author: TIM TAFT, Justice.

text:
    In re Johnny LUNA, Relator.
    No. 01-03-01055-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 9, 2004.
    Rehearing Overruled Nov. 5, 2004.

      G. Scott Fiddler, Law Office of G. Scott Fiddler, P.C., Houston, TX, for Relator.
    Erica Harris, Susman Godfrey, L.L.P., Houston, TX, Real Party In Interest.
    Panel consists of Justices TAFT, KEYES, and BLAND.
   OPINION

TIM TAFT, Justice.

This appeal concerns the substantive un-conscionability of a binding arbitration agreement between an employer and an at-will employee. Relator, Johnny Luna, seeks mandamus relief from the trial court’s order granting the motion to compel arbitration and to stay litigation of real parties in interest, Poly-America, L.P. d/b/a Pol-Tex International and Poly-America GP, L.L.C. (collectively, Poly-America). In one issue, Luna challenges several provisions contained in the arbitration agreement. We determine whether the following provisions contained in the arbitration agreement are substantively unconscionable: those (1) splitting arbitration fees, with a cap on the employee’s cost at the highest month’s salary of the preceding year, (2) limiting available remedies, (3) limiting discovery, (4) disallowing an arbitrator’s application of a “good cause” standard to employment claims, and (5) making the arbitration agreements binding as to any future claims that the employee could bring, even for disputes arising after the employer-employee relationship had terminated. We also determine whether all of the above-mentioned provisions, as a whole, render the arbitration agreement substantively unconscionable. We conditionally grant mandamus relief.

Background

Poly-America hired Luna on October 21, 1998 to work as an operator in Poly-America’s plant in Mont Belvieu, Texas. When he was hired, Luna signed an arbitration agreement. Luna continued to work for Poly-America, and, on July 18, 2002, Luna signed another document acknowledging that he had received the June 2002 employee handbook. The handbook contained another arbitration agreement with substantively similar provisions. Luna was injured, and he filed a worker’s compensation claim on December 7, 2002. On February 11, 2003, Poly-America terminated Luna’s employment, and Luna subsequently sued Poly-America under the Texas Labor Code, alleging wrongful discharge and retaliation. See Tex. Lab.Code Ann. § 451.001 (Vernon Supp.2004-2005). The trial court granted Poly-America’s motion to compel arbitration and to stay litigation on September 19, 2003.

Burden of Proof and Standard of Review

Mandamus is the proper means to review an order compelling arbitration under the Federal Arbitration Act (FAA). In re Am. Homesta/r of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.2001). Mandamus will lie when a trial court has clearly abused its discretion. In re MHI P’ship, Ltd., 7 S.W.3d 918, 921 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding).

In determining the validity of arbitration agreements, courts should apply state-law principles governing the formation of contracts. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). Arbitration agreements are strongly favored under Texas law. Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex.1995). Thus, the burden of proving uncon-scionability is on the party opposing arbitration. In re FirstMerit Bank, N.A, 52 S.W.3d 749, 756 (Tex.2001). An agreement to arbitrate is valid unless grounds, such as fraud or unconscionability, exist at law or in equity for its revocation, as with any contract. Emerald Tex., Inc. v. Peel, 920 S.W.2d 398, 402 (Tex.App.-Houston [1st Dist.] 1996, no writ).

Unconscionability

Luna asserts that the arbitration agreement is unenforceable because several of its provisions are substantively unconscionable.

The purpose of arbitration is to streamline the dispute-resolution process and to minimize costs. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992); see Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31, 111 S.Ct. 1647, 1655, 114 L.Ed.2d 26 (1991) (recognizing that parties who agree to arbitrate trade the opportunity for review and procedures of the courtroom for the simplicity, informality, and expedition of arbitration). As a result, the fact that arbitration does not afford parties all the rights that litigation offers is built into the nature of the process, and the parties presumably realize that they may be waiving some litigation rights in order to gain the convenience and savings associated with arbitration.

The FAA allows for arbitration in the employment context. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113-15, 121 S.Ct. 1302, 1308-09, 149 L.Ed.2d 234 (2001); In re Halliburton Co., 80 S.W.3d 566, 570 (Tex.2002). The advantages of the arbitration process do not disappear in the employment arena. See id. Thus, arbitration agreements in the employment context are valid, irrevocable, and enforceable, save upon such grounds as exist in law or equity for the revocation of any contract. See id.

In Halliburton, the Texas Supreme Court considered substantive un-conscionability to be one such potential ground. Id., 80 S.W.3d at 572 (“We therefore clarify that courts may consider both procedural and substantive unconscionability of an arbitration clause in evaluating the validity of an arbitration provision.”). Under Texas law, “the basic test for un-conscionability is whether, given the parties’ general commercial background and the commercial needs of the particular trade or case, the clause is so one-sided that it is unconscionable under the circumstances existing when the parties made the contract.” FirstMerit Bank, 52 S.W.3d at 757. This principle is designed to prevent unfair surprise and oppression, not to disturb allocation of risks due to superior bargaining power. Id. Substantive uncon-scionability refers to the fairness of the arbitration provision itself, as opposed to procedural unconscionability, which refers to the circumstances surrounding the adoption of the arbitration provision. See Halliburton, 80 S.W.3d at 571. As stated above, Luna had the burden to prove that the agreement’s provisions were substantively unconscionable. See FirstMerit Bank, 52 S.W.3d at 756.

A. Costs of Arbitration

Luna asserts that the arbitration agreement’s cost-allocation provisions are substantively unconscionable because they require him to pay more than a nominal fee for the arbitration. Specifically, the agreement in the employee handbook provides:

All fees charged by the Mediator shall be divided equally between the Parties. All fees associated with the Arbitration (including, but not limited to, the Arbitrator’s fee, court reporter fees, and fees to secure a place for the hearing, if any) shall be divided equally between the Parties. However, the total fees incurred by Employee shall not exceed the gross compensation earned by the Employee in Employee’s highest earning month in the twelve months prior to the time the arbitrator issues his award.

Luna estimated that his potential cost based on the foregoing provision could be as much as $4,550. The affidavit of Peter Costea, an experienced employment lawyer, established that the average cost for an arbitration in Harris County in cases similar to Luna’s would be more than $20,000. Luna stated in his affidavit that two attorneys refused to take his case on a contingency basis due to the arbitration agreement, and he also stated that he would be unable to afford the arbitration fees. Luna’s evidence as to cost and his inability to pay was uncontroverted. Based on this evidence, Luna argues that the cost was so prohibitive that the cost provision should have been found substantively unconscionable.

Luna argues that the agreement’s cost provisions are substantively unconscionable because, in Halliburton, the supreme court found that a cost provision that imposed only a $50 fee on the employee was substantively conscionable, whereas the fees assessed against Luna here are 91 times that amount. See Halliburton, 80 S.W.3d at 572. Luna’s argument employs the logical fallacy known as “denying the antecedent.” Applying that logical fallacy, Luna argues that (1) under Halliburton, if a cost provision in an arbitration agreement requires an employee to pay $50 (or less), it is conscionable; (2) Poly-America’s cost provision required the employee to pay more than $50; (3) therefore, the provision was unconscionable.

We agree with Poly-America’s contention that the Texas Supreme Court did not intend to require every arbitration agreement to provide the same protection as the arbitration agreement in Halliburton. In Halliburton, the Texas Supreme Court reversed the trial court’s order denying an employer’s motion to compel arbitration. See Halliburton, 80 S.W.3d at 573. The court held that the agreement provided employees with adequate protection for several reasons, one of which was that the employer agreed to pay all of the arbitration expenses except for a $50 filing fee. See id. at 572. The court cited Cole v. Burns International Security Services as an example of another court that had upheld an arbitration agreement with similar provisions. See Halliburton, 80 S.W.3d at 572. However, we do not think that, by finding the cost provisions in Halliburton to be conscionable, the Texas Supreme Court meant, by implication, that provisions imposing greater costs on the employee were necessarily unconscionable. Indeed, in Texas, an arbitrator’s decision requiring an employee to pay more than $50 in arbitration fees has been upheld. See, e.g., Williams v. Cigna Fin. Advisors, Inc., 197 F.3d 752, 763 (5th Cir.1999) (upholding arbitration panel’s decision requiring employee to pay half of all forum fees).

