The senior salesperson who built your largest customer relationships just took a job with your biggest competitor. The engineer who has seen every line of source code resigned on Friday and started Monday at the startup down the street. The regional manager you trained for eight years is calling on accounts she built while working for you, using the contact list she emailed to her personal address the week before she gave notice.
Texas law gives employers real tools for stopping this. The same law arms the departing employee, or the new employer, with defenses and counterclaims when those tools are overused. Most of the cases this firm handles in this practice area involve some combination of all three: a covenant not to compete, a non-solicitation provision, and a trade secret misappropriation claim.
This page maps the cluster. The sub-pages go deep on each topic; what follows here is the strategic shape that ties them together, the same pattern that runs through nearly every case we handle in this area.
The five strategic moments in a non-compete or trade secret case
Drafting the agreement. Most non-compete and trade secret cases are won or lost at the drafting stage. A reasonable non-compete that matches the specific role and protected interests survives challenge. An overbroad covenant gets reformed by the court and loses backward- looking damages. A trade secret protection program that documents what is confidential, who has access, and how access is controlled supports a misappropriation claim later. A program that exists only on paper does not.
Departure and forensic preservation. When a key employee leaves, the first 72 hours matter. Email forwarding rules. USB drive activity logs. Cloud sync histories. Personal device backups. Customer-facing communications. The forensic record at the moment of departure is the foundation of any future enforcement action. Companies that wait weeks to engage forensic counsel often discover that the evidence window has closed.
Filing the case and obtaining emergency relief. Non-compete and trade secret cases are won at the TRO and temporary injunction hearing. The case has to be filed quickly, with a verified petition supported by specific facts, and the four-element injunctive relief standard has to be met. Money damages alone do not undo the harm of a competitor learning the customer list or absorbing the trained sales team. The injunctive relief is the real remedy. See TROs in Business Cases and Temporary Injunctions.
Expedited discovery and the temporary injunction hearing. Between the TRO and the temporary injunction hearing, expedited discovery develops the evidence that supports preliminary relief. Forensic images of devices. Limited depositions of key witnesses. Customer communications. The temporary injunction hearing usually decides the practical outcome of the case. At that point, the parties either have an injunction in place or they do not, and the rest of the litigation runs accordingly. See Expedited Discovery in Texas Business Cases.
Damages, fees, and final relief. When the case proceeds beyond preliminary relief, the merits include damages calculations, fee recovery under the Texas Uniform Trade Secrets Act fee-shifting provisions and any contractual fee provisions, and ultimately permanent injunctive relief. Trade secret damages can include actual loss, unjust enrichment, and in willful and malicious cases, exemplary damages and attorney’s fees.
Four overlapping protections, compared
These tools overlap but are not interchangeable. One agreement often uses several.
| Protection | What it restricts | Key Texas requirement | Needs a signed agreement? |
|---|---|---|---|
| Non-compete | Competing or working for a competitor, within limits | Ancillary to an enforceable agreement; reasonable time, area, and scope (Bus. & Com. Code section 15.50) | Yes |
| Non-solicitation | Soliciting the employer’s customers or employees | A restraint of trade; must be reasonable, often analyzed like a non-compete | Yes |
| Confidentiality / NDA | Using or disclosing confidential information | Enforceable as a contract with a reasonable scope | Yes |
| Trade secret protection (TUTSA) | Misappropriating trade secrets | Information has independent value and was protected by reasonable secrecy measures | No — statutory; applies even without a contract |
See Non-Compete Agreements, Non-Solicitation Agreements, and Trade Secret Misappropriation.
The sub-pages in this cluster
Non-Compete Agreements Texas. The Texas Covenants Not to Compete Act (Business and Commerce Code sections 15.50 through 15.52) and the case law applying it. The ancillary requirement after Marsh USA Inc. v. Cook. Reasonableness of time, geographic, and scope limitations. Court reformation under section 15.51(c). The current status of the dead FTC non-compete rule.
Non-Solicitation Agreements. The narrower cousin of the non-compete. Customer non-solicits and employee non-solicits each have their own enforceability analysis. Non-solicits are often easier to enforce than broad non-competes because the restrictions are tied directly to specific protected interests.
Trade Secret Misappropriation Under TUTSA. The Texas Uniform Trade Secrets Act, codified at Texas Civil Practice and Remedies Code Chapter 134A. What qualifies as a trade secret. The “reasonable efforts” requirement. Acquisition, disclosure, and use as distinct forms of misappropriation. Damages, attorney’s fees in cases of willful and malicious misappropriation, and injunctive relief.
Defend Trade Secrets Act Claims. The federal Defend Trade Secrets Act, 18 U.S.C. § 1836. Federal court jurisdiction. The civil seizure remedy unique to the DTSA. Parallel prosecution with TUTSA claims. The “ex parte seizure” remedy and when it actually applies.
Employee Departures and Customer List Cases. The specific fact patterns that come up when a key employee leaves with company information. Distinguishing protectable customer lists from publicly available information. The “head start” measure of damages. The interplay between non-compete claims and trade secret claims in customer-information cases.
Garden Leave and Notice Provisions. The alternatives to traditional non-competes: garden leave clauses, notice provisions, and forfeiture-for-competition arrangements. Their enforceability in Texas, their advantages over non-competes in some contexts, and their interaction with the Covenants Not to Compete Act.
