Can you waive your right to arbitration by participating in court proceedings in Texas?
This question has been addressed in 2 Texas court opinions:
Patriot Power Group, LLC v. Fasken Oil and Ranch, Ltd.
COA08 — January 27, 2026
In Patriot Power Group, LLC v. Fasken Oil and Ranch, Ltd., the parties entered into a service agreement containing an arbitration clause that incorporated the American Arbitration Association (AAA) Rules. When a dispute arose, Fasken challenged the enforceability of the arbitration agreement, citing a lack of mutuality and failure to satisfy conditions precedent. The trial court denied the motion to compel arbitration. The Eighth Court of Appeals reversed, holding that the express incorporation of AAA Rules constitutes "clear and unmistakable" evidence that the parties intended to delegate threshold questions of arbitrability to the arbitrator. The court reasoned that because the challenges were directed at the agreement as a whole rather than the delegation clause specifically, the arbitrator—not the trial court—must decide issues of validity and enforceability.
Litigation Takeaway
“Including "boilerplate" references to AAA or JAMS rules in a prenuptial or mediated settlement agreement effectively strips the trial court of its power to determine if the agreement is valid; instead, any challenge to the contract's enforceability will be decided by a private arbitrator rather than a judge in a public courtroom.”
Turner Specialty Services, L.L.C. v. Horn
COA01 — February 24, 2026
After an employee's work-related death, his widow filed a wrongful death suit individually and on behalf of their minor children. The employer moved to compel arbitration based on a Dispute Resolution Agreement signed by the decedent at the time of hire. The plaintiffs argued that the minor children were not bound by the contract and that the employer waived its right to arbitrate by litigating personal jurisdiction for three years. The Court of Appeals held that because wrongful death claims are entirely derivative of the decedent's rights, the beneficiaries—including minor children—are bound by the decedent's agreement to arbitrate. Furthermore, the court found no waiver of arbitration, reasoning that challenging a court's jurisdiction through special appearances and appeals does not constitute a substantial invocation of the judicial process on the merits.
Litigation Takeaway
“Non-signatory minor children are bound by a parent's arbitration agreement in derivative claims such as wrongful death. Additionally, a defendant can vigorously litigate jurisdictional challenges for years without waiving the right to arbitrate, provided they do not seek a judicial resolution on the merits of the case.”