Luna argues that, based on the Halliburton court’s citation to Cole, we should adopt the position set forth in Cole (and in some other federal court decisions) that it is per se substantively unconscionable to impose anything more than a nominal fee on a discharged employee for arbitration. However, this position is in conflict with the holding of Pony Express Courier Corp. v. Morris. In Pony Express, the arbitration agreement between the employer and the employee contained a fee-sharing provision. See id, 921 S.W.2d 817, 822 (Tex. App.-San Antonio 1996, no pet.). That court asserted that equal costsharing is a standard feature of arbitration clauses. See id. The court stated that a fee-splitting provision contained in an arbitration agreement is not, by itself, unconscionable. See id.

However, the Pony Express court noted that it could not determine whether the agreement as a whole was unconscionable because the parties did not provide sufficient facts for the court to make that determination. See id. Here, the uncon-troverted testimony of Costea established that the arbitration will almost certainly force Luna to pay the maximum capped amount to arbitrate his case. In addition, Luna stated that he could not afford these arbitration fees, which amount to more than one-half of his annual compensation.

Poly-America asserts that, under Texas law, the cost provision is not unconscionable. Poly-America bases its argument on Pony Express and In re FirstMerit Bank. However, we have already distinguished Pony Express from the present case because the Pony Express court did not have sufficient facts before it to determine whether the arbitration agreement could be substantively unconscionable as a whole. See id., 921 S.W.2d at 822. First-Merit Bank is also distinguishable. The real parties in interest in FirstMerit Bank were complaining, in part, that the arbitration filing fee was excessive. See id., 52 S.W.3d at 756-57. The court held that it did not need to determine whether the costs of arbitration were excessive because the arbitration addendum made no reference to the actual costs and there was no evidence that the fees in question would be charged. See id. In this case, Costea’s unrebutted affidavit showed the average costs of an arbitration in Harris County.

Poly-America also relies on two federal cases to support its argument that the cost provisions are not unconscionable: Bloxom v. Landmark Publishing Corp., 184 F.Supp.2d 578 (E.D.Tex.2002), and Williams v. Cigna Financial Advisors, Inc., 197 F.3d 752 (5th Cir.1999). In Blox-om, the court held there was no evidence that the costs would be prohibitive. See id., 184 F.Supp.2d at 585 (holding that the plaintiffs mere assertion that the costs were prohibitive was not sufficient to show prohibitive cost). Here, there is unrebut-ted evidence of the average costs of arbitration in the region.

In Williams, the Fifth Circuit Court of Appeals considered whether an arbitrator’s order requiring that a discharged employee pay one-half of the arbitral forum fees after the arbitration’s conclusion violated public policy. See id., 197 F.3d at 763. The court held that the employee had to demonstrate that paying half of the forum fees “prevented him from having a full opportunity to vindicate his claims effectively or prevented the arbitration proceedings from affording him an adequate substitute for a federal judicial forum.” Id. at 764. To meet that standard, the employee needed to show that he was unable to pay one-half of the forum fees or that it was prohibitively expensive for him to pay the fees, which he failed to show. See id. at 764-65 (holding that, when appellant had already arbitrated his claims, paid part of arbitration fees, and testified that his salary for the year was in excess of $100,000, appellant failed to show prohibitive expense). However, the facts in Williams are plainly distinguishable from the facts in this case. Luna’s evidence showed that he would not be able to afford the arbitration fees and that he was having difficulty obtaining an attorney due to the arbitration agreements.

Although, under Texas law, the Pony Express decision indicates that the cost provisions here would not be unconscionable by themselves, the evidence that Luna provided as to arbitration costs and his inability to pay them shows that, unlike the employees in Pony Express or Williams, the cost provisions did place an oppressive burden on Luna. Accordingly, when determining whether the arbitration agreement as a whole was so one-sided as to render it substantively unconscionable, the costs provision weighs heavily toward a finding of substantive unconscionability. See Pony Express, 921 S.W.2d at 822 (implying that it is necessary to look at the provisions of an agreement as a whole to determine whether it is substantively unconscionable).

B. Limitation of Remedies

Luna asserts that the arbitration agreement’s prohibition of punitive damages and reinstatement remedies is substantively unconscionable because those remedies are allowed under the Texas Labor Code. See Tex. Lab.Code Ann. § 451.002 (Vernon 1996).

As a threshold matter, we note that Luna’s amended petition sought both reinstatement and punitive damages, the latter based on allegations of actual malice on the part of Poly-America. Section 451.002 provides for “reasonable damages incurred by the employee as a result of the violation.” Id. The Texas Supreme Court has recognized that the statute allows punitive damages only when the employee can show that the employer displayed actual malice. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 454 (Tex.1996).

Provisions prohibiting punitive damages in arbitration agreements are generally enforceable. Investment Partners, L.P. v. Glamour Shots Licensing, Inc., 298 F.3d 314, 318 n. 1 (5th Cir.2002). In a gender-discrimination case against an employer, a federal court applying Texas law has upheld an arbitration agreement that prohibited punitive damages and severely limited the employee’s statutory right to reinstatement. See Kinnebrew v. Gulf Ins. Co., C.A. No. 3:94-CV-1517-R, 1994 WL 803508, at *1 (N.D.Tex. Nov.28, 1994) (denying employee’s claim that denial of punitive damages and allowing reinstatement “only if money damages are insufficient as a remedy” invalidated the arbitration agreement). However, the court in Kinnebrew noted that the employee did not cite any case supporting her position that she should not be forced to arbitrate because the remedies allowed under the arbitration policy denied her substantive rights to which she would have been entitled in a judicial forum. See id. at ⅜2. Here, Luna cites several cases in support of his contention that the limitation of remedies deprives him of rights that he could assert in a judicial forum.

Luna again claims that Halliburton is determinative as to the provisions limiting remedies. This contention is based on the same logical fallacy that Luna employed in arguing that the cost provisions were necessarily unconscionable. In Halliburton, the Texas Supreme Court held that the agreement in that case was not substantively unconscionable, in part because all remedies available in court were also available in arbitration, but the court did not hold that arbitration agreements can never limit remedies. See id., 80 S.W.3d at 572.

As shown by Pony Express, Texas law does not require that all statutory remedies be provided in arbitration proceedings. See id., 921 S.W.2d at 822. Under the arbitration agreement, Luna would be entitled to reasonable damages as allowed by the Texas Labor Code; however, the agreements prohibit reinstatement, which is also available under the Code. See Tex. Lab.Code Ann. § 451.002. In addition, under the arbitration agreement, Luna would be precluded from seeking punitive damages based on proof of actual malice, a remedy that is allowed under the Code. See id.

Although preclusion of statutory remedies may not always weigh toward a finding that the provisions as a whole are substantively unconscionable, their preclusion does so with regard to the statutory remedies at issue in this case because Luna’s claim is one brought for alleged retaliation for filing a worker’s compensation claim as part of the overall Worker’s Compensation Act. See Tex. Lab.Code Ann. §§ 451.001-.003 (Vernon 1996 & Supp. 2004-2005). The Texas Supreme Court has held that the legislative policy behind the Act dictates that its provisions be construed in favor of the injured worker. See Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000). In fact, to discourage employers from opting out of the system, the Legislature expressly limited the defenses available to an employer opting out of the Act’s provisions. See id. Such a policy heightens the scrutiny that should be afforded to arbitration provisions that expressly limit statutory remedies afforded under the Act. In particular, the Act expressly confers upon a prevailing plaintiff a right to “reinstatement in the former position of employment,” and the arbitration agreement at issue here expressly abrogates such a right. See Tex. Lab.Code Ann. § 451.002(b).

