Often parties dispute the arbitrability of a dispute, leading to the question of who has jurisdiction—the court or the arbitrator. Some may worry that the inclusion of an arbitration clause makes a dispute always arbitrable. However, the “law provides protection against rubberstamping the delegation of disputes to an arbitrator.” Cerna as Next Friend of R.W. v. Pearland Urban Air, LLC, No. 24-0273, 2025 WL 1478505, at *4 (Tex. May 23, 2025). But a more complicated situation is when a party attempts to twist the dispute of the scope of an arbitration clause into one about its existence. To provide guidance, the Supreme Court of Texas recently opined on how courts determine the issue of whether the court or an arbitrator has jurisdiction, specifically when the parties delegate the question of scope to an arbitrator. See id. at *3–4. Although one might believe that the answer to such a question would reveal itself within an arbitration clause, that is not always the case.

In Cerna as Next Friend of R.W., a mother—Cerna—brought a negligence claim against Urban Air, a trampoline park, after her minor son allegedly sustained injuries while jumping on a trampoline. Id. at *1. Prior to entering the park, Cerna signed a release agreement containing an arbitration clause. Id. However, during her the second time visiting the park and when her son received his purported injuries, Cerna failed to sign another release. Id.

The arbitration clause within the agreement that Cerna signed during her first visit contained broad terms, including the requirement that any disputes over “‘the scope, arbitrability, or validity’ of the agreement were to be ‘settled by binding arbitration before a single arbitrator.’” Id. at *2. Therefore, under this clause, referred to as a delegation clause, the parties agreed to delegate such matters to be decided by an arbitrator, not a court. Id. However, when Urban Air moved to compel arbitration, the trial court denied the motion based upon Cerna’s argument that the release agreement signed during their first visit did not apply to the second visit. Id. On appeal, the court reversed holding the agreement was valid and that Cerna’s argument was a dispute over scope, which the agreement clearly delegated to an arbitrator to decide. Id.

Under Texas law, the standard is “[a] party seeking to compel arbitration must establish that ‘(1) there is a valid arbitration clause, and (2) the claims in dispute fall within that agreement’s scope.’” Id. (citing In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011)). The first question is for a court to decide. Id. The content of the arbitration agreement controls who answers the next question. Id. at *3. For instance, if a court finds there is a valid arbitration clause, the second question is also the court’s unless the parties delegate the inquiry to an arbitrator to determine. Id. at *2. The inclusion of a delegation provision removes authority from the court to decide whether the parties’ claims “are arbitrable.” Id. at *3.

In this case, the Court found that Cerna attempted to twist a scope issue into one that instead questioned whether an existing arbitration agreement governed its asserted claims, intertwining both inquires. Id. Instead, the Court reasoned that the questions regarding existence and scope must be decided separately given “the principle that only courts can decide existence but scope can be delegated.” Id. (citing TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC, 667 S.W.3d 694, 720 (Tex. 2023)). Therefore, the issue before the court was not whether the parties believed the agreement was valid, but whether the scope of the agreement extends to the second visit to the park. Id. In affirming the lower court’s decision, the Court emphasized that “judicial inquiry into the present dispute would subsume scope questions into existence questions, eroding enforcement of the parties’ delegation provision.” Id. at *4.

If the trial court denies a party’s motion to compel arbitration—especially when the parties agreed to a delegation provision, the simple approach to knowing when to appeal is if the dispute turns on whether the parties claims fall within the scope of the agreement. See id. at 3. The Supreme Court emphasized this concept in the present case, holding that a court must respect an agreement’s terms, including those that reserve “to an arbitrator disputes over whether particular claims fall within the parties’ agreement,” i.e., the scope. Id. at *4. Ultimately, parties should look carefully at how the claims fall with regards to arbitration before attacking with an all or nothing approach.