COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: READYONE INDUSTRIES, 

INC.,

 

§

§

§

§

§ 

§

No. 08-12-00119-CV

AN ORIGINAL PROCEEDING 

IN MANDAMUS

O P I N I O N

In this original proceeding, ReadyOne Industries, Inc. seeks mandamus relief from the trial 

court’s order permitting discovery on the arbitrability of an agreement between ReadyOne and its 

employee, Roberto Carreon (“Carreon”), governing work-related injuries. ReadyOne contends 

that the trial court erred in deciding that the Franken Amendment1 might apply to Carreon’s 

negligence cause of action and that Carreon established the facts necessary to raise a reasonable 

expectation that the arbitration agreement was unenforceable because of his mental capacity. 

Concluding that the Franken Amendment is inapplicable in a personal injury suit and that Carreon

failed to provide a colorable or reasonable basis for believing that discovery would materially aid 

him in establishing his defense to the validity of the arbitration agreement, we conditionally grant

mandamus relief.

FACTUAL AND PROCEDURAL BACKGROUND

Alleging that he sustained an on-the-job injury, Carreon sued ReadyOne for negligence. 

 

1

Section 8116 of the Department of Defense Appropriations Act of 2010 is known as the Franken Amendment 

because of its author, Senator Al Franken of “Saturday Night Live” fame.
2

After filing an answer, ReadyOne moved to compel arbitration pursuant to an agreement requiring 

that claims of on-the-job injuries be submitted to binding arbitration. In response, Carreon moved 

for limited discovery on the issue of arbitrability to “develop [his] case and defend against 

[ReadyOne’s] contentions that a valid arbitration agreement exists[,] . . . [and] . . . to develop or 

inquire into any factual issues that may preclude or discredit the existence of a valid arbitration 

agreement.”

At the hearing on these matters, Carreon re-urged his contention that he needed limited 

discovery to further develop his defense to the arbitration agreement, namely whether ReadyOne 

knew that, when he signed the agreement, he was incapacitated. Carreon also argued that his

claims against ReadyOne are not arbitrable because the Franken Amendment prevents federal 

contractors from enforcing agreements to arbitrate tort claims related to or arising out of negligent 

hiring, supervision, or retention. ReadyOne countered that Carreon’s incapacity claim was 

refuted not only by inconsistences in the affidavit raising the issue, but also by the evidence 

attached to the affidavit and by the evidence it planned to introduce at the hearing. ReadyOne 

also disputed Carreon’s claim that the Franken Amendment applies to torts related to or arising out 

of negligent hiring, supervision, or retention in a personal injury suit. As urged by ReadyOne, the 

Amendment applies only to title VII claims or torts related to or arising out of sexual assault or 

harassment.

After considering the parties’ arguments, the trial court ordered limited discovery on the 

applicability of the Franken Amendment and on Carreon’s mental capacity. With respect to the 

applicability of the Franken Amendment, Carreon was permitted to discover if ReadyOne has 

federal contracts in excess of $1 million and if ReadyOne manufactures items commercially 
3

available off-the-shelf.

MANDAMUS

To obtain mandamus relief from the trial court’s discovery order, ReadyOne must meet 

two requirements. ReadyOne must show that the trial court clearly abused its discretion and that 

it has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 

(Tex. 2004).

A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to 

amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law 

correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). A trial court 

has the discretion to order pre-arbitration discovery if it lacks sufficient information regarding the 

scope of an arbitration provision or other issues of arbitrability, such as a defense to arbitration. 

In re Houston Pipe Line Co., 311 S.W.3d 449, 451 (Tex. 2009)(orig. proceeding). Although the 

scope of discovery is within the trial court’s discretion, the trial court must make an effort to 

impose reasonable discovery limits. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). 

Accordingly, discovery requests must be reasonably tailored to include only matters relevant to the 

case. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998). Because discovery is limited 

to matters that are relevant to the case, requests for information that are not reasonably tailored as 

to time, place, or subject matter amount to impermissible “fishing expeditions.” See CSX Corp., 

124 S.W.3d at 152. Accordingly, an order that compels production of patently irrelevant matters 

is an abuse of discretion. Id. at 153.

A relator has no adequate remedy by appeal if the appellate court is unable to cure the trial 

court’s discovery error. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992). This occurs when 
4

the trial court erroneously “compels the production of patently irrelevant . . . documents, such that 

it clearly constitutes harassment or imposes a burden on the producing party far out of proportion 

to any benefit that may obtain to the requesting party.” Id. In such a situation, mandamus is the 

proper remedy. Id.

