What if the covenant not to compete does not meet the two-part test to be enforceable?
If the covenant is found to be unenforceable because it is not ancillary to an otherwise enforceable agreement, the Court most likely will NOT enforce the covenant. However, if the Court determines that the covenant is unreasonable as to the restrictions of time, geographic scope or scope of activity to be restrianed, the Court is likely to reform the covenant in such a way as to create reasonable restrictions. Section 15.50 of the Texas Business and Commerce, provides that a court “shall” reform a covenant not to compete if the restrictions on time, geographical area or scope of activity are not reasonable.
