In In re Bill Heard Chevrolet, Ltd., No. 14-05-00744-CV, 2005 WL 2787468 (Tex. App.--Houston 14th Dist. Oct. 27, 2005, orig. proceeding), the trial court deferred its ruling on the issue of arbitrability until after the Rule 202 deposition had been taken.
A panel of this court held that the trial court abused its discretion by ordering the Tex. R. Civ. P. 202 deposition before ruling on the motion to compel arbitration. Id.
The court reasoned that "the trial court has no discretion to delay the decision on the merits of arbitrability until after discovery." Id.
Thus, the court stayed the Rule 202 deposition, conditionally granted the writ of mandamus, and ordered the trial court to rule on the issue of arbitrability. Id.