Opinion
No. 14-05-00744-CV
Memorandum Opinion filed August 8, 2005. Memorandum Opinion filed October 27, 2005.
Original Proceeding Writ of Mandamus.
Petition for Writ of Mandamus Reinstated.
Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
We grant Relator's motion to reconsider. We withdraw our opinion filed August 8, 2005, and vacate our judgment of that same date. The petition for writ of mandamus is REINSTATED.
Relator's petition arises from the trial court's Order Granting Petition for Rule 202 Deposition. It appears from that order the trial court deferred its ruling on the issue of arbitrability until after the Rule 202 Deposition has been taken. The trial court has no discretion to delay the decision on the merits of arbitrability until after discovery. See In re MHI P'ship., Ltd., 7 S.W.3d 918, 923 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding).
Accordingly, we find the trial court abused its discretion in ordering the Rule 202 deposition prior to ruling on the motion to compel arbitration. The trial court's order of July 13, 2005, granting petition for Rule 202 deposition is therefore STAYED. 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 writ issue. Writ conditionally granted.