THE FRANKEN AMENDMENT

In its first issue, ReadyOne argues that the trial court erred by ordering discovery regarding 

the applicability of the Franken Amendment because, on its face, the Amendment is inapplicable, 

and even if applicable, does not bar enforcement of the arbitration agreement. ReadyOne thus 

insists that the trial court abused its discretion by requiring discovery into patently irrelevant 

matters. We agree.

Applicable Law

Our analysis of whether the Franken Amendment applies in this case turns on a question of 

statutory construction. A question of statutory construction is a legal one that we review de novo. 

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). When construing 

statutes, we ascertain and give effect to the legislature’s intent. Id. We do so by looking first and 

foremost at the statutory text, reading the words and phrases in context and construing them 

according to the rules of grammar and common usage. Id.; Lexington Ins. Co. v. Strayhorn, 209 

S.W.3d 83, 85 (Tex. 2006); TEX.GOV’T CODE ANN. § 311.011 (West 2005). Where statutory 

text is clear, it is determinative of legislative intent unless the plain meaning of the statute’s text 

would produce an absurd result. Entergy, 282 S.W.3d at 437.

Several canons of statutory construction are helpful in guiding our analysis. Under the 

doctrine of ejusdem generis, when general words in a statute follow specific examples, the general 
5

words are to be restricted in their meaning to a sense analogous to the same kind or class as those 

expressly mentioned. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). 

Likewise, according to the maxim noscitur a sociis (associated words), when general and specific 

words are grouped together in a statute, the general words are limited by the specific and will be 

construed to embrace only objects similar in nature to those things identified by the specific words. 

Id. Similarly, the last antecedent rule states that a qualifying phrase in a statute must be confined 

to the words and phrases immediately preceding it to which it may, without impairing the meaning 

of the sentence, be applied. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000).

Discussion

1. Abuse of Discretion

With these principles in mind, we have scrutinized the Franken Amendment to determine 

whether personal injury claims related to or arising out of negligent hiring, supervision, or 

retention fall within its parameters. We conclude that they do not.

In relevant part, the Franken Amendment provides:

(a) None of the funds appropriated or otherwise made available by this Act may be 

expended for any Federal contract for an amount in excess of $1,000,000 that is 

awarded more than 60 days after the effective date of this Act, unless the contractor 

agrees not to:

. . .

(2) take any action to enforce any provision of an existing agreement with an 

employee or independent contractor that mandates that the employee or 

independent contractor resolve through arbitration any claim under title VII of the 

Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or 

harassment, including assault and battery, intentional infliction of emotional 

distress, false imprisonment, or negligent hiring, supervision, or retention.

Pub. L. 111-118, § 8116, 123 Stat. 3409, 3454-55 (2009). By regulation, the Amendment “does 

not apply to the acquisition of commercial items (including commercially available off-the-shelf 
6

items).” 48 C.F.R. § 222.7403 (West 2010).

The dispute here centers on the meaning of the clause “any claim under title VII of the 

Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, 

including assault and battery, intentional infliction of emotional distress, false imprisonment, or

negligent hiring, supervision, or retention.” [Emphasis added]. ReadyOne asserts that “the list 

of generic torts following ‘including’ are not additional torts to which the arbitration prohibition 

would apply,” but are “simply a descriptive list of some of the type of torts that could arise out of 

sexual assault or harassment.” Carreon, on the other hand, posits that, when read in the 

disjunctive, the conjunction “or” serves to identify the types of claims to which the Amendment 

applies and to cast them as claims independent of one another. Thus, according to Carreon, the 

phrase “or negligent hiring, supervision, or retention” is independent of and does not modify the 

phrase “any tort related to or arising out of sexual assault or harassment, including . . . .” We

disagree.