This is not a ease in which the employer is a non-subscriber and the employee made a voluntary pre-injury election to participate in a non-subscribing employer’s benefit plan in lieu of exercising common-law remedies. See, e.g., Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 545 (Tex.2001). Rather, this is the kind of agreement that “requires a prospective employee, as a condition to receipt or retention of employment, to agree to limit the employer’s liability.” Id. at 550 (quoting Brito v. Intex Aviation Servs., Inc., 879 F.Supp. 650, 654 (N.D.Tex.1995)). The latter is disfavored because it contravenes the worker’s compensation scheme. See id. Moreover, it is undisputed in the record before us that Poly-America is a subscriber under the Worker’s Compensation Act and thus a recipient of the benefits that the Act affords employers. Having availed itself of the benefits of the Act on the one hand, Poly-America seeks to enforce the arbitration agreement’s limits on the employee’s right of reinstatement on the other hand. Unlike the plan elections offered by non-subscribers in Lawrence, a limitation by a subscribing employer strikes at the core of the legislative policy concerns addressed by the Act.

Thus, preclusion of the two substantive statutory remedies here tends to weigh toward a finding that the agreement’s provisions as a whole are substantively unconscionable.

C. Shortening of the Statute of Limitations

Luna also asserts that the provision shortening the statute of limitations from two years to one year is unconscionable. The provision states that “[t]he party seeking to arbitrate a dispute must submit written notice of claim within the earlier of one year or the time period prescribed by the statute or common law cause of action under which the claim is brought.” Poly-America does not dispute that the applicable statute of limitations for wrongful discharge would be two years under the Labor Code. See Johnson & Johnson Medical, Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex.1996).

The Texas Supreme Court has allowed the statute of limitations to be modified in an arbitration agreement involving a claim of wrongful discharge. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex.1996) (acknowledging that parties’ arbitration agreement shortened statute of limitations to 180 days). Here, the shortened limitations provision applies equally to both parties. Moreover, Luna filed his claim within the one-year limit under the arbitration agreement, and thus the provision as applied to these facts did not render the agreement unconscionable.

Under the circumstances of this case, this provision does not weigh in favor of a finding that the arbitration agreement as a whole was substantively unconscionable.

D. Limitations on Discovery

Luna asserts that the discovery limitations contained in the arbitration agreement are substantively unconscionable because they benefit only Poly-America. Specifically, Luna points to the following provisions as unconscionable: (1) allowing each side one deposition; (2) disallowing requests for admissions; (3) disallowing discovery of Poly-America’s financial information; and (4) requiring confidentiality on all aspects of arbitration. The agreement also allows each side to serve one set of 25 interrogatories and to serve one set of 25 requests for production, inspection of documents, or tangible things. Both sides are also permitted to designate experts and to issue subpoenas.

Luna concedes that all of the discovery limitations, with the exception of the provision concerning financial information, apply equally to both Luna and Poly-America. Luna argues that these provisions are still unconscionable because they were constructed to favor only Poly-America. Luna offered the affidavit of Costea to show that the provisions regarding depositions, requests for admissions, and confidentiality work exclusively to Poly-America’s advantage. Specifically, Costea stated that, in a ease such as this, on average, an employee will need to take three to five depositions, while the employer will need to take only the deposition of the complaining employee. Nevertheless, because Luna stated in his affidavit that David Davenport was his supervisor and that Davenport was the representative of Poly-America who harassed him and terminated his employment, the trial court could have concluded that Luna would not need to take more than the deposition of Davenport.

Luna cites four cases to support his argument that discovery limitations are unconscionable, but each of those decisions is distinguishable from this case and contrary to Texas law. In Ferguson v. Countrywide Credit Industries, Inc., the arbitration agreement limited the number of subjects that could be included in the deposition of a corporate representative, but did not similarly limit the subjects included in employee depositions. See id., 298 F.3d 778, 786 (9th Cir.2002). The Ninth Circuit Court of Appeals held that the discovery provisions were not per se unconscionable, but contributed to the overall pattern of unconseionability throughout that agreement. Id. at 787. In this case, there is no such limitation of deposition subjects in favor of Poly-America.

The arbitration agreement in Hooters of America, Inc. v. Phillips is distinguishable because that agreement contained two discovery requirements for the employee that did not apply to the employer, in addition to an arbitrator-selection process that was biased in favor of the employer. See id., 173 F.3d 933, 938-39 (4th Cir.1999). In Geiger v. Ryan’s Family Steak Houses, Inc., the arbitration agreement allowed one deposition per side as of right, but allowed additional depositions at the discretion of a panel “stacked against the employee in the first place.” See id., 134 F.Supp.2d 985, 996 (S.D.Ind.2001). Here, there is no allegation that the selection of arbitrators is one-sided. Similarly, the case that Luna cites for the proposition that the confidentiality requirement unconscionably impedes discovery is not on point. See Torrance v. Aames Funding Corp., 242 F.Supp.2d 862, 875 (D.Or.2002). In that case, the court found that the confidentiality agreement was unconscionable because it involved consumer fraud, which is a public-interest problem. See id. (holding that confidentiality provision affected so many persons that it would put lender in “vastly superior legal posture”).

We thus hold that the discovery provisions in this case that applied equally to both parties are not per se substantively unconscionable, especially when Texas law permits discovery to be eliminated entirely in some arbitration agreements. See Pony Express, 921 S.W.2d at 822 (asserting that discovery may be limited or eliminated in some arbitration agreements).

We also disagree with Luna’s assertion that the provision allowing Poly-America limited access to Luna’s financial information, although completely denying Luna any access to Poly-America’s financial records, is substantively unconscionable. Luna argues that he will be unable to rebut “certain reasons for discharge” without access to Poly-America’s financial condition. The arbitration agreements state that “[flinancial information about either party is not relevant and shall not be discoverable, with the exception that information about employee’s earnings is relevant and shall be discoverable if employee is seeking lost wages, back pay, and/or front pay.” Plainly, the arbitration agreement puts the employer and employee on an unequal footing. Luna, however, offered no evidence to demonstrate the specific relevance of Poly-America’s financial condition to the discharge decision. Without such a showing of relevance, we cannot determine the financial condition’s impact in the overall agreement. Accordingly, under the circumstances of this case, the provisions limiting discovery do not weigh toward a finding of overall substantive un-conscionability.

E. Alterations to Standard of Proof

Luna asserts that the arbitration agreement unconscionably prohibits the arbitrator from considering whether Poly-America had a good reason for terminating Luna. We disagree with Luna’s interpretation of the agreement.

The provision in question stated that “[t]he arbitrator shall not have the authority to alter the parties’ at-will relationship or to apply a ‘just cause’ or ‘good cause’ standard to claims relating to Employee’s claims concerning his employment or separation therefrom.” The general rule in Texas is that “employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all.” Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998). Luna’s employment was at will. The provision in the arbitration agreement simply prohibits the arbitrator from applying a “good cause” standard instead of Texas’s traditional “at-will” standard to employment cases; the clause does not prohibit the arbitrator from inquiring as to the reason for termination. Accordingly, this provision does not weigh in favor of a finding of overall substantive unconsciona-bility.

F. Scope of Arbitration Agreement

Luna argues that the provision that equally binds both parties to arbitrate any claims that they might have against each other in the future is substantively unconscionable because he would have to arbitrate even those claims that may arise in the future and that do not relate to his employment.

Luna contends that he could have claims that do not relate to his employment in the future, such as a slander or a personal injury claim, and that it is unconscionable that these claims be subject to the arbitration agreement. However, the provision applies equally to Poly-America. If Luna were to trespass on Poly-America’s property, that claim against Luna would be subject to the arbitration agreement even though it has nothing to do with Luna’s employment. Because both parties are equally bound to arbitrate any future claims against each other, the provision is not so one-sided that it is substantively unconscionable. See FirstMerit Bank, 52 S.W.3d at 757. Accordingly, this provision does not weigh toward an overall finding of substantive unconscionability.

