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In re Kellogg Brown & Root was decided the month before the Supreme Court of
Texas decided In re Halliburton Co. (Tex. 2002) 80 S.W.3d 566 (Halliburton).
Halliburton addressed an employment arbitration agreement that allowed the employer
unilaterally to amend (apparently without notice) or terminate upon 10 days notice;
amendments would not apply to disputes of which the employer had actual notice on the
date of the amendment, and disputes that arose before the date of termination would be
governed by the pretermination arbitration agreement. (Id. at pp. 569-570.) The court
held that the agreement was not illusory, because the employer could not ―avoid
its promise to arbitrate by amending the provision or terminating it altogether.‖
(Id. at p. 570.) The court never stated or implied that the agreement‘s restrictions on
modification and termination were the absolute minimum necessary for an agreement to
be non-illusory, so the case casts no doubt on the continuing validity of In re Kellogg
Brown & Root.
Two later opinions of the Court of Appeals of Texas applying Halliburton have
reached the same conclusion as In re Kellogg Brown & Root. In re Champion
Technologies, Inc., supra, dealt with an arbitration agreement that could be unilaterally
amended or terminated by the employer upon 30 days notice but under which the
amendment or termination would not apply to proceedings that had already been
initiated. (In re Champion Technologies, Inc., supra, 222 S.W.3d at p. 131.) Applying
Halliburton, the court concluded that the agreement was enforceable and not illusory.
(Id. at pp. 131-132.) Nabors Drilling, supra, dealt with an arbitration agreement that
could be unilaterally amended or terminated by the employer upon 10 days notice but
under which the amendment or termination would not apply to proceedings that had
already been initiated. (Nabors Drilling, supra, 198 S.W.3d at p. 248, fn. 7.) Applying
Halliburton, the court concluded that the agreement was enforceable and not illusory.
(Id. at pp. 248-249.)
We are not free to disregard In re Kellogg Brown & Root, In re Champion
Technologies, Inc., and Nabors Drilling. They are not merely persuasive authority
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