translation 

or explain it to her in Spanish; and (2) Delfingen affirmatively misrepresented the nature of the 

arbitration agreement. Under the FAA, unequal bargaining power does not establish grounds for 

defeating an agreement to arbitrate absent a well-supported claim that the agreement resulted 

from the sort of fraud or overwhelming economic power that would provide grounds for 

revocation of any contract. In re AdvancePCS Health L.P., 172 S.W.3d at 608. Likewise, claims 

of unsophistication and inability to understand do not establish procedural unconscionability.

In re Palm Harbor Homes, 195 S.W.3d at 679.

Delfingen stipulated during the evidentiary hearing that Valenzuela is “illiterate as to the 

English language.” It is undisputed that the Arbitration Agreement is in English and Valenzuela 

signed it. Although Delfingen typically provided the “new hire” packet of documents, including 

the Arbitration Agreement, to employees a couple of days before the orientation session so they 

could read the documents prior to signing them, Guzman could not recall exactly when the 

packet was given to Valenzuela. Valenzuela admitted that she was given the documents before 

the orientation session and she did not ask either her daughter or son to translate them for her 

even though she knew they were important. It is undisputed that Delfingen did not provide a 

Spanish translation, but Guzman testified she discussed the Agreement at the orientation session

which she conducted entirely in Spanish. Valenzuela contradicted Guzman and said that 
- 13 -

Guzman never discussed or explained the Arbitration Agreement. The trial court could have 

disbelieved Guzman’s testimony that she informed the new employees about the Arbitration 

Agreement before they signed it. Because this finding is supported by the record, we are not at 

liberty to disturb it.

Valenzuela did not ask anyone at the orientation session to read to her the Arbitration 

Agreement or any of the other documents requiring her signature. Valenzuela admitted that she 

was not forced or pressured into signing the Arbitration Agreement and she did not ask any 

questions about the documents she signed even though she was given an opportunity to do so 

during the two-hour orientation session and afterwards when she met individually with Guzman. 

She signed the documents because she wanted the job. 

Standing alone, Valenzuela’s illiteracy in English is insufficient to establish that the 

Agreement is unconscionable. A person who signs a contract must be held to have known what 

words were used in the contract and to have known their meaning, and he must be held to have 

known and fully comprehended the legal effect of the contract. In re Big 8 Food Stores, Ltd., 

166 S.W.3d 869, 878 (Tex.App.--El Paso 2005, orig. proceeding); Tamez v. Southwestern Motor 

Transport, Inc., 155 S.W.3d 564, 570 (Tex.App.--San Antonio 2004, no pet.); Nguyen Ngoc 

Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 146 (Tex.App.--Houston [1st Dist.] 1986, no 

writ). Illiteracy is not a defense to enforcement of a contract and will not relieve a party of the 

consequences of the contract. In re Big 8 Food Stores, 166 S.W.3d at 878; Tamez, 155 S.W.3d 

at 570; Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex.App.--San Antonio 1998, 

no pet.). Texas courts have for many years held that, absent proof of mental incapacity, a person 

who signs a contract is presumed to have read and understood the contract unless he was 

prevented from doing so by trick or artifice. Associated Employers Lloyds v. Howard, 156 Tex. 
- 14 -

277, 294 S.W.2d 706, 708 (1956); Indemnity Insurance Company of North America v. W.L. 

Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 556-57 (1937); In re Big 8 Food Stores, 166 

S.W.3d at 878; Tamez, 155 S.W.3d at 570 n.3; Vera, 989 S.W.2d at 17.

We do not consider Valenzuela’s illiteracy in a vacuum because we must determine 

whether the Agreement is unconscionable based on the totality of the circumstances. 

Valenzuela’s illiteracy is directly related to her assertion that Delfingen affirmatively 

misrepresented the nature of the Arbitration Agreement. Valenzuela attested in her affidavit that 

she accepted as true Guzman’s statement that she would explain only the important parts of the 

paperwork. Valenzuela believed that Guzman was translating everything important contained in 

the paperwork. According to Valenzuela, Guzman never mentioned the Arbitration Agreement 

and did not tell Valenzuela that she had waived her right to go to court in the event of a dispute 

with her employer. Valenzuela testified as follows:

[Q]: Okay. And did [Guzman] go through and tell you what you were signing in 

general?