G.Unconscionability of Agreement as a Whole

Luna asserts that, even if none of the provisions in the agreement is unconscionable by itself, the agreement as a whole is so unfair as to be unconscionable.

Pony Express clearly indicates that it is appropriate to determine whether an arbitration agreement is unconscionable as a whole, even if the individual provisions considered in isolation are not substantively unconscionable. See id., 921 S.W.2d at 822 (holding that trial court abused its discretion by determining unconscionability without sufficient facts before trial court to determine if agreement was unconscionable as a whole). Although we believe that Halliburton did not set out specific requirements that must be met in every arbitration agreement, Halliburton does provide guidance as to what terms are acceptable with regard to arbitration costs, discovery, and remedy limitations. See id., 80 S.W.3d at 572. Halliburton upholds an agreement that requires the employee to pay only a $50 filing fee, allows $2,500 for the employee to consult an attorney, allows the same discovery afforded under the Federal Rules of Civil Procedure, and allows all remedies that could be pursued in court. See id.

Although it is not necessary for Poly-America’s arbitration provisions to be equivalent to the provisions approved of in Halliburton, Luna has shown with unre-butted evidence that two of the provisions in Poly-America’s arbitration agreement create a much heavier burden for him than those approved in Halliburton. The provisions pertaining to arbitration costs and remedy limitations are particularly burdensome when considering their combined effect. Luna is required to pay arbitrator’s expenses equal to his highest month’s gross compensation for the 12 months pri- or to issuance of the arbitrator’s award. Luna showed that, given the average cost of arbitrations in Harris County, he will very likely incur costs up to the maximum. In addition to these costs, Luna will be precluded from reinstatement to his former job and from collection of punitive damages, to both of which he may have been entitled under the Texas Labor Code. See Cazarez, 937 S.W.2d at 454 (asserting that employee may be entitled to punitive damages when he can prove actual malice); see also Tex. Lab.Code Ann. § 451.002(b).

Luna also presented some evidence that the agreement gears its discovery provisions to favor Poly-America, in particular with regard to producing financial information. Under these facts, however, Luna has not demonstrated that the discovery limitations alone render the agreement unconscionable. As for the other provisions, we have found that, under the circumstances of this case, they do not weigh in favor of a finding of substantive uncon-scionability.

It is not the number of provisions weighing toward an overall finding of substantive unconscionability that matters as much as the cumulative one-sidedness of the burden that those provisions place on a party.

The United States Supreme Court has noted that, as long as the prospective litigant can effectively vindicate his statutory cause of action in the arbitral forum, the statute continues to serve its remedial and deterrent function. See Gilmer, 500 U.S. at 28, 111 S.Ct. at 1653 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 637, 105 S.Ct. 3346, 3359, 87 L.Ed.2d 444 (1985)). Here, the high cost of arbitration, combined with the limitation of damages and reinstatement in the agreement, essentially deprive Luna of the opportunity to vindicate his claim effectively in the arbitral forum under the Texas Labor Code. Such deprivation is not consistent with the strong legislative policy behind the Worker’s Compensation Act. See Kroger, 23 S.W.3d at 349-50. Although Luna has not shown that any of the other provisions is so one-sided in Poly-America’s favor as to be substantively unconscionable, the one-sidedness of the cost and remedy provisions tend to render the agreement as a whole unconscionable under the facts and circumstances of this case.

Poly-America argues that Ferguson, the Ninth Circuit Court of Appeals case on which Luna relies for his contention that the agreement should be considered as a whole with regard to uncon-scionability, is not applicable to this case because it applies a different standard for unconscionability. See id., 298 F.3d at 784. However, Poly-America fails to acknowledge, as Pony Express plainly recognizes, that Texas courts must consider the arbitration agreement as a whole. See id., 921 S.W.2d at 822. As the Pony Express court also indicated, the fact that individual provisions may not be unconscionable in certain circumstances does not mean that a particular agreement cannot be unconscionable when considered as a whole. See id.

Accordingly, we hold that the arbitration costs imposed on Luna, who provided evidence of the costs of arbitration and of his inability to pay, in addition to the limitations on Luna’s opportunity to be reinstated and to recover punitive damages, render the arbitration agreement, when considered as a whole, so one-sided in Poly-America’s favor and so oppressive to Luna as to be substantively unconscionable, given the strong legislative policy behind the Worker’s Compensation Act.

Severability

Poly-America argues that, even if some of the arbitration provisions are found to be unconscionable, they can be severed from the arbitration agreement, pursuant to the severability clause contained in the agreement, so that the parties can still be compelled to arbitrate. Poly-America relies on two Fifth Circuit Court of Appeals cases for the proposition that unconscionable provisions can be severed from an otherwise acceptable arbitration agreement. However, both of those cases are distinguishable from this case. In Carter v. Countrywide Credit Industries, Inc. and Jones v. Fujitsu Network Communications, Inc., the court invalidated only the provision in the agreements that required fee-splitting and ordered the parties to arbitrate with the employers to pay all arbitration costs. See Carter, 189 F.Supp.2d 606, 620 (N.D.Tex.2002); Jones v. Fujitsu Network Communications, Inc., 81 F.Supp.2d 688, 693 (N.D.Tex.1999).

In this case, however, there is more than one provision that renders the agreement unconscionable; both the arbitration costs and the remedy limitations imposed on Luna cause the agreement to be unconscionable as a whole. When a portion of an agreement to be severed is integral to the entire agreement, a sever-ability clause cannot save the agreement. Cf. John R. Ray & Sons, Inc. v. Stroman, 923 S.W.2d 80, 87 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (holding that because “covenant not to compete” was integral to agreement, it could not be severed from agreement). Because the purpose of arbitration is to afford the parties an alternative forum in which to vindicate their claims, and because the cost provisions and remedy limitations together deprive Luna of his opportunity to vindicate his claim in the arbitral forum, we hold that those provisions are integral to the purpose of the agreement and cannot be severed.

Accordingly, we hold that the trial court abused its discretion in granting Poly-America’s motion to compel arbitration. Because we have held that the arbitration agreement is substantively unconscionable, it is unnecessary to address Luna’s contention that the agreement should fail for lack of consideration.

Conclusion

We conditionally grant Luna’s petition for writ of mandamus. We are confident that the trial court will comply with our holding. Accordingly, writ will issue only if the trial court does not withdraw its order compelling arbitration.

      . The underlying lawsuit is Johnny Luna v. Poly-America, L.P. d/b/a Pol-Tex International and Poly-America GP, L.L.C, in the 344th District Court of Chambers County, TX, trial court cause number 20504. The Honorable Carrol E. Wilborn, Jr., presiding.

      . Both arbitration agreements specified that they were subject to the FAA, and both parties agree that the FAA applies. In re Auto Nation USA Corp., No. 01-03-00488, 2004 WL 858840, at *2 (Tex.App.-Houston [1st Dist.] (April 22, 2004, no pet. h.)).

      . This figure was based on Luna’s estimated highest monthly pay of $3,300, plus an aver- ■ age cost of $1,000 for the mandatory mediation (Peter Costea’s affidavit established that the cost for a full day of mediation in Harris County ranged from $750 to $1200 per side), plus an additional $250 for district court filing fees in the event that the parties were unable to come to agree on a suitable arbitrator.

      . Denying the antecedent is an invalid argument of the general form: “If p, then q. Notp. Therefore, not q.” Torpharm, Inc. v. Ranbaxy Pharm., Inc., 336 F.3d 1322, 1329 n. 7 (Fed. Cir.2003).

      . 105 F.3d 1465, 1482 (D.C.Cir.1997).

