Mechanism 10

Motion to compel arbitration

By John P. Henry · Tex. Civ. Prac. & Rem. Code ch. 171; 9 U.S.C. §§ 1–16; Tex. Civ. Prac. & Rem. Code § 51.016 · Reviewed 2026-08-02

The authority

In a matter subject to the Federal Arbitration Act … a party may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court, county court at law, county court, or statutory probate court under the same circumstances that an appeal from a federal district court’s order or decision would be permitted by 9 U.S.C. Section 16.Tex. Civ. Prac. & Rem. Code § 51.016

Tex. Civ. Prac. & Rem. Code ch. 171; 9 U.S.C. §§ 1–16; Tex. Civ. Prac. & Rem. Code § 51.016

When it applies

Any contract with an arbitration clause, which now means most commercial agreements, most employment agreements and a great many consumer ones. Move early — the right is waivable by conduct.

How it is proved up

1. Prove a valid agreement and that the claims fall within it. Those are the only two questions on the motion, and the second is decided by comparing the factual allegations against the clause, not the legal theories pleaded.
2. Decide which act governs and say so. Under the Texas act § 171.098 permits appeal from an order denying an application to compel; under the FAA, § 51.016 routes you through 9 U.S.C. § 16. Neither permits appeal from an order compelling arbitration.
3. Move before you litigate. Substantial invocation of the judicial process waives arbitration, and the clock on that starts with your first substantive filing.
4. Ask for the stay as well as the order compelling. Without it the case sits on the docket and turns up on a dismissal list a year later.
5. Then keep the case alive. A case sent to arbitration and forgotten gets dismissed for want of prosecution, and the court needs to exist to confirm the award.

What defeats it

• Substantial invocation of the judicial process — the mirror image of this mechanism, and the reason to move first and answer second.
• No agreement, or a non-signatory who cannot be bound and has not sought the contract’s benefits.
• Claims outside the scope of a narrowly drafted clause.
• Unconscionability or a clause that operates to waive substantive statutory rights.

Where I have used it

Austin Gardeners, LLC v. Tuck d/b/a Site Rite Construction Group · Cause No. D-1-GN-24-000256, 201st Judicial District Court, Travis County. Counsel for the defendant. Motion to compel arbitration, abate and original answer filed February 2024, amended and set for hearing that August. The parties announced terms before the hearing was reached, and the court signed an agreed order abating the case pending AAA arbitration, expressly retaining jurisdiction to render judgment on the award under Tex. Civ. Prac. & Rem. Code § 171.081. A construction dispute left the district court and went to the forum the contract named, which is what the motion is for.

The order