
Quoting
Trilogy Software v. Callidus Software, 143 S.W.3d 452 (2004)
Enforceability of the non-compete agreement
The enforceability of a covenant not to compete is a question of law. Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 644, 37 Tex. Sup. Ct. J. 838 (Tex. 1994); Alex Sheshunoff Mgt. Srv., L.P. v. Johnson, 124 S.W.3d 678, 684 (Tex. App.--Austin 2003, pet. filed). A covenant not to compete is a disfavored contract in restraint of trade and is unenforceable unless it meets certain statutory requirements. See Tex. Bus. & Com. Code Ann. §§ 15.05, .50 (West 2002); Sheshunoff, 124 S.W.3d at 684. Those requirements are set forth in Section 15.50 of the Texas Business and Commerce Code:
A covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.
Tex. Bus. & Com. Code Ann. § 15.50 (a). Section 15.50 thus imposes two threshold requirements that a covenant not to compete must meet in order to be enforceable. The first is a two pronged test: there must exist an otherwise enforceable agreement that must have existed at the time the non-compete agreement is made. Second, the non-compete agreement must be ancillary to or part of that "otherwise enforceable agreement." We consider each requirement in turn.