      . See Cole, 105 F.3d at 1484-85 (asserting that, although filing fees and other administrative costs are not problematic, requiring certain discharged employees to pay arbitrator’s fees would deprive them opportunity to pursue statutory claims); Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1177-78 (9th Cir. 2003) (invalidating fee-splitting provision under California law); see also Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 786 (9th Cir.2002) (holding that, under California law, fee provision is unenforceable when employee bears any expense beyond usual costs associated with bringing court action).

      . The FirstMerit Bank court also noted that, under the American Arbitration Association (AAA) rules, the administrative fees may be deferred or reduced upon a showing of extreme hardship by any party. Id. Poly-America argues that Luna would thus be entitled to have the arbitration fees deferred or reduced if he showed extreme hardship. However, the extreme-hardship allowance for administrative fees covers only administrative services; it does not cover the arbitrator’s expenses or compensation, reporting services, or any post-award charges incurred in enforc-mg any award. See American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures R-49. Thus, even if Luna did qualify for a reduction or deferment, that reduction or deferment would not apply to the arbitrator’s fees or expenses. Costea asserted in his affidavit that, in his opinion, the arbitrator’s fees alone in this case would range from $9,000 to $22,400. As a result, even assuming that Luna could show extreme hardship, he would still have to pay the maximum capped amount.

      . Luna also cites Smith v. Gateway, Inc. for the proposition that it is unconscionable to limit remedies in an arbitration agreement. Smith v. Gateway, No. 03-01-005 89-CV, 2002 WL 1728615(Tex.App.-Austin July 26, 2002, no pet.) (not designated for publication). In Smith, the court did not discuss the substance of the provisions that the arbitrator had found unconscionable; the court merely noted that the arbitrator had found them to be unconscionable. See Smith, 2002 WL 1728615, at *3. Thus, Smith is not specific enough to be determinative in this case. The other decisions that Luna cites are from federal courts applying the laws of other states. These cases demonstrate the extreme ends of remedy limitations — from holding that an arbitration agreement cannot deny all statutory remedies, although limitation of some remedies is acceptable, to holding that an arbitration agreement cannot waive any statutory remedy whatsoever. See Paladino v. Avnet Computer Techs., Inc., 134 P.3d 1054, 1057 (11th Cir. 1998) (depriving employees of any arbitral award for Title VII damages); Powertel, Inc. v. Bexley, 743 So.2d 570, 576-77 (Fla.App.1999) (relying on Paladino to support the assertion that arbitrator must provide all statutory remedies allowed under Florida’s Deceptive and Unfair Trade Practices Act); Rembert v. Ryan’s Family Steak Houses, Inc., 235 Mich.App. 118, 596 N.W.2d 208, 226 (1999) (holding that, under Michigan law, arbitration agreements must not waive any statutory remedy).


source: Caselaw Access Project

author:
TIM TAFT, Justice.
      EVELYN V. KEYES, Justice,

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Meredith Carol WOEHST, Appellee.
    No. 01-02-01263-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 16, 2004.
    G. David Higginson, Asst. County Atty., James Kuboviak, County Atty., Brazos County, Bryan, for Appellant.
    Lane Thibodeaux, Bryan, for Appellee.
    Panel consists of Justices TAET, KEYES, and BLAND.
   OPINION

TIM TAFT, Justice.

The State of Texas appeals from the trial court’s order granting the motion to suppress of Meredith Carol Woehst, appel-lee. Woehst was charged with driving while intoxicated (DWI). See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). Woehst moved to suppress the admission of her refusal to submit a breath or blood specimen and the audio and visual recordings of her refusal on the ground that they had been illegally obtained by the reading of incorrect statutory warnings as to the effect of her refusal. After a hearing, the trial court granted the motion and suppressed the evidence. In two issues, the State argues that the trial court erred in suppressing the evidence because (1) a refusal to take a blood-alcohol test cannot be involuntary or coerced and, therefore, cannot be obtained in violation of law and rendered inadmissible and (2) the only possible effect of the officer’s reading the incorrect warning relates to the suspension of Woehst’s driver’s license, not the admissibility at her DWI trial of her refusal to take the breath test. We affirm.

Background

On October 4, 2001, College Station Police Officer Miguel Vasquez initiated a traffic stop of Woehst’s vehicle and subsequently arrested Woehst for DWI.

The current version of the Texas Transportation Code provides that a person arrested for DWI must be informed that, if the person is 21 years of age or older, submits to the taking of a specimen, and the specimen shows that the person had an alcohol concentration of a level specified by Chapter 49 of the Texas Penal Code, then the person’s license to operate a motor vehicle will automatically be suspended for not fewer than 90 days. Tex. Transp. Code Ann. § 724.015(3) (Vernon Supp. 2004-05). A person must also be warned that two specific consequences will result from a refusal to submit to a breath test: (1) the person’s driver’s license will be suspended automatically for not fewer than 180 days and (2) evidence of the refusal is admissible against the person in court. Tex. Transp. Code Ann. § 724.015(1), (2) (Vernon Supp.2004-05).

At the police station, Officer Vasquez read Woehst a 1999 statutory warning form (1999 DIC-24) informing her of the outdated consequences for refusing to provide a blood or breath sample: that her license would be suspended for not fewer than 90 days and that evidence of her refusal would be admissible against her in court. At the time of Woehst’s arrest, the 1999 DIC-24 form had already been replaced by a 2001 version. In 2001, the Legislature amended the statute to lengthen the minimum period that a driver’s license automatically would be suspended upon refusal to submit to the taking of a specimen to not fewer than 180 days, rather than the previous 90 day minimum suspension. The 2001 statute applied to persons arrested for an offense committed on or after September 1, 2001. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004-05). Because Woehst was arrested after September 1, 2001, the Texas Transportation Code required Officer Vasquez to inform Woehst of the consequences set forth in the 2001 statute instead of the 1999 statute. The State stipulated in the trial court that Officer Vasquez had read Woehst the outdated 1999 form.

Woehst moved to suppress the breath-test refusal and the videotaped portions of her refusal on the ground that, had she been given the proper statutory warning, she would have had a stronger incentive to take the breath test. At the hearing on her motion, Woehst argued that Officer Vasquez’s failure to provide the correct statutory warnings violated section 724.015 of the Transportation Code and, thus, that her refusal to provide a breath specimen was (1) involuntary and inadmissible under the self-incriminatory provisions of the federal and state constitutions and (2) inadmissible under Texas’s exclusionary rule, article 38.23 of the Code of Criminal Procedure. The trial court found in Woehst’s favor and suppressed the refusal and its recordings.

Standard of Review

A trial court’s ruling on a motion to suppress lies within its discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). A trial court abuses its discretion if it refuses to suppress evidence that is obtained in violation of the law and that is, therefore, inadmissible under Article 38.23 of the Code of Criminal Procedure. Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993).

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to a trial court’s determination of historical facts, while we conduct a de novo review of a trial court’s application of the law to those facts. Id. (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997)). During a motion-to-suppress hearing, a trial court is the sole trier of fact; accordingly, the trial court may choose to believe or to disbelieve all or any part of a witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); King v. State, 35 S.W.3d 740, 742 (Tex.App.-Houston [1st Dist.] 2000, no pet.). When no findings of fact are filed, we must view the evidence in the light most favorable to the ruling and sustain the decision if it is correct on any applicable theory of the law. Ross, 32 S.W.3d at 855-56; King, 35 S.W.3d at 742. When reviewing the ruling, we must consider only whether the trial court improperly applied the law to the facts. Porter v. State, 938 S.W.2d 725, 727 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). If any basis for the trial court’s ruling is correct, its order to suppress must be upheld. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

Exclusion of Breath-Test Refusal

In its first issue, the State contends that (1) Texas’s exclusionary statute, article 38.23(a) of the Code of Criminal Procedure, requires the exclusion only of illegally obtained evidence; (2) the refusal to give a breath specimen would be obtained illegally only if it were involuntary; and (3) a refusal to give a breath specimen cannot be involuntary unless it is coerced, and it cannot be coerced. Therefore, the State contends that Woehst’s refusal should not have been suppressed. See Tex.Code CRIM. PROC. Ann. art.38.23(a) (Vernon Supp. 2004-05).