[A]: Well, she gave us a review of the most important things in the company. 

For example, if we were to arrive late, if we were to miss work and the 

obligations that we had with the company.

[Q]: Does that mean attendance policy?

[A]: Yes. Yes. And also that -- that there we need to do certain quota, that’s the 

way they worked that.

[Q]: In other words, the production you were required to do?

[A]: Yes.

[Q]: And when you signed these documents, including this one on May 7th of 

2008, was this one (referring to the Arbitration Agreement) -- was this -- was that 

what you were explained?

[A]: Yes.
- 15 -

[Q]: Is that what you believed you were signing at the time was an attendance 

policy?

[A]: Yes, sir.

[Q]: And is that what you were told that these important documents primarily 

were were [sic] attendance and behavioral type things?

[A]: Yes. It was the company’s policy that we were signing.

[Q]: Okay. Were you ever told that if you signed this document you would 

waive your right to a jury trial?

[A]: No.

[Q]: Were you ever told that you -- if you had a problem with your employer you 

wouldn’t be able to come into a Court of Law and argue your case in front of a 

judge or a jury?

[A]: No.

[Q]: Was the word arbitration ever mentioned to you?

[A]: I never knew what it was until you told me.

[Q]: Okay. And I’m not talking about what I told you. I’m talking about when 

you were explained these documents back in May of 2008. Was the word 

arbitration ever used to you?

[A]: No.

[Q]: So at the time you were told you were -- you were signing important 

attendance policies?

[A]: Yes.

[Q]: And that’s what you believe you were signing?

[A]: Yes. 

On cross-examination, Valenzuela admitted that Guzman explained policies other than 

attendance, including reporting injuries, substance abuse and alcohol, sexual harassment, 

clocking-in, the standards of conduct, and employment safety. When she signed the Agreement, 
- 16 -

she thought she was signing those policies as well as the attendance policy. Delfingen’s counsel 

then asked Valenzuela whether it was possible she was confusing the Arbitration Agreement 

with the employee handbook which contained those policies, and she agreed it was possible.5 

When asked whether it was possible that she just did not remember Guzman explaining the 

Arbitration Agreement, Valenzuela insisted that it was not possible. She also explained that she 

did not ask any questions about the Arbitration Agreement because she did not know it existed.

Giving the appropriate amount of deference to the trial court’s weighing of the evidence, 

assessment of credibility, and resolution of conflicts in the evidence, we conclude that the trial

court could have believed Valenzuela’s testimony that Guzman told her she was only going to 

translate the important portions of the documents presented to Valenzuela. As already noted, the 

trial court could have reasonably found that Guzman did not discuss or explain the Arbitration 

Agreement. The court could have also believed Valenzuela’s testimony that Guzman told her 

the Arbitration Agreement was the company’s policies, such as the attendance policy. From 

these findings, the court could have concluded that Delfingen affirmatively misled Valenzuela 

about the nature and significance of the Arbitration Agreement. 

Delfingen insists it had no duty to explain the Arbitration Agreement to Valenzuela. It 

cites the rule that absent a duty to disclose, such as in a confidential or fiduciary relationship, 

an agreement is not unconscionable or fraudulent merely because one party was not informed 

as to the arbitration provisions. See In re Green Tree Servicing LLC, 275 S.W.3d 592

(Tex.App.--Texarkana 2008, orig. proceeding). But in this case, Delfingen knew that Valenzuela 

did not understand English and it required her to attend an orientation session during which a 

company representative told her that she was going to translate the important parts of the 

documents. Accepting as we must the trial court’s finding that Guzman did not explain, discuss, 

 

5

 Valenzuela also had to sign an acknowledgement that she had received a copy of the employee handbook. 
- 17 -

or translate the Arbitration Agreement, we recognize that the trial court could have also found 

that Delfingen affirmatively misled Valenzuela about the importance of the Agreement. Based 

on the totality of the circumstances, we conclude that Valenzuela carried her burden of proving 

that the Arbitration Agreement is procedurally unconscionable. Accordingly, we overrule the 

sole issue presented on appeal and affirm the trial court’s order denying the motion to compel 

arbitration.

February 6, 2013 _______________________________________________

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

Antcliff, J., not participating