Memorandum Opinion filed August 8, 2005, Withdrawn, Petition for Writ of Mandamus Reinstated, and Memorandum Opinion filed October 27, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00744-CV

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IN RE BILL HEARD CHEVROLET, LTD. D/B/A BILL HEARD CHEVROLET-SUGAR LAND, Relator

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ORIGINAL PROCEEDING

WRIT OF MANDAMUS

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M E M O R A N D U M   O P I N I O N

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.CHouston [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.

PER CURIAM

Order filed October 27, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do Not Publish.