In her motion to suppress, Woehst relied primarily on Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App.1993). However, Woehst also relied on the effect of the officer’s Transportation Code violation regarding the statutory consequences of refusing a breath test and, particularly, the influence that the violation had on Woehst’s decision to refuse to take the breath test. The trial court suppressed the refusal based upon both reasons, deciding that it was “required by logic in Erdman to exclude the evidence of the warning and of the refusal” and that because the “statute’s [section 724.015] not followed, then the results should not go in front of the jury.”.

On appeal, the State first challenges the constitutional basis involving coercion, arguing that Erdman does not apply to the uncoerced refusal to take a breath test in a DWI case; rather, the State argues that Erdman governs the exclusion of a breath test obtained by coerced consent. Relying primarily on South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the State argues that, unlike consent, a refusal to provide a breath specimen in a DWI case cannot be involuntary.

Second, to the extent the State addresses the statutory basis for suppression of the evidence, the State argues that reading admittedly factually incorrect statutory warnings does not require suppression of Woehst’s refusal under any circumstances for the same reason that it does not require suppression on constitutional grounds — the refusal can never be involuntary. The State fails to consider, however, the different analysis that a trial court should undertake to determine admissibility in response to a claim of a statutory violation. See Pham v. State, 72 S.W.3d 346, 346 (Tex.Crim.App.2002) (in reversing Pham v. State, 36 S.W.3d 199, 204 (Tex.App.-Houston [1st Dist.] 2000), holding that a statutory violation requires a causal-connection analysis in addressing a statutory violation).

By law, the Transportation Code requires that a person suspected of having committed the offense of DWI be (1) given the opportunity to take a breath test and (2) warned both that the failure to take the test may be admissible in a subsequent prosecution and that the failure will automatically result in the suspension of his or her driver’s license for not fewer than 180 days — the statutory amount of time. Tex. Transp. Code Ann. § 724.015(l)-(2). These statutory warnings “emphasize the importance of ensuring that the consent is given ‘freely and with a correct understanding of the actual statutory consequences of refusal.’ ” Sandoval v. State, 17 S.W.3d 792, 795 (Tex.App.-Austin 2000, pet. ref'd) (citing Erdman, 861 S.W.2d at 893). In the present case, Woehst was warned that if she refused to give a specimen, her license would be suspended for not fewer than 90 days. This warning is admittedly factually inaccurate. In reality, her refusal would result in her license’s being suspended for not less than 180 days, and the Transportation Code requires that this exact warning be given to a suspect. See Tex. Tkansp. Code Ann. § 724.015(2). The failure to warn Woehst of the accurate statutory consequences of her refusal thus violated the Transportation Code.

We acknowledge, however, that “[e]vidence is not ‘obtained in violation’ of a provision of law if there is no causal connection between the illegal conduct and the acquisition of the evidence.” Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App.2002) (citing Roquemore v. State, 60 S.W.3d 862, 870 (Tex.Crim.App.2001)); Schafer v. State, 95 S.W.3d 452, 455-56 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (holding that trial court did not err in concluding that there was no causal connection between appellant’s failure to receive DWI warnings in writing and his decision to submit to breath test). Therefore, in order for Woehst’s refusal to be excluded, there must be a causal connection between her refusal and the State’s violation of section 724.015(2) of the Transportation Code.

Unlike in Schafer, in this case, the trial court concluded that Woehst had demonstrated the existence of a causal connection between her refusal and the officer’s violation of the Transportation Code. See Gonzales, 67 S.W.3d at 912. At the pre-trial hearing, the following exchange occurred on direct examination:

[Defense Counsel]: Had you known that the proper Statutory Warning — if you had a correct understanding of the actual statutory consequences of the refusal, that is, specifically that your license would have been suspended for not 90 days but for actually 180 days, would that have affected your decision whether or not to submit a breath or blood specimen?
[Ms. Woehst]: It would have given me more of an incentive to take the test. [Defense Counsel]: Why?
[Ms. Woehst]: Just because it’s more days of the suspension.
[Defense Counsel]: Okay. Did it act— did it play a role in your decision — and I say that — when I say this, if you had, in fact, been given the correct statutory period of suspension, that would have, in fact, influenced your decision whether to submit a breath specimen or not submit a breath specimen; is that right?
[Ms. Woehst]: Yes, sir.

On cross-examination, Woehst could not explain why the officer’s reading of the wrong minimum suspension period affected her. Woehst admitted that she did not feel coerced to refuse to provide a specimen and that she understood the form as it was explained to her. The prosecutor asked Woehst if she wanted the trial court to believe that she would have provided a specimen because the mínimums for refusing had increased. Woehst responded affirmatively. On redirect, Woehst also testified that the length of suspension would have had some influence or some effect on her life.

Viewing the evidence in the light most favorable to the trial court’s ruling, and deferring to the trial court’s determination of facts, especially when they are based, as they are here, on an evaluation of credibility and demeanor, we hold that the trial court did not abuse its discretion in suppressing Woehst’s refusal. Woehst established a causal connection, by showing that the officer’s misinformation and failure to provide a proper warning had caused her to refuse to consent to the breath test, and the trial court implicitly found her to be credible. Article 38.23 of the Code of Criminal Procedure, therefore, requires exclusion of the refusal evidence. See Schafer, 95 S.W.3d at 455, 457; Jessup v. State, 935 S.W.2d 508, 511 (Tex.App.Houston [14th Dist.] 1996, pet. ref d). We disagree with the dissenting opinion, which would find no causal connection as a matter of law absent coercion and thus that a trial court could never find that a refusal was caused by a statutory violation.

We overrule the State’s first issue. Because our ruling is dispositive of the appeal, we do not address the State’s second issue as to the alleged constitutional violations.

Conclusion

We affirm the trial court’s order granting appellee’s motion to suppress.

Justice KEYES, dissenting.

EVELYN V. KEYES, Justice,

dissenting.

Because I believe appellant did not meet her burden of proof for exclusion of her refusal to take a breath test, I respectfully dissent.

Woehst argued that, because she was not provided with the correct statutory warnings, in violation of section 724.015 of the Transportation Code, her refusal to provide a breath specimen was involuntary and, therefore, inadmissible under the self-incriminatory provisions of the federal and state constitutions and under Texas’s exclusionary rule, article 38.23 of the Texas Code of Criminal Procedure. When reviewing a trial court’s ruling on a motion to suppress, we must consider whether the trial court improperly applied the law to the facts. Porter v. State, 938 S.W.2d 725, 727 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). While we give almost total deference to the trial court’s determination of historical facts, we conduct a de novo review of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); see also Guzman v. State, 955 S.W.2d 85, 87, 89 (Tex.Crim.App.1997); Bachick v. State, 30 S.W.3d 549, 551 (Tex.App.-Fort Worth 2000, pet. ref'd). The majority concludes that Woehst’s testimony that the officer’s recitation of a superseded version of section 724.015 “influenced” her decision to refuse the test establishes not only factual causation, as the trial court found, but also legal causation. I disagree.

Admissibility of Refusal Under Federal and State Constitutions

The Supreme Court has held that a DWI suspect’s refusal to take a blood-alcohol test lawfully requested by an officer is not an act coerced by the officer and, therefore, is not protected by the Fifth Amendment and is admissible in a subsequent DWI prosecution. South Dakota v. Neville, 459 U.S. 553, 566, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983) (upholding use at trial of defendant’s refusal to provide blood sample for DWI testing where defendant was not warned refusal could be used against him at trial as required by state statute). Id. 563-64, 103 S.Ct. at 922 (citations omitted).