When identifying the types of claims not subject to arbitration, the Amendment begins by 

listing title VII claims, followed by the clause “or any tort related to or arising out of sexual assault 

or harassment,” which in turn is followed by the adjectival phrase “including assault and battery, 

intentional infliction of emotional distress, false imprisonment . . . .” The concluding phrase “or

negligent hiring, supervision, or retention” immediately follows the beginning of the adjectival 

phrase identifying torts that fall in the class of claims related to or arising out of sexual assault or 

harassment. Applying the doctrine of ejusdem generis in conjunction with the maxim noscitur a 

sociis and the last antecedent rule, we conclude that the phrase “or negligent hiring, supervision, or 

retention” refers only to claims “such like” the class of claims immediately preceding the use of 
7

the present participle “including,” i.e., torts related to or arising out of sexual assault or 

harassment. This is because negligent hiring, negligent supervision, and negligent retention are 

torts analogous to those expressly mentioned as the type of torts that could arise out of sexual 

assault or harassment – assault and battery, intentional infliction of emotional distress, and false 

imprisonment. Furthermore, because all of these torts are similar in nature, are grouped together, 

and follow the word “including,” which precedes the phrase “any tort related to or arising out of

sexual assault or harassment,” they qualify the phrase and are therefore confined to it. 

Accordingly, the phrase “or negligent hiring, supervision, or retention” was not intended to define 

a category of claims separate and apart from title VII claims or torts related to or arising out of 

sexual assault or harassment.

As noted above, Carreon argues that because the various types of claims and torts 

identified in the disputed clause are separated by the disjunctive “or,” they should be construed as 

alternative claims, separate from and independent of one another. However, the structure and 

composition of the statutory text belie this argument and compel the conclusion that “negligent 

hiring, supervision, or retention” are not claims separate from and independent of the other 

non-arbitrable claims identified in the statute. If Carreon is correct that the phrase “or negligent 

hiring, supervision, or retention” identifies the third element in a list of three items, then a comma 

would have been placed between the conjunction “or” separating the phrases “any claim under title 

VII” and “any tort related to or arising out of sexual assault or harassment” to identify each of the 

three members in the series. The fact that the conjunction “or” between the phrases identifying 

title VII claims and sexual assault claims is not separated by a comma indicates that there are no 

more than two elements identified in the list of claims not subject to arbitration. Indeed, the use of 
8

the comma before the conjunction “or” to separate the phrase “assault and battery, intentional 

infliction of emotional distress, false imprisonment” from “negligent hiring, supervision, or 

retention” denotes that the drafters of the Amendment used it as a serial comma to identify the 

disputed phrase as the final item in the list of the torts encompassing sexual assault and 

harassment. According to the Oxford Style Manual, “[t]he [use of a serial comma] serves . . . to 

resolve ambiguity, particularly when any of the items are compound terms joined by a 

conjunction.” OXFORD STYLE MANUAL, Oxford University Press, 2002, p. 122 [Emphasis 

added].

Because the Franken Amendment does not apply to personal injury claims related to or 

arising out of negligent hiring, supervision, or retention, we hold that the trial court abused its 

discretion by ordering discovery concerning the applicability of the Franken Amendment to the 

arbitrability of Carreon’s personal injury claims.

2. Inadequate Remedy by Appeal

As established above, Carreon seeks documents from ReadyOne to determine if it has 

federal contracts in excess of $1 million and if it manufactures items commercially available 

off-the-shelf. This information is targeted to discover if ReadyOne is bound by the requirements 

of the Franken Amendment. Justification for the discovery of this information, however, requires 

that the type of claim alleged by Carreon – a negligence claim in a non-subscriber personal injury 

case – fall within the parameters of the Amendment. Because this type of claim is not 

encompassed by the Amendment, the discovery of the information ordered by the trial court is 

irrelevant and is therefore unduly harassing and burdensome. Such an error cannot be cured by 

ordinary appeal. See Walker, 827 S.W.2d at 843. Accordingly, we hold that ReadyOne has no 
9

adequate remedy by appeal.

DISCOVERY ON DEFENSES TO ARBITRATION

In its second and final issue, ReadyOne contends that “[t]he trial court abused its discretion 

in ordering discovery on [Carreon’s] mental capacity because [he] failed to raise a reasonable 

expectation that discovery would reveal that the arbitration agreement would be unenforceable on 

that ground.” We agree.

Applicable Law

The law favors arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001). 

