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LEGAL EASE

UNHOLY COVENANTS
Defective Physician Covenants
Not to Compete In Texas
By Mark F. Weiss, JD

Is that covenant not to compete in your physician employment chances are high that it’s defective.
agreement an illegal restraint of trade or an enforceable restriction In this article, we’ll explore some defects commonly seen in Texas
that you’ve willingly agreed to?
physician CNTCs.
The issue is as highly complex as it is contentious, so much so
that the Texas Supreme Court has changed its interpretation of Lack of Separate Consideration of the Right Kind
covenants not to compete (CNTC) in general several times over For any CNTC to be enforceable, there must be specific consider-
the past few decades.
ation (i.e., something of value given) for your agreement not to com-
To make matters even more complex, Texas law imposes addi- pete. Additionally, the type of consideration given impacts the
tional, special requirements on physician covenants not to compete. enforceability of the CNTC.

Although only the judge or arbitrator in your hypothetical (or is Under current Texas law, the consideration given must be reason-
it?) case can tell you whether your CNTC is unenforceable, the ably related to an interest worthy of protection, such as trade secrets,

28 San Antonio Medicine • September 2017