In Thomas v. State, the Texas Court of Criminal Appeals, likewise, held that the admission in a DWI prosecution of a defendant’s uncompelled refusal to submit to a breath test does not violate the state constitutional privilege against self-incrimination. 723 S.W.2d 696, 704-05 (Tex.Crim.App.1986) (expressly adopting the reasoning in Neville and finding no constitutional violation where defendant was warned his driver’s license and driver’s privileges could be suspended if he refused breath test, but was not warned his refusal could be used at trial); see also Miffleton v. State, 777 S.W.2d 76, 79-80(Tex.Crim.App.1989). Thomas defined physical compulsion for purposes of self-incrimination in the DWI context as including “such obvious force as physical torture or extended deprivation of food and water.” Thomas, 723 S.W.2d at 704. It defined mental compulsion as including “the more subtle force associated with offering a defendant two choices, one of which results in a penalty, punishment or detriment from which the defendant is entitled to be free.” Id. Both types of compulsion, it stated, “remove the element of voluntariness from a defendant’s decision to incriminate himself.” Id. (emphasis in original).

The court reasoned that the State could have legitimately relieved the defendant of having to choose between refusing and submitting to the test by compelling him to provide physical evidence of intoxication; instead, it attempted to influence him to provide the evidence using the threat of a penalty for refusing; by refusing, the defendant avoided what might have been compelled, but “accepted those consequences the State could legitimately apply.” Thomas, 723 S.W.2d at 705. The Court concluded, “Such difficult options do not necessarily create compulsion for a particular choice.” Id. It held that Article 1, section 10 of the Texas constitution was not violated by the State’s failure to warn the defendant that his refusal could be used against him at trial where the other statutory warnings were correct and no compulsion was used to obtain the refusal. Id.

Here, Woehst expressly admitted that she did not feel coerced by the officer to refuse to provide a specimen and that she understood the form as it was explained to her. Nor is there any evidence that the officer used physical or mental compulsion as defined in Thomas to obtain her refusal. I would hold, therefore, that Woehst’s refusal to take a breath test is admissible under both federal and state anti-self-incrimination provisions.

Admissibility of Refusal Under Texas’ Exclusionary Rule

The State also contends that Woehst’s refusal should not have been suppressed under Texas’ exclusionary statute, article 38.23 of the Texas Code of Criminal Procedure. See TexCode CRim. PROC. Ann. art. 38.23 (Vernon Supp.2004). It argues that (1) article 38.23 requires the exclusion only of illegally obtained evidence; (2) the refusal to give a breath specimen would be illegally obtained only if the refusal were involuntary; (3) a refusal to give a breath specimen cannot be involuntary unless it is coerced by the officer; and (4) Woehst’s refusal was not coerced; therefore, it is admissible.

Woehst responds that, just as “a suspect’s decision to submit to a breath test must truly be her own, made freely and with a correct understanding of the actual statutory consequences of a refusal,” so a refusal to submit to a blood-alcohol test must likewise be voluntary, ie., “based on a correct understanding of the consequences.” She contends that the officer’s misstatement of the law caused her refusal to consent to a breath test to be involuntary by depriving her of a full understanding of the consequences of her choice.

Here, as below, Woehst relies primarily on argument by inverse analogy to Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App.1993). In Erdman, the Court of Criminal Appeals held that a driver’s consent to a breath test was coerced, and therefore improperly obtained and properly excluded from the evidence under article 38.23 when, in addition to providing the general statutory warnings contained in the Transportation Code, the officer incorrectly warned the driver of extra-statutory consequences of a refusal — namely, that the driver would be jailed and charged with DWI if he refused consent. Id. at 891. The Court of Criminal Appeals stated that consent to a breath test “must not be the result of physical or psychological pressures brought to bear by law enforcement officials.” Erdman, 861 S.W.2d at 893. The test for admissibility of a DWI suspect’s blood test results in a DWI prosecution, therefore — like the test for admissibility of a refusal under constitutional standards — is whether the defendant’s consent was coerced by warnings that included extra-statutory consequences of a refusal.

Woehst argues that the record of her testimony at the pre-trial hearing demonstrates that the officer’s incorrect statement of the law caused her decision to refuse the test. The trial court, as fact finder, found Woehst’s testimony to be credible and suppressed the refusal, deciding that it was “required by logic in Erd-man to exclude the evidence of the warning and of the refusal” and that because the “statute’s [section 724.015] not followed, then the results should not go in front of the jury.” Like the majority, I defer to the trial court’s factual determination that the officer’s incorrect warning influenced Woehst’s decision to refuse a breath test. However, I would conclude that the court incorrectly applied the law to the facts in determining that Woehst’s refusal should be excluded. I do not believe that the logic in Erdman requires exclusion of Woehst’s refusal, nor do I believe that the mere recitation of an incorrect statutory warning as to a minimum license suspension requires exclusion.

Texas’ exclusionary rule provides, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex.Code Crim. PROC. Ann. art. 38.23. Evidence is “obtained ... in violation of a provision of law,” as required by article 38.23, only if there is a causal connection between the illegal conduct and the acquisition of the evidence. Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App.2002) (citing Roquemore v. State, 60 S.W.3d 862 (Tex.Crim.App.2001)); Schafer v. State, 95 S.W.3d 452, 455 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Evidence is not obtained in violation of law if an ordinary person would not consider the evidence to have been obtained by that illegality. See State v. Daugherty, 931 S.W.2d 268, 269 (Tex.Crim.App.1996). The defendant, therefore, must establish a causal connection between the refusal and the officer’s violation of law. See Schafer, 95 S.W.3d at 455; Jesswp, 935 S.W.2d at 511(causal connection not established between officer’s failure to give statutory written warnings prior to defendant’s refusal to take breath test where warnings were given immediately after refusal); Harrison v. State, 766 S.W.2d 600, 605 (Tex.App.-Fort Worth 1989, pet. ref'd) (no error in admitting evidence of refusal where no causal connection established between refusal and fact that civilian had given warnings instead of peace officer). The question, therefore, is what constitutes a causal connection such that the defendant’s refusal must be said to have been obtained by the illegality.

Although the plain language of section 724.015 requires that a peace officer give the statutory warnings, the failure to do so does not render a refusal automatically inadmissible under article 38.23. Jessup v. State, 935 S.W.2d 508, 511 (Tex.App.Houston [14th Dist.] 1996, pet. ref'd); see also Bachick, 30 S.W.3d at 552 (not every violation of a Texas law invokes the exclusionary rule). Specifically, “[a]rticle 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule.” Id.; see Lane v. State, 951 S.W.2d 242, 243 (Tex.App.-Austin 1997, no pet.). The purpose of the exclusionary rule is to deter police conduct that could not have reasonably been believed to be lawful by the officers committing the conduct. Bachick, 30 S.W.3d at 552-53; see also Owens v. State, 861 S.W.2d 419, 420 (Tex.App.-Dallas 1993, no pet.). Therefore, to establish that a DWI suspect’s refusal to submit to a breath test was caused by an “illegality,” the defendant must show that the police officer who obtained the refusal could not have reasonably believed his conduct to be lawful.

The purpose of section 724.015 in relation to the gathering of evidence for use in a prosecution for DWI is to ensure that a suspect’s decision to take or refuse a blood alcohol test is knowing and voluntary. Lane, 951 S.W.2d at 243; Erdman, 861 S.W.2d at 893 (purpose of statutory warnings is to ensure that defendant’s refusal to submit specimen is an informed choice). The statutory warnings “emphasize the importance of ensuring that the consent is given ‘freely and with a correct understanding of the actual statutory consequences of refusal.’ ” Sandoval v. State, 17 S.W.3d 792, 795 (TexApp.-Austin 2000, pet. ref'd) (citing Erdman, 861 S.W.2d at 893). The warnings required by section 724.015 “ensure that a person who refuses to give a requested specimen does so with a full understanding of the consequences.” Nebes v. State, 743 S.W.2d 729, 730 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (construing predecessor statute). It follows that the officer could not have reasonably believed his conduct to be lawful if he obtained Woehst’s refusal by depriving her of a knowing and voluntary choice between consenting to the test and refusing. The question, therefore, is what constitutes a knowing and voluntary choice for purposes of Texas’ exclusionary statute.

