Alanis Morisette would have to say "Isn't it ironic, don't ya think?" The Texas Supreme Court has spent the last six years doing everything possible to make it abundantly clear that Texas noncompetes are enforceable. Yet, according to their district court brethren, only twenty five percent of noncompetes are enforced. Where is the disconnect?
The Court has decreed that noncompetes are enforceable and trial courts should set aside their heightened scrutiny of the timing and type of noncompete consideration. Instead, they should evaluate time, scope and geography of the actual noncompete provision to fashion the most appropriate relief. Of course, time, scope and geography have always been important parts of the noncompete statute, it's just that hyper-technical consideration issues so often resulted in the noncompete being unenforceable.
Despite these directives, many trial courts instead focus almost exclusively on the arguably non-legal aspects of noncompetes--how long will the employee be out of work, for what type of work and where? Consideration of these questions allows the courts to avoid enforcing noncompetes which would keep people from working. Since trial courts exercise broad discretion at the temporary injunction stage where most noncompetes are enforced, it seems likely that noncompete enforceability will continue to be determined on these more "human" considerations instead of the legal inquiries promulgated by the Texas Supreme Court and the statute itself.
Thus, although the law has shifted and noncompetes are "technically" enforceable, the outcomes remain largely the same. Perhaps the situation is more Rolling Stones than Alanis Morisette--You Can't Always Get What You Want.
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