Therefore, the party seeking to avoid arbitration bears the burden of proving a defense against 

arbitration. Id. To be entitled to pre-arbitration discovery on a particular defense, the party

opposing arbitration must show or provide a colorable basis or reason to believe that the discovery

requested is material in establishing the defense. See Barron v. Vanier, 190 S.W.3d 841, 849-50 

(Tex.App.--Fort Worth 2006, no pet.)(holding that it is an abuse of discretion to deny additional 

jurisdictional discovery if movant shows that “further discovery might demonstrate facts sufficient 

to constitute a basis for jurisdiction” or “makes a good-faith showing, provides a colorable basis 

for, or makes a prima facie case of personal jurisdiction, or provides a reason to believe that 

discovery would reveal sufficient minimum contacts).; Solgas Energy Ltd. v. Global Steel 

Holdings Ltd., No. 04-06-00731-CV, 2007 WL 1892206, at *6-7 (Tex.App.--San Antonio July 3, 

2007, no pet.)(mem. op.)(holding that trial court did not abuse its discretion in determining that 

plaintiff’s alter ego allegation did not entitle it to pursue additional discovery in an effort to 

establish an alter ego connection because plaintiff’s pleadings and evidence failed to show or 

provide a colorable basis for believing that further discovery might demonstrate facts sufficient to 
10

constitute a basis for jurisdiction).

Discussion

1. Abuse of Discretion

Carreon failed to show or provide a colorable basis or reason to believe that discovery

would be material in establishing that the arbitration agreement was invalid because he lacked the 

mental capacity to understand what he was signing. In his response to ReadyOne’s motion to 

compel arbitration, Carreon alleged that he “lacked the capacity to contract in this case” because 

he “was under the influence of multiple prescription drugs” and “[,][a]s a result . . . [he] was 

intoxicated [when he signed the arbitration agreement.].” In support of this allegation, Carreon

submitted his affidavit. However, nothing in Carreon’s affidavit indicates that he was so 

intoxicated that it rendered him materially incapable of reasoning and understanding. While an 

agreement is voidable due to intoxication, it is voidable only if “the intoxication [is] so excessive 

as to render the person incapable of exercising his judgment or understanding the nature of the 

agreement and the consequences of its execution.” Portwood v. Portwood, 109 S.W.2d 515, 524 

(Tex.Civ.App.--Eastland 1937, writ dism’d). Carreon’s statement in his affidavit that he “was 

extremely inhibited in my ability to comprehend and understand what I was signing” simply fails 

to establish that he was incapacitated to the extent that he could not have understood and did not 

understand what he was signing. Nor does Carreon’s statement provide a colorable basis or 

reason to believe that discovery would be material in establishing that he was incapacitated to that 

extent. Mere inhibition as to comprehension and understanding does not equate to material 

incapacitation.

Carreon argues that the testimony in his affidavit vested the trial court with the discretion to 
11

permit discovery as to “whether . . . a valid agreement to arbitrate [exists] under general contract 

principles” when the trial court “has concluded that it lacks complete information to summarily 

decide the issue . . . .” However, this is not the applicable test to determine whether

pre-arbitration discovery on the validity of an arbitration agreement is warranted. As established 

above, when a trial court lacks sufficient information regarding the applicability of a defense to an 

arbitration agreement, it has the discretion to order pre-arbitration discovery. See In re Houston 

Pipe Line Co., 311 S.W.3d at 451. However, it may do so only if it has a colorable basis or reason 

to believe that discovery will aid in that determination. See Barron, 190 S.W.3d at 849-50; 

Solgas, 2007 WL 1892206, at *6-7. Adopting Carreon’s position that pre-arbitration discovery is 

warranted when the trial court lacks sufficient information to summarily conclude that the 

arbitration agreement is valid would impermissibly shift the burden of persuasion from the party 

seeking to avoid arbitration to the party seeking to enforce arbitration. See In re FirstMerit Bank, 

N.A., 52 S.W.3d at 756 (noting that party opposing arbitration bears the burden of proving a 

defense against arbitration).

In light of the foregoing, we hold that the trial court abused its discretion by ordering

discovery on Carreon’s defensive claim of mental incapacity.

2. Inadequate Remedy by Appeal

Carreon’s failure to prove that the discovery he sought would be material in helping him

establish his defense to arbitration did not provide the trial court with the basis required to order 

pre-arbitration discovery. Because the trial court had no basis to compel ReadyOne to produce 

the information sought by Carreon, the trial court’s discovery order was unjustifiably harassing

and unduly burdensome. Such an error cannot be cured by ordinary appeal. See Walker, 827 
12

S.W.2d at 843. Accordingly, we hold that ReadyOne has no adequate remedy by appeal.

CONCLUSION

We conditionally grant ReadyOne’s petition for writ of mandamus. We hereby direct the 

trial court to vacate its discovery order. Mandamus will issue only if the trial court fails to act 

within ten days from the date of this opinion.

December 21, 2012

CHRISTOPHER ANTCLIFF, Justice

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