Since Woehst admitted that her refusal to consent to a breath test was not coerced as that term is defined in Erdman, i.e., obtained by coercive extra-statutory warnings, her refusal was not involuntary under Erdman and her inverse Erdman argument necessarily fails. However, even if Woehst had not admitted that her refusal to submit to a breath test was not coerced, there is no evidence that her refusal to take the test was involuntary as that term has been defined either in Erdman or in similar contexts, ie., obtained by physical or mental coercion. See Thomas, 723 S.W.2d at 704 (coercion of refusal under Texas Constitution); see also Sandoval v. State, 17 S.W.3d 792, 795 (Tex.App.-Austin 2000, pet ref'd) (“A person’s consent to a breath test is voluntary only if it is not the result of physical or psychological pressure. If the officer misstates the law and includes extra-statutory consequences of a refusal to submit to the breath test, the consent may be considered to have been involuntarily given.”) (italics in original; bold added).

I disagree with Woehst and the majority that the incorrect statutory warning in this case was legally sufficient to justify exclusion of her refusal as unknowing and involuntary. The statutory warnings given Woehst were substantially correct. Most importantly, the officer expressly informed Woehst that her refusal to take the test would be admissible; that is, he correctly informed her about the consequences of her refusal for criminal proceedings. In addition, although the statutory warning regarding the minimum license suspension period was outdated and incorrectly warned Woehst about the minimum suspension, it did not misinform her that there would be no suspension; nor did the officer assure her that her suspension would be no longer than 90 days — a fact she acknowledged she understood and accepted. Moreover, the outdated statute not only understated the minimum period of suspension for a refusal to submit to a breath test; it understated the minimum period of suspension for consent to the test as well, maintaining the statutory balance between penalties, i.e., a substantially longer license suspension for a refusal than for consent.

When section 724.015 warnings given were either incomplete, imprecise, or incorrect, but substantially correct, our sister courts — and this court as well — have found a DWI defendant’s refusal to be admissible. See Mody v. State, 2 S.W.3d 652, 655 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (refusal to submit to breath test admissible where oral and written warnings regarding refusal sufficiently complied with section 724.015, even though warnings referred to blood alcohol level of .10 at time of testing, rather than at time of driving); Moore v. State, 981 S.W.2d 701, 706 (Tex.App.-Houston [1st Dist.] 1998, pet. refd) (refusal admissible where defendant was informed license would be suspended if he had blood alcohol level of 0.10 at time of testing, rather than at time of driving); Gonzalez v. State, 967 S.W.2d 457, 459 (Tex.App.-Fort Worth 1998, no pet.) (fact that DWI defendant was advised only that his refusal could be used against him “in the future” was broad enough to advise him of the statutory consequences of refusing a breath test.); Nebes, 743 S.W.2d at 731 (proof of statutory written warnings not required as predicate to admissibility “of a voluntarily taken breath test” under predecessor to section 724.015) (emphasis in original); but see Texas Dept. of Pub. Safety v. Thomas, 985 S.W.2d 567, 570 (Tex.App.-Waco 1998, no pet.) (in appeal of license suspension, because police did not adequately warn defendant of all actual, direct, and statutory consequences — specifically, loss of commercial license — substantial statutory right of defendant was violated; thus trial court properly reversed suspension of driver’s license). In these cases, as here, although the officer deviated from the statutory warnings, his statement of the warnings was substantially correct, and the officer made no extra-statutory coercive statements.

Moreover, in similar contexts, the Texas courts — including this one — have held that the DWI defendant failed to prove a causal connection between a violation of section 724.015 of the Transportation Code and the obtaining of a defendant’s refusal or consent to a blood test. See Schafer, 95 S.W.3d at 456-57 (trial court did not err in concluding no causal connection between appellant’s failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified oral warnings given at time were “confused all together,” he did not understand them, he did not think he had any choice but to consent, but evidence showed he had blood alcohol concentration of .185); Rowland, 983 S.W.2d 58, 60 (Tex.App.Houston [1st Dist.] 1998, pet. ref'd) (appellant failed to show causal connection between evidence obtained, ie., refusal to take breath test, and failure of peace officer to give timely written warning before refusal where appellant continued to refuse test after oral warnings were provided and he had read and signed written warnings); Lane, 951 S.W.2d at 243-44 (appellant failed to demonstrate results of breath test were obtained by violation of section 724.015 where there was no evidence that officer’s failure to timely hand him printed DIC-24 warning had any impact on decision to take test).

Under the foregoing law, when the statutory warnings given a DWI suspect are substantially correct, the suspect’s refusal to consent to a breath test — like consent itself — is involuntary only if it is coerced, ie., that is, only if the officer made extra-statutory coercive statements or otherwise physically or mentally compelled the refusal; the officer’s coercion of the suspect’s refusal to consent to the test establishes the causal link between the officer’s unlawful conduct and his obtaining the refusal by a violation of law that subjects the refusal to exclusion under article 38.23.

Here, the statutory warning given Woehst correctly informed her that her license would be suspended for at least 90 days if she refused a breath test, but less if she consented, and, most importantly, that her refusal might be used against her in a subsequent DWI prosecution; and her refusal was not coerced. Under these circumstances, it is to me a misapprehension of the intent of section 724.015 and of the exclusionary rule to reheve Woehst of the precise risk she knowingly assumed by refusing a breath test — the admissibility of her refusal. I can find no legislative intent to accord greater protection to a DWI defendant’s refusal to consent to a breath test than Erdman affords to a DWI defendant’s consent to the test.

I would hold that Woehst failed as a matter of law to establish a causal connection between the incorrect statutory warning given her regarding the minimum period for suspension of her license and her refusal to consent to a breath test; therefore, her refusal should have been admitted into evidence. Accordingly, I would reverse and remand.

      . U.S. Const, arts. V, XIV; Tex. Const, art. I, § 10.

      . Article 38.23(a) provides that “no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or Constitution or laws of the United States of America shall be admitted in evidence against the accused.” Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2004-05).

      . In Erdman, the Court of Criminal Appeals held that a driver’s consent to a breath test was coerced, and thus improperly obtained and properly excluded from the evidence, when the officer warned the driver of extra-statutory consequences of a refusal — namely, that the driver would be jailed and charged with DWI if he refused consent — in addition to providing the general statutory warnings contained in the Transportation Code. Erdman v. State, 861 S.W.2d 890, 893-94.

      . The following exchange occurred:
      [Prosecutor]: Ms. Woehst, would your getting to class or going to work or anything like that have been impacted somehow differently had you had a longer suspension than 90 days at the time this was explained to you? How would a 180-day suspension have made an impact on you that would have differed from a 90-day suspension? Do you not have an answer, ma’am?
      [Ms. Woehst]: No.

      . U.S. Const, arts. V, XIV; Tex. Const, art. I, § 10.

      . Article 38.23 provides that no evidence obtained by an officer in violation of the Constitution or laws of the State of Texas or Constitution or laws of the United States shall be admitted in evidence against the accused. Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2004).

      . The following exchange occurred:
      [Prosecutor]: Did you feel coerced by the officer in any way to refuse to provide a specimen?
      [Ms. Woehst]: No, sir.
      [Prosecutor]: Did you understand this form as it was explained to you in its entirety at that time?
      [Ms. Woehst]: Yes, sir.

      . Since the holding in DTPS v. Thomas did not involve the suppression of evidence under the Texas exclusionary rule in a criminal prosecution, but only the suspension of the suspect's driver’s license in administrative proceedings, it is inapplicable here. However, since our sister courts have declined to follow it in reviewing license suspensions, I would likewise decline to follow it as authority in defining an involuntary refusal in DWI prosecutions. See TDPS v. Jackson, 76 S.W.3d 103 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also TDPS v. Struve, 79 S.W.3d 796 (Tex.App.-Corpus Christi 2002, pet. denied).