Non-Solicitation Clauses in Texas: Are They Enforceable?

Texas Law on Restrictive Covenants

Texas governs non-solicitation agreements under the Texas Business and Commerce Code Section 15.50, the same statute that covers non-competes. Texas courts will enforce a non-solicitation clause if it meets specific requirements.

Requirements for Enforceability

A non-solicitation clause in Texas must be:

• Ancillary to an otherwise enforceable agreement: The restriction must be part of a broader agreement where the employer provides something of value, such as access to confidential information, specialized training, or stock options.
• Reasonable in scope: The restriction must not be broader than necessary to protect the employer's legitimate business interest.
• Reasonable in time: Courts generally consider 1-2 years reasonable, though this depends on the industry and circumstances.
• Not impose a greater restraint than necessary: The clause must be tailored to the specific interest being protected.

The Ancillary Agreement Requirement

This is the most important factor in Texas. Under Marsh USA Inc. v. Cook (2011), the Texas Supreme Court held that if an employer provides confidential information or trade secrets as part of the employment, that can satisfy the ancillary agreement requirement. Simply offering at-will employment alone is generally not sufficient.

Customer vs. Employee Solicitation

Texas courts treat both types of non-solicitation clauses similarly, but customer non-solicitation is more commonly upheld. Courts look at whether you had direct, meaningful relationships with the customers the clause covers.

Red Flags

• No identifiable confidential information, trade secrets, or specialized training was provided
• The clause covers customers you never interacted with
• Duration exceeding 2 years
• Overly broad definition of "solicitation" that includes accepting unsolicited business
• The agreement was signed without any additional consideration after initial employment began

When to Consult a Lawyer

Consider consulting a Texas employment attorney if you are facing enforcement of a non-solicitation clause, particularly if you question whether the ancillary agreement requirement has been met. Texas courts have the power to reform overbroad restrictive covenants, so understanding the likely enforceable scope can help you plan your next career move.

This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.