Where this cluster connects to others
Non-compete and trade secret cases rarely stand alone. Connected claims and practice areas this firm handles:
- Tortious interference with contract. When a new employer knowingly hires an employee bound by an enforceable non-compete, the new employer may have tortiously interfered with the existing agreement. See Tortious Interference with Contract.
- Breach of fiduciary duty. Departing officers, directors, and managing members owe duties that often extend to information protection, opportunity preservation, and refraining from competition during the role. See Fiduciary Duty Litigation.
- Civil claims under the Texas Theft Liability Act. When trade secret misappropriation rises to the level of criminal theft, the TTLA provides a parallel civil claim with separate fee shifting. See Texas Theft Liability Act Claims.
- Defending the lawsuit. Employees and new employers on the receiving end of these cases have substantial defenses, including enforceability challenges, lack of trade secret protection, independent development arguments, and free-employment arguments. See Defending a Non-Compete Lawsuit.
The Texas Business Court question
A frequent question in non-compete and trade secret cases is whether the case can be filed in the Texas Business Court. The answer differs depending on the specific claims.
Trade secret claims meeting the threshold can go to Business Court. The Texas Business Court has concurrent jurisdiction over commercial disputes meeting the amount-in-controversy threshold (currently $5 million for qualified transactions). Trade secret claims under TUTSA or DTSA, when they meet that threshold and the other jurisdictional requirements, can be filed in or removed to Business Court.
Non-compete claims cannot. The statute creating the Business Court (Texas Government Code Chapter 25A) explicitly excludes from its jurisdiction claims arising under Chapter 15 of the Business and Commerce Code, the Texas Covenants Not to Compete Act. Cases brought solely on non-compete theories are litigated in Texas district court.
Combined cases require careful pleading. When a case includes both non-compete and trade secret claims, the parties have to decide where to file. Some cases go to district court on the strength of the non-compete claim. Others go to Business Court on the trade secret claim, with the non-compete claim either dropped or pursued in a parallel proceeding. The forum decision is one of the most consequential calls in cluster cases.
The cluster, the way we run it
Four habits carry these cases. We move on the case timeline, not the client’s comfort timeline. The first 72 hours after a departure are critical, and the TRO gets filed when the facts support it, not after two weeks of internal deliberation. We engage forensic counsel immediately, because Texas trade secret cases turn on the electronic record and that record deteriorates the longer it sits unsecured. We plead the combination the specific case needs, a non-compete case as a non-compete case, a trade secret case as a trade secret case, both when both belong, because kitchen-sink pleading dilutes the strong claims with the weak. And we are honest about cost. Enforcement is expensive and so is defense; we tell clients early how the litigation spend compares to the value of the protected interest. Not every violation is worth litigating, and knowing when to walk away is as important as knowing when to file.
For the specific topics in this cluster, see the sub-pages linked above. The pattern that decides these cases is set in the first week after a departure, before most companies have decided to call anyone at all.
Frequently Asked Questions
What is the difference between a non-compete and a non-solicitation agreement in Texas?
A non-compete prohibits a former employee from working in competition with the former employer. A non-solicitation prohibits the former employee from soliciting the employer's customers, employees, or both. Both must meet the same statutory requirements under Texas Business and Commerce Code sections 15.50-52: ancillary to an otherwise enforceable agreement, with reasonable time, geographic, and scope limitations. Non-solicitation agreements are often more enforceable in Texas than broad non-competes because the restrictions are narrower.
What is the difference between TUTSA and the federal Defend Trade Secrets Act?
The Texas Uniform Trade Secrets Act (TUTSA), codified at Texas Civil Practice and Remedies Code Chapter 134A, is the state-law framework for trade secret claims in Texas. The Defend Trade Secrets Act (DTSA), 18 U.S.C. § 1836, is the federal framework. Both follow similar substantive principles, but the DTSA provides federal court jurisdiction and authorizes a civil seizure remedy that TUTSA does not. Most Texas trade secret cases plead both statutes.
How quickly do I need to act when a key employee leaves with confidential information?
Within days, not weeks. Emergency injunctive relief (temporary restraining orders and temporary injunctions) is the most valuable remedy in these cases, and delay weakens the irreparable harm showing required for that relief. Forensic preservation of the departing employee's electronic devices and accounts should begin immediately. Customer notifications, lawsuit filings, and investigation activities all run on a compressed timeline that starts the moment the departure is discovered.
Can the Texas Business Court hear non-compete or trade secret cases?
Trade secret cases meeting the amount-in-controversy threshold can be filed in or removed to the Texas Business Court. Non-compete cases cannot. The statute creating the Business Court explicitly excludes claims arising under Chapter 15 of the Texas Business and Commerce Code (the Covenants Not to Compete Act) from Business Court jurisdiction. When cases combine non-compete claims with trade secret claims, the forum analysis requires careful attention to which claims drive jurisdiction.
Can a new employer be sued for hiring an employee with a non-compete?
Yes, when the new employer knew of the non-compete and the hiring induces or facilitates a breach. The claim is tortious interference with contract. The former employer can sue both the former employee for breach of the covenant and the new employer for interference. Many non-compete cases end up with both defendants in the same lawsuit, with different relief sought against each.