2023S0236-1 03/02/23
By: Bonnen H.B. No. 3411
A BILL TO BE ENTITLED
AN ACT
relating to restrictions on covenants not to compete for physicians
and certain other health care practitioners.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 15.50(b), Business & Commerce Code, is
amended to read as follows:
(b) A covenant not to compete relating to the practice of
medicine is enforceable against a person licensed as a physician by
the Texas Medical Board if such covenant complies with the
following requirements:
(1) the covenant must:
(A) not deny the physician access to a list of the
[his] patients whom the physician [he] had seen or treated within
one year of termination of the contract or employment;
(B) provide access to medical records of the
physician's patients upon authorization of the patient and any
copies of medical records for a reasonable fee as established by the
Texas Medical Board under Section 159.008, Occupations Code; and
(C) provide that any access to a list of patients
or to patients' medical records after termination of the contract
or employment shall not require such list or records to be provided
in a format different than that by which such records are maintained
except by mutual consent of the parties to the contract;
(2) the covenant must provide for a buyout [buy out] of
the covenant by the physician in an amount not greater than the
physician's total annual salary and wages at the time of
termination of the contract or employment; [at a reasonable price
or, at the option of either party, as determined by a mutually
agreed upon arbitrator or, in the case of an inability to agree, an
arbitrator of the court whose decision shall be binding on the
parties; and]
(3) the covenant must provide that the physician will
not be prohibited from providing continuing care and treatment to a
specific patient or patients during the course of an acute illness
even after the contract or employment has been terminated; and
(4) the covenant must provide that:
(A) it expires within one year of termination of
the contract or employment; and
(B) the radius of the geographical area subject
to the covenant is not greater than five miles.
SECTION 2. Subchapter E, Chapter 15, Business & Commerce
Code, is amended by adding Section 15.501 to read as follows:
Sec. 15.501. COVENANT NOT TO COMPETE FOR HEALTH CARE
PRACTITIONERS. (a) In this section, "health care practitioner"
means a person licensed in this state as a dentist, nurse, or
physician assistant.
(b) An employer may not require a health care practitioner
to enter into a covenant not to compete unless the covenant:
(1) provides for a buyout of the covenant by the health
care practitioner in an amount not greater than the practitioner's
total annual salary and wages at the time of termination of the
practitioner's contract or employment;
(2) provides that it expires within one year of the
date of termination of the contract or employment; and
(3) provides that the radius of the geographical area
subject to the covenant is not greater than five miles.
(c) A covenant not to compete entered into by a health care
practitioner that fails to comply with Subsection (b) is void and
unenforceable.
SECTION 3. Section 15.52, Business & Commerce Code, is
amended to read as follows:
Sec. 15.52. PREEMPTION OF OTHER LAW. The criteria for
enforceability of a covenant not to compete provided by Sections
[Section] 15.50 and 15.501 [of this code] and the procedures and
remedies in an action to enforce a covenant not to compete provided
by Section 15.51 [of this code] are exclusive and preempt [any]
other law, including [criteria for enforceability of a covenant not
to compete or procedures and remedies in an action to enforce a
covenant not to compete under] common law [or otherwise].
SECTION 4. The changes in law made by this Act apply only to
a covenant not to compete entered into or renewed on or after the
effective date of this Act. A covenant not to compete entered into
or renewed before the effective date of this Act is governed by the
law in effect on the date the covenant was entered into or renewed,
and the former law is continued in effect for that purpose.
SECTION 5. This Act takes effect September 1, 2023.